CASE CONCERNING THE TEMPLE OF PREAH VIHEAR

(MERITS)
Judgment of 15 June 1962
Proceedings in the case concerning the Temple of Preah Vihear, between Cambodia and Thailand, were instituted on 6
October 1959 by an Application of the Government of Cambodia; the Government of Thailand having raised two
preliminary objections, the Court, by its Judgment of 26 May 1961, found that it had jurisdiction.

In its Judgment on the merits the Court, by nine votes to three, found that the Temple of Preah Vihear was situated in
territory under the sovereignty of Cambodia and, in consequence, that Thailand was under an obligation to withdraw any
military or police forces, or other guards or keepers, stationed by her at the Temple, or in its vicinity on Cambodian territory.

By seven votes to five, the Court found that Thailand was under an obligation to restore to Cambodia any sculptures, stelae,
fragments of monuments, sandstone model and ancient pottery which might, since the date of the occupation of the Temple
by Thailand in 1954, have been removed from the Temple or the Temple area by the Thai authorities.

Judge Tanaka and Judge Morelli appended to the Judgment a Joint Declaration. Vice-President Alfaro and Judge Sir Gerald
Fitzmaurice appended Separate Opinions; Judges Moreno Quintana, Wellington Koo and Sir Percy Spender appended
Dissenting Opinions.
*
**
In its Judgment, the Court found that the subject of the dispute was sovereignty over the region of the Temple of Preah
Vihear. This ancient sanctuary, partially in ruins, stood on a promontory of the Dangrek range of mountains which
constituted the boundary between Cambodia and Thailand.

The dispute had its fons et origo in the boundary settlements made in the period 1904-1908 between France, then
conducting the foreign relations of Indo-China, and Siam. The application of the Treaty of 13 February 1904 was, in
particular, involved. That Treaty established the general character of the frontier the exact boundary of which was to be
delimited by a Franco-Siamese Mixed Commission

In the eastern sector of the Dangrek range, in which Preah Vihear was situated, the frontier was to follow the watershed
line. For the purpose of delimiting that frontier, it was agreed, at a meeting held on 2 December 1906, that the Mixed
Commission should travel along the Dangrek range carrying out all the necessary reconnaissance, and that a survey officer
of the French section of the Commission should survey the whole of the eastern part of the range.

It had not been contested that the Presidents of the French and Siamese sections duly made this journey, in the course of
which they visited the Temple of Preah Vihear. In January-February 1907, the President of the French section had reported
to his Government that the frontier-line had been definitely established. It therefore seemed clear that a frontier had been
surveyed and fixed, although there was no record of any decision and no reference to the Dangrek region in any minutes of
the meetings of the Commission after 2 December 1906. Moreover, at the time when the Commission might have met for
the purpose of winding up its work, attention was directed towards the conclusion of a further Franco-Siamese boundary
treaty, the Treaty of 23 March 1907.

The final stage of the delimitation was the preparation of maps. The Siamese Government, which did not dispose of adequate
technical means, had requested that French officers should map the frontier region. These maps were completed in the
autumn of 1907 by a team of French officers, some of whom had been members of the Mixed Commission, and they were
communicated to the Siamese Government in 1908. Amongst them was a map of the Dangrek range showing Preah Vihear
on the Cambodian side. It was on that map (filed as Annex I to its Memorial) that Cambodia had principally relied in support
of her claim to sovereignty over the Temple. Thailand, on the other hand, had contended that the map, not being the work
of the Mixed Commission, had no binding character; that the frontier indicated on it was not the true watershed line and
that the true watershed line would place the Temple in Thailand, that the map had never been accepted by Thailand or,
alternatively, that if Thailand had accepted it she had done so only because of a mistaken belief that the frontier indicated
corresponded with the watershed line.

The Annex I map was never formally approved by the Mixed Commission, which had ceased to function some months
before its production. While there could be no reasonable doubt that it was based on the work of the surveying officers in
the Dangrek sector, the Court nevertheless concluded that, in its inception, it had no binding character.

It was clear from the record, however, that the maps were communicated to the Siamese Government as purporting to
represent the outcome of the work of delimitation; since there was no reaction on the part of the Siamese authorities, either
then or for many years, they must be held to have acquiesced. The maps were moreover communicated to the Siamese
members of the Mixed Commission, who said nothing to the Siamese Minister of the Interior, Prince Damrong, who thanked
the French Minister in Bangkok for them, and to the Siamese provincial governors, some of whom knew of Preah Vihear.
If the Siamese authorities accepted the Annex I map without investigation, they could not now plead any error vitiating the
reality of their consent.

The Siamese Government and later the Thai Government had raised no query about the Annex I map prior to its negotiations
with Cambodia in Bangkok in 1958. But in 1934-1935 a survey had established a divergence between the map line and the
true line of the watershed, and other maps had been produced showing the Temple as being in Thailand: Thailand had
nevertheless continued also to use and indeed to publish maps showing Preah Vihear as lying in Cambodia.
Moreover, in the course of the negotiations for the 1925 and 1937 Franco-Siamese Treaties, which confirmed the existing
frontiers, and in 1947 in Washington before the Franco-Siamese Conciliation Commission, it would have been natural for
Thailand to raise the matter: she did not do so. The natural inference was that she had accepted the frontier at Preah Vihear
as it was drawn on the map, irrespective of its correspondence with the watershed line. Thailand had stated that having been,
at all material times, in possession of Preah Vihear, she had had no need to raise the matter; she had indeed instanced the
acts of her administrative authorities on the ground as evidence that she had never accepted the Annex I line at Preah Vihear.
But the Court found it difficult to regard such local acts as negativing the consistent attitude of the central authorities.
Moreover, when in 1930 Prince Damrong, on a visit to the Temple, was officially received there by the French Resident for
the adjoining Cambodian province, Siam failed to react.

From these facts, the court concluded that Thailand had accepted the Annex I map. Even if there were any doubt in this
connection, Thailand was not precluded from asserting that she had not accepted it since France and Cambodia had relied
upon her acceptance and she had for fifty years enjoyed such benefits as the Treaty of 1904 has conferred on her.
Furthermore, the acceptance of the Annex I map caused it to enter the treaty settlement; the Parties had at that time adopted
an interpretation of that settlement which caused the map line to prevail over the provisions of the Treaty and, as there was
no reason to think that the Parties had attached any special importance to the line of the watershed as such, as compared
with the overriding importance of a final regulation of their own frontiers, the Court considered that the interpretation to be
given now would be the same.

The Court therefore felt bound to pronounce in favour of the frontier indicated on the Annex I map in the disputed area and
it became unnecessary to consider whether the line as mapped did in fact correspond to the true watershed line.
For these reasons, the Court upheld the submissions of Cambodia concerning sovereignty over Preah Vihear.

Whitney v. Robertson
Argued December 13-14, 1887
Decided January 9, 1888
124 U.S. 190
ERROR TO THE CIRCUIT COURT OF THE UNITED
STATES FOR THE SOUTHERN DISTRICT OF NEW YORK
Syllabus
The Treaty of February 8, 1861, with the Dominican Republic (art. 9) provides that
"No higher or other duty shall be imposed on the importation into the United states of any article the growth, produce, or
manufacture of the Dominican Republic, or of her fisheries, than are or shall be payable on the like articles the growth,
produce, or manufacture of any other foreign country or of its fisheries."
The Convention of January 30, 1575, with the King of the Hawaiian Islands provides for the importation into the United
States, free of duty, of various articles, the produce and manufacture of those islands (among which were sugars), in
consideration of certain concessions made by the King of the Hawaiian Islands to the United States. Held that this provision
in the treaty with the Dominican Republic did not authorize the admission into the United States, duty free, of similar sugars,
the growth, produce, or manufacture of that republic as a consequence of the agreement made with the King of the Hawaiian
Islands, and that there was no distinction in principle between this case and Bartram v. Robertson,122 U. S. 116.
By the Constitution of the United States, a treaty and a statute are placed on the same footing, and if the two are inconsistent,
the one last in date will control, provided the stipulation of the treaty on the subject is self-executing.
This was an action to recover back duties alleged to have been illegally exacted. Verdict for the defendant and judgment on
the verdict. The plaintiffs sued out this writ of error.
MR. JUSTICE FIELD delivered the opinion of the Court.
The plaintiffs are merchants doing business in the City of New York, and in August, 1882, they imported a large quantity
of "centrifugal and molasses sugars," the produce and manufacture of the Island of San Domingo. These goods were similar
in kind to sugars produced in the Hawaiian Islands, which are admitted free of duty under the treaty with the King of those
islands and the act of Congress passed to carry the treaty into effect. They were duly entered at the custom house at the port
of New York, the plaintiffs claiming that by the treaty with the Republic of San Domingo, the goods should be admitted on
the same terms -- that is, free of duty -- as similar articles the produce and manufacture of the Hawaiian Islands. The
defendant, who was at the time collector of the port, refused to allow this claim, treated the goods as dutiable articles under
the acts of Congress, and exacted duties on them to the amount of $21,936. The plaintiffs appealed from the collector's
decision to the Secretary of the Treasury, by whom the appeal was denied. They then paid, under protest, the duties exacted,
and brought the present action to recover the amount.
The complaint set forth the facts as to the importation of the goods; the claim of the plaintiffs that they should be admitted
free of duty, because like articles from the Hawaiian Islands were thus admitted; the refusal of the collector to allow the
claim; the appeal from his decision to the Secretary of the Treasury, and its denial by him, and the payment, under protest,
of the duties exacted, and concluded with a prayer for judgment for the amount. The defendant demurred to the complaint,
the demurrer was sustained, and final judgment was entered in his favor; to review which the case is brought here.
The treaty with the King of the Hawaiian Islands provides for the importation into the United States, free of duty, of various
articles, the produce and manufacture of those islands, in consideration, among other things, of like exemption from duty
on the importation into that country of sundry specified articles which are the produce and manufacture of the United States.
19 Stat. 625. The language of the first two articles of the treaty, which recite the reciprocal engagements of the two countries,
declares that they are made in consideration"of the rights and privileges," and "as an equivalent therefor," which one
concedes to the other.
The plaintiffs rely for a like exemption of the sugars imported by them from San Domingo upon the ninth article of the
treaty with the Dominican Republic, which is as follows:
"No higher or other duty shall be imposed on the importation into the United States of any article, the growth, produce, or
manufacture of the Dominican Republic, or of her fisheries, and no higher or other duty shall be imposed on the importation
into the Dominican Republic of any article, the growth, produce, or manufacture of the United States, or their fisheries, than
are or shall be payable on the like articles, the growth, produce, or manufacture of any other foreign country, or its fisheries."
15 Stat. 475.
In Bartram v. Robertson, decided at the last term, 122 U. S. 116, we held that brown and unrefined sugars, the produce and
manufacture of the Island of St. Croix, which is part of the dominions of the King of Denmark, were not exempt from duty
by force of the treaty with that country, because similar goods from the Hawaiian Islands were thus exempt. The first article
of the treaty with Denmark provided that the contracting parties should not grant "any particular favor" to other nations in
respect to commerce and navigation which should not immediately become common to the other party, who should "enjoy
the same freely if the concession were freely made, and upon allowing the same compensation if the concession were
conditional." 11 Stat. 719. The fourth article provided that no "higher or other duties" should be imposed by either party on
the importation of any article which is its produce or manufacture into the country of the other party than is payable on like
articles, being the produce or manufacture of any other foreign country. And we held in the case mentioned that
"Those stipulations, even if conceded to be self-executing by the way of a proviso or exception to the general law imposing
the duties, do not cover concessions like those made to the Hawaiian Islands for a valuable consideration. They were pledges
of the two contracting parties, the United States and the King of Denmark, to each other that, in the imposition of duties on
goods imported into one of the countries which were the produce or manufacture of the other, there should be no
discrimination against them in favor of goods of like character imported from any other country. They imposed an obligation
upon both countries to avoid hostile legislation in that respect, but they were not intended to interfere with special
arrangements with other countries founded upon a concession of special privileges."
The counsel for the plaintiffs meet this position by pointing to the omission in the treaty with the Republic of San Domingo
of the provision as to free concessions, and concessions upon compensation, contending that the omission precludes any
concession, in respect of commerce and navigation, by our government to another country without that concession's being
at once extended to San Domingo. We do not think that the absence of this provision changes the obligations of the United
States. The ninth article of the treaty with that republic, in the clause quoted, is substantially like the fourth article in the
treaty with the King of Denmark, and as we said of the latter, we may say of the former -- that it is a pledge of the contracting
parties that there shall be no discriminating legislation, against the importation of articles which are the growth, produce, or
manufacture of their respective countries, in favor of articles of like character imported from any other country. It has no
greater extent. It was never designed to prevent special concessions, upon sufficient considerations, touching the importation
of specific articles into the country of the other. It would require the clearest language to justify a conclusion that our
government intended to preclude itself from such engagements with other countries which might in the future be of the
highest importance to its interests.
But independently of considerations of this nature, there is another and complete answer to the pretensions of the plaintiffs.
The act of Congress under which the duties were collected authorized their exaction. It is of general application, making no
exception in favor of goods of any country. It was passed after the treaty with the Dominican Republic, and, if there be any
conflict between the stipulations of the treaty and the requirements of the law, the latter must control. A treaty is primarily
a contract between two or more independent nations, and is so regarded by writers on public law. For the infraction of its
provisions, a remedy must be sought by the injured party through reclamations upon the other.

When the stipulations are not self-executing, they can only be enforced pursuant to legislation to carry them into effect, and
such legislation is as much subject to modification and repeal by Congress as legislation upon any other subject. If the treaty
contains stipulations which are self-executing -- that is, require no legislation to make them operative -- to that extent they
have the force and effect of a legislative enactment. Congress may modify such provisions so far as they bind the United
States, or supersede them altogether. By the Constitution, a treaty is placed on the same footing, and made of like obligation,
with an act of legislation. Both are declared by that instrument to be the supreme law of the land, and no superior efficacy
is given to either over the other. When the two relate to the same subject, the courts will always endeavor to construe them
so as to give effect to both, if that can be done without violating the language of either; but if the two are inconsistent, the
one last in date will control the other, provided always the stipulation of the treaty on the subject is self-executing. If the
country with which the treaty is made is dissatisfied with the action of the legislative department, it may present its complaint
to the executive head of the government and take such other measures as it may deem essential for the protection of its
interests. The courts can afford no redress. Whether the complaining nation has just cause of complaint or our country was
justified in its legislation are not matters for judicial cognizance. In Taylor v. Morton, 2 Curtis 454, 459, this subject was
very elaborately considered at the circuit by Mr. Justice Curtis of this Court, and he held that whether a treaty with a foreign
sovereign had been violated by him; whether the consideration of a particular stipulation of the treaty had been voluntarily
withdrawn by
Page 124 U. S. 195
one party so that it was no longer obligatory on the other; whether the views and acts of a foreign sovereign had given just
occasion to the legislative department of our government to withhold the execution of a promise contained in a treaty, or to
act in direct contravention of such promise were not judicial questions; that the power to determine these matters had not
been confided to the judiciary, which has no suitable means to exercise it, but to the executive and legislative departments
of our government, and that they belong to diplomacy and legislation, and not to the administration of the laws. And he
justly observed as a necessary consequence of these views that if the power to determine these matters is vested in Congress,
it is wholly immaterial to inquire whether by the act assailed it has departed from the treaty or not, or whether such departure
was by accident or design, and if the latter, whether the reasons were good or bad.
In these views we fully concur. It follows, therefore, that when a law is clear in its provisions, its validity cannot be assailed
before the courts for want of conformity to stipulations of a previous treaty not already executed. Considerations of that
character belong to another department of the government. The duty of the courts is to construe and give effect to the latest
expression of the sovereign will. In Head Money Cases, 112 U. S. 580, it was objected to an act of Congress that it violated
provisions contained in treaties with foreign nations, but the Court replied that so far as the provisions of the act were in
conflict with any treaty, they must prevail in all the courts of the country, and after a full and elaborate consideration of the
subject it held that
"so far as a treaty made by the United States with any foreign nation can be the subject of judicial cognizance in the courts
of this country, it is subject to such acts as Congress may pass for its enforcement, modification, or repeal."
Judgment affirmed.

Head Money Cases

Argued November 19, 20, 1884

Decided December 8, 1884

112 U.S. 580

I
IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES

FOR THE EASTERN DISTRICT OF NEW YORK

Syllabus

The act of Congress of August 8, 1882, "to regulate immigration," which imposes upon the owners of steam or sailing
vessels who shall bring passengers from a foreign port into a port of the United States, a duty of fifty cents for every such
passenger not a citizen of this country, is a valid exercise of the power to regulate commerce with foreign nations.

Though the previous cases in this court on that subject related to State statutes only, they held those statutes void on the
ground that authority to enact them was vested exclusively in Congress by the Constitution, and necessarily decided that,
when Congress did pass such a statute, which it has done in this case, it would be valid.

The contribution levied on the ship owner by this statue is designed to mitigate the evils incident to immigration from
abroad by raising a fund for that purpose, and it is not, in the sense of the Constitution, a tax subject to the limitations
imposed by that instrument on the general taxing power of Congress.

A tax is uniform, within the meaning of the constitutional provision on that subject, when it operates with the same effect
in all places where the subject of it is found, and is not wanting in such uniformity because the thing taxed is not equally
distributed in all parts of the United States.

A treaty is primarily a compact between independent nations, and depends for the enforcement of its provisions on the
honor and the interest of the governments which are parties to it. If these fail, its infraction becomes the subject of
international reclamation and negotiation, which may lead to war to enforce them. With this, judicial courts have nothing
to do.

But a treaty may also confer private rights on citizens or subjects of the contracting powers which are of a nature to be
enforced in n court of justice, and which, in cases otherwise cognizable in such courts, furnish rules of decision. The
Constitution of the United States makes the treaty, while in force, a part of the supreme law of the land in all courts where
such rights are to be tried.

But in this respect, so far as the provisions of a treaty can become the subject of judicial cognizance in the courts of the
country, they are subject to such acts as Congress may pass for their enforcement, modification, or repeal.
These suits were brought to recover back sums collected at various times as duties on immigrants arriving in the United
States, under the provision of the act of August 3, 1882, 23 Stat. 21,

"that there shall be levied, collected, and paid a duty of fifty cents for each and every passenger not a citizen of the United
States, who shall come by steam or sail vessel from a foreign port to any port within the United States."

Protests were filed against each payment, and all other steps required as foundations for the actions were taken. In the
Edye Case, there was a trial, jury being waived, a finding of facts, a judgment, and exceptions. 18 Fed.Rep. 13. In the
Cunard Cases, judgment was entered in favor of the collector on demurrer to the complaints. The causes were brought
here on writs of error.

MR. JUSTICE MILLER delivered the opinion of the court.

These cases all involve the same questions of law, and have been argued before this court together.

The case at the head of the list presents all the facts in the form of an agreed statement signed by counsel, and it therefore
brings the questions before us very fully. The other two were decided by the Circuit Court on demurrer to the declaration.

They will be disposed of here in one opinion, which will have reference to the case as made by the record in Edye &
Another v. Robertson.

The suit is brought to recover from Robertson the sum of money received by him, as collector of the port of New York,
from plaintiffs on account of their landing in that port passengers from foreign ports, not citizens of the United States, at
the rate of fifty cents for each of such passengers, under the act of Congress of August 3, 1882, entitled " An Act to
regulate immigration."

The petition of plaintiffs and the agreed facts, which are also made the finding of the court to which the case was
submitted without a jury, are the same with regard to each of many arrivals of vessels of the plaintiffs, except as to the
name of the vessel and the number and age of the passengers. The statement as to the arrival first named, which is here
given, will be sufficient for them all for the purposes of this opinion.

The following are admitted to be the facts in this action:

"I. That the plaintiffs are partners in trade in the city of New York under the firm name of Funch, Edye & Co., and carry
on the business of transporting passengers and freight upon the high seas between Holland and the United States of
America as consignees and agents."

"That on the 2d day of October, 1882, there arrived, consigned to the plaintiffs, the Dutch ship Leerdam, owned by certain
citizens or subjects of the Kingdom of Holland and belonging to the nationality of Holland, at the port of New York. She
had sailed from the foreign port of Rotterdam, in Holland, bound to New York, and carried 382 persons not citizens of tile
United States."

"That, among said 382 persons, 20 were severally under the age of one year, and 9 were severally between the ages of one
year and eight years."

"That, upon the arrival of said steamship Leerdam within the collection district of New York, the master thereof gave, in
pursuance to section nine of the passenger act of 1882, and delivered to the custom house officer, who first came on board
the vessel and made demand therefor, a correct list, signed by the master, of all the passengers taken on board of said
Leerdam at said Rotterdam, specifying separately the names of the cabin passengers, their age, sex, calling, and the
country of which they are citizens, and also the name, age, sex, calling, and native country of each emigrant passenger or
passengers other than cabin passengers, and their intended destination or location, and in all other respects complying with
said ninth section, and a duplicate of the aforesaid list of passengers, verified by the oath of the master, was, with the
manifest of the cargo, delivered by the master to the defendant as collector of customs of the port of New York on the
entry of said vessel."

"That it appears from the said list of passengers and duplicate that the said 382 persons were each and every one subjects
of Holland or other foreign powers in treaty of peace, amity, and commerce with the United States."

"That the said passenger manifest also states the total number of passengers, and shows that 20 of them were under one
year of age, and 59 between the ages of one year and eight years."

"That said collector, before allowing complete entry of said vessel, as collector decided, on the 12th day of October, 1882,
that the plaintiffs must pay a duty of one hundred and ninety-one dollars for said passengers, being fifty cents for each of
said 382 passengers."

"That, by the regulations of the Treasury Department, the nonpayment of said 191 dollars would have permitted the
defendant to refuse the complete entry of the vessel, or to refuse to give her a clearance from the port of New York to her
home port, and such imposition would have created an apparent lien on said vessel for said sum of 191 dollars."

"On the defendants' making such demand, the plaintiffs paid the same and protested against the payment thereof."
"That a copy of the protest in regard to said Leerdam is annexed to the complaint, marked No. 1, and is a correct copy of
the protest."

"That, on the same day, the plaintiffs duly appealed to the Secretary of the Treasury from such decision of the collector,
and that the paper marked Appeal No. 2, annexed to the complaint, is a copy of said appeal."

"On the 18th of October, 1882, the Secretary of the Treasury sustained the action of the defendant, and this action is
brought within ninety days after the rendering of such decision."

"That the payment set forth in the complaint herein was levied and collected by defendant, and the same was paid under
and in pursuance of an act of Congress, entitled 'An Act to regulate Immigration,' approved August 3, 1882. "

On the facts as thus agreed and as found by the Circuit Court, a judgment was rendered in favor of defendant, which we
are called upon to review.

There is no complaint by plaintiffs that the defendant violated this act in any respect but one, namely, that it did not
authorize him to demand anything for the twenty children under one year old, and for the fifty-nine who were between the
ages of one year and eight years.

The supposed exception of this class of passengers does not arise out of any language found in this act to regulate
immigration, nor any policy on which it is founded, but it is based by counsel on a provision of an act approved one day
earlier than this, entitled "An Act to regulate the carriage of passengers by sea." This provision limits the number of
passengers which the vessel may carry by the number of cubic feet of space in which they are to be carried, and it declares
that, in making this calculation, children of the ages mentioned need not be counted. In reference to the space they will
occupy, this principle is reasonable. But, as regards the purpose of the immigration act to raise a fund for the sick, the poor,
and the helpless immigrants, children are as likely to require its aid as adults, probably more so. They are certainly within
the definition of the word passenger when otherwise within the purview of the act. They are certainly within the definition
of the word "passenger" when otherwise within the purview of the act. This branch of the case requires no further
consideration.

The other errors assigned, however numerous or in whatever language presented, all rest on the proposition that the act of
Congress requiring the collector to demand and receive from the master, owner, or consignee of each vessel arriving from
a foreign port fifty cents for every passenger whom he brings into a port of the United States who is not a citizen, is
without warrant in the Constitution, and is void.

The substance of the act is found in its first section, namely:

"An Act to Regulate Immigration"

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That
there shall be levied, collected, and paid a duty of fifty cents for each and every passenger, not a citizen of the United States,
who shall come by steam or sail vessel from a foreign port to any port within the United States. The said duty shall be paid
to the collector of customs of the port to which such passenger shall come, or if there be no collector at such port, then to
the collector of customs nearest thereto, by the master, owner, agent, or consignee of every such vessel, within twenty-four
hours after the entry thereof into such port. The money thus collected shall be paid into the United States Treasury, and shall
constitute a fund to be called the immigrant fund, and shall be used, under the direction of the Secretary of the Treasury, to
defray the expense of regulating immigration under this act, and for the care of immigrants arriving in the United States, for
the relief of such as are in distress, and for the general purposes and expenses of carrying this act into effect." 22 Stat. 214.

The act further authorizes the Secretary to use the aid of any State organization or officer for carrying into effect the
beneficent objects of this law by distributing the fund in accordance with the purpose for which it was raised, not
exceeding in any port the sum received from it, under rules and regulations to be prescribed by him. It directs that such
officers shall go on board vessels arriving from abroad, and if, on examination, they shall find any convict, lunatic, idiot,
or any person unable to take care of himself or herself without becoming a public charge, they shall report to the collector,
and such person shall not be permitted to land.

It is also enacted that convicts, except for political offences, shall be returned to the nations to which they belong. And the
Secretary is directed to prepare rules for the protection of the immigrant who needs it, and for the return of those who are
not permitted to land.

This act of Congress is similar in its essential features to many statutes enacted by States of the Union for the protection of
their own citizens and for the good of the immigrants who land at seaports within their borders.

That the purpose of these statutes is humane, is highly beneficial to the poor and helpless immigrant, and is essential to the
protection of the people in whose midst they are deposited by the steamships, is beyond dispute. That the power to pass
such laws should exist in some legislative body in this country is equally clear. This court has decided distinctly and
frequently, and always after a full hearing from able counsel, that it does not belong to the States. That decision did not rest
in any case on the ground that the State and its people were not deeply interested in the existence and enforcement of such
laws, and were not capable of enforcing them if they had the power to enact them, but on the ground that the Constitution,
in the division of powers which it declares between the States and the general government, has conferred this power on the
latter to the exclusion of the former. We are now asked to decide that it does not exist in Congress, which is to hold that it
does not exist at all -- that the framers of the Constitution have so worded that remarkable instrument that the ships of all
nations, including our own, can, without restraint or regulation, deposit here, if they find it to their interest to do so, the
entire European population of criminals, paupers, and diseased persons without making any provision to preserve them from
starvation and its concomitant sufferings even for the first few days after they have left the vessel.

This court is not only asked to decide this, but it is asked to overrule its decision, several times made with unanimity, that
the power does reside in Congress, is conferred upon that body by the express language of the Constitution, and the attention
of Congress directed to the duty which arises from that language to pass the very law which is here in question.

That these statutes are regulations of commerce -- of commerce with foreign nations -- is conceded in the argument in this
case, and that they constitute a regulation of that class which belongs exclusively to Congress is held in all the cases in
this court. It is upon these propositions that the court has decided in all these cases that the State laws are void. Let us
examine those decisions for a moment.

In the Passenger Cases, so called, the report of which occupies the pages of 7 Howard from page 48 U. S. 283 to 48 U. S.
573, mostly with opinions of the judges, the order of the court is that "it is the opinion of this court that the statute law of
New York, by which the health commissioner of the city of New York is declared entitled to demand and receive from the
master of every vessel from a foreign port that should arrive in the port of said city the sum of one dollar for each steerage
passenger brought in such vessel, is repugnant to the Constitution and laws of the United States, and therefore void."

An examination of the opinions of the judges shows that, if the majority agreed upon any one reason for this order, it was
because the law was a regulation of commerce, the power over which that Constitution had placed exclusively in Congress.
The same examination will show that several judges denied this because they held that this power belonged to the class
which the States might exercise until it was assumed by Congress. It is very clear that, if any such act of Congress had
existed then as the one now before us, the decision of the court would have been nearer to unanimity.

In the case of Henderson v. The Mayor of New York, 92 U. S. 259, the whole subject is reviewed, and, in the light of the
division in this court in the Passenger Cases, it is considered, on principle, as if for the first time. In that case, after the
statute of New York had been modified in such a manner as was supposed to remove the objections held good against it in
the Passenger Cases, the question of its constitutional validity was again brought before this court, when it was held void
by the unanimous judgment of all its members. And this was upon the distinct ground that it was a regulation of commerce
solely within the power of Congress.

"As already indicated," says the court,

"the provisions of the Constitution of the United States on which the principal reliance is placed to make void the statute of
New York is that which gives to Congress the right 'to regulate commerce with foreign nations.'"

The court then, referring to the transportation of passengers from European ports to those of the United States, says:

"It has become a part of our commerce with foreign nations, of vast interest to this country as well as to the immigrants who
come among us, to find a welcome and a home within our borders. . . .

Is the regulation of this great system a regulation of commerce? Can it be doubted that a law which prescribes the terms on
which vessels shall engage in it is a law regulating this branch of commerce?"

The court adds:

"We are of opinion that this whole subject has been confided to Congress by the Constitution; that Congress can more
appropriately and with more acceptance exercise it than any other body known to our law, State or national; that, by
providing a system of laws in these matters, applicable to all ports and to all vessels, a serious question, which has long
been matter of contest and complaint, may be effectually and satisfactorily settled."

And, for this reason, the statute of New York was held void.

In the case of the Commissioners of Immigration v. North German Lloyd, 92 U. S. 259, a similar statute of Louisiana was
held void for the same reason. And in the case of Chy Lung v. Freeman, 92 U. S. 275, decided at the same term, the statute
of California on the same subject was also held void because, in the language of the headnote to the report, it "invades the
right of Congress to regulate commerce with foreign nations."

In the case of People v. Compagnie Generale Transatlantique, 107 U. S. 59, where the State of New York, having again
modified her statute, it was again held void, the court said:

"It has been so repeatedly decided by this court that such a tax as this is a regulation of commerce with foreign nations,
confided by the Constitution to the exclusive control of Congress"

(referring to the cases just cited), "that there is little to say beyond affirming the judgment of the Circuit Court, which was
based on those decisions "

It cannot be said that these cases do not govern the present, though there was not then before us any act of Congress whose
validity was in question, for the decisions rest upon the ground that the State statutes were void only because Congress, and
not the States, was authorized by the Constitution to pass them, and for the reason that Congress could enact such laws, and
for that reason alone were the acts of the State held void. It was, therefore, of the essence of the decision which held the
State statutes invalid, that a similar statute by Congress would be valid.

We are not disposed to reconsider those cases, or to resort to other reasons for holding that they were well decided. Nor do
we feel that further argument in support of them is needed.

But counsel for plaintiffs, assuming that Congress, in the enactment of this law, is exercising the taxing power conferred by
the first clause of section of article I of the Constitution, and can derive no aid in support of its action from any other grant
of power in that instrument, argues that all the restraints and qualifications found there in regard to any form of taxation are
limitations upon the exercise of the power in this case. The clause is in the following language:

"The Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the
common defence and the general welfare of the United States; but all duties, imposts, and excises shall be uniform
throughout the United States."

In this view, it is objected that the tax is not levied to provide for the common defence and general welfare of the United
States, and that it is not uniform throughout the United States.

The uniformity here prescribed has reference to the various localities in which the tax is intended to operate. "It shall be
uniform throughout the United States." Is the tax on tobacco void because, in many of the States, no tobacco is raised or
manufactured? Is the tax on distilled spirits void because a few States pay three-fourths of the revenue arising from it?

The tax is uniform when it operates with the same force and effect in every place where the subject of it is found. The tax
in this case, which, as far as it can be called a tax, is an excise duty on the business of bringing passengers from foreign
countries into this, by ocean navigation, is uniform and operates precisely alike in every port of the United States where
such passengers can be landed. It is said that the statute violates the rule of uniformity and the provision of the Constitution
that

"no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another"
because it does not apply to passengers arriving in this country by railroad or other inland mode of conveyance. But the law
applies to all ports alike, and evidently gives no preference to one over another, but is uniform in its operation in all ports
of the United States. It may be added that the evil to be remedied by this legislation has no existence on our inland borders,
and immigration in that quarter needed no such regulation. Perfect uniformity and perfect equality of taxation, in all the
aspects in which the human mind can view it, is a baseless dream, as this court has said more than once. State Railroad Tax
Cases, 92 U. S. 575, 92 U. S. 612. Here, there is substantial uniformity within the meaning and purpose of the Constitution.

If it were necessary to prove that the imposition of this contribution on owners of ships is made for the general welfare of
the United States, it would not be difficult to show that it is so, and particularly that it is among the means which Congress
may deem necessary and proper for that purpose, and beyond this we are not permitted to inquire.

But the true answer to all these objections is that the power exercised in this instance is not the taxing power. The burden
imposed on the ship owner by this statute is the mere incident of the regulation of commerce -- of that branch of foreign
commerce which is involved in immigration. The title of the act, "An Act to regulate immigration," is well chosen. It
describes, as well as any short sentence can describe it, the real purpose and effect of the statute. Its provisions, from
beginning to end, relate to the subject of immigration, and they are aptly designed to mitigate the evils inherent in the
business of bringing foreigners to this country, as those evils affect both the immigrant and the people among whom he is
suddenly brought and left to his own resources.

It is true, not much is said about protecting the ship owner. But he is the man who reaps the profit from the transaction, who
has the means to protect himself, and knows well how to do it, and whose obligations in the premises need the aid of the
statute for their enforcement. The sum demanded of him is not, therefore, strictly speaking, a tax or duty within the meaning
of the Constitution. The money thus raised, though paid into the Treasury, is appropriated in advance to the uses of the
statute, and does not go to the general support of the government. It constitutes a fund raised from those who are engaged
in the transportation of these passengers, and who make profit out of it, for the temporary care of the passengers whom they
bring among us and for the protection of the citizens among whom they are landed.

If this is an expedient regulation of commerce by Congress, and the end to be attained is one falling within that power, the
act is not void, because, within a loose and more extended sense than was used in the Constitution, it is called a tax. In the
case of Veazie Bank v. Fenno, 8 Wall. 533, 75 U. S. 549, the enormous tax of eight percent per annum on the circulation of
State banks, which was designed and did have the effect to drive all such circulation out of existence, was upheld because
it was a means properly adopted by Congress to protect the currency which it had created, namely, the legal tender notes
and the notes of the national banks. It was not subject, therefore, to the rules which would invalidate an ordinary, tax pure
and simple.

So also, in the case of the Packet Co. v. Keokuk, 95 U. S. 80, the city of Keokuk, having by ordinance imposed a wharfage
fee or tax for the use of a wharf owned by the city, the amount of which was regulated by the tonnage of the vessel, this was
held not to be a tonnage tax within the meaning of the constitutional provision that "no State shall, without the consent of
Congress, lay any duty of tonnage." The reason of this is that, though it was a burden, or tax, in some sense, and measured
by the tonnage of the vessel, it was but a charge for services rendered, or for conveniences furnished by the city, and was
not a tonnage tax within the meaning of the Constitution. This principle was reaffirmed in the case of Packet Co. v. St.
Louis, 100 U. S. 423.
We are clearly of opinion that, in the exercise of its power to regulate immigration, and in the very act of exercising that
power, it was competent for Congress to impose this contribution on the ship owner engaged in that business.

Another objection to the validity of this act of Congress is that it violates provisions contained in numerous treaties of our
government with friendly nations, and several of the articles of these treaties are annexed to the careful brief of counsel. We
are not satisfied that this act of Congress violates any of these treaties on any just construction of them. Though laws similar
to this have long been enforced by the State of New York, in the great metropolis of foreign trade where four-fifths of these
passengers have been landed, no complaint has been made by any foreign nation to ours of the violation of treaty obligations
by the enforcement of those laws.

But we do not place the defence of the act of Congress against this objection upon that suggestion.

We are of opinion that, so far as the provisions in that act may be found to be in conflict with any treaty with a foreign
nation, they must prevail in all the judicial courts of this country. We had supposed that the question here raised was set at
rest in this court by the decision in the case of The Cherokee Tobacco, 11 Wall. 616. It is true, as suggested by counsel, that
three judges of the court did not sit in the case, and two others dissented. But six judges took part in the decision, and the
two who dissented placed that dissent upon the ground that Congress did not intend that the tax on tobacco should extend
to the Cherokee tribe. They referred to the existence of the treaty which would be violated if the statute was so construed as
persuasive against such a construction, but they nowhere intimated that, if the statute was correctly construed by the court,
it was void because it conflicted with the treaty, which they would have done if they had held that view. On the point now
in controversy, it was therefore the opinion of all the judges who heard the case. See United States v. McBratney, 104 U. S.
621-623.

The precise question involved here, namely, a supposed conflict between an act of Congress imposing a customs duty and
a treaty with Russia on that subject, in force when the act was passed, came before the Circuit Court for the District of
Massachusetts in 1855. It received the consideration of that eminent jurist Mr. Justice Curtis of this court, who, in a very
learned opinion, exhausted the sources of argument on the subject, holding that, if there were such conflict, the act of
Congress must prevail in a judicial forum. Taylor v. Morton, 2 Curtis 454. And Mr. Justice Field, in a very recent case in
the Ninth Circuit, that of Ah Lung, 18 Fed.Rep. 28, on a writ of habeas corpus, has delivered an opinion sustaining the same
doctrine in reference to a statute regulating the immigration of Chinamen into this country. In the Clinton Bridge
Case, Woolworth 150, 156, the writer of this opinion expressed the same views as did Judge Woodruff, on full consideration,
in Ropes v. Clinch, 8 Blatchford 304, and Judge Wallace, in the same circuit, in Bartram v. Robertson, 15 Fed.Rep. 212.

It is very difficult to understand how any different doctrine can be sustained.

A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest
and the honor of the governments which are parties to it. If these fail, its infraction becomes the subject of international
negotiations and reclamations, so far as the injured party chooses to seek redress, which may, in the end, be enforced by
actual war. It is obvious that, with all this, the judicial courts have nothing to do, and can give no redress. But a treaty may
also contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial
limits of the other, which partake of the nature of municipal law and which are capable of enforcement as between private
parties in the courts of the country. An illustration of this character is found in treaties which regulate the mutual rights of
citizens and subjects of the contracting nations in regard to rights of property by descent or inheritance when the individuals
concerned are aliens. The Constitution of the United States places such provisions as these in the same category as other
laws of Congress by its declaration that "this Constitution and the laws made in pursuance thereof, and all treaties made or
which shall be made under authority of the United States, shall be the supreme law of the land."

A treaty, then, is a law of the land, as an act of Congress is whenever its provisions prescribe a rule by which the rights of
the private citizen or subject may be determined. And when such rights are of a nature to be enforced in a court of justice
that court resorts to the treaty for a rule of decision for the case before it as it would to a statute.

But, even in this aspect of the case, there is nothing in this law which makes it irrepealable or unchangeable. The Constitution
gives it no superiority over an act of Congress in this respect, which may be repealed or modified by an act of a later date.
Nor is there anything in its essential character, or in the branches of the government by which the treaty is made, which
gives it this superior sanctity.

A treaty is made by the President and the Senate. Statutes are made by the President, the Senate, and the House of
Representatives. The addition of the latter body to the other two in making a law certainly does not render it less entitled to
respect in the matter of its repeal or modification than a treaty made by the other two. If there be any difference in this
regard, it would seem to be in favor of an act in which all three of the bodies participate. And such is, in fact, the case in a
declaration of war, which must be made by Congress and which, when made, usually suspends or destroys existing treaties
between the nations thus at war.

In short, we are of opinion that, so far as a treaty made by the United States with any foreign nation can become the subject
of judicial cognizance in the courts of this country, it is subject to such acts as Congress may pass for its enforcement,
modification, or repeal.

Other objections are made to this statute. Some of these relate not to the power of Congress to pass the act, but to the
expediency or justice of the measure, of which Congress, and not the courts, are the sole judges -- such as its unequal
operation on persons not paupers or criminals and its effect in compelling the ultimate payment of the sum demanded for
each passenger by that passenger himself. Also that the money is to be drawn from the Treasury without an appropriation
by Congress. The act itself makes the appropriation, and, even if this be not warranted by the Constitution, it does not make
void the demand for contribution, which may yet be appropriated by Congress, if that be necessary, by another statute.

It is enough to say that, Congress having the power to pass a law regulating immigration as a part of commerce of this
country with foreign nations, we see nothing in the statute by which it has here exercised that power forbidden by any other
part of the Constitution.

The judgment of the Circuit Court in all the cases is Affirmed.

UNITED KINGDOM v. ICELAND)

(JURISDICTION OF THE COURT)
Judgment of 2 February 1973
In its Judgment on the question of its jurisdiction in the case concerning Fisheries Jurisdiction (United Kingdom v. Iceland),
the Court found by 14 votes to 1 that it had jurisdiction to entertain the Application filed by the United Kingdom on 14
April 1972 and to deal with the merits of the dispute.
The Court was composed as follows: President Sir Muhammad Zafrulla Khan, Vice-President Ammoun and Judges Sir
Gerald Fitzmaurice, Padilla Nervo, Forster, Gros, Bengzon, Petrn, Lachs, Onyeama, Dillard, Ignacio-Pinto, de Castro,
Morozov and Jimnez de Archaga.
The President of the Court appended a declaration to the Judgment. Judge Sir Gerald Fitzmaurice appended a separate
opinion, and Judge Padilla Nervo a dissenting opinion.
*
**

Rsum of the Proceedings (paras. 1-12 of the Judgment)

In its Judgment the Court recalls that on 14 April 1972 the Government of the United Kingdom instituted proceedings
against Iceland in respect of a dispute concerning the proposed extension by the Icelandic Government of its exclusive
fisheries jurisdiction to a distance of 50 nautical miles from the baselines around its coasts. By a letter of 29 May 1972 the
Minister for Foreign Affairs of Iceland informed the Court that his Government was not willing to confer jurisdiction on it
and would not appoint an Agent. By Orders of 17 and 18 August 1972 the Court indicated certain interim measures of
protection at the request of the United Kingdom and decided that the first written pleadings should be addressed to the
question of its jurisdiction to deal with the case. The Government of the United Kingdom filed a Memorial, and the Court
heard oral argument on its behalf at a public hearing on 5 January 1973. The Government of Iceland has filed no pleadings
and was not represented at the hearing.
It is, the Court observes, to be regretted that the Government of Iceland has failed to appear to plead the objections to the
Court's jurisdiction which it is understood to entertain. Nevertheless the Court, in accordance with its Statute and its settled
jurisprudence, must examine the question on its own initiative, a duty reinforced by Article 53 of the Statute, whereby,
whenever one of the parties does not appear, the Court must satisfy itself that it has jurisdiction before finding on the merits.
Although the Government of Iceland has not set out the facts and law on which its objection is based, or adduced any
evidence, the Court proceeds to consider those objections which might, in its view, be raised against its jurisdiction. In so
doing, it avoids not only all expressions of opinion on matters of substance, but also any pronouncement which might
prejudge or appear to prejudge any eventual decision on the merits.
Compromissory clause of the 1961 Exchange of Notes (paras. 13-23 of the Judgment)
To found the Court's jurisdiction, the Government of the United Kingdom relies on an Exchange of Notes which took place
between it and the Government of Iceland on 11 March 1961, following an earlier dispute over fisheries. By that Exchange
of Notes the United Kingdom undertook to recognise an exclusive Icelandic fishery zone up to a limit of 12 miles and to
withdraw its fishing vessels from that zone over a period of 3 years. The Exchange of Notes featured a compromissory
clause in the following terms:
"The Icelandic Government will continue to work for the implementation of the Althing Resolution of May 5, 1959,
regarding the extension of fisheries jurisdiction around Iceland, but shall give to the United Kingdom Government six
months' notice of such extension, and, in case of a dispute in relation to such extension, the matter shall, at the request of
either party, be referred to the International Court of Justice."
The Court observes that there is no doubt as to the fulfilment by the Government of the United Kingdom of its part of this
agreement or as to the fact that the Government of Iceland, in 1971, gave the notice provided for in the event of a further
extension of its fisheries jurisdiction. Nor is there any doubt that a dispute has arisen, that it has been submitted to the Court
by the United Kingdom and that, on the face of it, the dispute thus falls exactly within the terms of the compromissory
clause.
Although, strictly speaking, the text of this clause is sufficiently clear for there to be no need to investigate the preparatory
work, the Court reviews the history of the negotiations which led to the Exchange of Notes, finding confirmation therein of
the parties' intention to provide the United Kingdom, in exchange for its recognition of the 12-mile limit and the withdrawal
of its vessels, with a genuine assurance which constituted a sine qua non for the whole agreement, namely the right to
challenge before the Court the validity of any further extension of Icelandic fisheries jurisdiction beyond the 12-mile limit.
It is thus apparent that the Court has jurisdiction.
Validity and duration of the 1961 Exchange of Notes (paras. 24-45 of the Judgment)
The Court next considers whether, as has been contended the agreement embodied in the 1961 Exchange of Notes either
was initially void or has since ceased to operate.
In the above-mentioned letter of 29 May 1972 the Minister for Foreign Affairs of Iceland said that the 1961 Exchange of
Notes had taken place at a time when the British Royal Navy had been using force to oppose the 12-mile fishery limit. The
Court, however, notes that the agreement appears to have been freely negotiated on the basis of perfect equality and freedom
of decision on both sides.
In the same letter the Minister for Foreign Affairs of Iceland expressed the view that "an undertaking for judicial settlement
cannot be considered to be of a permanent nature" and the Government of Iceland had indeed, in an aide-mmoire of 31
August 1971, asserted that the object and purpose of the provision for recourse to judicial settlement had been fully achieved.
The Court notes that the compromissory clause contains no express provision regarding duration. In fact, the right of the
United Kingdom to challenge before the Court any claim by Iceland to extend its fisheries zone was subject to the assertion
of such a claim and would last so long as Iceland might seek to implement the 1959 Althing resolution.
In a statement to the Althing (the Parliament of Iceland) on 9 November 1971, the Prime Minister of Iceland alluded to
changes regarding "legal opinion on fisheries jurisdiction". His argument appeared to be that as the compromissory clause
was the price that Iceland had paid at the time for the recognition by the United Kingdom of the 12-mile limit, the present
general recognition of such a limit constituted a change of legal circumstances that relieved Iceland of its commitment. The
Court observes that, on the contrary, since Iceland has received benefits from those parts of the agreement already executed,
it behoves it to comply with its side of the bargain.
The letter and statement just mentioned also drew attention to "the changed circumstances resulting from the ever-increasing
exploitation of the fishery resources in the seas surrounding Iceland". It is, notes the Court, admitted in international law
that if a fundamental change of the circumstances which induced parties to accept a treaty radically transforms the extent of
the obligations undertaken, this may, under certain conditions, afford the party affected a ground for invoking the
termination or suspension of the treaty. It would appear that in the present case there is a serious difference of views between
the Parties as to whether there have been any fundamental changes in fishing techniques in the waters around Iceland. Such
changes would, however, be relevant only for any eventual decision on the merits. It cannot be said that the change of
circumstances alleged by Iceland has modified the scope of the jurisdictional obligation agreed to in the 1961 Exchange of
Notes. Moreover, any question as to the jurisdiction of the Court, deriving from an alleged lapse of the obligation through
changed circumstances, is for the Court to decide, by virtue of Article 36, paragraph 6, of its Statute.

LEGAL CONSEQUENCES FOR STATES OF THE CONTINUED PRESENCE OF

SOUTH AFRICA IN NAMIBIA (SOUTH-WEST AFRICA)
NOTWITHSTANDING SECURITY COUNCIL RESOLUTION 276 (1970)
Advisory Opinion of 21 June 1971
In its advisory opinion on the question put by the Security Council of the United Nations, "What are the legal consequences
for States of the continued presence of South Africa in Namibia notwithstanding Security Council resolution 276 (1970)?",
the Court was of opinion,
by 13 votes to 2,
(1) that, the continued presence of South Africa in Namibia being illegal, South Africa is under obligation to withdraw its
administration from Namibia immediately and thus put an end to its occupation of the Territory;
by 11 votes to 4,
(2) that States Members of the United Nations are under obligation to recognize the illegality of South Africa's presence in
Namibia and the invalidity of its acts on behalf of or concerning Namibia, and to refrain from any acts and in particular any
dealings with the Government of South Africa implying recognition of the legality of, or lending support or assistance to,
such presence and administration;
(3) that it is incumbent upon States which are not Members of the United Nations to give assistance, within the scope of
subparagraph (2) above, in the action which has been taken by the United Nations with regard to Namibia.
*
**
For these proceedings the Court was composed as follows: President Sir Muhammad Zafrulla Khan; Vice-President
Ammoun; Judges Sir Gerald Fitzmaurice, Padilla Nervo, Forster, Gros, Bengzon, Petrn, Lachs, Onyeama, Dillard,
Ignacio-Pinto, de Castro, Morozov and Jimnez de Archaga.
The President of the Court, Sir Muhammad Zafrulla Khan, has appended a declaration to the Advisory Opinion. Vice-
President Ammoun and Judges Padilla Nervo, Petrn, Onyeama, Dillard and de Castro have appended separate opinions.
Judge Sir Gerald Fitzmaurice and Judge Gros have appended dissenting opinions.
Course of the Proceedings
(paras. 1-18 of the Advisory Opinion)
The Court first recalls that the request for the advisory opinion emanated from the United Nations Security Council, which
decided to submit it by resolution 284 (1970) adopted on 29 July 1970. The Court goes on to recapitulate the different steps
in the subsequent proceedings.
It refers in particular to the three Orders of 26 January 1971 whereby the Court decided not to accede to the objections raised
by the Government of South Africa against the participation in the proceedings of three Members of the Court. These
objections were based on statements which the Judges in question had made in a former capacity as representatives of their
Governments in United Nations organs dealing with matters concerning Namibia, or on their participation in the same
capacity in the work of those organs. The Court came to the conclusion that none of the three cases called for the application
of Article 17, paragraph 2, of its Statute.
Objections against the Court's Dealing with the Question
(paras. 19-41 of the Advisory Opinion)
The Government of South Africa contended that the Court was not competent to deliver the opinion, because Security
Council resolution 284 (1970) was invalid for the following reasons: (a) two permanent members of the Council abstained
during the voting (Charter of the United Nations, Art. 27, para. 3); (b) as the question related to a dispute between South
Africa and other Members of the United Nations, South Africa should have been invited to participate in the discussion
(Charter, Art. 32) and the proviso requiring members of the Security Council which are parties to a dispute to abstain from
voting should have been observed (Charter, Art. 27, para. 3). The Court points out that (a) for a long period the voluntary
abstention of a permanent member has consistently been interpreted as not constituting a bar to the adoption of resolutions
by the Security Council; (b) the question of Namibia was placed on the agenda of the Council as a situation and the South
African Government failed to draw the Council's attention to the necessity in its eyes of treating it as a dispute.
In the alternative the Government of South Africa maintained that even if the Court had competence it should nevertheless,
as a matter of judicial propriety, refuse to give the opinion requested, on account of political pressure to which it was
contended, the Court had been or might be subjected. On 8 February 1971, at the opening of the public sittings, the President
of the Court declared that it would not be proper for the Court to entertain those observations, bearing as they did on the
very nature of the Court as the principal judicial organ of the United Nations, an organ which, in that capacity, acts only on
the basis of law, independently of all outside influences or interventions whatsoever.
The Government of South Africa also advanced another reason for not giving the advisory opinion requested: that the
question was in reality contentious, because it related to an existing dispute between South Africa and other States. The
Court considers that it was asked to deal with a request put forward by a United Nations organ with a view to seeking legal
advice on the consequences of its own decisions. The fact that, in order to give its answer, the Court might have to pronounce
on legal questions upon which divergent views exist between South Africa and the United Nations does not convert the case
into a dispute between States. (There was therefore no necessity to apply Article 83 of the Rules of Court, according to
which, if an advisory opinion is requested upon a legal question "actually pending between two or more States", Article 31
of the Statute, dealing with judges ad hoc, is applicable; the Government of South Africa having requested leave to choose
a judge ad hoc, the Court heard its observations on that point on 27 January 1971 but, in the light of the above considerations,
decided by the Order of 29 January 1971 not to accede to that request.)
In sum, the Court saw no reason to decline to answer the request for an advisory opinion.
History of the Mandate
(paras. 42-86 of the Advisory Opinion)
Refuting the contentions of the South African Government and citing its own pronouncements in previous proceedings
concerning South West Africa (Advisory Opinions of 1950, 1955 and 1956; Judgment of 1962), the Court recapitulates the
history of the Mandate.
The mandates system established by Article 22 of the Covenant of the League of Nations was based upon two principles of
paramount importance: the principle of non-annexation and the principle that the well-being and development of the peoples
concerned formed a sacred trust of civilisation. Taking the developments of the past half century into account, there can be
little doubt that the ultimate objective of the sacred trust was self-determination and independence. The mandatory was to
observe a number of obligations, and the Council of the League was to see that they were fulfilled. The rights of the
mandatory as such had their foundation in those obligations.
When the League of Nations was dissolved, the raison d'etre and original object of these obligations remained. Since their
fulfilment did not depend on the existence of the League, they could not be brought to an end merely because the supervisory
organ had ceased to exist. The Members of the League had not declared, or accepted even by implication, that the mandates
would be cancelled or lapse with the dissolution of the League.
The last resolution of the League Assembly and Article 80, paragraph 1, of the United Nations Charter maintained the
obligations of mandatories. The International Court of Justice has consistently recognized that the Mandate survived the
demise of the League, and South Africa also admitted as much for a number of years. Thus the supervisory element, which
is an essential part of the Mandate, was bound to survive. The United Nations suggested a system of supervision which
would not exceed that which applied under the mandates system, but this proposal was rejected by South Africa.
Resolutions by the General Assembly and the Security Council
(paras. 87-116 of the Advisory Opinion)
Eventually, in 1966, the General Assembly of the United Nations adopted resolution 2145 (XXI), whereby it decided that
the Mandate was terminated and that South Africa had no other right to administer the Territory. Subsequently the Security
Council adopted various resolutions including resolution 276 (1970) declaring the continued presence of South Africa in
Namibia illegal. Objections challenging the validity of these resolutions having been raised, the Court points out that it does
not possess powers of judicial review or appeal in relation to the United Nations organs in question. Nor does the validity
of their resolutions form the subject of the request for advisory opinion. The Court nevertheless, in the exercise of its judicial
function, and since these objections have been advanced, considers them in the course of its reasoning before determining
the legal consequences arising from those resolutions.
It first recalls that the entry into force of the United Nations Charter established a relationship between all Members of the
United Nations on the one side, and each mandatory Power on the other, and that one of the fundamental principles
governing that relationship is that the party which disowns or does not fulfil its obligations cannot be recognized as retaining
the rights which it claims to derive from the relationship. Resolution 2145 (XXI) determined that there had been a material
breach of the Mandate, which South Africa had in fact disavowed.
It has been contended (a) that the Covenant of the League of Nations did not confer on the Council of the League power to
terminate a mandate for misconduct of the mandatory and that the United Nations could not derive from the League greater
powers than the latter itself had, (b) that, even if the Council of the League had possessed the power of revocation of the
Mandate, it could not have been exercised unilaterally but only in co-operation with the Mandatory; (c) that resolution 2145
(XXI) made pronouncements which the General Assembly, not being a judicial organ, was not competent to make; (d) that
a detailed factual investigation was called for (e) that one part of resolution 2145 (XXI) decided in effect a transfer of
territory.
The Court observes (a) that, according to a general principle of international law (incorporated in the Vienna Convention
on the Law of Treaties), the right to terminate a treaty on account of breach must be presumed to exist in respect of all
treaties, even if unexpressed; (b) that the consent of the wrongdoer to such a form of termination cannot be required; (c) that
the United Nations, as a successor to the League, acting through its competent organ, must be seen above all as the
supervisory institution competent to pronounce on the conduct of the Mandatory; (d) that the failure of South Africa to
comply with the obligation to submit to supervision cannot be disputed; (e) that the General Assembly was not making a
finding on facts, but formulating a legal situation; it would not be correct to assume that, because it is in principle vested
with recommendatory powers, it is debarred from adopting, in special cases within the framework of its competence,
resolutions which make determinations or have operative design.
The General Assembly, however, lacked the necessary powers to ensure the withdrawal of South Africa from the Territory
and therefore, acting in accordance with Article 11, paragraph 2, of the Charter, enlisted the co-operation of the Security
Council. The Council for its part, when it adopted the resolutions concerned, was acting in the exercise of what it deemed
to be its primary responsibility for the maintenance of peace and security. Article 24 of the Charter vests in the Security
Council the necessary authority. Its decisions were taken in conformity with the purposes and principles of the Charter,
under Article 25 of which it is for member States to comply with those decisions, even those members of the Security
Council which voted against them and those Members of the United Nations who are not members of the Council.
Legal Consequences for States of the Continued Presence of South Africa in Namibia
(paras. 117-127 and 133 of the Advisory Opinion)
The Court stresses that a binding determination made by a competent organ of the United Nations to the effect that a situation
is illegal cannot remain without consequence.
South Africa, being responsible for having created and maintained that situation, has the obligation to put an end to it and
withdraw its administration from the Territory. By occupying the Territory without title, South Africa incurs international
responsibilities arising from a continuing violation of an international obligation. It also remains accountable for any
violations of the rights of the people of Namibia, or of its obligations under international law towards other States in respect
of the exercise of its powers in relation to the Territory.
The member States of the United Nations are under obligation to recognize the illegality and invalidity of South Africa's
continued presence in Namibia and to refrain from lending any support or any form of assistance to South Africa with
reference to its occupation of Namibia. The precise determination of the acts permitted - what measures should be selected,
what scope they should be given and by whom they should be applied - is a matter which lies within the competence of the
appropriate political organs of the United Nations acting within their authority under the Charter. Thus it is for the Security
Council to determine any further measures consequent upon the decisions already taken by it. The Court in consequence
confines itself to giving advice on those dealings with the Government of South Africa which, under the Charter of the
United Nations and general international law, should be considered as inconsistent with resolution 276 (1970) because they
might imply recognizing South Africa's presence in Namibia as legal:
(a) Member States are under obligation (subject to (d) below) to abstain from entering into treaty relations with South Africa
in all cases in which the Government of South Africa purports to act on behalf of or concerning Namibia. With respect to
existing bilateral treaties member States must abstain from invoking or applying those treaties or provisions of treaties
concluded by South Africa on behalf of or concerning Namibia which involve active intergovernmental co-operation. With
respect to multilateral treaties, the same rule cannot be applied to certain general conventions such as those with
humanitarian character, the non-performance of which may adversely affect the people of Namibia: it will be for the
competent international organs to take specific measures in this respect.
(b) Member States are under obligation to abstain from sending diplomatic or special missions to South Africa including in
their jurisdiction the territory of Namibia, to abstain from sending consular agents to Namibia, and to withdraw any such
agents already there; and to make it clear to South Africa that the maintenance of diplomatic or consular relations does not
imply any recognition of its authority with regard to Namibia.
(c) Member States are under obligation to abstain from entering into economic and other forms of relations with South
Africa on behalf of or concerning Namibia which may entrench its authority over the territory.
(d) However, non-recognition should not result in depriving the people of Namibia of any advantages derived from
international co-operation. In particular, the illegality or invalidity of actsperformed by the Government of South Africa on
behalf of or concerning Namibia after the termination of the Mandate cannot be extended to such acts as the registration of
births, deaths and marriages.
As to States not members of the United Nations, although they are not bound by Articles 24 and 95 of the Charter, they
have been called upon by resolution 276 (1970) to give assistance in the action which has been taken by the United Nations
with regard to Namibia. In the view of the Court, the termination of the Mandate and the declaration of the illegality of
South Africa's presence in Namibia are opposable to all States in the sense of barring erga omnes the legality of the situation
which is maintained in violation of international law. In particular, no State which enters into relations with South Africa
concerning Namibia may expect the United Nations or its Members to recognize the validity or effects of any such
relationship. The Mandate having been terminated by a decision of the international organization in which the supervisory
authority was vested, it is for non-member States to act accordingly. All States should bear in mind that the entity injured
by the illegal presence of South Africa in Namibia is a people which must look to the international community for assistance
in its progress towards the goals for which the sacred trust was instituted.
Accordingly, the Court has given the replies reproduced above on page 1.
Propositions by South Africa concerning the Supply of Further Factual Information and the Possible Holding of a Plebiscite
(paras. 128-132 of the Advisory Opinion)
The Government of South Africa had expressed the desire to supply the Court with further factual information concerning
the purposes and objectives of its policy of separate development, contending that to establish a breach of its substantive
international obligations under the Mandate it would be necessary to prove that South Africa had failed to exercise its
powers with a view to promoting the well-being and progress of the inhabitants. The Court found that no factual evidence
was needed for the purpose of determining whether the policy of apartheid in Namibia was in conformity with the
international obligations assumed by South Africa. It is undisputed that the official governmental policy pursued by South
Africa in Namibia is to achieve a complete physical separation of races and ethnic groups. This means the enforcement of
distinctions, exclusions, restrictions and limitations exclusively based on grounds of race, colour, descent or national or
ethnic origin which constitute a denial of fundamental human rights. This the Court views as a flagrant violation of the
purposes and principles of the Charter of the United Nations.
The Government of South Africa had also submitted a request that a plebiscite should be held in the Territory of Namibia
under the joint supervision of the Court and the Government of South Africa. The Court having concluded that no further
evidence was required, that the Mandate had been validly terminated and that in consequence South Africa's presence in
Namibia was illegal and its acts on behalf of or concerning Namibia illegal and invalid, it was not able to entertain this
proposal.
By a letter of 14 May 1971 the President informed the representatives of the States and organizations which had participated
in the oral proceedings that the Court had decided not to accede to the two above-mentioned requests.
 Case concerning Gabckovo-Nagymaros Project (Hungary/Slovakia)
Summary of the Judgment of 25 September 1997
Review of the proceedings and statement of claims (paras. 1-14)
The Court begins by recalling that proceedings had been instituted on 2 July 1993 by a joint notification, by Hungary and
Slovakia, of a Special Agreement, signed at Brussels on 7 April 1993. After setting out the text of the Agreement, the Court
recites the successive stages of the proceedings, referring, among other things, to its visit, on the invitation of the parties, to
the area, from 1 to 4 April 1997. It further sets out the submissions of the Parties.
History of the dispute (paras. 15-25)
The Court recalls that the present case arose out of the signature, on 16 September 1977, by the Hungarian People's Republic
and the Czechoslovak People's Republic, of a treaty "concerning the construction and operation of the Gabckovo-
Nagymaros System of Locks" (hereinafter called the "1977 Treaty"). The names of the two contracting States have varied
over the years; they are referred to as Hungary and Czechoslovakia. The 1977 Treaty entered into force on 30 June 1978. It
provides for the construction and operation of a System of Locks by the parties as a "joint investment". According to its
Preamble, the system was designed to attain "the broad utilization of the natural resources of the Bratislava-Budapest section
of the Danube river for the development of water resources, energy, transport, agriculture and other sectors of the national
economy of the Contracting Parties". The joint investment was thus essentially aimed at the production of hydroelectricity,
the improvement of navigation on the relevant section of the Danube and the protection of the areas along the banks against
flooding. At the same time, by the terms of the Treaty, the contracting parties undertook to ensure that the quality of water
in the Danube was not impaired as a result of the Project, and that compliance with the obligations for the protection of
nature arising in connection with the construction and operation of the System of Locks would be observed.
The sector of the Danube river with which this case is concerned is a stretch of approximately 200 kilometres, between
Bratislava in Slovakia and Budapest in Hungary. Below Bratislava, the river gradient decreases markedly, creating an
alluvial plain of gravel and sand sediment. The boundary between the two States is constituted, in the major part of that
region, by the main channel of the river. Cunovo and, further downstream, Gabckovo, are situated in this sector of the
river on Slovak territory, Cunovo on the right bank and Gabckovo on the left. Further downstream, after the confluence
of the various branches, the river enters Hungarian territory. Nagymaros lies in a narrow valley at a bend in the Danube just
before it turns south, enclosing the large river island of Szentendre before reaching Budapest (see sketch-map No. 1 (85 Kb)
).
The 1977 Treaty describes the principal works to be constructed in pursuance of the Project. It provided for the building of
two series of locks, one at Gabckovo (in Czechoslovak territory) and the other at Nagymaros (in Hungarian territory), to
constitute "a single and indivisible operational system of works" (see sketch-map No. 2, (85 Kb) ). The Treaty further
provided that the technical specifications concerning the system would be included in the "Joint Contractual Plan" which
was to be drawn up in accordance with the Agreement signed by the two Governments for this purpose on 6 May 1976. It
also provided for the construction, financing and management of the works on a joint basis in which the Parties participated
in equal measure.
The Joint Contractual Plan, set forth, on a large number of points, both the objectives of the system and the characteristics
of the works. It also contained "Preliminary Operating and Maintenance Rules", Article 23 of which specified that "The
final operating rules [should] be approved within a year of the setting into operation of the system."
The Court observes that the Project was thus to have taken the form of an integrated joint project with the two contracting
parties on an equal footing in respect of the financing, construction and operation of the works. Its single and indivisible
nature was to have been realized through the Joint Contractual Plan which complemented the Treaty. In particular, Hungary
would have had control of the sluices at Dunakiliti and the works at Nagymaros, whereas Czechoslovakia would have had
control of the works at Gabckovo.
*
The schedule of work had for its part been fixed in an Agreement on mutual assistance signed by the two parties on 16
September 1977, at the same time as the Treaty itself. The Agreement made some adjustments to the allocation of the works
between the parties as laid down by the Treaty. Work on the Project started in 1978. On Hungary's initiative, the two parties
first agreed, by two Protocols signed on 10 October 1983 to slow the work down and to postpone putting into operation the
power plants, and then, by a Protocol signed on 6 February 1989 to accelerate the Project.
As a result of intense criticism which the Project had generated in Hungary, the Hungarian Government decided on 13 May
1989 to suspend the works at Nagymaros pending the completion of various studies which the competent authorities were
to finish before 31 July 1989. On 21 July 1989, the Hungarian Government extended the suspension of the works at
Nagymaros until 31 October 1989, and, in addition, suspended the works at Dunakiliti until the same date. Lastly, on 27
October 1989, Hungary decided to abandon the works at Nagymaros and to maintain the status quo at Dunakiliti.
During this period, negotiations took place between the parties. Czechoslovakia also started investigating alternative
solutions. One of them, an alternative solution subsequently known as "Variant C", entailed a unilateral diversion of the
Danube by Czechoslovakia on its territory some 10 kilometres upstream of Dunakiliti (see sketch-map No. 3, (90 Kb) ). In
its final stage, Variant C included the construction at Cunovo of an overflow dam and a levee linking that dam to the south
bank of the bypass canal. Provision was made for ancillary works.

On 23 July 1991, the Slovak Government decided "to begin, in September 1991, construction to put the Gabckovo Project
into operation by the provisional solution". Work on Variant C began in November 1991. Discussions continued between
the two parties but to no avail, and, on 19 May 1992, the Hungarian Government transmitted to the Czechoslovak
Government a Note Verbale terminating the 1977 Treaty with effect from 25 May 1992. On 15 October 1992,
Czechoslovakia began work to enable the Danube to be closed and, starting on 23 October, proceeded to the damming of
the river.
The Court finally takes note of the fact that on 1 January 1993 Slovakia became an independent State; that in the Special
Agreement thereafter concluded between Hungary and Slovakia the Parties agreed to establish and implement a temporary
water management rgime for the Danube; and that finally they concluded an Agreement in respect of it on 19 April 1995,
which would come to an end 14 days after the Judgment of the Court. The Court also observes that not only the 1977 Treaty,
but also the "related instruments" are covered in the preamble to the Special Agreement and that the Parties, when
concentrating their reasoning on the 1977 Treaty, appear to have extended their arguments to the "related instruments".
Suspension and abandonment by Hungary, in 1989, of works on the Project (paras. 27-59)
In terms of Article 2, paragraph 1 (a), of the Special Agreement, the Court is requested to decide first
"whether the Republic of Hungary was entitled to suspend and subsequently abandon, in 1989, the works on the Nagymaros
Project and on the part of the Gabckovo Project for which the Treaty attributed responsibility to the Republic of Hungary".
The Court observes that it has no need to dwell upon the question of the applicability or non-applicability in the present
case of the Vienna Convention of 1969 on the Law of Treaties, as argued by the Parties. It needs only to be mindful of the
fact that it has several times had occasion to hold that some of the rules laid down in that Convention might be considered
as a codification of existing customary law. The Court takes the view that in many respects this applies to the provisions of
the Vienna Convention concerning the termination and the suspension of the operation of treaties, set forth in Articles 60 to
62. Neither has the Court lost sight of the fact that the Vienna Convention is in any event applicable to the Protocol of 6
February 1989 whereby Hungary and Czechoslovakia agreed to accelerate completion of the works relating to the
Gabckovo-Nagymaros Project.
Nor does the Court need to dwell upon the question of the relationship between the law of treaties and the law of State
responsibility, to which the Parties devoted lengthy arguments, as those two branches of international law obviously have a
scope that is distinct. A determination of whether a convention is or is not in force, and whether it has or has not been
properly suspended or denounced, is to be made pursuant to the law of treaties. On the other hand, an evaluation of the
extent to which the suspension or denunciation of a convention, seen as incompatible with the law of treaties, involves the
responsibility of the State which proceeded to it, is to be made under the law of State responsibility.
The Court cannot accept Hungary's argument to the effect that, in 1989, in suspending and subsequently abandoning the
works for which it was still responsible at Nagymaros and at Dunakiliti, it did not suspend the application of the 1977 Treaty
itself or then reject that Treaty. The conduct of Hungary at that time can only be interpreted as an expression of its
unwillingness to comply with at least some of the provisions of the Treaty and the Protocol of 6 February 1989, as specified
in the Joint Contractual Plan. The effect of Hungary's conduct was to render impossible the accomplishment of the system
of works that the Treaty expressly described as "single and indivisible".
The Court then considers the question of whether there was, in 1989, a state of necessity which would have permitted
Hungary, without incurring international responsibility, to suspend and abandon works that it was committed to perform in
accordance with the 1977 Treaty and related instruments.
The Court observes, first of all, that the state of necessity is a ground recognized by customary international law for
precluding the wrongfulness of an act not in conformity with an international obligation. It considers moreover that such
ground for precluding wrongfulness can only be accepted on an exceptional basis. The following basic conditions set forth
in Article 33 of the Draft Article on the International Responsibility of States by the International Law Commission are
relevant in the present case: it must have been occasioned by an "essential interest" of the State which is the author of the
act conflicting with one of its international obligations; that interest must have been threatened by a "grave and imminent
peril"; the act being challenged must have been the "only means" of safeguarding that interest; that act must not have
"seriously impair[ed] an essential interest" of the State towards which the obligation existed; and the State which is the
author of that act must not have "contributed to the occurrence of the state of necessity". Those conditions reflect customary
international law.
The Court has no difficulty in acknowledging that the concerns expressed by Hungary for its natural environment in the
region affected by the Gabckovo-Nagymaros Project related to an "essential interest" of that State.
It is of the view, however, that, with respect to both Nagymaros and Gabckovo, the perils invoked by Hungary, without
prejudging their possible gravity, were not sufficiently established in 1989, nor were they "imminent"; and that Hungary
had available to it at that time means of responding to these perceived perils other than the suspension and abandonment of
works with which it had been entrusted. What is more, negotiations were under way which might have led to a review of
the Project and the extension of some of its time-limits, without there being need to abandon it.
The Court further notes that Hungary when it decided to conclude the 1977 Treaty, was presumably aware of the situation
as then known; and that the need to ensure the protection of the environment had not escaped the parties. Neither can it fail
to note the positions taken by Hungary after the entry into force of the 1977 Treaty. Slowly, speeded up. The Court infers
that, in the present case, even if it had been established that there was, in 1989, a state of necessity linked to the performance
of the 1977 Treaty, Hungary would not have been permitted to rely upon that state of necessity in order to justify its failure
to comply with its treaty obligations, as it had helped, by act or omission to bring it about.
In the light of the conclusions reached above, the Court finds that Hungary was not entitled to suspend and subsequently
abandon, in 1989, the works on the Nagymaros Project and on the part of the Gabckovo Project for which the 1977 Treaty
and related instruments attributed responsibility to it.
Czechoslovakia's proceeding, in November 1991, to "Variant C" and putting into operation, from October 1992, this
Variant (paras. 60-88)
By the terms of Article 2, paragraph 1 (b), of the Special Agreement, the Court is asked in the second place to decide
"(b)whether the Czech and Slovak Federal Republic was entitled to proceed, in November 1991, to the 'provisional solution'
and to put into operation from October 1992 this system".
Czechoslovakia had maintained that proceeding to Variant C and putting it into operation did not constitute internationally
wrongful acts; Slovakia adopted this argument. During the proceedings before the Court Slovakia contended that Hungary's
decision to suspend and subsequently abandon the construction of works at Dunakiliti had made it impossible for
Czechoslovakia to carry out the works as initially contemplated by the 1977 Treaty and that the latter was therefore entitled
to proceed with a solution which was as close to the original Project as possible. Slovakia invoked what it described as a
"principle of approximate application" to justify the construction and operation of Variant c. It explained that this was the
only possibility remaining to it "of fulfilling not only the purposes of the 1977 Treaty, but the continuing obligation to
implement it in good faith".
The Court observes that it is not necessary to determine whether there is a principle of international law or a general principle
of law of "approximate application" because, even if such a principle existed, it could by definition only be employed within
the limits of the treaty in question. In the view of the Court, Variant C does not meet that cardinal condition with regard to
the 1977 Treaty.
As the Court has already observed, the basic characteristic of the 1977 Treaty is, according to Article 1, to provide for the
construction of the Gabckovo-Nagymaros System of Locks as a joint investment constituting a single and indivisible
operational system of works. This element is equally reflected in Articles 8 and 10 of the Treaty providing for joint
ownership of the most important works of the Gabckovo-Nagymaros project and for the operation of this joint property
as a co-ordinated single unit. By definition all this could not be carried out by unilateral action. In spite of having a certain
external physical similarity with the original Project, Variant C thus differed sharply from it in its legal characteristics. The
Court accordingly concludes that Czechoslovakia, in putting Variant C into operation, was not applying the 1977 Treaty
but, on the contrary, violated certain of its express provisions, and, in so doing, committed an internationally wrongful act.
The Court notes that between November 1991 and October 1992, Czechoslovakia confined itself to the execution, on its
own territory, of the works which were necessary for the implementation of Variant C, but which could have been abandoned
if an agreement had been reached between the parties and did not therefore predetermine the final decision to be taken. For
as long as the Danube had not been unilaterally dammed, Variant C had not in fact been applied. Such a situation is not
unusual in international law or, for that matter, in domestic law. A wrongful act or offence is frequently preceded by
preparatory actions which are not to be confused with the act or offence itself. It is as well to distinguish between the actual
commission of a wrongful act (whether instantaneous or continuous) and the conduct prior to that act which is of a
preparatory character and which "does not qualify as a wrongful act".
Slovakia also maintained that it was acting under a duty to mitigate damages when it carried out Variant c. It stated that "It
is a general principle of international law that a party injured by the non-performance of another contract party must seek
to mitigate the damage he has sustained." But the Court observes that, while this principle might thus provide a basis for the
calculation of damages, it could not, on the other hand, justify an otherwise wrongful act. The Court further considers that
the diversion of the Danube carried out by Czechoslovakia was not a lawful countermeasure because it was not
proportionate.
In the light of the conclusions reached above, the Court finds that Czechoslovakia was entitled to proceed, in November
1991, to Variant C in so far as it then confined itself to undertaking works which did not predetermine the final decision to
be taken by it. On the other hand, Czechoslovakia was not entitled to put that Variant into operation from October 1992.
Notification by Hungary, on 19 May 1992, of the termination of the 1977 Treaty and related instruments (paras. 89-
115)
By the terms of Article 2, paragraph 1 (c), of the Special Agreement, the Court is asked, thirdly, to determine
"what are the legal effects of the notification, on 19 May 1992, of the termination of the Treaty by the Republic of Hungary".
During the proceedings, Hungary presented five arguments in support of the lawfulness, and thus the effectiveness, of its
notification of termination. These were the existence of a state of necessity; the impossibility of performance of the Treaty;
the occurrence of a fundamental change of circumstances; the material breach of the Treaty by Czechoslovakia; and, finally,
the development of new norms of international environmental law. Slovakia contested each of these grounds.

State of necessity
The Court observes that, even if a state of necessity is found to exist, it is not a ground for the termination of a treaty. It may
only be invoked to exonerate from its responsibility a State which has failed to implement a treaty.

Impossibility of performance
The Court finds that it is not necessary to determine whether the term "object" in Article 61 of the Vienna Convention of
1969 on the Law of Treaties (which speaks of "permanent disappearance or destruction of an object indispensable for the
execution of the treaty" as a ground for terminating or withdrawing from it) can also be understood to embrace a legal
rgime as in any event, even if that were the case, it would have to conclude that in this instance that rgime had not
definitively ceased to exist. The 1977 Treaty and in particular its Articles 15, 19 and 20 actually made available to the
parties the necessary means to proceed at any time, by negotiation, to the required readjustments between economic
imperatives and ecological imperatives.

Fundamental change of circumstances

In the Court's view, the prevalent political conditions were not so closely linked to the object and purpose of the Treaty that
they constituted an essential basis of the consent of the parties and, in changing, radically altered the extent of the obligations
still to be performed. The same holds good for the economic system in force at the time of the conclusion of the 1977 Treaty.
Nor does the Court consider that new developments in the state of environmental knowledge and of environmental law can
be said to have been completely unforeseen. What is more, the formulation of Articles 15, 19 and 20 is designed to
accommodate change. The changed circumstances advanced by Hungary are thus, in the Court's view, not of such a nature,
either individually or collectively, that their effect would radically transform the extent of the obligations still to be
performed in order to accomplish the Project.

Material breach of the Treaty

Hungary's main argument for invoking a material breach of the Treaty was the construction and putting into operation of
Variant c. The Court pointed out that it had already found that Czechoslovakia violated the Treaty only when it diverted the
waters of the Danube into the bypass canal in October 1992. In constructing the works which would lead to the putting into
operation of Variant C, Czechoslovakia did not act unlawfully. In the Court's view, therefore, the notification of termination
by Hungary on 19 May 1992 was premature. No breach of the Treaty by Czechoslovakia had yet taken place and
consequently Hungary was not entitled to invoke any such breach of the Treaty as a ground for terminating it when it did.

Development of new norms of international environmental law

The Court notes that neither of the Parties contended that new peremptory norms of environmental law had emerged since
the conclusion of the 1977 Treaty; and the Court will consequently not be required to examine the scope of Article 64 of
the Vienna Convention on the Law of Treaties (which treats of the voidance and termination of a treaty because of the
emergence of a new peremptory norm of general international law (jus cogens)). On the other hand, the Court wishes to
point out that newly developed norms of environmental law are relevant for the implementation of the Treaty and that the
parties could, by agreement, incorporate them through the application of Articles 15, 19 and 20 of the Treaty. These articles
do not contain specific obligations of performance but require the parties, in carrying out their obligations to ensure that the
quality of water in the Danube is not impaired and that nature is protected, to take new environmental norms into
consideration when agreeing upon the means to be specified in the Joint Contractual Plan. By inserting these evolving
provisions in the Treaty, the parties recognized the potential necessity to adapt the Project. Consequently, the Treaty is not
static, and is open to adapt to emerging norms of international law. By means of Articles 15 and 19, new environmental
norms can be incorporated in the Joint Contractual Plan. The awareness of the vulnerability of the environment and the
recognition that environmental risks have to be assessed on a continuous basis have become much stronger in the years
since the Treaty's conclusion. These new concerns have enhanced the relevance of Articles 15, 19 and 20. The Court
recognizes that both Parties agree on the need to take environmental concerns seriously and to take the required
precautionary measures, but they fundamentally disagree on the consequences this has for the joint Project. In such a case,
third-party involvement may be helpful and instrumental in finding a solution, provided each of the Parties is flexible in its
position.
Finally, the Court is of the view that although it has found that both Hungary and Czechoslovakia failed to comply with
their obligations under the 1977 Treaty, this reciprocal wrongful conduct did not bring the Treaty to an end nor justify its
termination.
In the light of the conclusions it has reached above, the Court finds that the notification of termination by Hungary of 19
May 1992 did not have the legal effect of terminating the 1977 Treaty and related instruments.
Dissolution of Czechoslovakia (paras. 117-124)
The Court then turns to the question whether Slovakia became a party to the 1977 Treaty as successor to Czechoslovakia.
As an alternative argument, Hungary contended that, even if the Treaty survived the notification of termination, in any event
it ceased to be in force as a treaty on 31 December 1992, as a result of the "disappearance of one of the parties" On that date
Czechoslovakia ceased to exist as a legal entity, and on 1 January 1993 the Czech Republic and the Slovak Republic came
into existence.
The Court does not find it necessary for the purposes of the present case to enter into a discussion of whether or not Article
34 of the 1978 Vienna Convention on Succession of States in respect of treaties (in which a rule of automatic succession to
all treaties is provided for) reflects the state of customary international law. More relevant to its present analysis is the
particular nature and character of the 1977 Treaty. An examination of this Treaty confirms that, aside from its undoubted
nature as a joint investment, its major elements were the proposed construction and joint operation of a large, integrated and
indivisible complex of structures and installations on specific parts of the respective territories of Hungary and
Czechoslovakia along the Danube. The Treaty also established the navigational rgime for an important sector of an
international waterway, in particular the relocation of the main international shipping lane to the bypass canal. In so doing,
it inescapably created a situation in which the interests of other users of the Danube were affected. Furthermore, the interests
of third States were expressly acknowledged in Article 18, whereby the parties undertook to ensure "uninterrupted and safe
navigation on the international fairway" in accordance with their obligations under the Convention of 18 August 1948
concerning the Rgime of Navigation on the Danube.
The Court then refers to Article 12 of the 1978 Vienna Convention on Succession of States in respect of Treaties, which
reflects the principle that treaties of a territorial character have been regarded both in traditional doctrine and in modern
opinion as unaffected by a succession of States. The Court considers that Article 12 reflects a rule of customary international
law; and notes that neither of the Parties disputed this. It concludes that the content of the 1977 Treaty indicates that it must
be regarded as establishing a territorial rgime within the meaning of Article 12 of 1978 Vienna Convention. It created
rights and obligations "attaching to" the parts of the Danube to which it relates; thus the Treaty itself could not be affected
by a succession of States. The Court therefore concludes that the 1977 Treaty became binding upon Slovakia on 1 January
1993.
Legal consequences of the Judgment (paras. 125-154)
The Court observes that the part of its Judgment which answers the questions in Article 2, paragraph 1, of the Special
Agreement has a declaratory character. It deals with the past conduct of the Parties and determines the lawfulness or
unlawfulness of that conduct between 1989 and 1992 as well as its effects on the existence of the Treaty. Now the Court
has, on the basis of the foregoing findings, to determine what the future conduct of the Parties should be. This part of the
Judgment is prescriptive rather than declaratory because it determines what the rights and obligations of the Parties are. The
Parties will have to seek agreement on the modalities of the execution of the Judgment in the light of this determination, as
they agreed to do in Article 5 of the Special Agreement.
In this regard it is of cardinal importance that the Court has found that the 1977 Treaty is still in force and consequently
governs the relationship between the Parties. That relationship is also determined by the rules of other relevant conventions
to which the two States are party, by the rules of general international law and, in this particular case, by the rules of State
responsibility; but it is governed, above all, by the applicable rules of the 1977 Treaty as a lex specialis. The Court observes
that it cannot, however, disregard the fact that the Treaty has not been fully implemented by either party for years, and
indeed that their acts of commission and omission have contributed to creating the factual situation that now exists. Nor can
it overlook that factual situation or the practical possibilities and impossibilities to which it gives rise when deciding
on the legal requirements for the future conduct of the Parties. What is essential, therefore, is that the factual situation as it
has developed since 1989 shall be placed within the context of the preserved and developing treaty relationship, in order to
achieve its object and purpose in so far as that is feasible. For it is only then that the irregular state of affairs which exists
as the result of the failure of both Parties to comply with their treaty obligations can be remedied.
The Court points out that the 1977 Treaty is not only a joint investment project for the production of energy, but it was
designed to serve other objectives as well: the improvement of the navigability of the Danube, flood control and regulation
of ice-discharge, and the protection of the natural environment. In order to achieve these objectives the parties accepted
obligations of conduct, obligations of performance, and obligations of result. The Court is of the opinion that the Parties are
under a legal obligation, during the negotiations to be held by virtue of Article 5 of the Special Agreement, to consider,
within the context of the 1977 Treaty, in what way the multiple objectives of the Treaty can best be served, keeping in mind
that all of them should be fulfilled.
It is clear that the Project's impact upon, and its implications for, the environment are of necessity a key issue. In order to
evaluate the environmental risks, current standards must be taken into consideration. This is not only allowed by the wording
of Articles 15 and 19, but even prescribed, to the extent that these articles impose a continuing and thus necessarily
evolving obligation on the parties to maintain the quality of the water of the Danube and to protect nature. The Court is
mindful that, in the field of environmental protection, vigilance and prevention are required on account of the often
irreversible character of damage to the environment and of the limitations inherent in the very mechanism of reparation of
this type of damage. New norms and standards have been developed, set forth in a great number of instruments during the
last two decades. Such new norms have to be taken into consideration, and such new standards given proper weight, not
only when States contemplate new activities but also when continuing with activities begun in the past. For the purposes of
the present case, this means that the Parties together should look afresh at the effects on the environment of the operation
of the Gabckovo power plant. In particular they must find a satisfactory solution for the volume of water to be released
into the old bed of the Danube and into the side-arms on both sides of the river.
What is required in the present case by the rule pacta sunt servanda, as reflected in Article 26 of the Vienna Convention of
1969 on the Law of Treaties, is that the Parties find an agreed solution within the co-operative context of the Treaty. Article
26 combines two elements, which are of equal importance. It provides that "Every treaty in force is binding upon the parties
to it and must be performed by them in good faith". This latter element, in the Court's view, implies that, in this case, it is
the purpose of the Treaty, and the intentions of the parties in concluding it, which should prevail over its literal application.
The principle of good faith obliges the Parties to apply it in a reasonable way and in such a manner that its purpose can be
realized.

The 1977 Treaty not only contains a joint investment programme, it also establishes a rgime. According to the Treaty,
the main structures of the System of Locks are the joint property of the Parties; their operation will take the form of a co-
ordinated single unit; and the benefits of the project shall be equally shared. Since the Court has found that the Treaty is still
in force and that, under its terms, the joint rgime is a basic element, it considers that, unless the Parties agree otherwise,
such a rgime should be restored. The Court is of the opinion that the works at Cunovo should become a jointly operated
unit within the meaning of Article 10, paragraph 1, in view of their pivotal role in the operation of what remains of the
Project and for the water-management rgime. The dam at Cunovo has taken over the role which was originally destined
for the works at Dunakiliti, and therefore should have a similar status. The Court also concludes that Variant C, which it
considers operates in a manner incompatible with the Treaty, should be made to conform to it. It observes that re-
establishment of the joint rgime will also reflect in an optimal way the concept of common utilization of shared water
resources for the achievement of the several objectives mentioned in the Treaty.
Having thus far indicated what in its view should be the effects of its finding that the 1977 Treaty is still in force, the Court
turns to the legal consequences of the internationally wrongful acts committed by the Parties, as it had also been asked by
both Parties to determine the consequences of the Judgment as they bear upon payment of damages.
The Court has not been asked at this stage to determine the quantum of damages due, but to indicate on what basis they
should be paid. Both Parties claimed to have suffered considerable financial losses and both claim pecuniary compensation
for them.
In the Judgment, the Court has concluded that both Parties committed internationally wrongful acts, and it has noted that
those acts gave rise to the damage sustained by the Parties; consequently, Hungary and Slovakia are both under an obligation
to pay compensation and are both entitled to obtain compensation. The Court observes, however, that given the fact, that
there have been intersecting wrongs by both Parties, the issue of compensation could satisfactorily be resolved in the
framework of an overall settlement if each of the Parties were to renounce or cancel all financial claims and counter-claims.
At the same time, the Court wishes to point out that the settlement of accounts for the construction of the works is different
from the issue of compensation, and must be resolved in accordance with the 1977 Treaty and related instruments. If
Hungary is to share in the operation and benefits of the Cunovo complex, it must pay a proportionate share of the building
and running costs.