## Facts

- The UN General Assembly requested an advisory opinion from the International Court of Justice concerning dispute-settlement clauses in the 1947 peace treaties with Bulgaria, Hungary, and Romania.
- The relevant treaty provisions required that disputes over interpretation or execution, if not resolved diplomatically, be referred to a three-member commission: one representative appointed by each party and a third member chosen by agreement or, failing agreement, appointed by the UN Secretary-General.
- In a prior advisory opinion (first phase), the Court concluded that treaty-covered disputes existed and that the respondent states were legally obligated to appoint their representatives to the commissions.
- The respondent states did not appoint their representatives within the timeframe contemplated by the General Assembly.
- The General Assembly then asked whether, despite that refusal, the Secretary-General could appoint the “third member” and whether a commission formed without the respondent state’s appointee could issue a definitive, binding decision.

## Issues

1. Whether the UN Secretary-General is authorized under the peace treaties to appoint the commission’s third member when one party refuses to appoint its own representative.
2. If such an appointment were made, whether a commission consisting of one party-appointed member and a Secretary-General-appointed “third member” could render a definitive, binding decision under the treaties.

## Decision

- The Court concluded that the Secretary-General was not authorized to appoint the third member absent the appointment of a representative by each party.
- The Court determined that a body composed of only one party’s representative and a Secretary-General-appointed member would not be the commission contemplated by the treaties.
- The Court therefore concluded that such a body would lack competence to render a definitive and binding decision under the treaty mechanism.

## Legal Principles

- Treaty-based dispute-settlement procedures must be applied according to their text and procedural sequence; adjudicative bodies will not rework a mechanism to cure a party’s noncooperation.
- An appointing authority’s treaty power to select a “third member” is contingent on the existence of the two party-appointed members and a failure of agreement between them on the third appointment.
- Where a treaty specifies a three-member commission deciding by majority, a two-member substitute body is not legally the treaty organ and cannot exercise the competence assigned to that organ.
- Institutional actors, including the UN Secretary-General, possess only the powers conferred by the treaty; perceived effectiveness concerns cannot supply missing authority.

## Conclusion

The Court interpreted the peace treaties to require a fully constituted three-member commission—one member appointed by each party plus a third member—before the Secretary-General’s default appointment power can operate, and it held that a two-member substitute commission would not have treaty competence to issue a binding decision.


Interpretation of Peace Treaties with Bulgaria, Hungary, & Romania (Second Phase), Advisory Opinion, 1950 I.C.J. Rep. 221 (July 18)