Beruflich Dokumente
Kultur Dokumente
Volume 35
Issue 2 Winter 1950
Article 3
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[V~ol. 35
1950]
329
the various drafts which existed prior to the adoption of the text
now in force.'
After reviewing these drafts the Court,' taking into account the contentions of the interested parties, stated that the interpretation of the text
contended for by the Polish Government would, in the opinion of the
Court, be incompatible with the preparatory work and "contrary to the
expressed intentions of the Conference of Ambassadors".8
In its Advisory Opinion on the 1919 Convention on Employment oJ
Women during the Night the Court said:
The Court has been so struck with the confident opinions expressed
by several delegates with expert knowledge of the subject at Geneva
during the discussions in 1930 and 1931 on the proposal to revise
the Washington Convention on Night Work of Women to the affect
that the Convention applied only to working women-ouvri resthat the Court has been led to examine the preparatory work of the
Convention in order to see whether or not it confirmed the opinions
expressed at Geneva.9
In doing so, the Court does not intend to derogate in any way from
the rule which it has laid down on previous occasions that there is
no occasion to have regard to preparatory work if the text of a
convention is sufficiently clear in itself.
In the Lighthouse cases the Court held:
The Court cannot regard the expression "duly entered into" as
a technical term, invariably possessing the same signification. Where
the context does not suffice to show the precise sense in which the
Parties to the dispute have employed these words in their. Special
Agreement, the Court, in accordance with its practice, has to consult
the documents preparatory to the Special Agreement, in order to
satisfy itself as to the true intention of the Parties'
Among the decisions rendered by Arbitral Tribunals the Salem claim
and the Soci~t6 Vinicole de Champagne v. W. de Mumm, case are of
special interest.
In the Salem claim (1932) the majority (2 to 1) held:
That an arbitral tribunal is authorized to interpret the arbitration
agreement (compromise) whereunder it is constituted has been contested in certain cases, but the prevailing opinion in international
practice acknowledges their right to do so. Such interpretation is
however only admissible if the wording of the compromise allows
6
7
8
9
Id. at 36-37.
P.C.I.J., Series A/B, No. 50, p. 378.
[Vol. 35
cases decided by the Mixed Arbitral Tribunals are to be found in the comments to the
Harvard Draft Convention, op. cit. at 959. For additional arbitral decisions which contain references to the significance of preparatory work see Cma.RLES RoussEAu, PRINcIPs
GfNxRAUx DU DROIT INTERNATIONAL PUBLIC (1944) at 736-739. On preparatory work see.
(1943);
591 (1935);
(1944),
(1943);
HYDE, 2 INTERNATIONAL LAW 1482-1483 (2nd ed. 1945); Lauterpacht, Some Observations on Preparatory Work in the Interpretation of Treaties, 48 HARV. L. REV. 549ROUSSEAU, PRINCIPES GNiRAUX DU DROIT INTERNATIONAL PUBLIC
especially at 748-762
(1935).
1950]
The two reports of the Committees were approved by the respective Commissions, and it is difficult to suppose that the carefully
chosen wording of these reports, considered first in the Committees,
and then by the Commissions, does not express their thoughts and
true intentions. On the contrary, I believe that these reports are
to be taken as agreements on the interpretation of the provisions
in question, and that consequently their terms must be understood
and applied in their normal meaning as forming the surest means of
interpreting Article 4 of the Charter. 14
Mr. Krylov, in his Dissenting Opinion, also relied on the preparatory
work.' 5
The following general principles may be derived from the opinion of
writers, 16 general principles of interpretation and numerous decisions
by international tribunals:
An international tribunal is in principle authorized to take travaux
pr~paratoiresinto consideration, provided a specific provision of a document or a rule established by oral agreement is unclear and its meaning
open to doubt. This authority includes the competence of the Court to
determine as to whether or not a specific rule is unclear. Parties to a
dispute may, however, in a compromis ad hoc exclude expressly the
Court's authority to resort to preparatory material.
Wherever dissenting or individual opinions of judges, arbiters, commissioners, are permissible 7 it is conceivable that the tribunal is divided
on the question as to whether a certain provision is clear.
The International Court of Justice for example, in its Advisory Opinion
of May 28, 1948 was so divided. Only the majority opinion held that
there was no need to resort to preparatory work.' 8
In addition to a situation where members of a Court differ as to
whether a specific rule is "clear", a situation is conceivable where a different interpretation of the rule is based on a different interpretation of
the travaux prnparatoires. The dissent of Judge Anzilotti to the Advisory
Opinion on the 1919 law on Employment of Women during the Night
may serve to illustrate the latter situation. It reads in part as follows:
For these reasons, I am of the opinion that a correct interpretation
14
15
16
17
Id. at 100.
Id., especially p. 110.
See note 12, supra.
See, for instance, Article 74, paragraph 2 of the Rules of Court of the International
Court of Justice which provides: "Any judge may, if he so desires, attach his individual
opinion to the judgment, whether he dissents from the majority or not, or a bare statement of his dissent. See also Article 84, paragraph 2 of the Rules of Court relating to Advisory Opinions which is in substance identical with Article 74, paragraph 2.
18 I.CJ. Reports 1948, p. 63.
[Vol. 35
19501
[Vol. 35
28Id. at 32.
1950]
"the States interested in the present dispute do not agree as to the true
meaning and the value of the Protocol, and it appears from the record
before the Court that the members of the [European Danube] Commission who had signed the Protocol also disagreed as to its proper meaning'. 29
As previously indicated an international tribunal usually enjoys broad
discretionary powers as to the admission or exclusion of evidence. However, if the Rules of Procedure of the tribunal provide for certain time
limits within which evidence has to be submitted, any evidence furnished
by either party after the expiration of such time limits may validly be
excluded. A Rule to this effect is contained, for instance, in Article 48
of the Rules of Court of the International Court of Justice.
In short, there is probably no general rule of international law requiring
a court to exclude evidence as such.31 As concerns extrinsic evidence,
however, the general principle is recognized that extrinsic evidence is admissible only if the intrinsic evidence is inconclusive.
Appreciation of evidence
A distinction has frequently been made between the admission and the
appreciation of evidence. There is considerable agreement that freedom
in the admission of evidence means that any evidence at all will be
admitted, i.e., it will go into the record and be considered by the tribunal; freedom in evaluation of evidence means that the tribunal will be
enabled to give to the evidence admitted such weight as it desires.32
In practice international tribunals have frequently in the same ruling
asserted both freedoms. In this section supporting statements are quoted
primarily with a view to proving that the principle of freedom in the
evaluation of evidence has been widely accepted.
This freedom of evaluation has been clearly formulated in two cases
decided by the Mexican Claims Commission:
As far as the kind of evidence is concerned, our Commission is not
bound by any rule of the Convention . ..and it has the greatest
freedom of appreciation in this regard; .. .it considers the testimony, declarations and expert opinions in the record as amply sufficient to establish the nature and the importance of the losses of
which claimants complain.33
29 Id. at 33.
30 On Time of Submission of Evidence, see,
SADI ER,
31 Id. at 129.
32 FELLER, op. cit., p. 259. On "freedom of appreciation", see also SANDIFER, op. cit., p. 12.
"The general principle that the probative force of the evidence presented is for the tribu-
.[Vol.
35
In accordance with the provisions of Art. 25 of the Rules, the Commission will receive and consider all declarations, documents and
other written evidence presented by the agents; consequently, the
evaluation of these documents, declarations and other evidence is
subject to the judgment of the Commission in every case, without
subjection to special rules of procedure.'
In the Arbitral Award in the Island of Palmas case Max Huber, the
sole arbitrator, held:
It is for the Arbitrator to decide both whether allegations do or
-as being within the knowledge of the tribunal-do not need evidence in support and whether the evidence produced is sufficient
or not; and finally whether points left aside by the parties ought
to be elucidated. This liberty is essential to him, for he must be
able to satisfy himself on those points which are necessary to the
legal construction upon which he feels bound to base his judgment.
He must consider the totality of the allegations and evidence laid
before him by the Parties, either motu proprio or at his request and
decide what allegations are to be considered as sufficiently substantiated.3 5
The Permanent Court of International Justice ruled in the case concerning German Interests in Upper Silesia that "the Court is entirely free
to estimate the value of statements made-by the parties." 6
Although there can be no doubt that the principle of the freedom in
the appreciation of evidence is generally recognized in international law,
it would be erroneous to assume that this principle is only recognized
in international law. Actually many modern codes of civil procedure
have embodied it as basic. The Austrian and German Codes of Civil
Procedure, for instance, have incorporated the principle of the freie
Beweiswiirdigung and in the practice of French Courts the principle of
libre conviction is recognized. 7
Commission, Decision No. 70 (unpublished)), quoted in F=ILFR, op, cit, pp. 258-259
(note 19).
34 Rep. Alemana (Jwan Andresen) v. Estados Unidos Mexicanos (German-Mexican Commission, Decision No. 17 (unpublished)), quoted ibid.
35 2
AwARDs
(U.N) 841.
1950]
[Vol. 35
June 9, 1815, and to consider what position was adopted by the Treaty
of Versailles in regard to these principles.40
In the Eastern Greenland case the Permanent Court of International
Justice surveyed briefly the history of Greenland from 900 A.D. to the
Peace Treaty of Kiel, dated January 14th, 1814. The Court considered
as evidence of the legal status of Greenland prior to 1380, the year when
the Kingdoms of Norway and Denmark were united, reports by a saga
writer. It stated: "The historian, or saga writer, Sturda Thordarson
tells (about 1261) how the men of Greenland undertook to pay tribute,
and how for every man murdered, a fine should be payable to the King
[of Norway] .
4....
1
The circumstances prevailing at the time of the conclusion of a convention may be the result of events that have occurred decades or even
centuries ago. It should be noted that the circumstances prevailing at
the time of the conclusion of a convention take on a particular significance, if the maintenance of the status quo ante, i.e., the circumstances
prior to the conclusion of the convention constitute an integral consideration. In its Advisory Opinion concerning the European Danube Commission the Court held:
...it is quite reasonable to suppose that the controversy was settled
on the basis of the status quo ante bellum ....
the restoration of
the status quo ante bellum was one of the leading principles of the
provisions of the Treaty of Versailles concerning the Danube as well
as of those of the Definitive Statute.
The Court therefore has arrived at the conclusion that the words
"under the same conditions as before and without any modification
of its existing limits" in Article 6 of the Definitive Statute, refer
to the conditions which existed in fact before the war in the contested sector, and that their effect is to maintain and confirm these
conditions .....
42
1950]
fulfillment of the promise,"" the Court did not see any reason for giving
special weight to the reference to this "matter of history."
Express reference to the circumstances leading to a certain legal situation is to be found in the Advisory Opinion concerning the Treatment of
Polish Nationals. Here the Court declared:
The prohibition against discrimination can best be understood in the
light of the circumstanceswhich led to the creation of Danzing as a
Free City4
Similarly, the judgment on the Free Zones of Upper Savoy and the
District of Gex reads in part as follows:
All the instruments above mentioned and the circumstances in which
they were drawn up establish, in the Court's opinion, that the intention of the Powers was, . . . to create in favour of Switzerland a right
P.C.I.J., Series
P.C.I.J., Series
P.C.I.3., Series
1 PROCEEDINGS
47 Ibid.
78.
[Vol. 3 5
recognized at the time of the conclusion of a convention and subsequent modifications of these principles, (5) a combination of two or all
of the foregoing factors. In addition, circumstances subsequent to the
conclusion of such a convention may be taken into account. In particular the conduct of the parties subsequent to the conclusion of a treaty may
be an extremely significant element 4 8 Since a treaty or convention may be
abrogated through conclusive acts of one of the parties thereto, it follows
a fortiori that the conduct of the parties to a validly concluded treaty
may not only affect the treaty in its entirety, but also the meaning of
individual provisions.
However that may be, the problems that axe traditionally discussed in
connection with the clausula rebus sic stantibus are outside the scope of
this paper.
"Facts"--NotoriousFacts, Facts That Require Evidence
There is ample evidence that legally relevant "facts" are matters of
concern to international tribunals. Special procedures, designed to ascertain such facts and to ensure proper evaluation of such facts, have
been developed under international law and recognized by international
tribunals.
The 1899 and 1907 Hague Conventions for the Pacific Settlement of
International Disputes, for instance, provided expressly for International
Commissions of Inquiry to facilitate the settlement of disputes "arising
from a difference of opinion on points of fact." (See Article 9 of the
1907 Convention.) Under Article 10 of the 1907 Convention the Inquiry Commission "defines the facts to be examined. . .
."
By virtue of
1950]
contain several references to "facts." Article 42(1) of the Rules, provides that "A Memorial shall contain a statement of the relevant facts,
a statement of law, and the submissions." The so-called optional clause
(Article 36, paragraph 2 of the Statute) recognizes in subparagraph (c)
"the jurisdiction of the Court in all legal disputes concerning . . . the
existence of any fact which, if established, would constitute a breach of
an international obligation." Moreover, Article 61, paragraph 1 of the
Statute provides that an application for revision of judgment may be
made if "it is based upon the discovery of some fact of such a nature as
to be a decisive factor, which fact was, when the judgment was given,
unknown to the Court and also to the party claiming revision, always
provided that such ignorance was not due to negligence."
It follows from the principle of the freedom in appreciation of evidence"0 that the International Court of Justice has complete freedom to
decide whether certain facts are relevant and whether the evidence at.
the disposal of the Court concerning such facts is satisfactory. In this
connection it sbould be noted that Articles 53 to 55 of the Rules of Court
contain special provisions as to witnesses and experts.
As to "notorious facts" it seems to be a general principle of law, inherent in the meaning of the term "notorious facts," that no evidence
is required to prove a notorious fact."
Thus in the case Fabiani v. Venezuela the arbitrator, the President of
the Swiss Confederation, held that even in ordinary tribunals's2 notice
could be taken of facts so notorious that proof would be unnecessary and
that there are even stronger reasons to apply this principle in matters of
international arbitration provided the application of the principle has
not been excluded by the parties. 3
Certain "historical facts" may be considered notorious, but not all
"historical facts" are necessarily of this sort. On the contrary, extensive
research may be required to ascertain a "historical fact." Conversely,
a fact may be notorious, but not of a general significance and therefore
not historical. In short, if a "historical fact" is a "notorious fact" no
evidence is required, but if a "historical fact" is not a "notorious fact"
50 See, discussion on "Appreciation of Evidence," supra.
51 SA D ER states, op. cit., that this principle is to be found only in Anglo-American and
ARBiTAIoNs (1898) to which the United States has been a Party, at page 4905.
342
[Vol. 35
1950]
vention. On the other hand, to the extent that it has expressly been
stated in the text of the convention at issue, it cannot be deemed extraneous evidence.
The intention of the parties insofar as it can be inferred from the
travaux pr~paratoiresand surrounding circumstances has been discussed
in the first and fourth parts of this paper. Intention may, however, be
proved by other means such as conclusive acts, or the objects of the convention. It may be added that consideration of the intention of the parties
is a basic principle underlying the domestic law on the interpretation of
contracts in many countries. This principle has been embodied, for instance, in Article 1156 of the French Civil Code, Paragraph 914 of the
Austrian Civil Code, Sections 133 and 157 of the German Civil Code,
and Section 18 of the Swiss Code on Obligations (Schweizerisckes Obligationenrecht).
It is a widely recognized principle that an international tribunal
should seek to ascertain from all the available evidence the intention of
the parties to a convention. 9
Of the numerous decisions on this question by international tribunals
the following cases seem to be of special interest:
In the van Bokkelen case the arbitrator held:
..the judicial tribunals of a country, when called upon to decide
controversies between individuals which grow out of or are dependent upon treaty stipulations, will not hesitate to construe the language of those treaties according to the rules of law which apply
to all instruments. They will construe the provisions so as to give
effect to rather than to defeat the intention of the contracting parties;
and they will reconcile apparent conflicts of particular parts by reference to the context in which they occur and to the whole instrument.6 0
The arbitrator in the Manica case referred to "the rule of legal interpretation, according to which the expressions made use of in a contract
must be taken in the sense most in accordance with the intentions of the
parties who have arranged it and the most favorable to the aim of the
contract. . .. ",
59 See for instance, McNAiR, TnE LAW OF TREATIES 185 (1938). "The primary rule is
that the tribunal should seek to ascertain from all the available evidence the intention of
the parties in using the word or phrase being interpreted." It should be noted that McNair
does not make any distinction as to whether such evidence is extrinsic or intrinsic evidence.
By contrast, Ehrlich, L'Interpritation des Trait~s, 24 REcuEm DES CouRs 117-139, considers the "intention of the parties" exclusively as a matter of extrinsic evidence by discussing it under the heading "Recherche de la Volont6 en Dehors du texte."
60 For full report, see, MooRE, 2 HISTORY AxD DIGEST OF THE INTERNATIONAL ARBiTRATION 1837 f. (especially at 1852).
61 Id. (vol. 5) at 5011.
[Vol. 35
In the case of the Ottomon Public Debt the arbitrator stated in reference to a question at issue:
De l'avis de l'Arbitre, la question doit 6tre r~solue, non d'apr~s une
r6gle de droit pur, mais bien plut6t en conformit6 de l'intention commune des Hautes Parties contractantes, telle que l'Arbitre est appel6
A.l'interpreter.62
Similarly, the Permanent Court of International Justice ruled in the
Ckorzow case as follows:
For the interpretation of Article 23 [of the Geneva Convention between Germany and Poland signed at Geneva May 15, 192-2] account must be taken not only of the historical development of arbitration treaties, as well as of the terminology of such treaties, and
of the grammatical and logical meaning of the words used, but also
and more especially of the function which, in the intention of the
contracting parties is to be attributed to this provision."3
To be sure, the principle that extraneous evidence may be sought by
an international tribunal to ascertain the intention of the parties may
be subject to the following qualifications: (1) an international tribunal
is authorized to resort to extraneous evidence as to the intention of the
parties only if the meaning of the text does not closely reveal the
intention of the parties; 64 (2) several writers on international law
contend that the interpretation of a treaty by reference to the express or implied intention of the parties is hardly applicable to treaties
in which the intention of one of the contracting parties was of little
consequence, i.e., to treaties imposed by force; 65 (3) other writers contend that in case of certain multilateral treaties, especially those that
62 Affaire de la Dette Publique Ottomane (1925) in 2 REPORTS o ITERATiONAL ARBITRAL AwARDs (U.N.) 556.
63 P.C.I.J., Series A, No. 9, p. 24. For a discussion of the rulings of the Permanent Court
~rE
CourT
of International Justice on "intention of the parties," see, HuDsoN, T3E PERR=
or NITERNATIONAL JUsTICE, 1920-1942 at 643-645 (1943).
64 See on this point Yi-TNO CHANG, THE INTERPRETATION oF TREATIES BY JUDICIAL
N T
(1933). In this connection see also the Treaty of St.-Gerinain (Yugoslav Liquidations) case
decided by the Austrian Supreme Court, April 11, 1934.
treaty of St.-Germain had been interpreted in accordance with the intention of the Parties
the Court ruled: "It
cannot be said that there has been a departure from the 'avowed
intention' of the Treaty. Since that document, although for the most part representing the
dictates of the Allied and Associated Powers, is nevertheless to be regarded as being in
essence an agreement, we must look not only to the will of the victor States but also to
the discoverable intention of Austria . . ." (Translation in A.ruAL DIGEST AND REPORTS
of PUBIc INTERNATIONAL LAW CASES (1933-1934)) (Lauterpacht ed.) Case No. 118, p.
297-298.
1950]
70 P. C.I. I., Series A/B, No. 46, p. 561. See also statement by the arbitrator (Mr.
Unden) in the Greek-Bulgarian dispute concerning some forests in Central Rhodope (1931)
[translation in 28 A.r. 3. INT'L LAW 760, 770 (1934)]. "It is a principle universally recognized
that a stipulation limiting the sovereignty of a state must be interpreted strictly. In case
of doubt limitation of sovereignty is not presumed."
71 See ROUssEAU, PRJNCIpES GgNRAuX DU Daorr INTERNATIONAL PUBLIC 692 (1944),
1...
interpritation restrictive n'est qu'un moyen subsidiaire exclusivement utilisable pour
l'claircissement de dispositions obscures ou 6quivoques; mais on ne saurait par ce procd6
contredire un texte clair."
[Vol. 35
In support of this thesis the following decisions of international tribunals may be quoted:
In the Arbitral award in divergence of opinion between German Government and Commissioner of Controlled Revenue, the arbitrator (Mr.
Sandenburg) held:'
: * . in the case in point the contention that the Commissioner's
interpretation of the Article would be an infringement of the sovereignty of the state is in reality a petitio principii; the fact that the
article constitutes a limitation on the exercise of the right of sovereignty makes it an obligation to interpret it strictly; but this obligation could never mean that the article is denied the meaning which
its wording formally requires; the exact meaning has therefore to
be determined by all justifiable means.' 2
In the Oder Commission case the Permanent Court of International
Justice declared:
Nor can the court, on the other hand, accept the Polish Government's contention that, the text being doubtful, the solution should
be adopted which imposes the least restriction on the freedom of
states. This argument, though sound in itself, must be employed
only with the greatest caution.7'
In its Advisory Opinion on Minority Schools in Albania the same Court
held:
The Court, having thus established that paragraph 1 of Article 5 of
the Declaration, both according to its letter and its spirit, confers
on Albanian nationals of racial, religious or linguistic minorities the
right that is stipulated in the second sentence of that paragraph,
finds it unnecessary to examine the subsidiary argument adduced
by the Albanian Government to the effect that the text in question
should in case of doubt be interpreted in the sense that is most
favourable to the sovereignty of the State. 4
Means of Evidence
"Means of evidence" (Moyens de la preuve, Beweismittel) are all
types of evidence which may be considered by a tribunal, irrespective
of whether the tribunal considers a particular piece of evidence relevant
or not. The designation of a piece of evidence as "means of evidence"
is a purely formal one, that is to say, the nature of the evidence and its
probative force are determined by the content of the evidence.
"Means of evidence" are frequently classified as: documentary and
72 Text in 21 Am. J. INT'L LAW 326, 343 (1927).
73 p. C. I. J., Series A, No. 23, p. 24.
74 P. C. I. J., Series A/B, No. 64, p. 22.
1950]
Ibid., 257.
[Vol. 35
1. International tribunals enjoy, in principle, the greatest freedom as to the admission of evidence, and are not bound by restrictive rules of evidence applicable in certain national legal systems.
2. International tribunals enjoy the greatest freedom in the appreciation of evidence.
(ii)