The Aerial Incident

ISRAEL V BULGARIA
ICJ,1959
 FACTS

On July 27 1955 Bulgarian Anti Aircraft defence

forces shot down an Aircraft belonging to El Al Israel
Airlines Ltd.
All the crew, consisting of seven members, and also
fifty-one passengers of various nationalities were
killed.
Israel asked the International Court of Justice to
adjudge Bulgaria liable under international law for
the destruction of the aircraft, to determine the
amount of the money damages, and to tax the
defendant with all costs and expenses.
 Israels Contentions

It alleged that Bulgaria admitted that the Bulgarian

armed forces had displayed a certain haste and had
not taken all the necessary measures to compel the
aircraft to land , and that it would identify and
punish the culpable persons and pay compensation;
but that it failed to do so.
Isreal asserts that as a result of Bulgarias admission
to the United Nations it became a party of the
Statute of the International Court of Justice on
December 14th 1955. Thus, Bulgaria is under the
jurisdiction of the International Court of Justice as it
signed as a Member of the United Nations.
 Israel invoked the Declaration of Acceptance of
Compulosory Jurisdiction Signed by Bulgaria in 1921
(For the Permanent Court of International Justice)

"Declarations made under Article 36 of the Statute of

the Permanent Court of International Justice and
which are skill 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."
 Bulgarias Contention

It is not liable for any damages

Article 36 of the Statute of the Courts does not apply
to Bulgaria.
Bulgaria however denies Israels assertion stating
that Article 36, paragraph 5 does not transfer the
effect of its declaration to the jurisdiction to the
International Court of Justice.
The PCIJ and ICJ are different entities.
 ISSUE

Whether or not Article 36, Paragraph 5 transfers the

effect of its declaration to the jurisdiction of the ICJ,
granting jurisdiction over Bulgaria?

No
 HELD

For the signatory states, Artcile 36 (5) (Charter and

Statute drafted by UN) was simply a transitory
provision-the transfer to the International Court of
Justice of declarations relating to the Permanent
Court of International Justice.
Non-signatory States becoming a party to the Statute
before the dissolution of the old Court, the operation
of transferring from one Court to the other
acceptances of the compulsory jurisdiction could not
constitute a simple operation , capable of being dealt
with immediately and completely by Article 36 (5).
 Without the non-signatories consent, the Statute
could neither maintain nor transform their original
obligation.
With the dissolution of the PCIJ, the non signatories
to the original statute are freed from the obligation.
Since the Bulgarian Declaration had lapsed (in
consequence of PCIJs dissolution in 1946) before
Bulgaria was admitted to the United Nations, it
cannot be said that at that time that Declaration was
still in force.
 . The acceptance set out in that Declaration of the
compulsory jurisdiction of the Permanent Court was
devoid of object, since that Court was no longer in
existence. And there is nothing in Article 36,
paragraph 5, to reveal any intention of
preserving all the declarations which were in
existence at the time of the signature or entry
into force of the Charter, regardless of the
moment when a State having made a
declaration became a party to the Statute.
 Thus the Court finds that Article 36, paragraph 5, is not
applicable to the Bulgarian Declaration of 1921. This view is
confirmed by the fact that it was the clear intention inspiring
Article 36, paragraph 5, to preserve existing acceptances and
not to restore legal force to undertakings which had expired.
On the other hand, in seeking and obtaining admission to the
United Nations, Bulgaria accepted all the provisions of the
Statute, including Article 36. But Bulgaria's acceptance of
Article 36, paragraph 5, does not constitute consent
to the compulsory jurisdiction of the Court, such
consent can validly be given only in accordance with
Article 36, paragraph 2.

Consequently, the Court finds, by twelve votes to four, that it

is without jurisdiction to adjudicate upon the dispute
brought before it by the Application of the
Government of Israel.