Israel v.

Bulgaria(Aerial Incident of 27th July 1955)

BY

BURHANUDDIN PATANWALA (81022019035)

ROLL NO-A030
B.B.A LLB
3RD YEAR 6TH SEM

UNDER THE GUIDANCE OF

PROF. Manisha
1
Band
 TABLE OF CONTENTS

INTRODUCTION....................................................................................................................3
FACTS.......................................................................................................................................5
ISSUES......................................................................................................................................6
JUDGEMENTS AND ANALYSES........................................................................................7
The Two Main Grounds Which the Court Relied On......................................................7
Interpretation Of Article 36(5) of the Statute....................................................................8
CONSENT..........................................................................................................................10
CONCLUSION.......................................................................................................................12

2
 INTRODUCTION
The ICJ or The International Court is the principal judicial organ of the UN established
through the adoption of the Charter of The United Nations as well as under the Statute of the
Court or Statute of The International Court of Justice 1, which is the law governing the Court
and the way it shall operate and adjudicate.2

The Covenant of the League of Nations provided for the establishment of the Permanent
Court of International Justice (PCIJ), which served as the predecessor to the International
Court of Justice. It convened for the first time in 1922 and was formally abolished in 1946.
Because of the work of the PCIJ, the first permanent international tribunal with wide
jurisdiction, a number of areas of international law were clarified, and the tribunal's work also
contributed to the evolution of international law.3

It is true that the International Court of Justice and its predecessor, 'the Permanent Court of
International Justice, have contributed to the advancement of the peaceful settlement of
disputes through adjudication. But in spite of its status, its stature, importance and the fact
that the most highly qualified jurists have sat on said tribunal, most nations have not availed
of its services as the statistics of the Court show.4

The Case Concerning the Aerial Incident of July 27, 1955 (Israel v. Bulgaria) deals with the
Court's jurisdiction. This case is concerned with article 36(5), by which certain acceptances
declared under the old Court of the League of Nations were continued in effect under the
present Statute. The finding of the Court that, in the particular instance, it lacked jurisdiction
has halted certain other-but not all-claims for damages that would have been argued before it
had the decision been otherwise. Accordingly, interest' in the case is widespread not only for
its interpretation of article 36(5), but for its practical effect with respect to international
disputes that might have been-or may eventually be-settled on their merits in accordance with
law. The decision must be accounted a refutation of any charge that the Court seeks unduly to
extend its jurisdiction.

FACTS
1
Art. 36(5), Statute of the International Court of Justice (UN).
2
UN, UN Documentation: International Court of Justice, https://research.un.org/en/docs/icj#:~:text=The
%20International%20Court%20of%20Justice,judicial%20organ%20of%20the%20UN.&text=The%20Court
%20has%20two%20functions,UN%20organs%20and%20specialized%20agencies. (Last Visited, 27th March
2022)
3
International Court of Justice, Permanent Court of International Justice, https://www.icj-cij.org/en/pcij (Last
Visited, 27th March 2022)
4
Jorge R. Coquia, The Problem of Jurisdiction of the International Court of Justice, 52 PHIL. L.J. 154 (1977).

3
 According to the facts presented to the Court, on the morning of July 27th, 1955, a
civil Constellation aircraft bearing the Israeli flag and belonging to the Israel
Company El Al Israel Airlines Ltd. was shot down over Bulgarian territory while on a
scheduled commercial flight between Vienna, Austria, and Lod (Lydda), Israel.
 The aircraft had entered Bulgarian airspace without permission and had been shot
down by aircraft of the Bulgarian anti-aircraft defence forces. After catching fire, the
Israeli plane crashed in flames near the Bulgarian village of Petritch, killing all seven
members of the crew as well as the fifty-one passengers, who were from a variety of
different nations.
 These circumstances prompted negotiations and diplomatic correspondence between
the two governments, with the goal of reaching a mutually beneficial solution. Given
that these diplomatic efforts had failed to produce a resolution that was satisfactory
for all parties involved, Israel's government decided to bring the dispute before the
Court on October 16, 1957, through an application for the institution of proceedings
in the Court.
 The Government of the People's Republic of Bulgaria raised five preliminary
objections to this application.
 Israel invoked the Declaration by Bulgaria made in 1921(the Bulgarian Declaration of
1921) as well as Article 36 paragraph 5 of the Statute of the Permanent Court of
International Justice and asked the court:
1) To adjudge and declare that the People's Republic of Bulgaria is responsible under
international law for the destruction of the Israel aircraft 4X-AKC on 27 July 1955
and for the loss of life and property and all other damage that resulted therefrom.
2) To determine the amount of compensation due from the People's Republic of
Bulgaria to Israel.
3) In exercise of the power conferred upon it by Article 64 of the Statute of the
Court, to decide that all costs and expenses incurred by the Government of Israel
be borne by the Government of the People's. Republic of Bulgaria.

4
 ISSUES
The issues arise out of addressing the objections raised by Bulgaria where the court accepted
the first preliminary objection and thus didn’t address the latter ones. However, it is pertinent
to mention all the objections raised by Bulgaria. The following are the 5 preliminary
objections raised by them.

1) The Declaration of August 12, 1921, "ceased to be in force on the dissolution of the
Permanent Court, pronounced by the Assembly of the League of Nations on April
18th, 1946," Article 36, paragraph 5, therefore being inapplicable to Bulgaria and the
Court lacking jurisdiction.
2) That in any event Bulgaria had not accepted jurisdiction in respect of acts prior to
December 14, 1955, when Bulgaria became a Member of the United Nations.
3) That Israel's claim was inadmissible, since the damage was suffered for the most part
by non-Israel insurance companies.
4) That the dispute was subject to the exclusive jurisdiction of Bulgaria and fell
essentially within Bulgarian domestic jurisdiction.
5) That local remedies had not been exhausted in Bulgaria.

5
 JUDGEMENTS AND ANALYSES

It was decided that "Article 36, paragraph 5, cannot lead the court to find that, by the
operation of this provision, the Bulgarian Declaration of 1921 provides a basis for the court's
jurisdiction to deal with the case submitted to it by the Application filed by the Government
of Israel on October 16th, 1957" and that the Court lacked jurisdiction in the matter. It was
decided by a vote of twelve to four. In addition to the Separate Opinions written by Judges
Badawi and Ugon, Judges Sir Hersch Lauterpacht, Wellington Koo, and Sir Percy Spender
appended to the Judgment of the Court a Statement of their Joint Dissenting Opinion and
Judge ad hoc Goitein also appended a statement of his Dissenting Opinion to the Court's
Judgment.

The Two Main Grounds Which the Court Relied On

The Court's rationale is based on two major points of contention. The first is the one
contained in Bulgaria's First Preliminary Objection, which asserts that the Bulgarian
Declaration of Acceptance of Jurisdiction of 1921 had expired upon the dissolution of the
Permanent Court on April 8, 1946, and that it cannot therefore be maintained that it was still
in force" within the meaning of Article 36 paragraph 5 when Bulgaria became a party to the
Statute by virtue of her admission to the United Nations on December 14, 1955.

The second ground, to which much weight is attached by the court rests on the distinction
between signatory and States of the United Nations in regard to the application of Article 36
paragraph 5 of the Statute of the Court.

In fact, Bulgaria did not raise the argument that Article 36 paragraph 5 applies only to
signatory states of the United Nations Charter and, as a result, is inapplicable to the country.
There were no arguments advanced on this point by any of the parties either in writing or
during the oral procedures, with the exception of a fleeting mention made during oral
argument in connection with the exclusion of former enemy countries from application of
paragraph 5. The practice of the Court to select proprio motu the legal basis for its decisions
on the final submissions of the parties-iura novit curia- seems to grow. The tendency of the
Court to adjudicate upon grounds which cannot be related to the arguments of the parties is
already evidenced in the judgement of the Court in the Nottebohm Case. 5 It is not proposed to

5
) Judgment of April 6th, 1955, Archiv des Völkerrechts Bd. 5 (1955/1956)S. 479 ff., International Court of
Justice Reports 1955.

6
discuss the merits or demerits of such a practice for the administration of international justice
or for the development of international law. This may deserve special inquiry elsewhere. The
only thing noticeable is the fact that the bulk of the Judgment in this case rests on a point not
advanced and not argued by the parties to the dispute.

Interpretation Of Article 36(5) of the Statute

In this instance, the Court was required to interpret a treaty provision. The fact that the clause
in dispute is part of a multilateral convention, like the Court's Statute and the UN Charter, is
relevant, but it has no bearing on the Court's interpretation of the provision. Rules and canons
of interpretation are applicable because they are part of international law. The Court was not
guided by the method of textual or "logico-grammatical" interpretation. It departed from its
practice to seek the normal meaning of words in their context, following the historical
method of interpretation by trying to ascertain the intentions of the authors of the Charter not
as reflected in the wording of Article 36, paragraph 5 of the Statute but rather by referring to
the background of the provision and the circumstances prevailing at the time of its adoption
at San Francisco. In doing so the Court resorted to the use of travaux préparatoires. Without
entering into the much-disputed question of the admissibility of preparatory work for the
purpose of interpretation, it may be mentioned that the historical approach tends to involve
the courts in a fruitless search for the intention of the authors. Moreover, it places the judge in
the position of the authors and imposes on him the burden of assessing, if not to say guessing,
their intention, taking into account the political, economic or judicial circumstances
prevailing at that time. In a sense the judge substitutes his own intention for the presumed
intention of the parties and becomes involved in a process of quasi-legislative activity rather
than performing his judicial function. Article 36 para 5 states:

“Declarations made under Article 36 of the Statute of the Permanent Court of International
Justice and which are still in force shall be deemed, as between the parties to the present
Statute, to be acceptances of the compulsory jurisdiction of the International Court of Justice
for the period which they still have to run and in accordance with their terms.”6

The object of Article 36, paragraph 5, is to introduce a modification in the declarations to

which it refers by substituting the International Court of Justice for the Permanent Court of
International Justice, the latter alone being mentioned in those declarations, and by thus
transferring the legal effect of those declarations from one Court to the other. That Article 36,
paragraph 5, should do this in respect of declarations made by States which were represented
6
Art. 36(5), Statute of the International Court of Justice(UN).

7
at the San Francisco Conference and were signatories of the Charter and of the Statute, can
easily be understood. This corresponds indeed to the very object of this provision. But is this
provision meant also to cover declarations made by other states.

The text of paragraph 5 of Article 36, the provisions of the Statute and the Charter as a whole
and the travaux préparatoires, contain no legal distinction between signatory and non-
signatory states. This distinction was introduced by the Court upon the following
considerations:

1. Whereas the drafters of paragraph 5 were familiar with the position of their own
declarations they were lacking in knowledge as to the declarations of others and therefore
they purported to act on their own behalf only.

2. Admission of new members to the United Nations was not regarded as imminent and
therefore the paragraph was not contemplated to apply to them.

3. The operation of the transfer of the declarations of non-signatory States is not so simple as
in the case of signatory States.

4. The transfer of jurisdiction to the new Court was consented to by the signatory States
only30).

5. The date of the transfer of jurisdiction is not easily ascertainable in the case of non-
signatory States and finally

6. The paragraph is of a transitory character and applies to signatory States only.

As to the imminence or otherwise of admission of new members to the United Nations, this
was a matter for speculation. It certainly was no part of the intentions of the drafters to
exclude new members from the operation of the provision. Paragraph 5 is transitory in
character is a fair assumption. Bearing in mind, however, that Bulgaria's declaration of
acceptance of jurisdiction was unlimited in time, the ten years which have elapsed before she
again became a party to the Statute of the Court seem in comparison a temporary phase. It is,
therefore, not unreasonable to assume - provided all other requirements of the provision are
complied with - that paragraph 5 was intended to apply in her case. The distinction made by
the Court, regardless of whether it is well founded or not, is apt to create uncertainty as to
whether a difference between signatory and non-signatory States may exist with respect to
other provisions of the Charter, for instance, with respect to Article 37 of the Statute of the

8
Court, which is an adjacent provision of a transitory character. Moreover, the distinction
made in respect of paragraph 5 may tend to create a conception of different categories of
Members of the United Nations having differing rights and duties - a conception which runs
counter to the foundation of equality upon which the Charter is based.

CONSENT
International jurisdiction is unquestionably dependent on consent. "No State can be forced,
without its consent, to submit its dispute with other States to mediation, arbitration, or any
other sort of pacific settlement," the Court has stated repeatedly. The optional clause allowing
governments to unilaterally accept to the Court's jurisdiction may give the impression of a
form of coercive jurisdiction in the international realm. But, as the word "optional" implies,
the state's selection and violation is required to establish obligatory jurisdiction. The Court
quite rightly pointed out that an admission to membership in the United Nations of any State
cannot have the legal consequences of subjecting it to the compulsory jurisdiction, which the
Statute does not impose upon other members. The Court, however, attaches great importance
to the date of consent. In its view it is not enough that consent was given - it is also material
when it was given. It follows from the Court's ruling that the consent to the transfer of
jurisdiction must have been given at San Francisco by signing the Charter. It states:

"Consent to the transfer to the International Court of Justice of a declaration accepting the
jurisdiction of the Permanent Court may be regarded as effectively given by a State which,
having been represented at the San Francisco Conference, signed and ratified the Charter
and thereby accepted the Statute in which Atricle 36 paragraph 5 appears". The Court went
on to say: "But when, as in the present case, a State has for many years remained a stranger
to the Statute, to hold that that State has consented to the transfer by the fact of its admission
to the United Nations, would be to regard its request for admission as equivalent to an
express declaration by that State as provided for by Article 36, paragraph 2, of the Statute. It
would be to disregard both the latter provision and the principle according to which the
jurisdiction of the Court is conditional upon the consent of the respon- dent, and to regard as
sufficient a consent which is merely presumed"

The requirements attached by the Court to declarations in point of time not only fail to clarify
the issue but in fact create new difficulties. This be-comes apparent in the light of the
assumed case of a State which had signed the optional clause under the Statute of the
Permanent Court of International Justice for an unqualified period of time, then participated

9
at the San Fran- cisco Conference where it signed the Charter, but did not ratify it until some
years later. Would that State be covered by paragraph 5, having attended at San Francisco
and signed the Charter, or would the Court rule that paragraph 5 cannot apply as the States in
question “remained a stranger” to the statute for many years?

10
 CONCLUSION
In conclusion, it is possible to claim that the Court's decision is unsatisfactory. Based on an
egregious deviation from accepted standards of interpretation, it gratuitously introduces the
notion of unequal status of different members, accompanied by varying rights and
responsibilities, into the United Nations Constitution. The Court also gives its legitimacy to
those who have frequently and continuously attempted to whittle away at the Court's
jurisdiction by declaring itself devoid of jurisdiction in a matter in which there is no
compelling basis for the Court to do so. In some ways, it's impossible to avoid the idea that
the Court tacitly presumes that members of the United Nations have given their agreement to
be subjected to its jurisdiction and that those who seek to dispute that presumption face an
unreasonably onerous burden in their efforts.

There is good reason to expect that the case will have no long-term impact on the
development of international law, as previously stated. The norms of interpretation and the
notion of equality of all members of the United Nations, from which the Judgment draws its
inspiration, are too deeply rooted in international law to be jeopardised by a single decision.
Furthermore, the brilliant, weighty, and perfectly sound Joint Dissenting Opinion that has
been appended to the decision of the majority significantly diminishes the authority of the
decision of the majority.

11