Conditions on which Switzerland may become a Party to the International Court of Justice

I. RESOLUTIONS ADOPTED ON THE REPORTS OF THE SIXTH COMMITTEE
91. Conditions on which Switzerland may become a Party to the International Court of Justice

The Chief of the Swiss Federal Political Department, in a letter forwarded to the Secretary-General of the United Nations on 26 October 1946, by the Swiss Consul-General in New York, expressed the desire of the Swiss Federal Council to ascertain the conditions on which Switzerland could, in pursuance of Article 93, paragraph 2, of the Charter, become a party to the Statute of the International Court of Justice. Article 93, paragraph 2, of the Charter provides that a State which is not a member of the United Nations may become a party to the Statute of the Court on conditions to be determined in each case by the General Assembly upon the recommendation of the Security Council. The Security Council considered and adopted at its eightieth meeting, held on 15 November 1946, a report and recommendation on this matter from its Committee of Experts. (Annex.) The General Assembly has considered and adopted, on the recommendation of its Sixth Committee, the report and recommendation of the Security Council. The General Assembly therefore determines, in pursuance of Article 93, paragraph 2, of the Charter, and upon the recommendation of the Security Council, the conditions on which Switzerland may become a party to the Statute of the International Court of Justice, as follows: Switzerland will become a party to the Statute of the Court on the date of the deposit with the Secretary-General of the United Nations of an instrument, signed on behalf of the Government of Switzerland and ratified as may be required by Swiss constitutional law, containing:

(a) Acceptance of the provisions of the Statute of the International Court of Justice;

(b) Acceptance of all the obligations of a Member of the United Nations under Article 94 of the Charter;

(c) An undertaking to contribute to the expenses of the Court such equitable amount as the General Assembly shall assess from time to time after consultation with the Swiss Government.

Fifty-sixth plenary meeting,
11 December 46

Annex Report and Recommendation of the Committee of Exports of the Security Council concerning the conditions on which Switzerland may become a Party to the Statute of the International Court of Justice (Adopted by the Security Council at its eightieth meeting on 15 November 1946)

1. The Committee has considered the letter from the Chief of the Swiss Federal Political Department which was forwarded to the Secretary-General on 26 October 1946 by the Swiss Consul-General in New York (document S/185). That letter expressed the desire of the Swiss Federal Council to know the conditions on which Switzerland could become a party to the Statute of the International Court of Justice. Under Article 93, paragraph 2, of the Charter, those conditions are to be determined by the General Assembly upon the recommendation of the Security Council.

2. The Committee advises the Security Council to send the following recommendation to the General Assembly:

"The Security Council recommends that the General Assembly, in accordance with Article 93, paragraph 2, of the Charter, determine the conditions on which Switzerland may become a party to the Statute of the International Court of Justice, as follows:

"Switzerland will become a party to the Statute of the Court on the date of the deposit with the Secretary-General of the United Nations of an instrument, signed on behalf of the Government of Switzerland and ratified as may be required by Swiss constitutional law, containing:

"(a) Acceptance of the provisions of the Statute of the International Court of Justice;

"(b) Acceptance of all the obligations of a Member of the United Nations under Article 94 of the Charter;

"(c) An undertaking to contribute to the expenses of the Court such equitable amount as the General Assembly shall assess from time to time after consultation with the Swiss Government."

3. The Committee decided that it is unnecessary to use in the first suggested condition the words in the Protocol of Signature of the Statute of the Permanent Court of International Justice (16 December 1920, Series D, No. 1, 4th edition, Page 7) whereby signatories declared acceptance of "the jurisdiction of the Court in accordance with the terms and subject to the conditions of" the Statute. In the opinion of the Committee, acceptance of the provisions of the Statute includes acceptance of any incidental jurisdiction exercisable by the Court under the provisions of the Statute.

4. The Committee desires to state that its intention in inserting the second suggested condition is the same as that which caused it to recommend the identical wording appearing in paragraph (1) of the resolution adopted by the Security Council on 15 October 1946 setting out the conditions under which the Court shall be open to States not parties to the Statute. The obligations imposed by Article 94 of the Charter upon a Member of the United Nations should, in the opinion of the Committee, apply equally to non-members of the United Nations which become parties to the Statute and to non-parties which are allowed access to the Court. In the opinion of the Committee, the obligations of a Member of the United Nations under Article 94 include the complementary obligations arising under Articles 25 and 103 of the Charter insofar as the provisions of those Articles may relate to the provisions of Article 94, and non-members of the United Nations which become parties to the Statute (and non-parties which have access to the Court) become bound by these complementary obligations under Articles 25 and 103 in relation to the provisions of Article 94 (but not otherwise), when they accept "all the obligations of a Member of the United Nations under Article 94." The French text of this latter phrase in the recommendation in this report differs from the French text of the Council resolution of 15 October 1946 relating to access to the Court. The Committee believes that the present text states the meaning more accurately.

5. On the third suggested condition - contributions to the expenses of the Court - the Committee noted that the last sentence of Article 35, paragraph 3, of the Statute contemplates a general contribution (i.e., not one assessed in each case) towards the expenses of the Court by parties to the Statute which are not members of the United Nations. Although budgetary matters are within the competence of the Assembly, the obligation to contribute to the expenses of the Court must be imposed by the Assembly as a condition under Article 93, paragraph 2, upon the recommendation of the Security Council. The Committee therefore decided to recommend this condition.

6. The Committee desires to draw attention to the fact that under Article 93, paragraph 2, of the Charter the conditions on which a State which is not a member of the United Nations may become a party to the Statute are to be determined in each case by the General Assembly upon the recommendation of' the Security Council. Accordingly, the conditions recommended above as appropriate to the case of Switzerland are not intended to constitute a precedent to be followed either by the Security Council or by the General Assembly in any future case under Article 93, paragraph 2, of the Charter.

7. The Committee points out that when Switzerland becomes a party to the Statute by accepting the conditions determined by the General Assembly under Article 93, paragraph 2, of the Charter, Switzerland may, under Articles 4 and 69 of the Statute, participate in electing members of the Court and in making amendments to the Statute, on conditions which the Assembly may prescribe upon the recommendation of the Security Council. In this connection, it is noted that, while Article 93, paragraph 2, of the Charter requires the setting of conditions of accession in each case, Articles 4 and 69 of the Statute permit the General Assembly, on the recommendation of the Security Council, to set generally applicable conditions on which non-member States parties to the Statute may participate in electing members of the Court and in the making of amendments to the Statute. The Committee advises that no special conditions on those matters should be prescribed in the case of Switzerland. It advises also that the Council should not now recommend to the Assembly generally applicable conditions under Articles 4 and 69 of the Statute, but should do so after Switzerland or some other non-member State has actually acceded to the Statute. At that time, the Council may wish to include in the generally applicable conditions provisions similar to those of Article 19 of the Charter in connection with the third condition of accession suggested in paragraph 2 above, if the General Assembly prescribes that condition and Switzerland accepts it.