Summaries of Judgments, Advisory Opinions and Orders of ...legal.un.org/icjsummaries/documents/english/st_leg_serf1_add2.pdf · This publication contains summaries of judgments, advisory

ST/LEG/SER.F/1/Add.2

SUMMARIES OF

Judgments, Advisory Opinionsand Orders

OF THE

International Courtof Justice

1997-2002

UNITED NATIONS

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ST/LEG/SER.F/1/Add.2

Summaries ofJudgments, Advisory Opinions andOrders of the International Court

of Justice

1997-2002

wsmUnited Nations • New York, 2003

CONTENTSPage

FOREWORD vi107. CASE CONCERNING GABCÍKOVO-NAGYMAROS PROJECT

(HUNGARY v. SLOVAKIA) (MERITS)Judgment of 25 September 1997 1

108. QUESTIONS OF INTERPRETATION AND APPLICATION OF THE1971 MONTREAL CONVENTION ARISING FROM THE AERIALINCIDENT AT LOCKERBIE (LIBYAN ARAB JAMAHIRIYA v.UNITED KINGDOM) (PRELIMINARY OBJECTIONS)

Judgment of 27 February 1998 15109. QUESTIONS OF INTERPRETATION AND APPLICATION OF THE

1971 MONTREAL CONVENTION ARISING FROM THE AERIALINCIDENT AT LOCKERBIE (LIBYAN ARAB JAMAHIRIYA v.UNITED STATES OF AMERICA) (PRELIMINARY OBJECTIONS)

Judgment of 27 February 1998 22110. CASE CONCERNING THE VIENNA CONVENTION ON CONSULAR

RELATIONS (PARAGUAY v. UNITED STATES OF AMERICA)(PROVISIONAL MEASURES)

Order of 9 April 1998 29111. CASE CONCERNING LAND AND MARITIME BOUNDARY

BETWEEN CAMEROON AND NIGERIA (CAMEROON v. NIGERIA)(PRELIMINARY OBJECTIONS)

Judgment of 11 June 1998 33112. CASE CONCERNING THE VIENNA CONVENTION ON CONSULAR

RELATIONS (PARAGUAY v. UNITED STATES OF AMERICA)(DISCONTINUANCE)

Order of 10 November 1998 44113. CASE CONCERNING FISHERIES JURISDICTION (SPAIN v.

CANADA) (JURISDICTION OF THE COURT)Judgment of 4 December 1998 45

114. REQUEST FOR INTERPRETATION OF THE JUDGMENT OF 11JUNE 1998 IN THE CASE CONCERNING THE LAND ANDMARITIME BOUNDARY BETWEEN CAMEROON AND NIGERIA(CAMEROON v. NIGERIA), PRELIMINARY OBJECTIONS(NIGERIA v. CAMEROON)

Judgment of 25 March 1999 59115. DIFFERENCE RELATING TO IMMUNITY FROM LEGAL PROCESS

OF A SPECIAL RAPPORTEUR OF THE COMMISSION ON HUMANRIGHTS

Advisory opinion of 29 April 1999 63116. CASE CONCERNING LEGALITY OF USE OF FORCE

(YUGOSLAVIA v. BELGIUM) (PROVISIONAL MEASURES)Order of 2 June 1999 71

117. CASE CONCERNING LEGALITY OF USE OF FORCE(YUGOSLAVIA v. CANADA) (PROVISIONAL MEASURES)

Order of 2 June 1999 78118. CASE CONCERNING LEGALITY OF USE OF FORCE

(YUGOSLAVIA v. FRANCE) (PROVISIONAL MEASURES)Order of 2 June 1999 84

119. CASE CONCERNING LEGALITY OF USE OF FORCE(YUGOSLAVIA v. GERMANY) (PROVISIONAL MEASURES)


(YUGOSLAVIA v. ITALY) (PROVISIONAL MEASURES)Order of 2 June 1999 93

121. CASE CONCERNING LEGALITY OF USE OF FORCE(YUGOSLAVIA v. NETHERLANDS) (PROVISIONAL MEASURES)


(YUGOSLAVIA v. PORTUGAL) (PROVISIONAL MEASURES)Order of 2 June 1999 105

123. CASE CONCERNING LEGALITY OF USE OF FORCE(YUGOSLAVIA v. SPAIN) (PROVISIONAL MEASURES)

Order of 2 June 1999 I l l124. CASE CONCERNING LEGALITY OF USE OF FORCE

(YUGOSLAVIA v. UNITED KINGDOM) (PROVISIONALMEASURES)


(YUGOSLAVIA v. UNITED STATES OF AMERICA) (PROVISIONALMEASURES)

Order of 2 June 1999 122126. LAND AND MARITIME BOUNDARY BETWEEN CAMEROON AND

NIGERIA (CAMEROON v. NIGERIA) (Permission to intervene byEquatorial Guinea)

Order of 21 October 1999 126127. CASE CONCERNING KASIKILI/SEDUDU ISLAND (BOTSWANA v.

NAMIBIA)Judgment of 13 December 1999 129

128. CASE CONCERNING THE AERIAL INCIDENT OF 10 AUGUST 1999(PAKISTAN v. INDIA) (JURISDICTION OF THE COURT)

Judgment of 21 June 2000 142129. ARMED ACTIVITIES ON THE TERRITORY OF THE CONGO

(DEMOCRATIC REPUBLIC OF THE CONGO v. UGANDA)(PROVISIONAL MEASURES)

Order of 1 July 2000 149130. CASE CONCERNING THE ARREST WARRANT OF 11 APRIL 2000

(DEMOCRATIC REPUBLIC OF THE CONGO v. BELGIUM)(PROVISIONAL MEASURES)

Order of 8 December 2000 153131. CASE CONCERNING ARMED ACTIVITIES ON THE TERRITORY

OF THE CONGO (DEMOCRATIC REPUBLIC OF THE CONGO v.BURUNDI) (DISCONTINUANCE)

Order of 30 January 2001 161132. CASE CONCERNING ARMED ACTIVITIES ON THE TERRITORY

OF THE CONGO (DEMOCRATIC REPUBLIC OF THE CONGO v.RWANDA) (DISCONTINUANCE)

Order of 30 January 2001 162133. MARITIME DELIMITATION AND TERRITORIAL QUESTIONS

BETWEEN QATAR AND BAHRAIN (QATAR v. BAHRAIN)(MERITS)

Judgment of 16 March 2001 163134. LAGRAND CASE (GERMANY v. UNITED STATES OF AMERICA)

(MERITS)Judgment of 27 June 2001 189

135. SOVEREIGNTY OVER PULAU LICITAN AND PULAU SIPADAN(INDONESIA v. MALAYSIA) (Permission to intervene by thePhilippines)

Judgment of 23 October 2001 201136. ARREST WARRANT OF 11 APRIL 2000 (DEMOCRATIC REPUBLIC

OF THE CONGO v. BELGIUM) (MERITS)Judgment of 14 February 2002 208

137. ARMED ACTIVITIES ON THE TERRITORY OF THE CONGO (NEWAPPLICATION:2002) (DEMOCRATIC REPUBLIC OF THE CONGOv. RWANDA) (PROVISIONAL MEASURES)

Order of 10 July 2002 220138. LAND AND MARITIME BOUNDARY BETWEEN CAMEROON AND

NIGERIA (CAMEROON v. NIGERIA: EQUATORIAL GUINEAINTERVENING) (MERITS)

Judgment of 10 October 2002 225139. CASE CONCERNING SOVEREIGNTY OVER PULAU LIGITAN

AND PULAU SIPADAN (INDONESIA v. MALAYSIA) (MERITS)Judgment of 17 December 2002 263

FOREWORD

This publication contains summaries of judgments, advisory opinions and ordersissued by the International Court of Justice from 1997 to 2002. It is a continuation of twoearlier issues on the same subject (ST/LEG/SER.F/1 and ST/LEG/SER.F/1/Add.l) whichcovered the periods 1948-1991 and 1992-1996, respectively.

It should be noted that the materials contained herein are summaries of the judgments,advisory opinions and orders delivered by the Court. They were prepared by the Registryof the Court, but do not involve the responsibilities of the Court itself. These summariesare for information purposes and should not be quoted as the actual texts of the same. Nordo they constitute an interpretation of the original.

The Codification Division of the Office of Legal Affairs wishes to acknowledge theinvaluable assistance received from the Registry of the Court in making available thesesummaries for publication.

107. CASE CONCERNING GABCÍKOVO-NAGYMAROS PROJECT(HUNGARY/SLOVAKIA)

Judgment of 25 September 1997

In its Judgment in the case concerning Gabcikovo-Nagymaros Project (Hungary/Slovakia), the Court foundthat Hungary was not entitled to suspend and ¡subsequentlyabandon, in 1989, its part of the works in the dam project, aslaid down in the treaty signed in 1977 by Hungary andCzechoslovakia and related instruments; it also found thatCzechoslovakia was entitled to start, in November 1991,preparation of an alternative provisional solution (called"Variant C"), but not to put that solution into operation inOctober 1992 as a unilateral measure; that Hungary'snotification of termination of the 1977 Treaty and relatedinstruments on 19 May 1992 did not legally tercninate them(and that they are consequently still in force and govern therelationship between the Parties); and that Slovakia, assuccessor to Czechoslovakia became a party to the Treaty of1977.

As to the future conduct of the Parties, the Court found:that Hungary and Slovakia must negotiate in good faith inthe light of the prevailing situation, and must take allnecessary measures to ensure the achievement of theobjectives of the 1977 Treaty; that, unless the Parties agreeotherwise, a joint operational regime for the dam on Slovakterritory must be established in accordance with the Treatyof 1977; that each Party must compensate the other Party forthe damage caused by its conduct; and that the accounts forthe construction and operation of the works must be settledin accordance with the relevant provisions of the 1977Treaty and its related instruments.

The Court also held that newly develop sá norms ofenvironmental law are relevant for the implementation ofthe Treaty and that the Parties could, by agreement,incorporate them through the application of ¡¡everal of itsarticles. It found that the Parties, in order to reconcileeconomic development with protection of the environment,"should look afresh at the effects on the environment of theoperation of the Gabcikovo power plant. In particular theymust find a satisfactory solution for the volume of water tobe released into the old bed of the Danube and into the side-arms of the river.

The Court was composed as follows: PresidentSchwebel; Vice-President Weeramantry; Judges Oda,Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer,Koroma, Vereshchetin, Parra-Aranguren, Kooijmans,Rezek; Judge ad hoc Skubiszewski; Registrar Valencia-Ospina.

The complete text of the operative paragraph of theJudgment is as follows:

"155. For these reasons,THE COURT,(1) Having regard to Article 2, paragraph 1, of the

Special Agreement,A. Finds, by fourteen votes to one, that Hungary

was not entitled to suspend and subsequently abandon,in 1989, the works on the Nagymaros Project and on thepart of the Gabcikovo Project for which the Treaty of 16September 1977 and related instruments attributedresponsibility to it;

IN FAVOUR: President Schwebel; Vice-PresidentWeeramantry; Judges Oda, Bedjaoui, Guillaume,Ranjeva, Shi, Fleischhauer, Koroma, Vereshchetin,Parra-Aranguren, Kooijmans, Rezek; Judge ad hocSkubiszewski;

AGAINST: Judge Herczegh;B. Finds, by nine votes to six, that Czechoslovakia

was entitled to proceed, in November 1991, to the"provisional solution" as described in the terms of theSpecial Agreement;

IN FAVOUR: Vice-President Weeramantry; JudgesOda, Guillaume, Shi, Koroma, Vereshchetin, Parra-Aranguren, Kooijmans; Judge ad hoc Skubiszewski;

AGAINST: President Schwebel; Judges Bedjaoui,Ranjeva, Herczegh, Fleischhauer, Rezek;

C. Finds, by ten votes to five, that Czechoslovakiawas not entitled to put into operation, from October1992, this "provisional solution";

IN FAVOUR: President Schwebel; Vice-PresidentWeeramantry; Judges Bedjaoui, Guillaume, Ranjeva,Herczegh, Shi, Fleischhauer, Kooijmans, Rezek;

AGAINST: Judges Oda, Koroma, Vereshchetin,Parra-Aranguren; Judge ad hoc Skubiszewski;

D. Finds, by eleven votes to four, that thenotification, on 19 May 1992, of the termination of theTreaty of 16 September 1977 and related instruments byHungary did not have the legal effect of terminatingthem;

IN FAVOUR: Vice-President Weeramantry; JudgesOda, Bedjaoui, Guillaume, Ranjeva, Shi, Koroma,Vereshchetin, Parra-Aranguren, Kooijmans; Judge adhoc Skubiszewski;

AGAINST: President Schwebel; Judges Herczegh,Fleischhauer, Rezek;

(2) Having regard to Article 2, paragraph 2, andArticle 5 of the Special Agreement,

A. Finds, by twelve votes to three, that Slovakia, assuccessor to Czechoslovakia, became a party to theTreaty of 16 September 1977 as from 1 January 1993;

IN FAVOUR: President Schwebel; Vice-PresidentWeeramantry; Judges Oda, Bedjaoui, Guillaume,Ranjeva, Shi, Koroma, Vereshchetin, Parra-Aranguren,Kooijmans; Judge ad hoc Skubiszewski;

AGAINST: Judges Herczegh, Fleischhauer, Rezek;B. Finds, by thirteen votes to two, that Hungary and

Slovakia must negotiate in good faith in the light of theprevailing situation, and must take all necessarymeasures to ensure the achievement of the objectives ofthe Treaty of 16 September 1977, in accordance withsuch modalities as they may agree upon;

IN FAVOUR: President Schwebel; Vice-PresidentWeeramantry; Judges Oda, Bedjaoui, Guillaume,Ranjeva, Shi, Koroma, Vereshchetin, Parra-Aranguren,Kooijmans, Rezek; Judge ad hoc Skubiszewski;

AGAINST: Judges Herczegh, Fleischhauer;C. Finds, by thirteen votes to two, that, unless the

Parties otherwise agree, a joint operational regime mustbe established in accordance with the Treaty of 16September 1977;


AGAINST: Judges Herczegh, Fleischhauer;D. Finds, by twelve votes to three, that, unless the

Parties otherwise agree, Hungary shall compensateSlovakia for the damage sustained by Czechoslovakiaand by Slovakia on account of the suspension andabandonment by Hungary of works for which it wasresponsible; and Slovakia shall compensate Hungary forthe damage it has sustained on account of the puttinginto operation of the "provisional solution" byCzechoslovakia and its maintenance in service bySlovakia;

IN FAVOUR: President Schwebel; Vice-PresidentWeeramantry; Judges Bedjaoui, Guillaume, Ranjeva,Herczegh, Shi, Fleischhauer, Parra-Aranguren,Kooijmans, Rezek; Judge ad hoc Skubiszewski;

AGAINST: Judges Oda, Koroma, Vereshchetin;E. Finds, by thirteen votes to two, that the

settlement of accounts for the construction and operationof the works must be effected in accordance with therelevant provisions of the Treaty of 16 September 1977and related instruments, taking due account of suchmeasures as will have been taken by the Parties inapplication of points 2 B and C of the present operativeparagraph.


AGAINST: Judges Herczegh, Fleischhauer."

President Shwebel and Judge Rezek appendeddeclarations to the Judgment of the Court. Vice-PresidentWeeramantry, Judges Bedjaoui and Koroma appendedseparate opinions. Judges Oda, Ranjeva, Herczegh,Fleichhauer, Vereshchetin and Parra-Aranguren, and Judgead hoc Skubiszewski appended dissenting opinions.

Review of the proceedings and statement of claims(paras. 1-14)

The Court begins by recalling that proceedings had beeninstituted on 2 July 1993 by a joint notification, by Hungaryand Slovakia, of a Special Agreement, signed at Brussels on7 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 invitationof the parties, to the area, from 1 to 4 April 1997. It furthersets out the submissions of the Parties.

History of the dispute(paras. 15-25)

The Court recalls that the present case arose out of thesignature, on 16 September 1977, by the HungarianPeople's Republic and the Czechoslovak People's Republic,of a treaty "concerning the construction and operation of theGabcikovo-Nagymaros System of Locks" (hereinafter calledthe "1977 Treaty"). The names of the two contracting Stateshave varied over the years; they are referred to as Hungaryand Czechoslovakia. The 1977 Treaty entered into force on30 June 1978. It provides for the construction and operationof a System of Locks by the parties as a "joint investment".According to its Preamble, the system was designed toattain "the broad utilization of the natural resources of theBratislava-Budapest section of the Danube river for thedevelopment of water resources, energy, transport,agriculture and other sectors of the national economy of theContracting Parties". The joint investment was thusessentially aimed at the production of hydroelectricity, theimprovement of navigation on the relevant section of theDanube and the protection of the areas along the banksagainst: flooding. At the same time, by the terms of theTreaty, the contracting parties undertook to ensure that thequality of water in the Danube was not impaired as a resultof the Project, and that compliance with the obligations forthe protection of nature arising in connection with theconstruction and operation of the System of Locks would beobserved.

The sector of the Danube river with which this case isconcerned 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. Theboundary between the two States is constituted, in the majorpart of that region, by the main channel of the river. Cunovoand, further downstream, Gabcikovo, are situated in thissector of the river on Slovak territory, Cunovo on the rightbank and Gabcikovo on the left. Further downstream, afterthe confluence of the various branches, the river entersHungarian territory. Nagymaros lies in a narrow valley at abend in the Danube just before it turns south, enclosing thelarge river island of Szentendre before reaching Budapest(see sketch-map No. 1).

The 1977 Treaty describes the principal works to beconstructed in pursuance of the Project. It provided for thebuilding of two series of locks, one at Gabcikovo (inCzechoslovak territory) and the other at Nagymaros (inHungarian territory), to constitute "a single and indivisibleoperational system of works" (see sketch-map No. I). TheTreaty further provided that the technical specificationsconcerning the system would be included in the "JointContractual Plan" which was to be drawn up in accordancewith the Agreement signed by the two Governments for thispurpose on 6 May 1976. It also provided for theconstruction, financing and management of ths works on ajoint basis in which the Parties participated in equalmeasure.

The Joint Contractual Plan, set forth, on a large numberof points, both the objectives of the sysiem and thecharacteristics of the works. It also contained "PreliminaryOperating and Maintenance Rules", Article 23 of whichspecified that "The final operating rules [should] beapproved within a year of the setting into operation of thesystem."

The Court observes that the Project was thus to havetaken the form of an integrated joint project with the twocontracting parties on an equal footing in respect of thefinancing, construction and operation of the works. Itssingle and indivisible nature was to have been realizedthrough the Joint Contractual Plan which complemented theTreaty. In particular, Hungary would have had control of thesluices at Dunakiliti and the works at Nagymaros, whereasCzechoslovakia would have had control of the works atGabcikovo.

by a Protocol signed on 6 February 1989 to accelerate theProject.

As a result of intense criticism which the Project hadgenerated in Hungary, the Hungarian Government decidedon 13 May 1989 to suspend the works at Nagymarospending the completion of various studies which thecompetent authorities were to finish before 31 July 1989.On 21 July 1989, the Hungarian Government extended thesuspension of the works at Nagymaros until 31 October1989, and, in addition, suspended the works at Dunakilitiuntil the same date. Lastly, on 27 October 1989, Hungarydecided to abandon the works at Nagymaros and to maintainthe status quo at Dunakiliti.

During this period, negotiations took place between theparties. Czechoslovakia also started investigating alternativesolutions. One of them, an alternative solution subsequentlyknown as "Variant C", entailed a unilateral diversion of theDanube by Czechoslovakia on its territory some 10kilometres upstream of Dunakiliti (see sketch-map No. 3). Inits final stage, Variant C included the construction atCunovo of an overflow dam and a levee linking that dam tothe south bank of the bypass canal. Provision was made forancillary works.

On 23 July 1991, the Slovak Government decided "tobegin, in September 1991, construction to put theGabcikovo Project into operation by the provisionalsolution". Work on Variant C began in November 1991.Discussions continued between the two parties but to noavail, and, on 19 May 1992, the Hungarian Governmenttransmitted to the Czechoslovak Government a NoteVerbale terminating the 1977 Treaty with effect from 25May 1992. On 15 October 1992, Czechoslovakia beganwork to enable the Danube to be closed and, starting on 23October, proceeded to the damming of the river.

The Court finally takes note of the fact that on 1 January1993 Slovakia became an independent State; that in theSpecial Agreement thereafter concluded between Hungaryand Slovakia the Parties agreed to establish and implement atemporary water management regime for the Danube; andthat finally they concluded an Agreement in respect of it on19 April 1995, which would come to an end 14 days afterthe Judgment of the Court. The Court also observes that notonly the 1977 Treaty, but also the "related instruments" arecovered in the preamble to the Special Agreement and thatthe Parties, when concentrating their reasoning on the 1977Treaty, appear to have extended their arguments to the"related instruments".

The schedule of work had for its part been fixed in anAgreement on mutual assistance signed by the two partieson 16 September 1977, at the same time as the Treaty itself.The Agreement made some adjustments to the allocation ofthe works between the parties as laid down by the Treaty.Work on the Project started in 1978. On Hungary'sinitiative, the two parties first agreed, by two Protocolssigned on 10 October 1983 to slow the work down and topostpone putting into operation the power plants, and then,

Suspension and abandonment by Hungary, in 1989, ofworks on the Project

(paras. 27-59)

In terms of Article 2, paragraph 1 (a), of the SpecialAgreement, the Court is requested to decide first

"whether the Republic of Hungary was entitled tosuspend and subsequently abandon, in 1989, the workson the Nagymaros Project and on the part of the

Gabcíkovo Project for which the Treaty attributedresponsibility 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 thepresent case of the Vienna Convention of 1969 on the Lawof Treaties, as argued by the Parties. It needs only to bemindful of the fact that it has several times had occasion tohold that some of the rules laid down in that Conventionmight be considered as a codification of existing customarylaw. The Court takes the view that in many respects thisapplies to the provisions of the Vienna Conventionconcerning the termination and the suspension of theoperation of treaties, set forth in Articles 60 to 62. Neitherhas the Court lost sight of the fact that the ViennaConvention is in any event applicable to the Protocol of 6February 1989 whereby Hungary and Czechoslovakiaagreed to accelerate completion of the works relating to theGabcikovo-Nagymaros Project.

Nor does the Court need to dwell upon the question ofthe relationship between the law of treaties and the law ofState responsibility, to which the Parties devoted lengthyarguments, as those two branches of international lawobviously have a scope that is distinct. A determination ofwhether a convention is or is not in force, and whether it hasor has not been properly suspended or denounced, is to bemade pursuant to the law of treaties. On the other hand, anevaluation of the extent to which the suspension ordenunciation of a convention, seen as incompatible with thelaw of treaties, involves the responsibility of the State whichproceeded to it, is to be made under the law of Stateresponsibility.

The Court cannot accept Hungary's argument to theeffect that, in 1989, in suspending and subsequentlyabandoning the works for which it was still responsible atNagymaros and at Dunakiliti, it did not suspend theapplication of the 1977 Treaty itself or then reject thatTreaty. The conduct of Hungary at that time can only beinterpreted as an expression of its unwillingness to complywith at least some of the provisions of the Treaty and theProtocol of 6 February 1989, as specified in the JointContractual Plan. The effect of Hungary's conduct was torender impossible the accomplishment of the system ofworks that the Treaty expressly described as "single andindivisible".

The Court then considers the question of whether therewas, in 1989. a state of necessity which would havepermitted Hungary, without incurring internationalresponsibility, to suspend and abandon works that it wascommitted to perform in accordance with the 1977 Treatyand related instruments.

The Court observes, first of all, that the state of necessityis a ground recognized by customary international law forprecluding the wrongfulness of an act not in conformitywith an international obligation. It considers moreover thatsuch ground for precluding wrongfulness can only beaccepted on an exceptional basis. The following basicconditions set forth in Article 33 of the Draft Article on theInternational Responsibility of States by the International

Law Commission are relevant in the present case: it musthave been occasioned by an "essential interest" of the Statewhich is the author of the act conflicting with one of itsinternational obligations; that interest must have beenthreatened by a "grave and imminent peril"; the act beingchallenged must have been the "only means" ofsafeguarding that interest; that act must not have "seriouslyimpairfed] an essential interest" of the State towards whichthe obligation existed; and the State which is the author ofthat act must not have "contributed to the occurrence of thestate of necessity". Those conditions reflect customaryinternational law.

The Court has no difficulty in acknowledging that theconcerns expressed by Hungary for its natural environmentin the region affected by the Gabcikovo-Nagymaros Projectrelated to an "essential interest" of that State.

It is of the view, however, that, with respect to bothNagymaros and Gabcíkovo, the perils invoked by Hungary,without prejudging their possible gravity, were notsufficiently established in 1989, nor were they "imminent";and that Hungary had available to it at that time means ofresponding to these perceived perils other than thesuspension and abandonment of works with which it hadbeen entrusted. What is more, negotiations were under waywhich might have led to a review of the Project and theextension of some of its time limits, without there beingneed to abandon it.

The Court further notes that Hungary when it decided toconclude the 1977 Treaty, was presumably aware of thesituation as then known; and that the need to ensure theprotection of the environment had not escaped the parties.Neither can it fail to note the positions taken by Hungaryafter the entry into force of the 1977 Treaty. Slowly,speeded up. The Court infers that, in the present case, evenif it had been established that there was, in 1989, a state ofnecessity linked to the performance of the 1977 Treaty,Hungary would not have been permitted to rely upon thatstate of necessity in order to justify its failure to complywith its treaty obligations, as it had helped, by act oromission to bring it about.

In the light of the conclusions reached above, the Courtfinds that Hungary was not entitled to suspend andsubsequently abandon, in 1989, the works on theNagymaros Project and on the part of the Gabcíkovo Projectfor which the 1977 Treaty and related instruments attributedresponsibility to it.

Czechoslovakia s proceeding, in November 1991, to"Variant C" and putting into operation, from October1992, this Variant

(paras. 60-88)

By the terms of Article 2, paragraph 1 (b), of the SpecialAgreement, the Court is asked in the second place to decide

"(b) whether the Czech and Slovak Federal Republicwas entitled to proceed, in November 1991, to the'provisional solution' and to put into operation fromOctober 1992 this system".

Czechoslovakia had maintained that proceeding toVariant C and putting it into operation did not constituteinternationally wrongful acts; Slovakia adopted thisargument. During the proceedings before the Court Slovakiacontended that Hungary's decision to suspend andsubsequently abandon the construction of works atDunakiliti had made it impossible for Czechoslovakia tocarry out the works as initially contemplated by the 1977Treaty and that the latter was therefore entitled to proceedwith a solution which was as close to the original Project aspossible. Slovakia invoked what it described as a "principleof approximate application" to justify the construction andoperation of Variant C. It explained that this was the onlypossibility remaining to it "of fulfilling not only thepurposes of the 1977 Treaty, but the continuing obligationto implement it in good faith".

The Court observes that it is not necessary to determinewhether there is a principle of international law or a generalprinciple of law of ''approximate application" because, evenif such a principle existed, it could by definition only beemployed within the limits of the treaty in question. In theview of the Court, Variant C does not meet that cardinalcondition with regard to the 1977 Treaty.

As the Court has already observed, the basiccharacteristic of the 1977 Treaty is, according to Article 1,to provide for the construction of the Gabcikovo-NagymarosSystem of Locks as a joint investment constituting a singleand indivisible operational system of works. This element isequally reflected in Articles 8 and 10 of the Treatyproviding for joint ownership of the most important worksof the Gabcikovo-Nagymaros project and for the operationof this joint property as a coordinated single unit. Bydefinition all this could not be carried out by unilateralaction. In spite of having a certain external physicalsimilarity with the original Project, Variant C thus differedsharply from it in its legal characteristics. The Courtaccordingly concludes that Czechoslovakia, in puttingVariant C into operation, was not applying the 1977 Treatybut, on the contrary, violated certain of its expressprovisions, and, in so doing, committed an internationallywrongful act.

The Court notes that between November 1991 andOctober 1992, Czechoslovakia confined itself to theexecution, on its own territory, of the works which werenecessary for the implementation of Variant C, but whichcould have been abandoned if an agreement had beenreached between the parties and did not thereforepredetermine the final decision to be taken. For as long asthe Danube had not been unilaterally dammed, Variant Chad not in fact been applied. Such a situation is not unusualin international law or, for that matter, in domestic law. Awrongful act or offence is frequently preceded bypreparatory actions which are not to be confused with theact or offence itself. It is as well to distinguish between theactual commission of a wrongful act (whether instantaneousor continuous) and the conduct prior to that act which is of apreparatory character and which "does not qualify as awrongful act".

Slovakia also maintained that it was acting under a dutyto mitigate damages when it carried out Variant C. It statedthat "It is a general principle of international law that a partyinjured by the non-performance of another contract partymust seek to mitigate the damage he has sustained." But theCourt observes that, while this principle might thus providea basis for the calculation of damages, it could not, on theother hand, justify an otherwise wrongful act. The Courtfurther considers that the diversion of the Danube carriedout by Czechoslovakia was not a lawful countermeasurebecause it was not proportionate.

In the light of the conclusions reached above, the Courtfinds that Czechoslovakia was entitled to proceed, inNovember 1991, to Variant C insofar as it then confineditself to undertaking works which did not predetermine thefinal decision to be taken by it. On the other hand,Czechoslovakia was not entitled to put that Variant intooperation from October 1992.

Notification by Hungary, on 19 May 1992, of thetermination of the 1977 Treaty and relatedinstruments

(paras. 89-115)

By the terms of Article 2, paragraph 1 (c), of the SpecialAgreement, the Court is asked, thirdly, to determine

"what are the legal effects of the notification, on 19 May1992, of the termination of the Treaty by the Republic ofHungary".During the proceedings, Hungary presented five

arguments in support of the lawfulness, and thus theeffectiveness, of its notification of termination. These werethe existence of a state of necessity; the impossibility ofperformance of the Treaty; the occurrence of a fundamentalchange of circumstances; the material breach of the Treatyby Czechoslovakia; and, finally, the development of newnorms of international environmental law. Slovakiacontested each of these grounds.

State of necessity

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

Impossibility of performance

The Court finds that it is not necessary to determinewhether the term "object" in Article 61 of the ViennaConvention of 1969 on the Law of Treaties (which speaksof "permanent disappearance or destruction of an objectindispensable for the execution of the treaty" as a ground forterminating or withdrawing from it) can also be understoodto embrace a legal regime as in any event, even if that werethe case, it would have to conclude that in this instance thatregime had not definitively ceased to exist. The 1977Treaty— 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 requiredreadjustments between economic imperatives and ecologicalimperatives.

Fundamental change of circumstances

In the Court's view, the prevalent political conditionswere not so closely linked to the object and purpose of theTreaty that they constituted an essential basis of the consentof the parties and, in changing, radically altered the extentof the obligations still to be performed. The same holdsgood for the economic system in force at the time of theconclusion of the 1977 Treaty. Nor does the Court considerthat new developments in the state of environmentalknowledge and of environmental law can be said to havebeen completely unforeseen. What is more, the formulationof Articles 15, 19 and 20 is designed to accommodatechange. The changed circumstances advanced by Hungaryare thus, in the Court's view, not of such a nature, eitherindividually or collectively, that their effect would radicallytransform the extent of the obligations still to be performedin order to accomplish the Project.

Material breach of the Treaty

Hungary's main argument for invoking a material breachof the Treaty was the construction and putting into operationof Variant C. The Court pointed out that it had alreadyfound that Czechoslovakia violated the Treaty only when itdiverted the waters of the Danube into the bypass canal inOctober 1992. In constructing the works which would leadto the putting into operation of Variant C, Czechoslovakiadid not act unlawfully. In the Court's view, therefore, thenotification of termination by Hungary on 19 May 1992 waspremature. No breach of the Treaty by Czechoslovakia hadyet taken place and consequently Hungary was not entitledto invoke any such breach of the Treaty as a ground forterminating it when it did.

Development of new norms of internationalenvironmental law

The Court notes that neither of the Parties contended thatnew peremptory norms of environmental law had emergedsince the conclusion of the 1977 Treaty; and the Court willconsequently not be required to examine the scope ofArticle 64 of the Vienna Convention on the Law of Treaties(which treats of the voidance and termination of a treatybecause of the emergence of a new peremptory norm ofgeneral international law (jus cogens)). On the other hand,the Court wishes to point out that newly developed norms ofenvironmental law are relevant for the implementation ofthe Treaty and that the parties could, by agreement,incorporate them through the application of Articles 15, 19and 20 of the Treaty. These articles do not contain specificobligations of performance but require the parties, incarrying out their obligations to ensure that the quality ofwater in the Danube is not impaired and that nature isprotected, to take new environmental norms intoconsideration when agreeing upon the means to be specified

in the Joint Contractual Plan. By inserting these evolvingprovisions in the Treaty, the parties recognized the potentialnecessity to adapt the Project. Consequently, the Treaty isnot static, and is open to adapt to emerging norms ofinternational law. By means of Articles 15 and 19, newenvironmental norms can be incorporated in the JointContractual Plan. The awareness of the vulnerability of theenvironment and the recognition that environmental riskshave to be assessed on a continuous basis have becomemuch stronger in the years since the Treaty's conclusion.These new concerns have enhanced the relevance ofArticles 15, 19 and 20. The Court recognizes that bothParties agree on the need to take environmental concernsseriously and to take the required precautionary measures,but they fundamentally disagree on the consequences thishas for the joint Project. In such a case, third-partyinvolvement may be helpful and instrumental in finding asolution, provided each of the Parties is flexible in itsposition.

Finally, the Court is of the view that although it hasfound that both Hungary and Czechoslovakia failed tocomply with their obligations under the 1977 Treaty, thisreciprocal wrongful conduct did not bring the Treaty to anend nor justify its termination.

In the light of the conclusions it has reached above, theCourt finds that the notification of termination by Hungaryof 19 May 1992 did not have the legal effect of terminatingthe 1977 Treaty and related instruments.

Dissolution of Czechoslovakia(paras. 117-124)

The Court then turns to the question whether Slovakiabecame a party to the 1977 Treaty as successor toCzechoslovakia. As an alternative argument, Hungarycontended that, even if the Treaty survived the notificationof termination, in any event it ceased to be in force as atreaty on 31 December 1992, as a result of the"disappearance of one of the parties". On that dateCzechoslovakia ceased to exist as a legal entity, and on 1January 1993 the Czech Republic and the Slovak Republiccame into existence.

The Court does not find it necessary for the purposes ofthe present case to enter into a discussion of whether or notArticle 34 of the 1978 Vienna Convention on Succession ofStates in respect of treaties (in which a rule of automaticsuccession to all treaties is provided for) reflects the state ofcustomary international law. More relevant to its presentanalysis is the particular nature and character of the 1977Treaty. An examination of this Treaty confirms that, asidefrom its undoubted nature as a joint investment, its majorelements were the proposed construction and joint operationof a large, integrated and indivisible complex of structuresand installations on specific parts of the respectiveterritories of Hungary and Czechoslovakia along theDanube. The Treaty also established the navigational regimefor an important sector of an international waterway, inparticular the relocation of the main international shippinglane to the bypass canal. In so doing, it inescapably created

a situation in which the interests of other users of theDanube were affected. Furthermore, the interests of thirdStates were expressly acknowledged in Article 18, wherebythe parties undertook to ensure "uninterrupted and safenavigation on the international fairway" in accordance withtheir obligations under the Convention of 18 August 1948concerning the Régime of Navigation on the Danube.

The Court then refers to Article 12 of the 1978 ViennaConvention on Succession of States in respect of Treaties,which reflects the principle that treaties of a territorialcharacter have been regarded both in traditional doctrineand in modern opinion as unaffected by a succession ofStates. The Court considers that Article 12 reflects a rule ofcustomary international law; and notes that neither of theParties disputed this. It concludes that the content of the1977 Treaty indicates that it must be regarded asestablishing a territorial regime within the meaning ofArticle 12 of 1978 Vienna Convention. It created rights andobligations "attaching to" the parts of the Danube to whichit relates; thus the Treaty itself could not be affected by asuccession of States. The Court therefore concludes that the1977 Treaty became binding upon Slovakia on 1 January1993.

Legal consequences of the Judgment(paras. 125-154)

The Court observes that the part of its Judgment whichanswers the questions in Article 2, paragraph 1, of theSpecial Agreement has a declaratory character. It deals withthe past conduct of the Parties and determines thelawfulness or unlawfulness of that conduct between 1989and 1992 as well as its effects on the existence of the Treaty.Now the Court has, on the basis of the foregoing findings, todetermine what the future conduct of the Parties should be.This part of the Judgment is prescriptive rather thandeclaratory because it determines what the rights andobligations of the Parties are. The Parties will have to seekagreement on the modalities of the execution of theJudgment in the light of this determination, as they agreedto do in Article 5 of the Special Agreement.

In this regard it is of cardinal importance that the Courthas found that the 1977 Treaty is still in force andconsequently governs the relationship between the Parties.That relationship is also determined by the rales of otherrelevant conventions to which the two States are party, bythe rules of general internsitional law and, in this particularcase, by the rales of State responsibility; but it is governed,above all, by the applicable rales of the 1977 Treaty as a lexspecialis. The Court observes that it cannot, however,disregard the fact that the Treaty has not been fullyimplemented by either party for years, and indeed that theiracts of commission and omission have contributed tocreating the factual situation that now exists. Nor can itoverlook that factual situation — or tie practicalpossibilities and impossibilities to which it gives rise —when deciding on the legal requirements for the futureconduct of the Parties. What is essential, therefore, is thatthe factual situation as it has developed since Á989 shall be

placed within the context of the preserved and developingtreaty relationship, in order to achieve its object and purposeinsofar as that is feasible. For it is only then that theirregular state of affairs which exists as the result of thefailure of both Parties to comply with their treatyobligations can be remedied.

The Court points out that the 1977 Treaty is not only ajoint investment project for the production of energy, but itwas designed to serve other objectives as well: theimprovement of the navigability of the Danube, floodcontrol and regulation of ice-discharge, and the protection ofthe natural environment. In order to achieve these objectivesthe parties accepted obligations of conduct, obligations ofperformance, and obligations of result. The Court is of theopinion that the Parties are under a legal obligation, duringthe negotiations to be held by virtue of Article 5 of theSpecial Agreement, to consider, within the context of the1977 Treaty, in what way the multiple objectives of theTreaty can best be served, keeping in mind that all of themshould be fulfilled.

It is clear that the Project's impact upon, and itsimplications for, the environment are of necessity a keyissue. In order to evaluate the environmental risks, currentstandards must be taken into consideration. This is not onlyallowed by the wording of Articles 15 and 19, but evenprescribed, to the extent that these articles impose acontinuing — and thus necessarily evolving — obligationon the parties to maintain the quality of the water of theDanube and to protect nature. The Court is mindful that, inthe field of environmental protection, vigilance andprevention are required on account of the often irreversiblecharacter of damage to the environment and of thelimitations inherent in the very mechanism of reparation ofthis type of damage. New norms and standards have beendeveloped, set forth in a great number of instruments duringthe last two decades. Such new norms have to be taken intoconsideration, and such new standards given proper weight,not only when States contemplate new activities but alsowhen continuing with activities begun in the past. For thepurposes of the present case, this means that the Partiestogether should look afresh at the effects on the environmentof the operation of the Gabcikovo power plant. In particularthey must find a satisfactory solution for the volume ofwater to be released into the old bed of the Danube and intothe side-arms on both sides of the river.

What is required in the present case by the rule pactasunt servanda, as reflected in Article 26 of the ViennaConvention of 1969 on the Law of Treaties, is that theParties find an agreed solution within the co-operativecontext of the Treaty. Article 26 combines two elements,which are of equal importance. It provides that "Everytreaty in force is binding upon the parties to it and must beperformed by them in good faith". This latter element, in theCourt's view, implies that, in this case, it is the purpose ofthe Treaty, and the intentions of the parties in concluding it,which should prevail over its literal application. Theprinciple of good faith obliges the Parties to apply it in a

reasonable way and in such a manner that its purpose can berealized.

The 1977 Treaty not only contains a joint investmentprogramme, it also establishes a regime. According to theTreaty, the main structures of the System of Locks are thejoint property of the Parties; their operation will take theform of a coordinated single unit; and the benefits of theproject shall be equally shared. Since the Court has foundthat the Treaty is still in force and that, under its terms, thejoint regime is a basic element, it considers that, unless theParties agree otherwise, such a regime should be restored.The Court is of the opinion that the works at Cunovo shouldbecome a jointly operated unit within the meaning of Article10, paragraph 1, in view of their pivotal role in the operationof what remains of the Project and for the water-management regime. The dam at Cunovo has taken over therole which was originally destined for the works atDunakiliti, and therefore should have a similar status. TheCourt also concludes that Variant C, which it considersoperates in a manner incompatible with the Treaty, shouldbe made to conform to it. It observes that re-establishmentof the joint regime will also reflect in an optimal way theconcept of common utilization of shared water resources forthe achievement of the several objectives mentioned in theTreaty.

Having thus far indicated what in its view should be theeffects of its finding that the 1977 Treaty is still in force, theCourt turns to the legal consequences of the internationallywrongful acts committed by the Parties, as it had also beenasked by both Parties to determine the consequences of theJudgment as they bear upon payment of damages.

The Court has not been asked at this stage to determinethe quantum of damages due, but to indicate on what basisthey should be paid. Both Parties claimed to have sufferedconsiderable financial losses and both claim pecuniarycompensation for them.

In the Judgment, the Court has concluded that bothParties committed internationally wrongful acts, and it hasnoted that those acts gave rise to the damage sustained bythe Parties; consequently, Hungary and Slovakia are bothunder an obligation to pay compensation and are bothentitled to obtain compensation. The Court observes,however, that given the fact, that there have beenintersecting wrongs by both Parties, the issue ofcompensation could satisfactorily be resolved in theframework of an overall settlement if each of the Partieswere to renounce or cancel all financial claims and counter-claims. At the same time, the Court wishes to point out thatthe settlement of accounts for the construction of the worksis different from the issue of compensation, and must beresolved in accordance with the 1977 Treaty and relatedinstruments. If Hungary is to share in the operation andbenefits of the Cunovo complex, it must pay a proportionateshare of the building and running costs.

Declaration of President Schwebel

I am largely in agreement with the Court's Judgment andaccordingly I have voted for most of its operative

paragraphs. I have voted against operative paragraph 1 Bessentially because I view the construction of "Variant C",the "provisional solution", as inseparable from its being putinto operation. I have voted against operative paragraph 1 Dessentially because I am not persuaded that Hungary'sposition as the Party initially in breach deprived it of a rightto terminate the Treaty in response to Czechoslovakia'smaterial breach, a breach which in my view (as indicated bymy vote on paragraph 1 B) was in train when Hungary gavenotice of termination.

At the same time, I fully support the conclusions of theCourt as to what should be the future conduct of the Partiesand as to disposition of issues of compensation.

Declaration of Judge Rezek

Judge Rezek considers that the 1977 Treaty is no longerin existence, since it has been abrogated by the attitude ofthe two Parties. From that conclusion, however, he infersconsequences very similar to those which the majority infersfrom the continued existence of the treaty. First, there iswhat has been accomplished, and accomplished in goodfaith. There is, also and above all, the very principle of goodfaith which must lead here to the fulfilment of reciprocalduties remaining from a treaty which has not beenimplemented through the reciprocal fault of the two Parties.

Separate opinion of Vice-President Weeramantry

Judge Weeramantry agreed with the majority of theCourt in all their conclusions.

However, in his separate opinion, he addressed threequestions dealing with aspects of environmental law — theprinciple of sustainable development in balancing thecompeting demands of development and environmentalprotection, the principle of continuing environmental impactassessment, and the question of the appropriateness of theuse of an inter partes legal principle such as estoppel in theresolution of issues with erga omnes implications such as aclaim that environmental damage is involved.

On the first question, his opinion states that both theright to development and the right to environmentalprotection are principles currently forming part of thecorpus of international law. They could operate in collisionwith each other unless there was a principle of internationallaw which indicated how they should be reconciled. Thatprinciple is the principle of sustainable development which,according to this opinion, is more than a mere concept, butis itself a recognized principle of contemporary internationallaw.

In seeking to develop this principle, the Court shoulddraw upon prior human experience, for humanity has livedfor millennia with the need to reconcile the principles ofdevelopment and care for the environment. Sustainabledevelopment is therefore not a new concept and, fordeveloping it today, a rich body of global experience isavailable. The opinion examines a number of ancientirrigation civilizations for this purpose. The Court, asrepresenting the main forms of civilization, needs to draw

upon the wisdom of all cultures, especially in regard to areasof international law which are presently in a developmentalphase. Among the principles that can be so derived fromthese cultures are the principles of trusteeship of earthresources, intergenerational rights, protection of flora andfauna., respect for land, maximization of the use of naturalresources while preserving their regenerative capacity, andthe principle that development and environmental protectionshould go hand in hand.

In his opinion, Judge Weeramantry stresses theimportance of continuous environmental impact assessmentof a project as long as it continues in operation. The duty ofenvironmental impact assessment is not discharged merelyby resort to such a procedure before the commencement of aproject. The standards to be applied in such continuousmonitoring are the standards prevalent at the time ofassessment and not those in force at the commencement ofthe project.

The third aspect of environmental law referred to is thequestion whether principles of estoppel which might operatebetween parties are appropriate in matters such as thoserelating to the environment, which are of concern notmerely to the two Parties, but to a wider circle:. Questionsinvolving duties of an erga omnes nature may not always beappropriately resolved by rales of procedure fashioned forinter partes disputes. Judge Weeramantry draws attention tothis aspect as one which will need careful consideration.

Separate opinion of Judge Bedjaoui

Judge Bedjaoui considers that the majority of the Courthas not sufficiently clarified the question of applicable lawand that of the nature of the 1977 Treaty. On the first point,he stages that an "evolutionary interpretation" of the 1977Treaty can only be applied if the general rule ofinterpretation in Article 31 of the Vienna Convention on theLaw of Treaties is respected, and that the "definition'" of aconcept must not be confused with the " / » " applicable tothat concept, nor should the "interpretation''' of a treaty beconfused with its "revision". Judge Bedjaoui recommendsthat subsequent law be taken into account o:ily in veryspecial situations. This applies in the present case. It is thefirst major case brought before the Court in which theecological background is so sensitive that it has moved tocentre stage, threatening to divert attention from treaty law.International opinion would not have understood had theCourt disregarded the new law, the application of which wasdemanded by Hungary. Fortunately, the Court has been ableto graft the new law on to the stock of Articles 1.5, 19 and 20of the 1977 Treaty. Nor was Slovakia opposed to taking thislaw into consideration. However, in applying the so-calledprinciple of the evolutionary interpretation of a treaty in thepresent case, the Court should have clarified the issue moreand should have recalled that the general rule governing theinterpretation of a treaty remains that set out in Article 31 ofthe 1969 Vienna Convention.

As for the nature of the 1977 Treaty and its relatedinstruments, in Judge Bedjaoui's view this warranted moreattention from the majority of the Court. It is a crucial

question. The nature of the Treaty largely conditions thesuccession of Slovakia to this instrument, which constitutesthe substance of the applicable law, and which remains inforce despite intersecting violations by both Parties.

The 1977 Treaty (including related instruments) has thethreefold characteristic— of being a territorial treaty,— of being a treaty to which Slovakia validly succeeded,

and— of being a treaty which is still in force today.

In substance, Judge Bedjaoui does not share the opinionof the majority of the Court as to the legal characterizationof Variant C, which he considers to be an offence, theunlawfulness of which affects each of the acts of theconstruction of this variant. The construction could beneither innocent nor neutral; it bore the stamp of the endpurpose of Variant C, which was the diversion of the watersof the river. It is therefore not possible to separateconstruction on the one hand and diversion on the other;Variant C as a whole is unlawful.

On a different subject, Judge Bedjaoui considers thatboth Parties, Hungary just as much as Slovakia, havebreached the 1977 Treaty. The situation created by them ischaracterized by intersecting violations countering eachother. However it is not easy to determine the links of causeand effect in each case with certainty. The acts and conductof the Parties sometimes intercut. A deep mutual distrust hasunfortunately characterized relations between the parties formany years.

On the ground, these intersecting violations gave rise toa reality which the majority of the Court did not deem ituseful to characterize. For Judge Bedjaoui it seemednecessary and important to note that these intersectingviolations created two effectivités which will continue tomark the landscape of the region in question.

Judge Bedjaoui indicated the significance to be attachedto taking account of the effectivités. In this case, takingaccount of the effectivités is not tantamount to a negation ofthe title. The title does not disappear; it merely adapts anddoes so, moreover, through involving the responsibility ofthe authors of these effectivités, who will be liable for all thenecessary compensation.

These effectivités, adapted as they have been or will beto fit the mould of a new treaty, may have breached andexceeded the existing law, but the law reins them in andgoverns them again in three ways:— these effectivités do not kill the Treaty, which survives

them;— these effectivités do not go unpunished and entail

sanctions and compensation;— and above all, these effectivités will be "recast", or

inserted into the Treaty, whose new content to benegotiated will serve as a legitimizing text for them.Judge Bedjaoui finally turns to the necessity for the

Parties to negotiate again and to do so in good faith. Therenegotiation must be seen as a strict obligation, exactly likethe good faith conduct it implies. This obligation flows not

only from the Treaty itself, but also from generalinternational law as it has developed in the spheres ofinternational watercourses and the environment.

Separate opinion of Judge Koroma

In his separate opinion, Judge Koroma stated that hesupported the Court's findings that Hungary was not entitledto suspend and subsequently to abandon the works on theProject for which the Treaty had attributed responsibility toit, and that the Treaty continues to be in force. Thesefindings, in his view, were not only in accordance with theTreaty but with the principle of pacta siint servanda, one ofthe foremost principles of international law and indeed anintegral part of it. In Judge Koroma's view a contraryfinding would have suggested that at any time a State mightunilaterally repudiate any treaty when it found its obligationto be inconvenient; this, he maintained, would seriouslyundermine the principle of pacta sunt servanda and thewhole treaty relationship.

While he shares the Court's understanding of Hungary'sconcern about the effects of the Project on its naturalenvironment, he agreed that the material before the Courtcould not justify the unilateral repudiation of the Treaty.

Judge Koroma, however, disagreed with the finding ofthe Court that Czechoslovakia was not entitled to putVariant C into operation. He felt that this finding did notgive sufficient weight to the provisions of the Treaty, nor tothe financial damage and environmental harm thatCzechoslovakia would have incurred and endured had theProject been left uncompleted as Hungary's action dictated.He regarded Variant C as a genuine attempt to implementthe Treaty so as to realize its aim and objective.

He also did not agree that the Court appeared to treat theconsequences of the Parties' "wrongful conduct" as if theywere equivalent.

Dissenting opinion of Judge Oda

Judge Oda has voted against operative paragraph 1 C,since, in his view, not only the construction, but also theoperation of the Cunovo dam was simply the execution ofthe Project as described in the 1977 Treaty betweenCzechoslovakia and Hungary concerning the Gabcikovo-Nagymaros System of Locks. He considers that theprovisional solution, Variant C, was the only possible optionfor fulfilment of the original Project on the river Danube.Judge Oda does not understand why the Court decided that,while the construction of Variant C — that is to say, theCunovo dam — is lawful, the operation of it is a wrongfulact.

Judge Oda made a clear distinction between the JointContractual Plan (JCP), as the execution of the Project, andthe 1977 Treaty, which underlies the whole Project andwhich had been worked out over a period of severaldecades. The JCP, which is similar to a "partnership"contract should have been subject to amendment andrevision, as proved necessary, in a more flexible manner.

The fundamental purpose of the 1977 Treaty was, in hisview, to carry out the construction of the bypass canal andof the power plants at the dams of Gabcikovo andNagymaros. Firstly, Hungary's failure to perform its treatyobligations cannot be justified on the basis of the newinternational norm of environmental protection. The wholeProject and the 1977 Treaty, in particular, were undoubtedlysketched out in the 1970s with due consideration for theenvironment of the river Danube. There is no proof withwhich to overturn this assumption. Secondly, it was not aviolation of the Treaty for Czechoslovakia to proceed to theprovisional solution — Variant C — as the only option opento it in order to carry out the basic Project in the event ofHungary failing to fulfil its obligation to construct theDunakiliti dam.

With regard to future negotiations between the Partieson the modalities of the execution of the Judgment, asagreed upon in the Special Agreement, Judge Oda suggeststhat the JCP be modified in order to include the work on theCunovo dam which enabled the whole Project to beaccomplished. As far as the environment is concerned, theParties should proceed to an assessment of the environmentof the river Danube in an effort to seek out technologicalsolutions limiting or remedying any environmental damagecaused by Czechoslovakia's construction of the bypasscanal and Hungary's abandonment of the Nagymaros dam.

The damages and losses suffered by Czechoslovakiaowing to Hungary's failure to fulfil its Treaty obligationsmust be compensated. However, Hungary's abandonment ofthe Nagymaros dam, though that dam formed a part of thewhole Project, did not cause any practical damage toCzechoslovakia. Hungary must bear a part of the cost ofconstruction of the Cunovo dam, as that work gave life tothe whole Project. It may well be admitted, however, thatthe whole Project (that is, the bypass canal and theGabcikovo power plant on that canal) are simply of benefitto Czechoslovakia and Slovakia, and that Hungary hasnothing to gain from it. This point should be taken intoaccount when the matter of compensation for loss anddamage to be paid by Hungary to Slovakia is considered.

Dissenting opinion of Judge Ranjeva

Judge Ranjeva disagreed with the majority of the Courtin that in paragraph 155 1 C the Judgment restricts theunlawfulness of Variant C to its being put into operation andmaintained in service to date. Judge Ranjeva first remarksthat there is a contradiction in terms of logic betweensubparagraphs B and C of this same paragraph of theoperative part. How can the construction of this Variant Cbe acknowledged to be lawful at the same time as putting itinto operation is declared to be unlawful? The Judgment, inhis opinion, came to this conclusion because it restricted thesignificance of the reciprocal wrongs ascribable to Hungaryand to Czechoslovakia and Slovakia to the sole issue of theobligation to compensate for the consequences of thedamage; in so doing, the Court resurrected a rule of Romanlaw, the rule of Pomponius. However the Court failed toexamine the significance of these intersecting wrongs on

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another point: the causality in the sequence of eventsleading to the situation which is the subject of the disputebefore the Court. For Judge Ranjeva, the circumstances offact against a background of chaotic relations marked bydistrust and suspicion not only made it difficult to identifythe original cause of this situation but above all resulted inthe fact that a wrong committed by one of the Partiestriggered off a wrong committed by the other. Taking aposition counter to the linear analysis of the Court, for theauthor it is not a matter of several wrongs which merelysucceed each other but of distinct wrongs which graduallycontributed to creating the situation which is the subject ofthe present dispute. The conclusion drawn by Judge Ranjevais that the unlawfulness of the Hungarian decision, adecision which was undeniably unlawful, was not the causebut the ground or motive taken into consideration byCzechoslovakia then by Slovakia in order to justify theirsubsequent conduct. The second conclusion reached by theauthor relates to the lawfulness of Variant C. In his opinion,the distinction made between proceeding to the provisionalsolution and putting into operation is in fact an artificialone; it would have been plausible if there had been trueequipollence between these two elements and if one of theelements could not absorb the other. Proceeding to theprovisional solution was significant only if it was carriedthrough. Thus the unlawfulness of Variant C, for JudgeRanjeva, resided not so much in its construction orcommissioning, or even in the diversion of the Danube, butin replacing an international project by a national project;Variant C could not be related to any obligation under the1977 Treaty once the Court rightly dismissed the idea of anapproximate application or of an obligation to limit damagein treaty law.

Dissenting opinion of Judge Herczegh

The dissenting opinion exhaustively presents, the case forthe existence of a state of necessity on the part of Hungarywith regard to the construction of the Nagymaros dam. Itholds that not only the putting into operation byCzechoslovakia of the "provisional solution", called"Variant C", but also the proceeding to this solutionconstituted a serious breach of the 1977 Treaty. Hungarywas therefore justified in terminating the Treaty. JudgeHerczegh consequently voted against the points of theoperative part which refer expressly to the Treaty, but votedfor mutual compensation by Slovakia and by Hungary forthe damage each sustained on account of the construction ofthe system of locks forming the subject of the dispute.

Dissenting opinion of Judge Fleischhauer

Judge Fleischhauer dissents on the Court's centralfinding that Hungary's notification of 19 May 1992 of thetermination of the 1977 Treaty did not have i;he effect ofterminating it, as the notification is found to have beenpremature and as Hungary is said to have forfeited its rightto terminate by its own earlier violation of the Treaty. TheJudge shares the finding of the Court that Hungary hasviolated its obligations under the 1977 Treaty when it

suspended, in 1989, and later abandoned, its share in theworks on the Nagymaros and on part of the GabcikovoProject. He also agrees with the conclusion thatCzechoslovakia was not entitled to put into operation, asfrom October 1992, Variant C, a unilateral solution whichimplies the appropriation by Czechoslovakia and laterSlovakia, essentially for its own use, of 80 to 90 per cent ofthe waters of the Danube in the Treaty area, and is thereforenot proportionate. However, he is of the view that whenCzechoslovakia, in November 1991, moved intoconstruction of Variant C, the point of no return was passedon both sides; at that point in time it was certain that neitherwould Hungary come back to the Treaty nor wouldCzechoslovakia agree to further delaying the damming ofthe Danube. The internationally wrongful act therefore wasnot confined to the actual damming of the river, but startedin November 1991, more than six months prior toHungary's notification of termination. Judge Fleischhauerthinks, moreover, that Hungary, although it had breachedthe Treaty first, had not forfeited its right to react to VariantC by termination of the Treaty, because international lawdoes not condone retaliation that goes beyond the limits ofproportionality. In situations like this, the corrective elementrather lies in a limitation of the first offender's right to claimredress. As he considers the validity of the Treaty as havinglapsed, he has voted against the conclusions of the Court onthe consequences of the Judgment inasmuch as they arebased on the continuing validity of the Treaty (2 A, B, C,E). In his view the installations on Slovak territory do nothave to be dismantled, but in order to lawfully continue touse them Slovakia will have to negotiate with Hungary awater-management regime. Hungary does not have toconstruct Nagymaros any more, but Slovakia is no longercommitted to the joint running of the Project.

Dissenting opinion of Judge Vereshchetin

Judge Vereshchetin takes the view that Czechoslovakiawas fully entitled in international law to put into operationfrom October 1992 the "provisional solution" (Variant C) asa countermeasure so far as its partner in the Treaty persistedin violating its obligations. Therefore, he could not associatehimself with paragraph 155 1 C of the Judgment, nor fullywith paragraph 155 2 D.

According to the Court's jurisprudence, establishedwrongful acts justify "proportionate countermeasures on thepart of the State which ha[s] been the victim of theseacts ..." (Military and Paramilitary Activities in and againstNicaragua (Nicaragua v. United States of America),Judgment, I.C.J. Reports 1986, p. 127, para. 249). In theview of Judge Vereshchetin, all the basic conditions for acountermeasure to be lawful were met when Czechoslovakiaput Variant C into operation in October 1992. Theseconditions include: (1) the presence of a prior illicit act,committed by the State at which the countermeasure istargeted; (2) the necessity of the countermeasure; and (3) itsproportionality in the circumstances of the case.

Recognizing that the test of proportionality is veryimportant in the regime of countermeasures, Judge

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Vereshchetin believes the Court should have assessed andcompared separately: ( 1 ) the economic and financial effectsof the breach as against the economic and financial effectsof the countermeasure; (2) the environmental effects of thebreach as against the environmental effects of thecountermeasure; and (3) the effects of the breach on theexercise of the right to use commonly shared waterresources as against the effects of the countermeasure on theexercise of this right.

Judge Vereshchetin makes his assessment of thoseeffects and observes in conclusion that even assuming thatCzechoslovakia, as a matter of equity, should havedischarged more water than it actually did into the old riverbed, this assumption would have related to only one of themany aspects of the proportionality of the countermeasure,which could not in itself warrant the general conclusion ofthe Court that Czechoslovakia was not entitled to putVariant C into operation from October 1992.

Dissenting opinion of Judge Parra-Aranguren

My vote against paragraph 1 C of the operative part ofthe Judgment is the consequence of the recognition thatHungary was not entitled to suspend and subsequentlyabandon, in 1989, the works which were its responsibility,in accordance with the Treaty of 16 September 1977 andrelated instruments. Because of that the position ofCzechoslovakia was extremely difficult, not only for thehuge sums invested so far but also for the environmentalconsequences of leaving unfinished and useless theconstructions already in place, almost complete in somesections of the Gabcikovo Project. Faced with that situation,in my opinion, Czechoslovakia was entitled to take allnecessary action and for that reason the construction andputting into operation of the "provisional solution" (VariantC) cannot be considered an internationally wrongful act.Therefore, in principle, Slovakia shall not compensateHungary on the account of the construction and putting intooperation of "the provisional solution" (Variant C) and itsmaintenance in service by Slovakia, unless a manifest abuseof rights on its part is clearly evidenced.

In my opinion, paragraph 2 A, of the operative part ofthe Judgment should not have been included, because thesuccession of Slovakia to the 1977 Treaty was neither aquestion submitted to the Court in the Special Agreement,nor is it a legal consequence arising out of the decision ofthe questions submitted by the Parties in its Article 2,paragraph 1. Furthermore, the answer of the Court isincomplete, since nothing is said in respect to the "relatedinstruments" to the 1977 Treaty; and it does not take intoconsideration the position adopted by the dissenting judgeswho maintained that the 1977 Treaty was no longer in force.

Dissenting opinion of Judge ad hoc Skubiszewski

While agreeing with the Court in all its other holdings,Judge ad hoc Skubiszewski is unable to concur in the broadfinding that Czechoslovakia was not entitled to put VariantC into operation from October 1992 (Judgment, para. 155,point 1 C). The finding is too general. In his view the Courtshould have distinguished between, on the one hand,Czechoslovakia's right to take steps to execute and operatecertain works on her territory and, on the other, herresponsibility (and, subsequently, that of Slovakia) towardsHungary resulting from the diversion of most of the watersof the Danube into Czechoslovak territory, especially in theperiod preceding the conclusion of the Hungarian-SlovakAgreement of 19 April 1995.

The withdrawal of Hungary from the Project leftCzechoslovakia with the legal possibility of doing on herterritory what she was allowed to do by general law oninternational rivers. As a whole, the "provisional solution"was and is lawful. That evaluation is not changed by oneelement of it, i.e., sharing of the waters of the Danube,which called for redress and remedy. Having recognized theserious problems with which Czechoslovakia wasconfronted as a result of Hungary's action, the Court shouldhave applied equity as part of international law. It wouldthen arrive at a holding that would have given more nuanceto its decision.

Notwithstanding the Parties' mutual legal claims forcompensation much speaks in favour of a "zero option"(Judgment, para. 153). That option should facilitate thesettlement of the dispute.

12

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14

108. QUESTIONS OF INTERPRETATION AND APPLICATION OF THE 1971MONTREAL CONVENTION ARISING FROM THE AERIAL INCIDENT ATLOCKERBIE (LIBYAN ARAB JAMAHIRIYA v. UNITED KINGDOM)(PRELIMINARY OBJECTIONS)

Judgment of 27 February 1998

In its Judgment on the preliminary objections raised bythe United Kingdom in the case concerning Questions ofInterpretation and Application of the 1971 MontrealConvention arising from the Aerial Incident at Lockerbie(Libyan Arab Jamahiriya v. United Kingdom), the Courtfound that it had jurisdiction to deal with the merits of thecase brought by Libya against the United Kingdomconcerning the aerial incident at Lockerbie. It also foundthat the Libyan claims were admissible.

The Court was composed as follows in the case: Vice-President Weeramantry, Acting President; PresidentSchwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva,Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Parra-Aranguren, Kooijmans, Rezek; Judges ad hoc Sir RobertJennings, El-Kosheri; Registrar Valencia-Ospina.

The complete text of the operative paragraph of theJudgment reads as follows:

"53. For these reasons:THE COURT,( 1 ) (a) by thirteen votes to three, rejects the

objection to jurisdiction raised by the United Kingdomon the basis of the alleged absence of a dispute betweenthe Parties concerning the interpretation or application ofthe Montreal Convention of 23 September 1971;

IN FAVOUR: Vice-President Weeramantry, ActingPresident; Judges Bedjaoui, Guillaume, Ranjeva,Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin,Parra-Aranguren, Kooijmans, Rezek; Judge ad hocEl-Kosheri;

AGAINST: President Schwebel; Judge Oda; Judgead hoc Sir Robert Jennings;

(b) by thirteen votes to three, finds that it hasjurisdiction, on the basis of Article 14, paragraph 1, ofthe Montreal Convention of 23 September 1971, to hearthe disputes between Libya and the United Kingdom asto the interpretation or application of the provisions ofthat Convention;

IN FAVOUR: Vice-President Weeramantry, ActingPresident; Judges Bedjaoui, Guillaume, Ranjeva,Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin,Parra-Aranguren, Kooijmans, Rezek; Judge ad hoc El-Kosheri;

AGAINST: President Schwebel; Judge Oda; Judgead hoc Sir Robert Jennings;

(2) (a) by twelve votes to four, rejects the objectionto admissibility derived by the United Kingdom fromSecurity Council resolutions 748 (1992) and 883 (1993);

IN FAVOUR: Vice-President Weeramantry, ActingPresident; Judges Bedjaoui, Guillaume, Ranjeva, Shi,Fleischhauer, Koroma, Vereshchetin, Parra-Aranguren,Kooijmans, Rezek; Judge ad hoc El-Kosheri;

AGAINST: President Schwebel; Judges Oda,Herczegh; Judge ad hoc Sir Robert Jennings;

(b) by twelve votes to four, finds that the Applicationfiled by Libya on 3 March 1992 is admissible.


AGAINST: President Schwebel; Judges Oda,Herczegh; Judge ad hoc Sir Robert Jennings;

(3) by ten votes to six, declares that the objectionraised by the United Kingdom according to whichSecurity Council resolutions 748 (1992) and 883 (1993)have rendered the claims of Libya without object doesnot, in the circumstances of the case, have an exclusivelypreliminary character.

IN FAVOUR: Vice-President Weeramantry, ActingPresident; Judges Bedjaoui, Ranjeva, Shi, Koroma,Vereshchetin, Parra-Aranguren, Kooijmans, Rezek;Judge ad hoc El-Kosheri;

AGAINST: President Schwebel; Judges Oda,Guillaume, Herczegh, Fleischhauer; Judge ad hoc SirRobert Jennings."

Judges Bedjaoui, Guillaume and Ranjeva appended ajoint declaration to the Judgment of the Court; JudgesBedjaoui, Ranjeva and Koroma appended a jointdeclaration; Judges Guillaume and Fleischhauer appended ajoint declaration; Judge Herczegh appended a declaration.Judges Kooijmans and Rezek appended separate opinions.President Schwebel, Judge Oda and Judge ad hoc Sir RobertJennings appended dissenting opinions.

15

Review of the proceedings and submissions(paras. 1-16)

In its Judgment, the Court recalls that on 3 March 1992Libya filed in the Registry of the Court an Applicationinstituting proceedings against the United Kingdom inrespect of a "dispute between Libya and the UnitedKingdom concerning the interpretation or application of theMontreal Convention" of 23 September 1971 for theSuppression of Unlawful Acts against the Safety of CivilAviation (hereinafter called "the Montreal Convention").The Application referred to the destruction, on 21 December1988, over Lockerbie (Scotland), of the aircraft on Pan Amflight 103, and to charges brought by the Lord Advocate forScotland in November 1991 against two Libyan nationalssuspected of having caused a bomb to be placed aboard theaircraft, which bomb had exploded causing the aeroplane tocrash. The Application invoked as the basis for jurisdictionArticle 14, paragraph 1, of the Montreal Convention.

On 3 March 1992, immediately after the filing of itsApplication, Libya submitted a request for the indication ofprovisional measures under Article 41 of the Statute. By anOrder dated 14 April 1992, the Court, after hearing theParties, found that the circumstances of the case were notsuch as to require the exercise of its power to indicateprovisional measures.

Libya filed a Memorial on the merits within theprescribed time limit. In the Memorial Libya requests theCourt to adjudge and declare:

"(a) that the Montreal Convention is applicable tothis dispute;

(b) that Libya has fully complied with all of itsobligations under the Montreal Convention and isjustified in exercising the criminal jurisdiction providedfor by that Convention;

(c) that the United Kingdom has breached, and iscontinuing to breach, its legal obligations to Libya underArticle 5, paragraphs 2 and 3, Article 7, Article 8,paragraph 3, and Article 11 of the Montreal Convention;

(d) that the United Kingdom is under a legalobligation to respect Libya's right not to have theConvention set aside by means which would in any casebe at variance with the principles of the United NationsCharter and with the mandatory rules of generalinternational law prohibiting the use of force and theviolation of the sovereignty, territorial integrity,sovereign equality and political independence of States."Within the time limit fixed for the filing of its Counter-

Memorial, the United Kingdom filed PreliminaryObjections to the jurisdiction of the Court and theadmissibility of the Application. Libya for its part, filed awritten statement of its observations and submissions on thePreliminary Objections within the time limit fixed by theCourt. Hearings were held between 13 and 22 October 1997.

At the hearing the United Kingdom presented thefollowing final submissions:

"[T]he Court [is requested to] adjudge and declarethat:

it lacks jurisdiction over the claims brought against theUnited Kingdom by the Libyan Arab Jamahiriyaand/orthose claims are inadmissible;and that the Court dismiss the Libyan Applicationaccordingly."The final submissions of Libya were as follows:

"The Libyan Arab Jamahiriya requests the Court toadjudge and declare:— that the Preliminary Objections raised by the United

Kingdom ... must be rejected and that, as aconsequence:(a) the Court has jurisdiction to entertain the

Application of Libya;(b) that the Application is admissible;

— that the Court should proceed to the merits."

Jurisdiction of the Court(paras. 17-39)

The Court first considers the objection raised by theUnited Kingdom to its jurisdiction.

Libya submits that the Court has jurisdiction on the basisof Article 14, paragraph 1, of the Montreal Convention,which provides that:

"Any dispute between two or more Contracting Statesconcerning the interpretation or application of thisConvention which cannot be settled through negotiation,shall, at the request of one of them, be submitted toarbitration. If within six months from the date of therequest for arbitration the Parties are unable to agree onthe organization of the arbitration, any one of thoseParties may refer the dispute to the International Courtof Justice by request in conformity with the Statute ofthe Court."

The Parties agree that the Montreal Convention is inforce between them and that it was already in force both atthe time of the destruction of the Pan Am aircraft overLockerbie, on 21 December 1988, and at the time of filingof the Application, on 3 March 1992. However, theRespondent contests the jurisdiction of the Court because, inits submission, all the requisites laid down in Article 14,paragraph 1, of the Montreal Convention have not beencomplied with in the present case.

The Respondent expressly stated that it did not wish tocontest the jurisdiction of the Court on all of the samegrounds it had relied upon in the provisional measures phaseof the proceedings, and restricted itself to alleging thatLibya had failed to show, first, that there existed a legaldispute between the Parties and second, that such dispute, ifany, concerned the interpretation or application of theMontreal Convention and fell, as a result, within the termsof Article 14, paragraph 1, of that Convention.Consequently, the United Kingdom did not, in the presentphase of the proceedings, reiterate its earlier arguments as towhether or not the dispute that, in the opinion of Libya,existed between the Parties could be settled by negotiation;

16

whether Libya had made a proper request for arbitration;and whether the six-month period required by Article 14,paragraph 1, of the Convention had been complied with.

The Court nonetheless considers it necessary to dealbriefly with these arguments. Having examined them theCourt concludes that the alleged dispute between the Partiescould not be settled by negotiation or submitted toarbitration under the Montreal Convention, and the refusalof the Respondent to enter into arbitration to resolve thatdispute absolved Libya from any obligation under Article14, paragraph 1, of the Convention to observe a six-monthperiod starting from the request for arbitration, beforeseizing the Court.

Existence of a legal dispute of a general natureconcerning the Convention

(paras. 22-25)

In its Application and Memorial, Libya maintained thatthe Montreal Convention was the only instrument applicableto the destraction of the Pan Am aircraft over Lockerbie.

The United Kingdom does not deny that, as such, thefacts of the case could fall within the terms of the MontrealConvention. However, it emphasizes that, in the presentcase, from the time Libya invoked the Montreal Convention,the United Kingdom has claimed that it was not relevant asthe question to be resolved had to do with "the ... reaction ofthe international community to the situation arising fromLibya's failure to respond effectively to the most seriousaccusations of State involvement in acts of terrorism".

The Court finds that consequently, the Parties differ onthe question whether the destruction of the Pan Am aircraftover Lockerbie is governed by the Montreal Convention. Adispute thus exists between the Parties as to the legal regimeapplicable to this event. Such a dispute, in the view of theCourt, concerns the interpretation and application of theMontreal Convention, and, in accordance with Article 14,paragraph 1, of the Convention, falls to be decided by theCourt.

Existence of a specific dispute concerning Article 7 ofthe Convention

(paras. 26-29)

The Court finds that in view of the positions put forwardby the Parties with respect to the rights and obligationswhich Articles 1, 5, 6, 7 and 8 of the Convention wouldentail for them, there exists between them not only a disputeof a general nature, as defined above, but also a specificdispute which concerns the interpretation and application ofArticle 7 — read in conjunction with Article 1, Article 5,Article 6 and Article 8 — of the Convention and which, inaccordance with Article 14, paragraph 1, of the Convention,falls to be decided by the Court.

Article 7 is worded in the following terms:"Article 7The Contracting State in the territory of which thealleged offender is found shall, if it does not extradite

him, be obliged, without exception whatsoever andwhether or not the offence was committed in itsterritory, to submit the case to its competent authoritiesfor the purpose of prosecution. Those authorities shalltake their decision in the same manner as in the case ofany ordinary offence of a serious nature under the law ofthat State."


(paras. 30-33)

Furthermore, having taken account of the positions ofthe Parties as to the duties imposed by Article 11 of theMontreal Convention, the Court concludes that there equallyexists between them a dispute which concerns theinterpretation and application of that provision, and which,in accordance with Article 14, paragraph 1, of theConvention, falls to be decided by the Court.

Article 11 is worded as follows:"Article 111. Contracting States shall afford one another thegreatest measure of assistance in connection withcriminal proceedings brought in respect of the offences.The law of the State requested shall apply in all cases.2. The provisions of paragraph 1 of this Article shallnot affect obligations under any other treaty, bilateral ormultilateral, which governs or will govern, in whole orin part, mutual assistance in criminal matters."

Lawfulness of the actions of the Respondent(paras. 34-36)

With respect to the last submission of Libya (see above,submission (d) of the Memorial), the United Kingdommaintains that it is not for the Court, on the basis of Article14, paragraph 1, of the Montreal Convention, to decide onthe lawfulness of actions which are in any event inconformity with international law, and which were institutedby the Respondent to secure the surrender of the two allegedoffenders. It concludes from this that the Court lacksjurisdiction over the submissions presented on this point byLibya.

The Court points out that it cannot uphold the line ofargument thus formulated. Indeed, it is for the Court todecide, on the basis of Article 14, paragraph 1, of theMontreal Convention, on the lawfulness of the actionscriticized by Libya, insofar as those actions would be atvariance with the provisions of the Montreal Convention.

Effect of the resolutions of the Security Council(paras. 37-38)

In the present case, the United Kingdom has contended,however, that even if the Montreal Convention did conferon Libya the rights it claims, they could not be exercised inthis case because they were superseded by Security Councilresolutions 748 (1992) and 883 (1993) which, by virtue ofArticles 25 and 103 of the United Nations Charter, have

17

priority over all rights and obligations arising out of theMontreal Convention. The Respondent has also argued that,because of the adoption of those resolutions, the onlydispute which existed from that point on was between Libyaand the Security Council; this, clearly, would not be adispute falling within the terms of Article 14, paragraph 1,of the Montreal Convention and thus not one which theCourt could entertain.

The Court finds that it cannot uphold this line ofargument. Security Council resolutions 748 (1992) and 883(1993) were in fact adopted after the filing of theApplication on 3 March 1992. In accordance with itsestablished jurisprudence, if the Court had jurisdiction onthat date, it continues to do so; the subsequent coming intoexistence of the above-mentioned resolutions cannot affectits jurisdiction once established.

In the light of the foregoing, the Court concludes that theobjection to jurisdiction raised by the United Kingdom onthe basis of the alleged absence of a dispute between theParties concerning the interpretation or application of theMontreal Convention must be rejected, and that the Courthas jurisdiction to hear the disputes between Libya and theUnited Kingdom as to the interpretation or application of theprovisions of that Convention.

Admissibility of the Libyan Application(paras. 40-45)

The Court will now proceed to consider the objection ofthe United Kingdom that the Libyan Application is notadmissible.

The principal argument of the United Kingdom in thiscontext is that

"what Libya claims to be the issue or issues in disputebetween it and the United Kingdom are now regulatedby decisions of the Security Council, taken underChapter VII of the Charter of the United Nations, whichare binding on both Parties and that (if there is anyconflict between what the resolutions require and rightsor obligations alleged to arise under the MontrealConvention) the resolutions have overriding effect inaccordance with Article 103 of the Charter".In this connection, the United Kingdom explains that"resolutions 748 and 883 are legally binding and theycreate legal obligations for Libya and the UnitedKingdom which are determinative of any dispute overwhich the Court might have jurisdiction".According to the United Kingdom, those resolutions

require the surrender of the two suspects by Libya to theUnited Kingdom or the United States for trial, and thisdetermination by the Security Council is binding on Libyairrespective of any rights it may have under the MontrealConvention. On this basis, the United Kingdom maintainsthat

"the relief which Libya seeks from the Court under theMontreal Convention is not open to it, and that the Court

should therefore exercise its power to declare the LibyanApplication inadmissible".For its part, Libya argues that it is clear from the actual

terms of resolutions 731 (1992), 748 (1992) and 883 (1993)that the Security Council has never required it to surrenderits nationals to the United Kingdom or the United States; itstated at the hearing that this remained "Libya's principalargument". It added that the Court must interpret thoseresolutions "in accordance with the Charter, whichdetermined their validity" and that the Charter prohibitedthe Council from requiring Libya to hand over its nationalsto the United Kingdom or the United States. Libyaconcludes that its Application is admissible "as the Courtcan usefully rule on the interpretation and application of theMontreal Convention ... independently of the legal effects ofresolutions 748 (1992) and 883 (1993)". Libya furthermoredraws the Court's attention to the principle that "The criticaldate for determining the admissibility of an application isthe date on which it is filed".

In the view of the Court, this last submission of Libyamust be upheld. The date, 3 March 1992, on which Libyafiled its Application, is in fact the only relevant date fordetermining the admissibility of the Application. SecurityCouncil resolutions 748 (1992) and 883 (1993) cannot betaken into consideration in this regard since they wereadopted at a later date. As to Security Council resolution731 (1992), adopted before the filing of the Application, itcould not form a legal impediment to the admissibility ofthe latter because it was a mere recommendation withoutbinding effect, as was recognized moreover by the UnitedKingdom itself. Consequently, Libya's Application cannotbe held inadmissible on these grounds.

In the light of the foregoing, the Court concluded thatthe objection to admissibility derived by the UnitedKingdom from Security Council resolutions 748 (1992) and883 (1993) must be rejected, and that Libya's Application isadmissible.

Objection that the Applicant's claims are without object(paras. 46-51)

In dealing with admissibility, the Agent of the UnitedKingdom also stated that his Government "ask[ed] the Courtto rule that the intervening resolutions of the SecurityCouncil have rendered the Libyan claims without object".

The Court notes that it has already acknowledged, onseveral occasions in the past, that events subsequent to thefiling of an application may "render an application withoutobject" and "therefore the Court is not called upon to give adecision thereon". In the present case, the United Kingdomputs forward an objection aimed at obtaining from the Courta decision not to proceed to judgment on the merits, whichobjection must be examined within the framework of thisjurisprudence.

The Court must satisfy itself that such an objection doesindeed fall within the provisions of Article 79 of the Rules,relied upon by the Respondent. In paragraph 1, this Articlerefers to "Any objection ... to the jurisdiction of the Court or

18

to the admissibility of the application, or other objection"(emphasis added); its field of application ratione materiae isthus not limited solely to objections regarding jurisdiction oradmissibility. However, if it is to be covered by Article 79,an objection must also possess a "preliminary" character.Paragraph 1 of Article 79 of the Rules of Courtcharacterizes as "preliminar}'" an objection "the decisionupon which is requested before any further proceedings".The Court considers in this respect that, insofar as thepurpose of the objection raised by the United Kingdom thatthere is no ground for proceeding to judgment on the meritsis, effectively, to prevent, in limine, any consideration of thecase on the merits, so that its "effect [would] be, if theobjection is upheld, to interrapt further proceedings in thecase", and "it [would] therefore be appropriate for the Courtto deal with [it] before enquiring into the merits", thisobjection possesses a preliminary character and does indeedfall within the provisions of Article 79 of the Rules ofCourt. It notes moreover that the objection concerned wasduly submitted in accordance with the formal conditionslaid down in Article 79.

Libya does not dispute any of these points. What Libyacontends is that this objection falls within the category ofthose which paragraph 7 of Article 79 of the Rules of Courtcharacterizes as objections "not possessing], in thecircumstances of the case, an exclusively preliminarycharacter".

On the contrary, the United Kingdom considers that theobjection concerned possesses an "exclusively preliminarycharacter" within the meaning of that provision; and, at thehearing, its Agent insisted on the need for the Court to avoidany proceedings on the merits, which to his mind were notonly "likely to be lengthy and costly" but also, by virtue ofthe difficulty that "the handling of evidentiary material ...might raise serious problems".

The Court finds that thus it is on the question of the"exclusively" or "non-exclusively" preliminary character ofthe objection here considered that the Parties are divided;and it concludes that it must therefore ascertain whether, inthe present case, the United Kingdom's objection based onthe Security Council decisions contains "both preliminaryaspects and other aspects relating to the merits" or not.

The Court observes that that objection relates to manyaspects of the dispute. By maintaining that Security Councilresolutions 748 (1992) and 883 (1993) have rendered theLibyan claims without object, the United Kingdom seeks toobtain from the Court a decision not to proceed to judgmenton the merits, which would immediately terminate theproceedings. However, by requesting such a decision, theUnited Kingdom is requesting, in reality, at least two otherswhich the decision not to proceed to judgment on the meritswould necessarily postulate: on the one hand a decisionestablishing that the rights claimed by Libya under theMontreal Convention are incompatible with its obligationsunder the Security Council resolutions; and, on the otherhand, a decision that those obligations prevail over thoserights by virtue of Articles 25 and 103 of the Charter.

The Court therefore has no doubt that Libya's rights onthe merits would not only be affected by a decision, at thisstage of the proceedings, not to proceed to judgment on themerits, but would constitute, in many respects, the verysubject matter of that decision. The objection raised by theUnited Kingdom on that point has the character of a defenceon the merits.

The Court notes furthermore that the United Kingdomitself broached many substantive problems in its written andoral pleadings in this phase, and pointed out that thoseproblems had been the subject of exhaustive exchangesbefore the Court; the United Kingdom Government thusimplicitly acknowledged that the objection raised and themerits of the case were "closely interconnected".

The Court concludes that if it were to rule on thatobjection, it would therefore inevitably be ruling on themerits; in relying on the provisions of Article 79 of theRules of Court, the Respondent has set in motion aprocedure the precise aim of which is to prevent the Courtfrom so doing.

The Court concluded from the foregoing that theobjection of the United Kingdom according to which theLibyan claims have been rendered without object does nothave "an exclusively preliminary character" within themeaning of that Article.

Having established its jurisdiction and concluded thatthe Application is admissible, the Court will be able toconsider this objection when it reaches the merits of thecase.

The Court finally specified that, in accordance withArticle 79, paragraph 7, of the Rules of Court, time limitsfor the further proceedings shall be fixed subsequently by it.

Joint declaration of Judges Bedjaoiti, Guillaumeand Ranjeva

In their declaration, Judges Bedjaoui, Guillaume andRanjeva wondered whether, in this case, the UnitedKingdom was entitled to appoint a judge ad hoc to replaceJudge Higgins who had stood down.

The authors of the declaration pointed out that, in thisphase of the proceedings, the United States and the UnitedKingdom had made the same submissions. They concludedfrom this that those two States were in the same interest.They noted that, furthermore, the Court had given twoalmost identical judgments. The authors of the declarationtherefore considered, on the basis of Article 37 of the Rulesof Court which covers the question of parties being "in thesame interest", that the United Kingdom was not entitled toappoint a judge ad hoc in this phase of the proceedings. Onthis point, they dissociated themselves from the decisiontaken by the Court.

Joint declaration of Judges Bedjaoui, Ranjevaand Koroma

Judges Bedjaoui, Ranjeva and Koroma consider that toqualify the United Kingdom objection that the Security

19

Council resolutions rendered the Libyan claims withoutobject as not exclusively preliminary and to refer it back tobe considered at the merits stage means that it is notsufficient to invoke the provisions of Chapter VII of theCharter so as to bring to an end ipso facto and withimmediate effect all argument on the Security Council'sdecisions.

Joint declaration of Judges Guillaume andFleischhauer

In a joint declaration, Judges Guillaume andFleischhauer have stated their views as to how the Courtshould have dealt with the objection of the United Kingdomaccording to which "Security Council resolutions 748(1992) and 883 (1993) have rendered the claims of Libyawithout object".

Judges Guillaume and Fleischhauer think that the Courtcould have decided on that objection without pronouncingon the merits of the rights and obligations of the Partiesunder the Montreal Convention. They reach the conclusionthat the objection had an exclusively preliminary characterand that the Court could and should have taken a decision asof now. They regret that the decision on the objection hasbeen put off and underline that the solution arrived at by theCourt runs counter to the objective of the revision in 1972of Article 79 of the Rules of Court, i.e., the simplification ofprocedure and the sound administration of justice.

Declaration of Judge Herczegh

In his declaration, Judge Herczegh summarizes thereasons why he voted against paragraph 2 (a) and (b), andagainst paragraph 3 of the operative part. He considers thatthe Libyan claims are governed by the binding SecurityCouncil resolutions which rendered the Libyan Applicationwithout object. The objection raised by the Respondent inthat connection has an exclusively preliminary character.The objection should therefore have been upheld and theLibyan claim rejected.

Separate opinion of Judge Kooijmans

In his separate opinion, Judge Kooijmans expresses hissupport for the conclusions of the Court. He wishes to placeon record, however, his views with regard to a number ofarguments brought forward by the Parties. In his opinion themotives which the Applicant may have had when filing itsApplication, are irrelevant to the Court whose only functionis to determine whether there is a justiciable dispute. Thefact that a situation has been brought to the attention of theSecurity Council and that the Council has taken action withregard to that situation can in no way detract from theCourt's own competence and responsibility to objectivelydetermine the existence or non-existence of a dispute.

With regard to the objection that the Libyan claims havebeen rendered without object or moot by Security Councilresolutions 748 (1992) and 883 (1993), Judge Kooijmans

shares the Court's view that this objection has not anexclusively preliminary character.

He is, however, also of the opinion that theseresolutions, although authoritative, have no final anddefinitive character, and therefore cannot render the casemoot in the preliminary phase.

Separate opinion of Judge Rezek .

Judge Rezek deems that the Judgment would more fullyconvey the line of argument advanced by the Parties were itto devote a few lines to the subject of the jurisdiction of theCourt in relation to that of the political organs of theOrganization.

He is of the opinion that the Court has full jurisdiction tointeipret and apply the law in a contentious case, even whenthe exercise of such jurisdiction may entail the criticalscrutiny of a decision of another organ of the UnitedNations. It does not directly represent the member States ofthe Organization but it is precisely because it isimpermeable to political injunctions that the Court is theinteipreter par excellence of the law and the natural placefor reviewing the acts of political organs in the name of thelaw, as is the rule in democratic regimes.

Dissenting opinion of President Schwebel

In Judge Schwebel's view, the Court's Judgment doesnot show (as contrasted with concluding) that theRespondent can be in violation of provisions of theMontreal Convention; with the possible exception of Article11 of the Convention, the Court does not show that there isa dispute between the Parties over such alleged violations.There is dispute over the meaning, legality and effectivenessof the pertinent resolutions of the Security Council. Thatdispute may not be equated with a dispute under theConvention, the sole basis of the Court's jurisdiction in thecase.

The fact the Security Council resolutions 748 (1992) and883 (1993) were adopted after the filing of Libya'sApplication is not determinative. While jurisdiction isnormally determined as of the date of application, it neednot invariably be so. The cases on which the Court relies arenot in point.

The Court rejects the Respondent's contention thatLibya's case is inadmissible on the sole ground that thecritical date for determining admissibility of an applicationis the date on which it is filed. But the single case on whichthe Court relies is distinguishable. Moreover, that case, asothers, recognizes that events subsequent to the filing of anapplication may render an application without object.

In this case. Security Council resolutions 748 (1992) and883 (1993) supervene any rights of Libya under theMontreal Convention, and thus render reliance upon itwithout object and moot. By virtue of Article 103 of theUnited Nations Charter, decisions of the Security Councilprevail over any rights and obligations Libya and theRespondent may have under the Montreal Convention.

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The Court finds that it cannot uphold the mootness claimbecause it is not exclusively preliminary in character underthe Court's Rules. But since jurisdiction in this case flowsonly from the Montreal Convention, a plea citingresolutions of the Security Council in bar of reliance uponthat Convention is of an exclusively preliminary character.

The Court's Judgment may be seen as prejudicing theefforts of the Security Council to combat terrorism and asappealing to offer recalcitrant States a means to parry andfrustrate its decisions by appeal to the Court. That raises thequestion of whether the Court possesses a power of judicialreview over Council decisions.

In Judge Schwebel's view, the Court is not generally soempowered, and it is particularly without power to overruleor undercut decisions of the Security Council determiningwhether there is a threat to the peace and what measuresshall be taken to deal with Ihe threat. The Court more thanonce has disclaimed a power of judicial review.

The terms of the Charter furnish no shred of support forsuch a power. In fact, they import the contrary, since, if theCourt could overrule the Council, it would be it and not theCouncil which would exercise dispositive and henceprimary authority in a sphere in which the Charter accordsprimary authority to the Council.

The terms and drafting history of the Charterdemonstrate that the Security Council is subjeci: to the ruleof law, and at the same time is empowered to derogate frominternational law if the maintenance of international peacerequires. It does not follow from the fact that the Council isso subject, and that the Court is the United Nations principaljudicial organ, that the Court is authorized to ensmre that theCouncil's decisions do accord with law. In many legalsystems, the subjection of the acts of an organ to law by nomeans entails the subjection of the legality of its actions tojudicial review. The tenor of the discussions at SanFrancisco indicate the intention of the Charter's drafters notto accord the Court a power of judicial review.

To engraft upon the Charter regime a power of judicialreview would not be a development but a departure justifiedneither by Charter terms nor by customary international lawnor by the general principles of law. It would entail theCourt giving judgment over an absentee, the SecurityCouncil, contrary to fundamental judicial principles. It couldgive rise to the question, is a holding by the Court that theCouncil has acted ultra vires a holding which of itself isultra vires!


In his dissenting opinion, Judge Oda began by statingthat the crux of the case before the International Court ofJustice is simply the different positions adopted by bothParties concerning the surrender of the two Libyans,presently located in Libya, who are accusied of thedestruction of Pan Am flight 103 over Lockerbie in UnitedKingdom territory.

What, in fact, occurred between the United Kingdomand Libya was simply a demand by the United Kingdom

that the suspects located in Libya be surrendered to it and arefusal by Libya to comply with that demand. No disputehas existed between Libya and the United Kingdom"concerning the interpretation or application of the[Montreal] Convention" as far as the demand for thesurrender of the suspects and the refusal to accede to thatdemand — the main issue in the present case — areconcerned. In Judge Oda's view, the Application by whichLibya instituted proceedings against the United Kingdompursuant to Article 14, paragraph 1, of the MontrealConvention should be dismissed on this sole ground.

If the Court's jurisdiction is denied, as Judge Odabelieves it should be, the issue of whether the Application isor is not admissible does not arise. He considers itmeaningless to discuss the question of admissibility.However, after finding that it has jurisdiction, the Courtcontinues to deal with the question of admissibility byrejecting the objection to admissibility derived by theUnited Kingdom from Security Council resolutions 748 and883. Judge Oda then commented on the impact of thoseSecurity Council resolutions in the present case. In his view,if the adoption of Security Council resolutions 748 and 883is to be dealt with in connection with the question ofadmissibility of the Application, it should be dealt with atthe present (preliminary) stage irrespective of whether thisquestion possesses or not an exclusively preliminarycharacter. The question of whether Libya's 3 March 1992Application has become without object after the adoption ofthese two Security Council resolutions, is totally irrelevantto the present case. The Security Council manifestly passedthose resolutions because it believed that Libya's refusal tosurrender the accused constituted "threats to the peace" or"breaches of the peace". Judge Oda expressed his view thatthese Security Council resolutions, having a politicalconnotation, have nothing to do with the present case, sincethe case must cover only legal matters existing between theUnited Kingdom and Libya before the resolutions wereadopted.

If there is any dispute in this respect, it could be adispute between Libya and the Security Council or betweenLibya and the United Nations, or both, but not betweenLibya and the United Kingdom. The effect of the SecurityCouncil resolutions upon member States is a matter quiteirrelevant to this case and the question of whether theApplication has become without object after the adoption ofthose resolutions hardly arises.

Dissenting opinion of Judge Sir Robert Jennings

Judge Sir Robert Jennings thought the Court should havefound that it did not have jurisdiction in the case; and evenif it had jurisdiction, that the Libyan case should have beendismissed as inadmissible.

Jurisdiction depended upon whether the Libyan casecould be brought under the terms of Article 14, paragraph 1,of the Montreal Convention. An examination of Libya'srequests showed that there existed no genuine dispute aboutthe Convention. The true dispute was between Libya and theSecurity Council.

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Since the Court had found that it did have jurisdiction, itshould then have found the Libyan claim inadmissiblebecause the dispute between Libya and the United Kingdomwas now regulated by decisions of the Security Councilmade under Chapter VII of the Charter and so binding onboth Parties. The Court had, however, rejected the UnitedKingdom's "inadmissibility" objection because the bindingSecurity Council resolutions were made after the date of theLibyan Application to the Court; and the United Kingdom'salternative objection that the Libyan case had, by the

Security Council's decisions, been rendered "withoutobject", was rejected on the ground that this was not anobjection of "an exclusively preliminary character" withinthe meaning of Article 79, paragraph 7, of the Court'sRules. Judge Jennings wondered whether the Court hadsufficiently weighed the gravity of dealing with a questioninvolving binding and peacekeeping decisions of theSecurity Council in so technical, not to say legalistic, afashion.

109. QUESTIONS OF INTERPRETATION AND APPLICATION OF THE 1971MONTREAL CONVENTION ARISING FROM THE AERIAL INCIDENT ATLOCKERBIE (LIBYAN ARAB JAMAHIRIYA v. UNITED STATES OF AMERICA)(PRELIMINARY OBJECTIONS)


In its Judgment on the preliminary objections raised bythe United States in the case concerning Questions ofInterpretation and Application of the 1971 MontrealConvention arising from the Aerial Incident at Lockerbie(Libyan Arab Jamahiriya v. United States of America), theCourt found that it had jurisdiction to deal with the merits ofthe case brought by Libya against the United States ofAmerica concerning the aerial incident at Lockerbie. It alsofound that the Libyan claims were admissible.

The Court was composed as follows in the case: Vice-President Weeramantry, Acting President; PresidentSchwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva,Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Parra-Aranguren, Kooijmans, Rezek; Judge ad hoc El-Kosheri;Registrar Valencia-Ospina.

The full text of the operative paragraph of the Judgmentis as follows:

"53. For these reasons:THE COURT,(1) (a) by thirteen votes to two, rejects the objection

to jurisdiction raised by the United States on the basis ofthe alleged absence of a dispute between the Partiesconcerning the interpretation or application of theMontreal Convention of 23 September 1971;


AGAINST: President Schwebel; Judge Oda;(b) by thirteen votes to two, finds that it has

jurisdiction, on the basis of Article 14, paragraph 1, of

the Montreal Convention of 23 September 1971, to hearthe disputes between Libya and the United States as tothe interpretation or application of the provisions of thatConvention;


AGAINST: President Schwebel; Judge Oda;(2) (a) by twelve votes to three, rejects the objection

to admissibility derived by the United States fromSecurity Council resolutions 748 (1992) and 883 (1993);


AGAINST: President Schwebel; Judges Oda,Herczegh;

(b) by twelve votes to three, finds that theApplication filed by Libya on 3 March 1992 isadmissible.


AGAINST: President Schwebel; Judges Oda,Herczegh;

(3) by ten votes to five, declares that the objectionraised by the United States according to which theclaims of Libya became moot because Security Councilresolutions 748 (1992) and 883 (1993) rendered themwithout object, does not, in the circumstances of thecase, have an exclusively preliminary character.

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IN FAVOUR: Vice-President Weeramantry, ActingPresident; Judges Bedjaoui, Ranjeva, Shi. Koroma,Vereshchetin, Parra-Aranguren, Kooijmans, Rezek;Judge ad hoc El-Kosheri;

AGAINST: President Schwebel; Judges Oda,Guillaume, Herczegh, Fleischhauer."

Judges Bedjaoui, Ranjeva and Koroma appended a jointdeclaration to the Judgment of the Court; Judges Guillaumeand Fleischhauer appended a joint declaration to theJudgment of the Court; Judge Herczegh appended adeclaration to the Judgment of the Court. Judges Kooijmansand Rezek appended separate opinions to the Judgment ofthe Court. President Schwebel and Judge Oda appendeddissenting opinions to the Judgment of the Court.


On 3 March 1992, Libya filed in the Registry of theCourt an Application instituting proceedings against theUnited States in respect of a "dispute between Libya and theUnited States concerning the interpretation or application ofthe Montreal Convention" of 23 September 1971 for theSuppression of Unlawful Acts against the Safety of CivilAviation (hereinafter called "the Montreal Convention").The Application referred to the destruction, on 21 December1988, over Lockerbie (Scotland), of the aircraft on Pan Amflight 103, and to charges brought by a Grand Jury of theUnited States in November 1991 against two Libyannationals suspected of having caused a bomb to be placedaboard the aircraft, which bomb had exploded causing theaeroplane to crash. The Application invoked as the basis forjurisdiction Article 14, paragraph 1, of the MontrealConvention.

On 3 March 1992, immediately after the filing of itsApplication, Libya submitted a request for the indication ofprovisional measures under Article 41 of the Statute. By anOrder dated 14 April 1992., the Court, after hearing theParties, found that the circumstances of the cas>3 were notsuch as to require the exercise of its power ;o indicateprovisional measures.

Libya filed a Memorial on the merits within theprescribed time limit. In the Memorial Libya requests theCourt to adjudge and declare:

"(a) that the Montreal Convention is applicable tothis dispute;

(b) that Libya has fully complied with all of itsobligations under the Montreal Convention and isjustified in exercising the criminal jurisdiction providedfor by that Convention;

(c) that the United States has breached, and iscontinuing to breach, its legal obligations to Libya under

Article 5, paragraphs 2 and 3, Article 7, Article 8,paragraph 3, and Article 11 of the Montreal Convention;

(d) that the United States is under a legal obligationto respect Libya's right not to have the Convention setaside by means which would in any case be at variancewith the principles of the United Nations Charter andwith the mandatory rules of general international lawprohibiting the use of force and the violation of thesovereignty, territorial integrity, sovereign equality andpolitical independence of States."Within the time limit fixed for the filing of its Counter-

Memorial, the United States filed Preliminary Objections tothe jurisdiction of the Court and the admissibility of theApplication. Libya for its part filed a statement of itsobservations and submissions on the Preliminary Objectionswithin the time limit fixed by the Court. Hearings were heldbetween 13 and 22 October 1997.

At the hearing the United States presented the followingfinal submissions:

"The United States of America requests that the Courtuphold the objections of the United States to thejurisdiction of the Court and decline to entertain the caseconcerning Questions of Interpretation and Applicationof the 1971 Montreal Convention arising from the AerialIncident at Lockerbie (Libyan Arab Jamahiriya v.United States of America)."The final submissions of Libya read as follows:"The Libyan Arab Jamahiriya requests the Court toadjudge and declare:— that the Preliminary Objections raised by ... the

United States must be rejected and that, as aconsequence:(a) the Court has jurisdiction to entertain the

Application of Libya;(b) that the Application is admissible;

— that the Court should proceed to the merits."


The Court first considers the objection raised by theUnited States to its jurisdiction. Libya submits that theCourt has jurisdiction on the basis of Article 14, paragraph1, of the Montreal Convention, which provides that:

"Any dispute between two or more Contracting Statesconcerning the interpretation or application of thisConvention which cannot be settled through negotiation,shall, at the request of one of them, be submitted toarbitration. If within six months from the date of therequest for arbitration the Parties are unable to agree onthe organization of the arbitration, any one of thoseParties may refer the dispute to the International Courtof Justice by request in conformity with the Statute ofthe Court."The Parties agree that the Montreal Convention is in

force between them and that it was already in force both atthe time of the destruction of the Pan Am aircraft over

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Lockerbie, on 21 December 1988, and at the time of filingof the Application, on 3 March 1992. However, theRespondent contests the jurisdiction of the Court because, inits submission, all the requisites laid down in Article 14,paragraph 1, of the Montreal Convention have not beencomplied with in the present case.

The United States contests the jurisdiction of the Courtmainly on the basis of Libya's failure to show, firstly, thatthere exists a legal dispute between the Parties, and,secondly, that such dispute, if any, concerns theinterpretation or application of the Montreal Convention andfalls as a result within the terms of Article 14, paragraph 1,of that Convention. However, at the hearings, the UnitedStates also made reference, in passing, to the arguments ithad advanced, in the provisional measures phase of theproceedings, as to whether the dispute that, in the opinion ofLibya, exists between the Parties could be settled bynegotiation, whether Libya had made a proper request forarbitration and whether it had respected the six-monthperiod required by Article 14, paragraph 1, of theConvention.

After an examination of the history of the allegeddispute between the Parties the Court concludes that it couldnot be settled by negotiation or submitted to arbitrationunder the Montreal Convention, and the refusal of theRespondent to enter into arbitration to resolve that disputeabsolved Libya from any obligation under Article 14,paragraph 1, of the Convention to observe a six-monthperiod starting from the request for arbitration, beforeseizing the Court.

Existence of a legal dispute of a general natureconcerning the Convention

(paras. 22-25)

In its Application and Memorial, Libya maintained thatthe Montreal Convention was the only instrument applicableto the destruction of the Pan Am aircraft over Lockerbie.The United States does not deny that, as such, the facts ofthe case could fall within the terms of the MontrealConvention. However, it emphasizes that, in the presentcase, from the time Libya invoked the Montreal Convention,the United States has claimed that it was not relevantbecause it was not a question of "bilateral differences" butone of "a threat to international peace and security resultingfrom State-sponsored terrorism".

The Court concludes that consequently, the Parties differon the question whether the destruction of the Pan Amaircraft over Lockerbie is governed by the MontrealConvention. A dispute thus exists between the Parties as tothe legal regime applicable to this event. Such a dispute, inthe view of the Court, concerns the interpretation andapplication of the Montreal Convention, and, in accordancewith Article 14, paragraph 1, of the Convention, falls to bedecided by the Court.


(paras. 25-28)

The Court finds that in view of the positions put forwardby the Parties with respect to the rights and obligationswhich Articles 1, 5, 6, 7 and 8 of the Convention wouldentail for them that there exists between them not only adispute of a general nature, as defined above, but also aspecific dispute which concerns the interpretation andapplication of Article 7 — read in conjunction with Article1, Article 5, Article 6 and Article 8 — of the Convention,and which, in accordance with Article 14, paragraph 1, ofthe Convention, falls to be decided by the Court.

Article 7 is worded in the following terms:"Article 7

The Contracting State in the territory of which thealleged offender is found shall, if it does not extraditehim, be obliged, without exception whatsoever andwhether or not the offence was committed in itsterritory, to submit the case to its competent authoritiesfor the purpose of prosecution. Those authorities shalltake their decision in the same manner as in the case ofany ordinary offence of a serious nature under the law ofthat State."


(paras. 29-32)

Furthermore, having taken account of the positions ofthe Parties as to the duties imposed by Article 11 of theMontreal Convention, the Court concludes that there equallyexists between them a dispute which concerns theinterpretation and application of that provision, and which,in accordance with Article 14, paragraph 1, of theConvention, falls to be decided by the Court.

Article 11 is worded as follows:"Article 111. Contracting States shall afford one another thegreatest measure of assistance in connection withcriminal proceedings brought in respect of the offences.The law of the State requested shall apply in all cases.2. The provisions of paragraph 1 of this Article shallnot affect obligations under any other treaty, bilateral ormultilateral, which governs or will govern, in whole orin part, mutual assistance in criminal matters."

Lawfulness of the actions of the Respondent(paras. 33-35)

With respect to the last submission of Libya (see above,submission (d) of the Memorial) the United States maintainsthat it is not for the Court, on the basis of Article 14,paragraph 1, of the Montreal Convention, to decide on thelawfulness of actions which are in any event in conformitywith international law, and which were instituted by theRespondent to secure the surrender of the two allegedoffenders. It concludes from this that the Court lacks

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jurisdiction to hear the submissions presented on this pointby Libya.

The Court points out that it cannot uphold the line ofargument thus formulated. Indeed, it is for the Court todecide, on the basis of Article 14, paragraph 1, of theMontreal Convention, on the lawfulness of the actionscriticized by Libya, insofar as those actions would becontrary to the provisions of the Montreal Convention.

Effect of the resolution of the Security Council(paras. 36-37)

In the present case, the United States has contended,however, that even if the Montreal Convention did conferon Libya the rights it claims, those rights could not beexercised in this case because they were superseded bySecurity Council resolutions 748 (1992) and 883 (1993)which, by virtue of Articles 25 and 103 of the UnitedNations Charter, have priority over all rights and: obligationsarising out of the Montreal Convention. The Respondent hasalso argued that, because of the adoption of thoseresolutions, the only dispute which existed from that pointon was between Libya and the Security Council; this,clearly, would not be a dispute falling within the terms ofArticle 14, paragraph 1, of the Montreal Convention andthus not one which the Court could entertain.

The Court finds that it cannot uphold this line ofargument. Security Council resolutions 748 (1992) and 883(1993) were in fact adopted after the filing of theApplication on 3 March 1992. In accordance with itsestablished jurisprudence, if the Court had jurisdiction onthat date, it continues to do so; the subsequent coming intoexistence of the above-mentioned resolutions cannot affectits jurisdiction once established.

In the light of the foregoing, the Court concludes that theobjection to jurisdiction raised by the United States on thebasis of the alleged absence of a dispute between the Partiesconcerning the interpretation or application of the MontrealConvention must be rejected, and that the Court hasjurisdiction to hear the disputes between Libya and theUnited States as to the interpretation or application of theprovisions of that Convention.

Admissibility of the Libyan Application(paras. 39-44)

The Court will now turn to consider the objection of theUnited States according to which the Libyan Application isnot admissible.

The United States emphasizes that the measures whichLibya opposes are those taken by the Security Council underresolutions 731 (1992), 748 (1992) and 883 (1993).

According to the United States, by seizing the Court,Libya was endeavouring to "undo the Council's actions".The United States argues that, even if Libya could makevalid claims under the Montreal Convention, these are

"superseded" by the relevant decisions of the SecurityCouncil under Chapter VII of the Charter, which imposedifferent obligations. The said decisions thus establish therules governing the dispute between Libya and the UnitedStates. Those rales — and not the Montreal Convention —define the obligations of the Parties; and the claims of Libyabased on the Convention are therefore inadmissible.

For its part, Libya argues that it is clear from the actualterms of resolutions 731 (1992), 748 (1992) and 883 (1993)that the Security Council has never required it to surrenderits nationals to the United States or the United Kingdom; itstated at the hearing that this remained "Libya's principalargument". It added that the Court must interpret thoseresolutions "in accordance with the Charter, whichdetermined their validity", and that the Charter prohibitedthe Council from requiring Libya to hand over its nationalsto the United States or the United Kingdom. Libyaconcludes that its Application is admissible "as the Courtcan usefully rule on the interpretation and application of theMontreal Convention ... independently of the legal effects ofresolutions 748 (1992) and 883 (1993)". Libya furthermoredraws the Court's attention to the principle that "[t]hecritical date for determining the admissibility of anapplication is the date on which it is filed".

In the view of the Court, this last submission of Libyamust be upheld. The date, 3 March 1992, on which Libyafiled its Application, is in fact the only relevant date fordetermining the admissibility of the Application. SecurityCouncil resolutions 748 (1992) and 883 (1993) cannot betaken into consideration in this regard, since they wereadopted at a later date. As to Security Council resolution731 (1992), adopted before the filing of the Application, itcould not form a legal impediment to the admissibility ofthe latter because it was a mere recommendation withoutbinding effect, as was recognized moreover by the UnitedStates. Consequently, Libya's Application cannot be heldinadmissible on these grounds.

In the light of the foregoing, the Court concludes that theobjection to admissibility derived by the United States fromSecurity Council resolutions 748 (1992) and 883 (1993)must be rejected, and that Libya's Application is admissible.

Objection that the Applicant's claims are without object(paras. 45-50)

The Court then considers the third objection raised bythe United States. According to that objection, Libya'sclaims have become moot because Security Councilresolutions 748 (1992) and 883 (1993) have rendered themwithout object; any judgment which the Court might deliveron the said claims would thenceforth be devoid of practicalpurpose.

The Court notes that it already acknowledged, on severaloccasions in the past, that events subsequent to the filing ofan application may "render an application without object"and "therefore the Court is not called upon to give a

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decision thereon". Thus formulated, the Respondent'sobjection is that there is no ground for proceeding tojudgment on the merits, which objection must be examinedwithin the framework of this jurisprudence.

The Court must satisfy itself that such an objection doesindeed fall within the provisions of Article 79 of the Rules,relied upon by the Respondent. In paragraph 1, this Articlerefers to "Any objection ... to the.jurisdiction of the Court orto the admissibility of the application, or other objection"(emphasis added); its field of application ratione materiae isthus not limited solely to objections regarding jurisdictionand admissibility. However, if it is to be covered by Article79, an objection must also possess a "preliminary"character. Paragraph 1 of Article 79 of the Rules of Courtcharacterizes as "preliminary" an objection "the decisionupon which is requested before any further proceedings".The Court considers in this respect that insofar as thepurpose of the objection raised by the United States thatthere is no ground for proceeding to judgment on the meritsis, effectively, to prevent, in Hmine, any consideration of thecase on the merits, so that its "effect [would] be, if theobjection is upheld, to interrupt further proceedings in thecase", and "it [would] therefore be appropriate for the Courtto deal with [it] before enquiring into the merits", thisobjection possesses a preliminary character and does indeedfall within the provisions of Article 79 of the Rules ofCourt.

Libya does not dispute any of these points. What Libyacontends is that this objection — like the objection ofinadmissibility raised by the United States, and for the samereasons — falls within the category of those which Article79, paragraph 7, of the Rules of Court characterizes asobjections "not possessing], in the circumstances of thecase, an exclusively preliminary character".

On the contrary, the United States considers that theobjection concerned possesses an "exclusively preliminarycharacter" within the meaning of that provision. It contends,in particular, in support of this argument, that this objectiondoes not require "the resolution of disputed facts or theconsideration of evidence".

The Court finds that thus it is solely on the question ofthe "exclusively" or "non-exclusively" preliminarycharacter of the objection under consideration that theParties are divided and on which the Court must now makea determination; and it concludes that it must thereforeascertain whether, in the present case, the United Statesobjection considered here contains "both preliminaryaspects and other aspects relating to the merits" or not.

The Court observes that that objection relates to manyaspects of the dispute. By maintaining that Security Councilresolutions 748 (1992) and 883 (1993) have rendered theLibyan claims without object, the United States seeks toobtain from the Court a decision not to proceed to judgmenton the merits, which would immediately terminate theproceedings. However, by requesting such a decision, theUnited States is requesting, in reality, at least two otherswhich the decision not to proceed to judgment on the meritswould necessarily postulate: on the one hand a decision

establishing that the rights claimed by Libya under theMontreal Convention are incompatible with its obligationsunder the Security Council resolutions; and, on the otherhand, a decision that those obligations prevail over thoserights by virtue of Articles 25 and 103 of the Charter.

The Court therefore has no doubt that Libya's rights onthe merits would not only be affected by a decision not toproceed to judgment on the merits, at this stage in theproceedings, but would constitute, in many respects, thevery subject matter of that decision. The objection raised bythe United States on that point has the character of a defenceon the merits.

The Court notes furthermore that the United States itselfbroached many substantive problems in its written and oralpleadings in this phase, and pointed out that those problemshad been the subject of exhaustive exchanges before theCourt; the United States Government thus implicitlyacknowledged that the objection raised and the merits of thecase were "closely interconnected".

The Court concludes that if it were to rule on thatobjection, it would therefore inevitably be ruling on themerits; in relying on the provisions of Article 79 of theRules of Court, the Respondent has set in motion aprocedure the precise aim of which is to prevent the Courtfrom so doing.

The Court concludes from the foregoing that theobjection of the United States according to which theLibyan claims have become moot as having been renderedwithout object does not have "an exclusively preliminarycharacter" within the meaning of that Article.

Having established its jurisdiction and concluded thatthe Application is admissible, the Court will be able toconsider this objection when it reaches the merits of thecase.

Lastly, the United States requested the Court, in thealternative, in the event that, notwithstanding the UnitedStates' objections, it should declare that it has jurisdictionand deem the Application admissible, to "resolve the case insubstance now" by deciding, as a preliminary matter, thatthe relief sought by Libya is precluded.

As the Court has already indicated, it is the Respondentwhich sought to rely, in this case, on the provisions ofArticle 79 of the Rules. By raising preliminary objections, ithas made a procedural choice the effect of which, accordingto the express terms of Article 79, paragraph 3, is to suspendthe proceedings on the merits. The Court cannot thereforeuphold the claim of the United States.

The Court finally specifies that in accordance withArticle 79, paragraph 7, of the Rules of Court, time limitsfor the further proceedings shall be fixed subsequently by it.

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Joint declaration of Judges Bedjaoui, Ranjeva andKoroma

Judges Bedjaoui, Ranjeva and Koroma consider that toqualify the United States objection of mootness as notexclusively preliminary and to refer it back to be consideredat the merits stage means that it is not sufficient to invokethe provisions of Chapter VI [ of the Charter so as; to bring toan end ipso facto and with immediate effect all argument onthe Security Council's decisions.

Joint declaration of Judges Guillaume andFleischhauer

In a joint declaration, Judges Guillaume andFleisclihauer have stated their views as to how the Courtshould have dealt with the objection of the United Statesaccording to which "Libya's claims have become mootbecause Security Council resolutions 748 (1992) and 883(1993) have rendered them without object".

Judges Guillaume and Fleischhauer think that the Courtcould have decided on that objection without pronouncingon the merits of the rights and obligations of the Partiesunder the Montreal Convention. They reach the conclusionthat the objection had an exclusively preliminary characterand that the Court could and should have taken a decision asof now. They regret that the decision on the objection hasbeen put off and underline that the solution arrived at by theCourt runs counter to the objective of the revision in 1972of Article 79 of the Rules of Court, i.e., the simplification ofprocedure and the sound administration of justice.


In his declaration, Judge Herczegh summarizes thereasons why he voted against paragraph 2 (a) and (b), andagainst paragraph 3 of the operative part. He considers thatthe Libyan claims are governed by the binding SecurityCouncil resolutions which rendered the Libyan Applicationwithout object. The objection raised by the Respondent inthat connection has an exclusively preliminary character.The objection should therefore have been upheld and theLibyan claim rejected.


In his separate opinion, Judge Kooijmans expresses hissupport for the conclusions of the Court. He wishes to placeon record, however, his views with regard to a number ofarguments brought forward by the Parties. In his opinion themotives which the Applicant may have had when filing itsApplication, are irrelevant to the Court whose only functionis to determine whether there is a justiciable dispute. Thefact that a situation has been brought to the attention of theSecurity Council and that the Council has taken action withregard to that situation can in no way detract, from theCourt's own competence and responsibility to objectivelydetermine the existence or non-existence of a dispute.

With regard to the objection that the Libyan claims havebeen rendered without object or moot by Security Council

resolutions 748 (1992) and 883 (1993), Judge Kooijmansshares the Court's view that this objection has not anexclusively preliminary character. He is, however, also ofthe opinion that these resolutions, although authoritative,have no final and definitive character, and therefore cannotrender the case moot in the preliminary phase.

Separate opinion of Judge Rezek

Judge Rezek deems that the Judgment would more fullyconvey the line of argument advanced by the Parties were itto devote a few lines to the subject of the jurisdiction of theCourt in relation to that of the political organs of theOrganization.

He is of the opinion that the Court has full jurisdiction tointerpret and apply the law in a contentious case, even whenthe exercise of such jurisdiction may entail the criticalscrutiny of a decision of another organ of the UnitedNations. It does not directly represent the member States ofthe Organization but it is precisely because it isimpermeable to political injunctions that the Court is theinterpreter par excellence of the law and the natural placefor reviewing the acts of political organs in the name of thelaw, as is the rule in democratic regimes.

Dissenting opinion of President Schwebel

In Judge Schwebel's view, the Court's Judgment doesnot show (as contrasted with concluding) that theRespondent can be in violation of provisions of theMontreal Convention; with the possible exception of Article11 of the Convention, the Court does not show that there isa dispute between the Parties over such alleged violations.There is dispute over the meaning, legality and effectivenessof the pertinent resolutions of the Security Council. Thatdispute may not be equated with a dispute under theConvention, the sole basis of the Court's jurisdiction in thecase.

The fact the Security Council resolutions 748 (1992) and883 (1993) were adopted after the filing of Libya'sApplication is not determinative. While jurisdiction isnormally determined as of the date of application, it neednot invariably be so. The cases on which the Court relies arenot in point.

The Court rejects the Respondent's contention thatLibya's case is inadmissible on the sole ground that thecritical date for determining admissibility of an applicationis the date on which it is filed. But the single case on whichthe Court relies is distinguishable. Moreover, that case, asothers, recognizes that events subsequent to the filing of anapplication may render an application without object.

In this case, Security Council resolutions 748 (1992) and883 (1993) supervene any rights of Libya under theMontreal Convention, and thus render reliance upon itwithout object and moot. By virtue of Article 103 of theUnited Nations Charter, decisions of the Security Councilprevail over any rights and obligations Libya and theRespondent may have under the Montreal Convention.

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The Court finds that it cannot uphold the mootness claimbecause it is not exclusively preliminary in character underthe Court's Rules. But since jurisdiction in this case flowsonly from the Montreal Convention, a plea citingresolutions of the Security Council in bar of reliance uponthat Convention is of an exclusively preliminary character.

The Court's Judgment may be seen as prejudicing theefforts of the Security Council to combat terrorism and asappearing to offer recalcitrant States a means to parry andfrustrate its decisions by appeal to the Court. That raises thequestion of whether the Court possesses a power of judicialreview over Council decisions.

In Judge Schwebel's view, the Court is not generally soempowered, and it is particularly without power to overruleor undercut decisions of the Security Council determiningwhether there is a threat to the peace and what measuresshall be taken to deal with the threat. The Court more thanonce has disclaimed a power of judicial review. The termsof the Charter furnish no shred of support for such a power.In fact, they import the contrary, since, if the Court couldoverrule the Council, it would be it and not the Councilwhich would exercise dispositive and hence primaryauthority in a sphere in which the Charter accords primaryauthority to the Council.

The terms and drafting history of the Charterdemonstrate that the Security Council is subject to the ruleof law, and at the same time is empowered to derogate frominternational law if the maintenance of international peacerequires. It does not follow from the fact that the Council isso subject, and that the Court is the United Nations principaljudicial organ, that the Court is authorized to ensure that theCouncil's decisions do accord with law. In many legalsystems, the subjection of the acts of an organ to law by nomeans entails the subjection of the legality of its actions tojudicial review. The tenor of the discussions at SanFrancisco indicate the intention of the Charter's drafters notto accord the Court a power of judicial review.

To engraft upon the Charter regime a power of judicialreview would not be a development but a departure justifiedneither by Charter terms nor by customary international lawnor by the general principles of law. It would entail theCourt giving judgment over an absentee, the SecurityCouncil, contrary to fundamental judicial principles. It couldgive rise to the question, is a holding by the Court that theCouncil has acted ultra vires a holding which of itself isultra vires'?


In his dissenting opinion, Judge Oda began by statingthat the crux of the case before the International Court ofJustice is simply the different positions adopted by bothParties concerning the surrender of the two Libyans,

presently located in Libya, who are accused of thedestruction of Pan Am flight 103 over Lockerbie in UnitedKingdom territory.

What, in fact, occurred between the United States andLibya was simply a demand by the United States that thesuspects located in Libya be surrendered to it and a refusalby Libya to comply with that demand. No dispute hasexisted between Libya and the United States "concerningthe interpretation or application of the [Montreal]Convention" as far as the demand for the surrender of thesuspects and the refusal to accede to that demand — themain issue in the present case — are concerned. In JudgeOda's view, the Application by which Libya institutedproceedings against the United States pursuant to Article 14,paragraph 1, of the Montreal Convention should bedismissed on this sole ground.

If the Court's jurisdiction is denied, as Judge Odabelieves it should be, the issue of whether the Application isor is not admissible does not arise. He considers itmeaningless to discuss the question of admissibility.However, after finding that it has jurisdiction, the Courtcontinues to deal with the question of admissibility byrejecting the objection to admissibility derived by theUnited States from Security Council resolutions 748 and883. Judge Oda then commented on the impact of thoseSecurity Council resolutions in the present case. In his view.if the adoption of Security Council resolutions 748 and 883is to be dealt with in connection with the question ofadmissibility of the Application, it should be dealt with atthe present (preliminary) stage irrespective of whether thisquestion possesses or not an exclusively preliminarycharacter. The question of whether Libya's 3 March 1992Application has become without object after the adoption ofthese two Security Council resolutions, is totally irrelevantto the present case. The Security Council manifestly passedthose resolutions because it believed that Libya's refusal tosurrender the accused constituted "threats to the peace" or"breaches of the peace". Judge Oda expressed his view thatthese Security Council resolutions, having a politicalconnotation, have nothing to do with the present case, sincethe case must cover only legal matters existing between theUnited States and Libya before the resolutions wereadopted.

If there is any dispute in this respect, it could be adispute between Libya and the Security Council or betweenLibya and the United Nations, or both, but not betweenLibya and the United States. The effect of the SecurityCouncil resolutions upon member States is a matter quiteirrelevant to this case and the question of whether theApplication has become without object after the adoption ofthose resolutions hardly arises.

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110. CASE CONCERNING THE VIENNA CONVENTION ON CONSULAR RELATIONS(PARAGUAY v. UNITED STATES OF AMERICA) (PROVISIONAL MEASURES)

Order of 9 April 1998

In an order adopted unanimously in the case concerningthe Vienna Convention on Consular Relations (Paraguay v.United States of America), the Court called on the UnitedStates to "take all measures at its disposal" to prevent theexecution of Mr. Angel Francisco Breard, pending a finaldecision of the Court in the proceedings instituted byParaguay. Mr. Breard was a Paraguayan national convictedof murder in Virginia (United States) whose execution wasscheduled for 14 April 1998. In its Order, the Court alsorequested the United States to inform it of all the measurestaken in implementation of it.

The Court was composed as follows: Vice-presidentWeeramantry, Acting President; President Schwebel; JudgesOda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi,Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek; Registrar Valencia-Ospina.

The complete text of the operative paragraph of theOrder reads as follows:

"41. For these reasons,THE COURTUnanimously,Indicates the following provisional measures:I. The United States should take all measures at its

disposal to ensure that Angel Francisco Breard is notexecuted pending the final decision in these proceedings,and should inform the Court of all the measures which ithas taken in implementation of this Order;

II. Decides, that, until the Court has given its finaldecision, it shall remain seized of the matters whichform the subject matter of this Order."

President Schwebel and Judges Oda and Koromaappended declarations to the Order of the Court.

History of the case and submissions(paras. 1-22)

The Court begins by recalling that on 3 April 1998Paraguay instituted proceedings against the United States ofAmerica for "violations of the Vienna Convention onConsular Relations [of 24 April 1963]" (hereinafter the

"Vienna Convention") allegedly committed by the UnitedStates. Paraguay bases the jurisdiction of the Court onArticle 36, paragraph 1, of the Statute of the Court and onArticle I of the Optional Protocol concerning theCompulsory Settlement of Disputes, which accompanies theVienna Convention on Consular Relations ("the OptionalProtocol").

Tn Paraguay's Application, il is stated that in Í992 theauthorities of Virginia arrested a Paraguayan national, Mr.Angel Francisco Breard, who was charged, tried, convictedof culpable homicide and sentenced to death by a Virginiacourt in 1993, without having been informed of his rightsunder Article 36, subparagraph 1 (//), of the ViennaConvention; it is specified that among these rights arc theright to request that the relevant consular office of the Stateof which he is national be advised of his arrest anddetention, and the right to communicate with that office; it isfurther alleged that the authorities of the Commonwealth ofVirginia also did not advise the Paraguayan consularofficers of Mr. Breard's detention, and that those officerswere only able to render assistance to him from 1996, whenthe Paraguayan Government learnt by its own means thatMr. Breard was imprisoned in the United States.

Paraguay states that federal courts denied Mr. Breard theright to invoke the Vienna Convention; that the Virginiacourt that sentenced Mr. Breard to the death penalty set anexecution date of 14 April 1998; that Mr. Breard, havingexhausted all means of legal recourse available to him as ofright, petitioned the United States Supreme Court for a writof certiorari, requesting it to exercise its discretionarypower to review the decision given by the lower federalcourts and to grant a stay of his execution pending thatreview; and that, while this request is still pending beforethe Supreme Court, it is however rare for (hat Court toaccede to such requests. Paraguay stated, moreover, that,having brought proceedings itself before the federal courtsof the United States without success, it also filed such apetition in the Supreme Court, which is also still pending;and that Paraguay furthermore engaged in diplomatic effortswith the Government of the United States and sought thegood offices of the Department of State.

Paraguay maintains that by violating its obligationsunder Article 36, subparagraph 1 (b), of the ViennaConvention, the United States prevented Paraguay fromexercising the consular functions provided for in Articles 5and 36 of the Convention and specifically for ensuring theprotection of its interests and of those of its nationals in theUnited States; that it was not able to contact Mr. Breard norto offer him the necessary assistance, and that accordinglyMr. Breard "made a number of objectively unreasonabledecisions during the criminal proceedings against him.

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which were conducted without translation" and that he "didnot comprehend the fundamental differences between thecriminal justice systems of the United States and Paraguay";Paraguay concludes from this that it is entitled to restitutioin integnim, that is to say "the re-establishment of thesituation that existed before the United States failed toprovide the notifications ... required by the Convention";

Paraguay requests the Court to adjudge and declare asfollows:

"(1) that the United States, in arresting, detaining,trying, convicting, and sentencing Angel FranciscoBreard, as described in the preceding statement of facts,violated its international legal obligations to Paraguay,in its own right and in the exercise of its right ofdiplomatic protection of its national, as provided byArticles 5 and 36 of the Vienna Convention;

(2) that Paraguay is therefore entitled to restitutio inintegrum;

(3) that the United States is under an internationallegal obligation not to apply the doctrine of 'proceduraldefault', or any other doctrine of its internal law, so as topreclude the exercise of the rights accorded underArticle 36 of the Vienna Convention; and

(4) that the United States is under an internationallegal obligation to carry out in conformity with theforegoing international legal obligations any futuredetention of or criminal proceedings against AngelFrancisco Breard or any other Paraguayan national in itsterritory, whether by a constituent, legislative, executive,judicial or other power, whether that power holds asuperior or a subordinate position in the organization ofthe United States, and whether that power's functionsare of an international or internal character;

and that, pursuant to the foregoing international legalobligations,

(1) any criminal liability imposed on AngelFrancisco Breard in violation of international legalobligations is void, and should be recognized as void bythe legal authorities of the United States;

(2) the United States should restore the status quoante, that is, re-establish the situation that existed beforethe detention of, proceedings against, and conviction andsentencing of Paraguay's national in violation of theUnited States' international legal obligations took place;and

(3) the United States should provide Paraguay aguarantee of the non-repetition of the illegal acts."On 3 April 1998 Paraguay also submitted an urgent

request for the indication of provisional measures in order toprotect its rights. It states in the following terms the groundsfor its request and the possible consequences of itsdismissal:

"Under the grave and exceptional circumstances of thiscase, and given the paramount interest of Paraguay inthe life and liberty of its nationals, provisional measuresare urgently needed to protect the life of Paraguay'snational and the ability of this Court to order the relief to

which Paraguay is entitled: restitution in kind. Withoutthe provisional measures requested, the United Stateswill execute Mr. Breard before this Court can considerthe merits of Paraguay's claims, and Paraguay will beforever deprived of the opportunity to have the statusquo ante restored in the event of a judgment in itsfavour."Paraguay requests that, pending final judgment in this

case, the Court indicate:"(a) That the Government of the United States take

the measures necessary to ensure that Mr. Breard not beexecuted pending the disposition of this case;

(b) That the Government of the United States reportto the Court the actions it has taken in pursuance ofsubparagraph (a) immediately above and the results ofthose actions; and

(c) That the Government of the United States ensurethat no action is taken that might prejudice the rights ofthe Republic of Paraguay with respect to any decisionthis Court may render on the merits of the case."It asks the Court moreover to consider its request as a

matter of the greatest urgency "in view of the extremegravity and immediacy of the threat that the authorities ...will execute a Paraguayan citizen".

By identical letters dated 3 April 1998, the Vice-President of the Court addressed both Parties in thefollowing terms:

"Exercising the functions of the presidency in terms ofArticles 13 and 32 of the Rules of Court, and acting inconformity with Article 74, paragraph 4, of the saidRules, I hereby draw the attention of both Parties to theneed to act in such a way as to enable any Order theCourt will make on the request for provisional measuresto have its appropriate effects."At public hearings held on 7 April 1998, oral statements

on the request for the indication of provisional measureswere presented by both Parties.

The Court's reasoning(paras. 23-41)

The Court begins by pointing out that on a request forthe indication of provisional measures it need not, beforedeciding whether or not to indicate them, finally satisfyitself that it has jurisdiction on the merits of the case, butthat it may not indicate them unless the provisions invokedby the Applicant appear, prima facie, to afford a basis onwhich the jurisdiction of the Court might be founded.

It notes that Article I of the Optional Protocol, whichParaguay invokes as the basis of jurisdiction of the Court inthis case, is worded as follows:

"Disputes arising out of the interpretation or applicationof the Convention shall lie within the compulsoryjurisdiction of the International Court of Justice and mayaccordingly be brought before the Court by anapplication made by any party to the dispute being aParty to the present Protocol";

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and that both Paraguay and the United States ate parties tothe Vienna Convention and to the Optional Protocol, in eachcase without reservation.

The Court observes that Paraguay, in its Application andat the hearings, stated that the issues in dispute betweenitself and the United States concern Articles 5 and 36 of theVienna Convention and fall within the compulsoryjurisdiction of the Court under Article I of the OptionalProtocol.

At the hearing the United States contended thatParaguay had not established that the Court had jurisdictionin these proceedings, even prima facie; it argued that there isno dispute between the Parties as to the interpretation ofArticle 36, subparagraph 1 (b), of the Vienna Conventionnor is there a dispute as to its application, since the UnitedStates recognizes that the notification provided for was notcarried out; the United States maintained that the objectionsraised by Paraguay to the proceedings brought against itsnational do not constitute a dispute concerning theinterpretation or application of the Vienna Convention; andit added that there was no entitlement to restitutio inintegrum under the terms of (hat Convention.

The Court finds that there exists a dispute as to whetherthe relief sought by Paraguay is a remedy available underthe Vienna Convention, in particular in relation to Articles 5and 36 thereof, which is a dispute arising out of theapplication of the Convention within the meaning ofArticle I of the Optional Protocol; and that prima facie it hasjurisdiction under Article I of the aforesaid OptionalProtocol to determine the dispute between Paraguay and theUnited States.

The Court then indicates that the purpose of the power toindicate provisional measures is to preserve the respectiverights of the parties, pending a decision of the Court, andpresupposes that irreparable prejudice shall not be caused torights which are the subject of a dispute in judicialproceedings; that it follows that the Court must beconcerned to preserve by such measures the rights whichmay subsequently be adjudged by the Court to belong eitherto the Applicant, or to the Respondent; and that suchmeasures are only justified if there is urgency.

The Court then refers to the fact that the execution ofMr. Breard is ordered for 14 April 1998; and finds that suchan execution would render it impossible for the Court toorder the relief that Paraguay seeks and Ihus causeirreparable harm to the rights it claims.

In doing so the Court observes that the issues before itdo not concern the entitlement of the federal states withinthe United States to resort to the death penalty for the mostheinous crimes, and that, further, the function of the Court isto resolve international legal disputes between States, interalia when they arise out of the interpretation or applicationof international conventions, and not to act as a court ofcriminal appeal.

In the light of the above considerations, the Court findsthat the circumstances require it to indicate, as a matter ofurgency, provisional measures as provided by Article 41 ofits Statute.

Declaration of President Schwebel

I have voted for the Order, but with disquiet. Thesensitive issues it poses have been hastily, if ably, argued.The evidence introduced is bare. The Court's considerationof the issues of law and fact, in the circumstances imposedupon it, has been summary. The United States maintainsthat no State has ever before claimed as Paraguay now doesthat, because of lack of consular access under the ViennaConvention on Consular Relations, the results of a trial,conviction, and appeal should be voided. Not only has theUnited States apologized to Paraguay for the unintentionalfailure of notification to Paraguay's consul of the arrest andtrial of the accused, but it has taken substantial steps tostrengthen what appears to be a practice in the United Stalesof variable compliance with the obligations imposed upon itby the Vienna Convention. ' '

All this said, I have voted for the Order indicatingprovisional measures suggested pursuant to Article 41 of theStatute of the Court. Those measures ought to be taken topreserve the rights of Paraguay in a situation ofincontestable urgency.

I have so voted essentially for these reasons. There is anadmitted failure by the Commonwealth of Virginia to haveafforded Paraguay timely consular access, that is to say,there is an admitted breach of treaty. An apology andFederal provision for avoidance of future such lapses doesnot assist the accused, who Paraguay alleges was or mayhave been prejudiced by lack of consular access, a questionwhich is for the merits. It is of obvious importance to themaintenance and development of a rule of law among Statesthat the obligations imposed by treaties be complied withand that, where they are not, reparation be required. Themutuality of interest of States in the effective observance ofthe obligations of the Vienna Convention on ConsularRelations is the greater in the intermixed global communityof today and tomorrow (and the citizens of no State have ahigher interest in the observance of those obligations thanthe peripatetic citizens of the United States). In my view,these considerations outweigh the serious difficulties whichthis Order imposes on the authorities of the United Slatesand Virginia.

Declaration of Judge Oda

1. I voted in favour of the Court's Order with greathesitation as I believed and I still believe that the request forthe indication of provisional measures of protectionsubmitted by Paraguay to the Court should have beendismissed. However, in the limited time — one or twodays — given to the Court to deal with this matter, I havefound it impossible to develop my points sufficiently topersuade my colleagues to alter their position.

2. First of all, I would like to express some of mythoughts in connection with this request.

I can, on humanitarian grounds, understand the plight ofMr. Breard and recognize that owing to the fact thatParaguay filed this request on 3 April 1998, his fate now,albeit unreasonably, lies in the hands of the Court.

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I would like to add, however, that, if Mr. Breard's rightsas they relate to humanitarian issues are to be respectedthen, in parallel, the matter of the rights of victims of violentcrime (a point which has often been overlooked) should betaken into consideration. It should also be noted that sincehis arrest, Mr. Breard has been treated fairly in all legalproceedings within the American judicial system governedby the rule of law.

The Court cannot act as a court of criminal appeal andcannot be petitioned for writs of habeas corpus. The Courtdoes not have jurisdiction to decide matters relating tocapital punishment and its execution, and should notintervene in such matters.

3. As stated earlier, Paraguay's request was presentedto the Court on 3 April 1998 in connection with and at thesame time as its Application instituting proceedings againstthe United States for violations of the 1963 ViennaConvention on Consular Relations. Paraguay's Applicationwas unilaterally submitted to the Court on the basis of theOptional Protocol. I very much doubt that, on the date offiling of the Application and the request, there was any"dispute[s] arising out of the interpretation or application ofthe [Vienna] Convention" (Optional Protocol, Article I).

If there was any dispute between Paraguay and theUnited States concerning the interpretation or application ofthe Vienna Convention, it could have been that the UnitedStates was presumed to have violated the Convention at thetime of the arrest of Mr. Breard in 1992, as the United Statesdid not inform the Paraguayan consul of that event.

This issue was raised by Paraguay when it became awareof Mr. Breard's situation. In 1996, negotiations took placebetween Paraguay and the United States concerning theconsular function provided for under the Convention. InJuly 1997, the United States proceeded to remedy theviolation by sending a letter to the Government of Paraguayapologizing for its failure to inform the consul of the eventsconcerning Mr. Breard and giving an assurance that thisfailure would not be repeated in future. In my view, theUnited States was thus released from its responsibility forviolation of the Vienna Convention.

From that time, the question of violation of the ViennaConvention, which may have led to a dispute concerning itsapplication and interpretation, no longer existed. However,this question was raised once more on 3 April 1998, the dateon which Paraguay's Application was filed.

4. What did Paraguay ask the Court to decide in itsApplication of 3 April 1998? Paraguay asked mainly for adecision relating to Mr. Breard's personal situation, namely,his pending execution by the competent authorities of theState of Virginia.

Paraguay requested restitutio in integrum. However, ifconsular contact had occurred at the time of Mr. Breard'sarrest or detention, the judicial procedure in the UnitedStates domestic courts relating to his case would have beenno different. This point was clarified in the course of theoral pleadings.

5. I would like to turn to some general issues relating toprovisional measures. First, as a general rule, provisionalmeasures are granted in order to preserve rights exposed toimminent breach which is irreparable and these rights mustbe those to be considered at the merits stage of the case, andmust constitute the subject matter of the Application or bedirectly related to it. In this case, however, there is noquestion of such rights (of States parties), as provided for bythe Vienna Convention, being exposed to an imminentirreparable breach.

6. Secondly, in order that provisional measures may begranted by the Court, the Court has to have, at the very least,prima facie jurisdiction to deal with the issues concerningthe rights of the States parties. However I believe that, asregards the present request for provisional measures, theCourt does not even have prima facie jurisdiction to handlethis matter.

7. Thirdly, if the request in the present case had notbeen granted, the Application itself would have becomemeaningless. If that had been the case, then 1 would havehad no hesitation in pointing out that the request forprovisional measures should not be used to ensure that themain Application continue. In addition the request forprovisional measures should not be used by applicants forthe purpose of obtaining interim judgments that wouldaffirm their own rights and predetermine the main case.

8. I have thus explained why I formed the view that,given the fundamental nature of provisional measures, thosemeasures should not have been indicated upon Paraguay'srequest.

I reiterate, however, that I voted in favour of the Order,for humanitarian reasons, and in view of the fact that, if theexecution were to be carried out on 14 April 1998, whateverfindings the Court might have reached might be withoutobject.

Declaration of Judge Koroma

My decision to vote in favour of the Order granting theinterim measures of protection in this matter was reachedonly after careful consideration and in the light of theurgency and exceptional circumstances of this case. Torn asI was between the need to observe the requirements forgranting provisional measures of protection under Article 41of the Statute of the Court, thereby ensuring that whateverdecision the Court might reach should not be devoid ofobject, and the need for the Court to comply with itsjurisdiction to settle disputes between States which, in myview, includes respect for the sovereignty of a State inrelation to its criminal justice system.

It was, therefore, both propitious and appropriate for theCourt to bear in mind its mission which is to decide disputesbetween States, and not to act as a universal supreme courtof criminal appeal. On the other hand, it is equally trae thatthe Court's function is to decide disputes between Stateswhich are submitted to it in accordance with international

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law, applying international conventions, etc. The Order, inmy judgement, complies with these requirements.

Paraguay's Application, filed on 3 April 1998 institutingproceedings against the United States for purportedviolaiions of the 1963 Vienna Convention on ConsularRelations, inter alia, requested the Court to gram: provisionalmeasures of protection under Article 41 of the Statute so asto protect its rights and the right of one of its nationals whohad been convicted of a capital offence committed in theUnited States and sentenced to death.

The purpose of a request for provisional measures is topreserve as well as to safeguard the rights of the parties thatare in dispute, especially when such rights or subject matterof the dispute could be irretrievably or irreparably destroyedthereby rendering the Court's decision ineffective or withoutobject. Jt is in the light of such circumstances that the Courthas found it necessary to indicate interim measures ofprotection with the aim of preserving the respective rights ofeither party to the dispute. But prior to this, the applicantState has the burden of indicating that prima facie, the Courthas jurisdiction.

When the facts presented were considered by the Courtin the light of the Vienna Convention on ConsularRelations, in particular in relation to its Articles 5 and 36,and Article I of the Optional Protocol concerning theCompulsory Settlement of Disputes of 24 April 1963, the

Court reached the correct conclusion that a dispute existedand that its jurisdiction had been established prima facie.

In my view, in granting this Order, the Court met therequirements set out in Article 41 of the Statute, whilst atthe same time the Order preserves the respective rights ofeither Party — Paraguay and the United States. The Ordercalled for the suspension of the sentence of execution of Mr.Breard on 14 April 1998, thereby preserving his right to lifepending the final decision of the Court on this matter, andalso recognized the United States' criminal sovereignty inmatters such as charging, trying, convicting and sentencingsuspects as appropriate, within the United States or itsjurisdiction. I concur with this finding.

In reaching this decision, the Court has also acted withthe necessary judicial prudence in considering a request forinterim measures of protection, in that it should not dealwith issues which are not immediately relevant for theprotection of the respective rights of either party or whichare for the merits. It also thus, once again confirmed itsconsistent jurisprudence that a provisional measure ofprotection should only be granted where it is indispensableand necessary for the preservation of the respective rights ofeither party and only with circumspection. It was in the lightof the foregoing consideration, that I joined the Court ingranting the request under Article 41 of the Statute.

111. CASE CONCERNING LAND AND MARITIME BOUNDARY BETWEENCAMEROON AND NIGERIA (CAMEROON v. NIGERIA) (PRELIMINARYOBJECTIONS)

Judgment of 11 June 1998

In its Judgment on preliminary objections filed byNigeria in the case concerning Land and MaritimeBoundary between Cameroon and Nigeria (Cameroon v.Nigeria), the Court found that it has jurisdiction to deal withthe merits of the case brought before it by Cameroon. It alsofound that Cameroon's claims were admissible.

In an Application dated 29 March 1994, amended on 6June 1994, Cameroon asked the Court to determine thequestion of sovereignty over the Bakassi Peninsula and overislands in Lake Chad, and to specify the course of the landand maritime boundary between itself and Nigeria. As abasis of the Court's jurisdiction, Cameroon referred to thedeclarations made by both States accepting its jurisdictionas compulsory (Article 36, paragraph 2, of the Statute of theCourt).

On 13 December 1995 Nigeria raised eight preliminaryobjections challenging the jurisdiction of the Court and theadmissibility of Cameroon's claims.

The Court was composed as follows: PresidentSchwebel; Vice-Presideni Weeramantry; Judges Oda,Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer,

Koroma, Vereshchetin, Higgins, Parra-Aranguren,Kooijmans, Rezek; Judges ad hoc Mbaye, Ajibola; RegistrarValencia-Ospina.

The complete text of the operative paragraph of theJudgment reads as follows:

"118. For these reasons,THE COURT,(1) (a) by fourteen votes to three,Rejects the first preliminary objection;IN FAVOUR: President Schwebel; Judges Oda,

Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi,Fleischhauer, Vereshchetin, Higgins, Parra-Aranguren,Kooijmans, Rezek; Judge ad hoc Mbaye;

AGAINST: Vice-President Weeramantry; JudgeKoroma; Judge ad hoc Ajibola;

(b) by sixteen votes to one,

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Rejects the second preliminary objection;IN FAVOUR: President Schwebel; Vice-President

Weeramantry; Judges Oda, Bedjaoui, Guillaume,Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin,Higgins, Parra-Aranguren, Kooijmans, Rezek; Judges adhoc Mbaye, Ajibola;

AGAINST: Judge Koroma;(c) by fifteen votes to two,Rejects the third preliminary objection;IN FAVOUR: President Schwebel; Vice-President

Weeramantry; Judges Oda, Bedjaoui, Guillaume,Ranjeva, Herczegh, Shi. Fleischhauer, Vereshchetin,Higgins, Parra-Aranguren, Kooijmans, Rezek; Judge adhoc Mbaye;

AGAINST: Judge Koroma; Judge ad hoc Ajibola;(d) by thirteen votes to four,Rejects the fourth preliminary objection;IN FAVOUR: President Schwebel; Vice-President

Weeramantry; Judges Bedjaoui, Guillaume, Ranjeva,Herczegh, Shi, Fleischhauer, Vereshchetin, Higgins,Kooijmans, Rezek; Judge ad hoc Mbaye;

AGATNST: Judges Oda, Koroma, Parra-Aranguren;Judge ad hoc Ajibola;

(e) by thirteen votes to four.Rejects the fifth preliminary objection;IN FAVOUR: President Schwebel; Vice-President

Weeramantry; Judges Bedjaoui, Guillaume, Ranjeva,Herczegh, Shi, Fleischhauer, Higgins, Parra-Aranguren,Kooijmans, Rezek; Judge ad hoc Mbaye;

AGAINST: Judges Oda, Koroma, Vereshchetin;Judge ad hoc Ajibola;

(/) by fifteen votes to two.Rejects the sixth preliminary objection;TN FAVOUR: President Schwebel; Vice-President

Weeramantry; Judges Oda, Bedjaoui, Guillaume,Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin,Higgins, Parra-Aranguren, Kooijmans, Rezek; Judge adhoc Mbaye;

AGAINST: Judge Koroma; Judge ad hoc Ajibola;(g) by twelve votes to five,Rejects the seventh preliminary objection;IN FAVOUR: President Schwebel; Vice-President

Weeramantry; Judges Bedjaoui, Guillaume, Ranjeva,Herczegh, Shi, Fleischhauer, Vereshchetin, Parra-Aranguren, Rezek; Judge ad hoc Mbaye;

AGAINST: Judges Oda, Koroma, Higgins,Kooijmans; Judge ad hoc Ajibola;

(2) by twelve votes to five,Declares that the eighth preliminary objection does

not have, in the circumstances of the case, an exclusivelypreliminary character;

IN FAVOUR: President Schwebel; Vice-PresidentWeeramantry; Judges Bedjaoui, Guillaume, Ranjeva,Herczegh, Shi, Fleischhauer, Vereshchetin, Parra-Aranguren, Rezek; Judge ad hoc Mbaye;

AGAINST: Judges Oda, Koroma, Higgins,Kooijmans; Judge ad hoc Ajibola;

(3) by fourteen votes to three,Finds that, on the basis of Article 36, paragraph 2, of

the Statute, it has jurisdiction to adjudicate upon thedispute;

IN FAVOUR: President Schwebel; Judges Oda,Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi,Fleischhauer, Vereshchetin, Higgins, Parra-Aranguren,Kooijmans, Rezek; Judge ad hoc Mbaye;

AGAINST: Vice-President Weeramantry; JudgeKoroma; Judge ad hoc Ajibola;

(4) by fourteen votes to three,Finds that the Application filed by the Republic of

Cameroon on 29 March 1994, as amended by theAdditional Application of 6 June 1994, is admissible;

IN FAVOUR: President Schwebel; Judges Oda,Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi,Fleischhauer, Vereshchetin, Higgins, Parra-Aranguren,Kooijmans, Rezek; Judge ad hoc Mbaye;

AGAINST: Vice-President Weeramantry; JudgeKoroma; Judge ad hoc Ajibola."

Judges Oda, Vereshchetin, Higgins, Parra-Arangurenand Kooijmans appended separate opinions to the Judgmentof the Court. Vice-President Weeramantry, Judge Koromaand Judge ad hoc Ajibola appended dissenting opinions tothe Judgment of the Court.


The Court begins by recalling that on 29 March 1994Cameroon instituted proceedings against Nigeria in respectof a dispute described as "relat[ing] essentially to thequestion of sovereignty over the Bakassi Peninsula".Cameroon further stated in its Application that the"delimitation [of the maritime boundary between the twoStates] has remained a partial one and [that], despite manyattempts to complete it, the two parties have been unable todo so". It accordingly requested the Court, "in order toavoid further incidents between the two countries, ... todetermine the course of the maritime boundary between thetwo States beyond the line fixed in 1975". In order to foundthe jurisdiction of the Court, the Application relied on thedeclarations made by the two Parties accepting thejurisdiction of the Court under Article 36, paragraph 2, ofthe Statute of the Court.

On 6 June 1994, Cameroon filed in the Registry anAdditional Application "for the purpose of extending thesubject of the dispute" to a further dispute described as"relat[ing] essentially to the question of sovereignty over a

34

part of the territory of Cameroon in the area of Lake Chad".Cameroon also requested the Court, "to specify definitively"the frontier between the two States from Lake Chad to thesea, and asked it to join the two Applications and "toexamine the whole in a single case". In order to found thejurisdiction of the Court, the Additional Application referredto the "basis of... jurisdiction ... already ... indicated" in theApplication instituting proceedings of 29 March 1994.

At a meeting which the President of the Court held withthe representatives of the Parties on 14 June 1994, the Agentof Nigeria stated that he had no objection to the AdditionalApplication being treated, in accordance with the wishexpressed by Cameroon, as an amendment lo the initialApplication, so that the Court could deal with the whole in asingle case. By an Order dated 16 June 1994, the Courtindicated that it had no objection itself to such a procedure,and fixed time limits for the filing of written pleadings.

Cameroon duly filed its Memorial. Within the time limitfixed for the filing of its Counter-Memorial, Nigeria filedpreliminary objections to the jurisdiction of the Court andthe admissibility of the Application. Accordingly, by anOrder dated 10 January 1996, the President of the Court,noting that, under Article 79, paragraph 3, of the Rules ofCourt, the proceedings on the merits were suspended, fixed15 May 1996 as the time limit within which Cameroonmight present a written statement of its observations andsubmissions on the preliminary objections. Cameroon dulyfiled such a statement.

Cameroon chose Mr. Kéba Mbaye, and Nigeria Mr. BolaAjibola to sit as judge ad hoc.

The Court had further, in response to a request made byCameroon and after hearing the Parties, indi sated certainprovisional measures by an Order dated 15 March 1996.

Hearings on the preliminary objections were heldbetween 2 and 11 March 1998.

The requests made by Cameroon in its Application andits Additional Application, as well as the submissionspresented by it in its Memorial (cf. paras. 16-18 of theJudgment) have not been reproduced in this summary forthe sake of brevity.

The eight objections which Nigeria raised in itsPreliminary Objections and at the hearing of 9 March 1998(cf. paras. 18 and 19 of the Judgment) have neither beenreproduced. The Court's description of the subject of eachpreliminary objection is to be found in the relevant part ofthis summary. Cameroon, in its written statement on theobjections and at the hearing of 11 March 1998, requestedthe Court to dismiss the objections or in the .alternative tojoin them to the merits; and to declare that it had jurisdictionto deal with the case and that the Application wasadmissible.

First Preliminary Objection(paras. 21-47)

Nigeria's first objection contends that the Court has nojurisdiction to entertain Cameroon's Application.

In this regard, Nigeria notes that it had accepted theCourt's compulsory jurisdiction by a declaration dated 14August 1965, deposited with the Secretary-General of theUnited Nations on 3 September 1965. Cameroon had alsoaccepted the Court's compulsory jurisdiction by adeclaration deposited with the Secretary-General on 3March 1994. The Secretary-General transmitted copies ofthe Cameroon Declaration to the Parties to the Statuteeleven-and-a-half months later. Nigeria maintains,accordingly, that it had no way of knowing, and did notactually know, on the date of the filing of the Application,i.e., 29 March 1994, that Cameroon had deposited adeclaration. Cameroon consequently is alleged to have"acted prematurely". By proceeding in this way, theApplicant "is alleged to have violated its obligation to act ingood faith", "abused the system instituted by Article 36,paragraph 2, of the Statute" and disregarded "the conditionof reciprocity" provided for by that Article and by Nigeria'sDeclaration. The Court consequently does not havejurisdiction to hear the Application.

In contrast, Cameroon contends that its Applicationfulfils all the conditions required by the Statute. It notes thatin the case concerning Right of Passage over IndianTerritory, the Court held that

"the Statute does not prescribe any interval between thedeposit by a State of its Declaration of Acceptance andthe filing of an Application by that State, and that theprinciple of reciprocity is not affected by any delay inthe receipt of copies of the Declaration by the Parties tothe Statute" (Right of Passage over Indian Territory,Preliminary Objections, Judgment, I.C.J. Reports 1957,p. 147).

Cameroon indicates that there is no reason not to followthis precedent, at the risk of undermining the system ofcompulsory jurisdiction provided by the Optional Clause. Itadds that the Cameroonian Declaration was in force as earlyas 3 March 1994, as at that date it was registered inaccordance with Article 102 of the United Nations Charter.Cameroon states that in any event Nigeria has acted, sincethe beginning of these proceedings, in such a way that itshould be regarded as having accepted the jurisdiction of theCourt.

Nigeria argues in reply that the "case concerning theRight of Passage over Indian Territory, was a firstimpression", that the Judgment given is outdated, and that itis an isolated one; that international law, especially as itrelates to good faith, has evolved since and that inaccordance with Article 59 of the Statute, that Judgmentonly has the force of res judicata as between the parties andin respect of that case. For these reasons, the solutionadopted in 1957 should not be adopted here. Nigeria doesnot accept the reasoning of Cameroon based on Article 102of the Charter. Nigeria also contends that there is noquestion of its having consented to the jurisdiction of theCourt in the case and hence there is no jorum prorogation.

Cameroon contests each of these arguments.Quoting the provisions of Article 36, paragraphs 2 and 4

of its Statute, the Court recalls that in the case concerning

35

Right of Passage over Indian Territory, it concluded, in thelight of these provisions, that:

"by the deposit of its Declaration of Acceptance with theSecretary-General, the accepting State becomes a Partyto the system of the Optional Clause in relation to theother declarant States, with all the rights and obligationsderiving from Article 36. The contractual relationbetween the Parties and the compulsory jurisdiction ofthe Court resulting there from are established, 'ipso factoand without special agreement', by the fact of themaking oí" the Declaration ... For it is on that very daythat the consensual bond, which is the basis of theOptional Clause, comes into being between the Statesconcerned.". (Right of Passage over Indian Territory,i.CJ. Reports 1957, p. 146)The conclusions thus reached by the Court in 1957

reflect the very essence of the Optional Clause providing foracceptance of the Court's compulsory jurisdiction. AnyState party to the Statute, in adhering to the jurisdiction ofthe Court in accordance with Article 36, paragraph 2,accepts jurisdiction in its relations with States previouslyhaving adhered to that clause. At the same time, it makes astanding offer to the other States party to the Statute whichhave not yet deposited a declaration of acceptance. The dayone of those States accepts that offer by depositing in itsturn its declaration of acceptance, the consensual bond isestablished and no further condition needs to be fulfilled.

Having recalled that its decision in the case concerningRight of Passage over Indian Territory has been reaffirmedin subsequent cases, the Court observes that it is true, asargued by Nigeria, that the Court's judgments, inaccordance with Article 59 of the Statute, bind only theparties to and in respect of a particular case. There can be noquestion of holding Nigeria to decisions reached by theCourt in previous cases. The real question is whether, in thiscase, there is cause not to follow the reasoning andconclusions of earlier cases.

After examining the legislative history of the provisionsof the Vienna Convention on the Law of Treaties, whichNigeria relies on with regard to its argument that theinterpretation given in 1957 to Article 36, paragraph 4, ofthe Statute should be reconsidered in the light of theevolution of the law of treaties which has occurred since, theCourt concludes that the general rule reflected in Articles 16and 24 of the Vienna Convention, which, the Courtobserves, may only be applied to declarations accepting theCourt's jurisdiction as obligatory by analogy, is that: thedeposit of instruments of ratification, acceptance, approvalor accession to a treaty establishes the consent of a State tobe bound by a treaty; and that the treaty enters into force asregards that State on the day of the deposit. Thus the rulesadopted in this sphere by the Vienna Convention correspondto the solution adopted by the Court in the case concerningRight of Passage over Indian Territory. That solutionshould be maintained.

Nigeria maintains however that, in any event, Camerooncould not file an application before the Court withoutallowing a reasonable period to elapse "as would ... have

enabled the Secretary-General to take the action required ofhim in relation to Cameroon's Declaration of 3 March1994". Compliance with that time period is essential, themore so because, according to Nigeria, the Court, in itsJudgment of 26 November 1984 in the case concerningMilitary and Paramilitary Activities in and againstNicaragua, required a reasonable time for the withdrawal ofdeclarations under the Optional Clause.

The Court considers that its conclusion in respect of thewithdrawal of declarations under the Optional Clause in theJudgment of 1984 is not applicable to the deposit of thosedeclarations. Withdrawal ends existing consensual bonds,while deposit establishes such bonds. The effect ofwithdrawal is therefore purely and simply to deprive otherStates which have already accepted the jurisdiction of theCourt of the right they had to bring proceedings before it,against the withdrawing State. In contrast, the deposit of adeclaration does not deprive those States of any accruedright. Accordingly no time period is required for theestablishment of a consensual bond following such adeposit.

Nigeria's second argument is that Cameroon omitted toinform it that it intended to accept the jurisdiction of theCourt, then that it had accepted that jurisdiction and, lastly,that it intended to file an application. Nigeria further arguedthat Cameroon even continued, during the first three monthsof 1994, to maintain bilateral contacts with it on boundaryquestions while preparing itself to address the Court. Suchconduct, Nigeria contends, infringes upon the principle ofgood faith which today plays a larger role in the case-law ofthe Court than before, and should not be accepted.

Cameroon, for its part, argues that it had no obligation toinform Nigeria in advance of its intentions, or of itsdecisions. It adds that in any event "Nigeria was not at allsurprised by the filing of Cameroon's Application and ...knew perfectly well what Cameroon's intentions were inthat regard several weeks before the filing". The principle ofgood faith was not at all disregarded.

The Court observes that the principle of good faith is awell-established principle of international law. it notes,however, that although that principle is "one of the basicprinciples governing the creation and performance of legalobligations ... it is not in itself a source of obligation wherenone would otherwise exist". There is no specific obligationin international law for States to inform other States party tothe Statute that they intend to subscribe or have subscribedto the Optional Clause. Consequently, Cameroon was notbound to inform Nigeria that it intended to subscribe or hadsubscribed to the Optional Clause. Cameroon was not boundeither to inform Nigeria of its intention to bring proceedingsbefore the Court. In the absence of any such obligations andof any infringement of Nigeria's corresponding rights,Nigeria may not justifiably rely upon the principle of goodfaith in support of its submissions.

On the facts of the matter, to which the Parties devotedconsiderable attention, and quite apart from legalconsiderations, the Court adds that Nigeria was not unawareof Cameroon's intentions. In that connection, the Court

36

refers to a communication from Nigeria to the SecurityCouncil, dated 4 March 1994; to the information containedin the Journal of the United Nations, issued on that sameday; and to statements made at the extraordinary generalmeeting of the Central Organ of the Mechanism for ConflictPrevention, Management and Resolution of theOrganization of African Unity of 11 March 1994.

Nigeria recalls in the third place that, by its; Declarationdeposited on 3 September 1965, it had recognized

"as compulsory ipso facto and without specialagreement, in relation Co any other State accepting thesame obligation, that is to say, on the sole condition ofreciprocity, the jurisdiction of the International Court ofJustice in conformity with Article 36, paragraph 2, of theStatute of the Court".Nigeria maintains that on the date on which Cameroon's

Application was filed, it did not know that Cameroon hadaccepted the Court's compulsory jurisdiction. Accordingly itcould not have brought an application against Cameroon.There was an absence of reciprocity on that date. Thecondition contained in the Nigerian Declaration wasoperative; consequently, the Court does not havejurisdiction to hear the Application. Cameroon disputes thisargument in fact as well as in law. It states that, in the mindsof the States party to the Optional Clause, the condition ofreciprocity never possessed the meaning which Nigeria nowascribes to it.

The Court, noting that it has on numerous occasions hadto consider what meaning it is appropriate to give to thecondition of reciprocity in the implementation of Article 36,paragraph 2, of the Statute, observes that, in the finalanalysis, the notion of reciprocity is concerned with thescope and substance of the commitments entered into,including reservations, and not with the formal conditions oftheir creation, duration or extinction; and that, consequently,the principle of reciprocity is not affected by any delay inthe receipt of copies of the Declaration by the ¡Parties to theStatute.

The Court considers that Nigeria does not offer evidencein support of its argument that it intended to insert into itsDeclaration of 14 August 1965 a condition of reciprocitywith a different meaning from the one which tie Court haddrawn from such clauses in 1957.

The additional phrase of the pertinent sentence in theNigerian Declaration, "that is to say, on the sole conditionof reciprocity" must be understood as explanatory and notadding any further condition. This interpretation is "inharmony with a natural and reasonable way of reading thetext'" and Nigeria's condition of reciprocity cannot betreated as a reservation ratione temporis.

Nigeria's first preliminary objection is accordinglyrejected. The Court observes that it is therefore not calledupon to examine the reasoning put forward by Cameroonunder Article 102 of the Charter, nor Cameroon's alternativesubmissions based on forum prorogation. In any event, theCourt has jurisdiction to pass upon Cameroon's Application.

Second Preliminary Objection(paras. 48-60)

Nigeria raises a second preliminary objection stating that"for a period of at least 24 years prior to the filing of theApplication the Parties have in their regular dealingsaccepted a duty to settle all boundary questions throughthe existing bilateral machinery".According to Nigeria, an implicit agreement is thus said

to have been reached with a view to resorting exclusively tosuch machinery and to refraining from relying on thejurisdiction of the International Court of Justice. In thealternative, Nigeria claims that by its conduct Cameroon isestopped from turning to the Court. Finally, Nigeria invokesthe principle of good faith and the rule pacta sunt servandain support of this argument.

Cameroon maintains that the bilateral bodies which dealtwith various boundary difficulties that had emerged betweenthe two countries had only been temporary and that nopermanent institutional machinery had been set up. Itcontends that no explicit or implicit agreement had beenestablished between the Parties with a view to vestingexclusive jurisdiction in such bodies. Finally, according toCameroon, the conditions laid down in the Court's case-lawfor the application of estoppel to arise were not fulfilledhere. Therefore, there was no occasion to apply the principleof good faith and the rule pacta sunt servanda.

Reviewing the relevant facts the Court notes that thenegotiations between the two States concerning thedelimitation or the demarcation of the boundary werecarried out in various frameworks and at various levels:Heads of State, Foreign Ministers, experts. The negotiationswere active during the period 1970 to 1975 and then wereinterrupted until 1991.

Turning to legal considerations, the Court then considersthe first branch of the Nigerian objection. It recalls that,"negotiation and judicial settlement are enumerated togetherin Article 33 of the Charter of the United Nations as meansfor the peaceful settlement of disputes". It observes thatneither in the Charier nor otherwise in international law isany general rule to be found to the effect that the exhaustionof diplomatic negotiations constitutes a precondition for amatter to be referred to the Court and that no suchprecondition was embodied in the Statute of the PermanentCourt of International Justice, contrary to a proposal by theAdvisory Committee of Jurists in 1920. Nor is it to be foundin Article 36 of the Statute of the Court. Neither was areservation containing a precondition of this type includedin the Declarations of Nigeria or Cameroon on the date ofthe filing of the Application. Moreover, the fact that the twoStates have attempted to solve some of the boundary issuesdividing them during bilateral contacts, did not imply thateither one had excluded the possibility of bringing anyboundary dispute concerning it before other fora, and inparticular the International Court of Justice. The first branchof Nigeria's objection accordingly is not accepted.

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Turning to the second branch of the objection, the Courtthen examines whether the conditions laid down in itsjurisprudence for an estoppel are present in the instant case.

It observes that an estoppel would only arise if by itsacts or declarations Cameroon had consistently made it fullyclear that it had agreed to settle the boundary disputesubmitted to the Court by bilateral avenues alone. It wouldfurther be necessary that, by relying on such an attitude,Nigeria had changed position to its own detriment or hadsuffered some prejudice. These conditions are not fulfilledin this case. Indeed, Cameroon did not attribute an exclusivecharacter to the negotiations conducted with Nigeria, nor, asfar as it appears, did Nigeria. Furthermore, Nigeria does notshow that it has changed its position to its detriment or thatit has sustained prejudice. In bringing proceedings beforethe Court, Cameroon did not disregard the legal rales reliedon by Nigeria in support of its second objection.Consequently, Nigeria is not justified in relying on theprinciple of good faith and the rule pacta sunt servando,both of which relate only to the fulfilment of existingobligations. The second branch of Nigeria's objection is notaccepted.

The second preliminary objection as a whole is thusrejected.

Third Preliminary Objection(paras. 61-73)

In its third preliminary objection, Nigeria contends that"the settlement of boundary disputes within the Lake Chadregion is subject to the exclusive competence of the LakeChad Basin Commission".

In support of this argument, Nigeria invokes the treatytexts governing the Statute of the Commission as well as thepractice of member States. It argues that "the procedures forsettlement by the Commission are binding upon the Parties"and that Cameroon was thus barred from raising the matterbefore the Court on the basis of Article 36, paragraph 2, ofthe Statute.

For its part, Cameroon submits to the Court that "noprovision of the Statute of the Lake Chad BasinCommission establishes in favour of that internationalorganization any exclusive competence in relation toboundary delimitation". It adds that no such exclusivejurisdiction can be inferred from the conduct of memberStates.

It is in the light of the treaty texts and the practice thatthe Court then considers the positions of the Parties on thismatter. For its part, Nigeria first of all contends that "therole and Statute of the Commission" must be understood "inthe framework of regional agencies" referred to in Article52 of the United Nations Charter. It accordingly concludesthat "the Commission has an exclusive power in relation toissues of security and public order in the region of LakeChad and that these issues appropriately encompass thebusiness of boundary demarcation".

Cameroon argues, for its part, that the Commission doesnot constitute a regional arrangement or agency within the

meaning of Article 52 of the Charter, pointing in particularto the fact that "there has never been any question ofextending this category to international regionalorganizations of a technical nature which, like the[Commission], can include a mechanism for the peacefulsettlement of disputes or for the promotion of that kind ofsettlement".

The Court concludes from its analysis of the treaty textsand the practice of Member States that the Lake Chad BasinCommission is an international organization exercising itspowers within a specific geographical area; that it does nothowever have as its purpose the settlement at a regionallevel of matters relating to the maintenance of internationalpeace and security and thus does not fall under Chapter VIIIof the Charter.

However, even were it otherwise, Nigeria's argument tothat effect should nonetheless be set aside, because theexistence of procedures for regional negotiation whatevertheir nature, cannot prevent the Court from exercising thefunctions conferred upon it by the Charter and the Statute.The contention of Nigeria that the Commission should beseen as a tribunal falling under the provisions of Article 95of the United Nations Charter must also be set aside.

The Court further concludes that the Commission hasnever been given jurisdiction, and a fortiori exclusivejurisdiction, to rule on the territorial dispute now involvingCameroon and Nigeria before the Court, a dispute whichmoreover did not as yet exist in 1983. It points out inaddition that the conditions laid down in its case-law for anestoppel to arise, as set out above, are not fulfilled in thiscase. Indeed, Cameroon has not accepted that theCommission has jurisdiction to settle the boundary disputenow submitted to the Court.

In the alternative, Nigeria finally argues that, on accountof the demarcation under way in the Lake Chad BasinCommission, the Court "cannot rale out the consideration ofthe need for judicial restraint on grounds of judicialpropriety" and should decline to rale on the merits ofCameroon's Application.

It is not for the Court at this stage to rale upon theopposing arguments brought forward by the Parties in thisrespect. It need only note that Nigeria cannot assert both thatthe demarcation procedure initiated within the Lake ChadCommission was not completed and that, at the same time,that procedure rendered Cameroon's submissions moot.There is thus no reason of judicial propriety which shouldmake the Court decline to rule on the merits of thosesubmissions.

In the light of the above considerations, the Court rejectsNigeria's third preliminary objection.

Fourth Preliminary Objection(paras. 74-83)

The Court then turns to the fourth preliminary objectionraised by Nigeria. This objection contends that:

"The Court should not in these proceedings determinethe boundary in Lake Chad to the extent that that

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boundary constitutes or is constituted by the tripoint inthe Lake."Nigeria holds that the location of the tripoint within

Lake Chad directly affects a third State, the Republic ofChad, and that the Court therefore cannot determine thistripoint.

The Court recalls that it has always acknowledged asone of the fundamental principles of its Statute that nodispute between States can be decided without their consentto its jurisdiction. Nevertheless, the Court has alsoemphasized that it is not necessarily prevented fromadjudicating when the judgment it is asked to give mightaffect the legal interests of a State which is not a party to thecase; and the Court has only declined to exercise jurisdictionwhen the interests of the third State constitute the verysubject matter of the judgment to be rendered on the merits.

The Court observes that the submissions presented to itby Cameroon refer to the frontier between Cameroon andNigeria and to that frontier alone. They do not refer to thefrontier between Cameroon and the Republic of Chad.Certainly, the request to "specify definitively the frontierbetween Cameroon and the Federal Republic of Nigeriafrom Lake Chad to the sea" (para. 17 (/) of the AdditionalApplication) may affect the tripoint, i.e., the point where thefrontiers of Cameroon, Chad and Nigeria meet.

However, the request to specify the frontier betweenCameroon and Nigeria from Lake Chad to the sea does notimply that the tripoint could be moved away from the lineconstituting the Cameroon-Chad boundary. NeitherCameroon nor Nigeria contest the current course of thatboundary in the centre of Lake Chad as it is described in the"technical document on the demarcation of the ...boundaries" mentioned in paragraph 65 of the Judgment.Incidents between Nigeria and Chad in the Lake, as referredto by Nigeria, concern Nigeria and Chad but not Cameroonor its boundary with Chad. Any redefinition of the pointwhere the frontier between Cameroon and Nigeria meets theChad-Cameroon frontier could in the circumstances onlylead to a moving of the tripoint along the line of the frontierin the Lake between Chad and Cameroon. Thus, the legalinterests of Chad as a third State not party to the case do notconstitute the very subject matter of the judgment to berendered on the merits of Cameroon's Application; andtherefore, the absence of Chad does not prevent the Courtfrom proceeding to a specification of the border betweenCameroon and Nigeria in the Lake.

The fourth preliminary objection is accordingly rejected.

Fifth Preliminary Objection(paras. 84-94)

In its fifth preliminary objection Nigeria, alleges thatthere is no dispute concerning "boundary delimitation assuch" throughout the whole length of the boundary from thetripoint in Lake Chad to the sea, subject, within Lake Chad,to the question of the title over Darak and adjacent islands,and without prejudice to the title over the Bakassi Peninsula.

The Court recalls that, in the sense accepted in itsjurisprudence and that of its predecessor, a dispute is adisagreement on a point of law or fact, a conflict of legalviews or interests between parties; and that, in order toestablish the existence of a dispute, it must be shown thatthe claim of one party is positively opposed by the other andfurther, that whether there exists an international dispute is amatter for objective determination.

On the basis of these criteria, there can be no doubtabout the existence of disputes with respect to Darak andadjacent islands, the village of Tipsan, as well as thePeninsula of Bakassi. This latter dispute, as indicated byCameroon, might have a bearing on the maritime boundarybetween the two Parties.

All of these disputes concern the boundary betweenCameroon and Nigeria. However, given the great length ofthat boundary, which runs over more than 1,600 km fromLake Chad to the sea, it cannot be said that these disputes inthemselves concern so large a portion of the boundary thatthey would necessarily constitute a dispute concerning thewhole of the boundary. Even taken together with theexisting boundary disputes, the incidents and incursionsreported by Cameroon do not establish by themselves theexistence of a dispute concerning all of the boundarybetween Cameroon and Nigeria.

However, the Court notes that Nigeria has constantlybeen reserved in the manner in which it has presented itsown position on the matter. Although Nigeria knew aboutCameroon's preoccupation and concerns, it has repeated,and has not gone beyond, the statement that there is nodispute concerning "boundary delimitation as such". Nigeriahas shown the same caution in replying to the questionasked by a Member of the Court in the oral proceedings, asto whether Nigeria's assertion that there is no dispute asregards the land boundary between the two States (subject tothe existing problems in the Bakassi Peninsula and theDarak region) signifies,

"that, these two sectors apart, there is agreementbetween Nigeria and Cameroon on the geographicalcoordinates of this boundary as they result from the textsrelied on by Cameroon in its Application and itsMemorial".The Court notes that, in its reply, Nigeria does not

indicate whether or not it agrees with Cameroon on thecourse of the boundary or on its legal basis, though clearly itdoes differ with Cameroon about Darak and adjacentislands, Tipsan and Bakassi. Nigeria states that the existingland boundary is not described by reference to geographicalcoordinates but by reference to physical features. As to thelegal basis on which the boundary rests, Nigeria refers to"relevant instruments" without specifying which theseinstruments are apart from saying that they pre-dateindependence and that, since independence, no bilateralagreements "expressly confirming or otherwise describingthe pre-independence boundary by reference to geographicalcoordinates" have been concluded between the Parties. Thatwording seems to suggest that the existing instruments mayrequire confirmation. Moreover, Nigeria refers to "'well-

39

established practice both before and after independence" asone of the legal bases of the boundary whose course, itstates, "has continued to be accepted in practice"; however,it does not indicate what that practice is.

The Court points out that Nigeria is entitled not toadvance arguments that it considers are for the merits at thepresent stage of the proceedings; in the circumstanceshowever, the Court finds itself in a situation in which itcannot decline to examine the submission of Cameroonwhich aims at a definitive determination of its boundarywith Nigeria from Lake Chad to the sea on the ground thatthere is no dispute between the two States. Because ofNigeria's position, the exact scope of this dispute cannot bedetermined at present; a dispute nevertheless exists betweenthe two Parties, at least as regards the legal bases of theboundary. It is for the Court to pass upon this dispute.

The fifth preliminary objection raised by Nigeria is thusrejected.

Sixth Preliminary Objection(paras. 95-102) "

The Court then turns to Nigeria's sixth preliminaryobjection which is to the effect that there is no basis for ajudicial determination that Nigeria bears internationalresponsibility for alleged frontier incursions.

Nigeria contends that the submissions of Cameroon donot meet the standard required by Article 38 of the Rules ofCourt and general principles of law regarding the adequatepresentation of facts on which Cameroon's request is based,including dates, the circumstances and precise locations ofthe alleged incursions and incidents into and onCameroonian territory. Nigeria maintains that whatCameroon has presented to the Court does not give Nigeriathe knowledge which it needs and to which it is entitled inorder to prepare its reply. Similarly, in Nigeria's view, thematerial submitted is so sparse that it does not enable theCourt to carry out fair and effective judicial determinationof, or make determination on, the issues of Stateresponsibility and reparation raised by Cameroon. WhileNigeria acknowledges that a State has some latitude inexpanding later on what it has said in its Application and inits Memorial, Cameroon is said to be essentially restricted inits elaboration to the case as presented in its Application.

Cameroon insists that it stated clearly in its pleadingsthat the facts referred to in order to establish Nigeria'sresponsibility were only of an indicative nature and that itcould, where necessary, amplify those facts when it comesto the merits. Cameroon refers to the requirementsestablished in Article 38, paragraph 2, of the Rules andwhich call for a "succinct" presentation of the facts. It holdsthat parties are free to develop the facts of the casepresented in the application or to render them more precisein the course of the proceedings.

The Court observes that the decision on Nigeria's sixthpreliminary objection hinges upon the question of whetherthe requirements which an application must meet and whichare set out in Article 38, paragraph 2, of the Rules of Court

are met in the present instance. The requirements set out inArticle 38, paragraph 2, are that the Application shall"specify the precise nature of the claim, together with asuccinct statement of the facts and grounds on which theclaim is based". The Court notes that "succinct", in theordinary meaning to be given to this term, does not mean"complete" and neither the context in which the term is usedin Article 38, paragraph 2, of the Rules of Court nor theobject and purpose of that provision indicate that it shouldbe interpreted in that way. Article 38, paragraph 2, doestherefore not preclude later additions to the statement of thefacts and grounds on which a claim is based. Nor does itprovide that the latitude of an applicant State, in developingwhat it has said in its application is strictly limited, assuggested by Nigeria.

As regards the meaning to be given to the term"succinct", the Court would simply note that Cameroon'sApplication contains a sufficiently precise statement of thefacts and grounds on which the Applicant bases its claim.That statement fulfils the conditions laid down in Article 38,paragraph 2, and the Application is accordingly admissible.

Lastly, the Court cannot agree that the lack of sufficientclarity and completeness in Cameroon's Application and itsinadequate character, as perceived by Nigeria, make itimpossible for Nigeria to respond effectively to theallegations which have been presented or makes itimpossible for the Court ultimately to make a fair andeffective determination in the light of the arguments and theevidence then before it. It is the applicant which must bearthe consequences of an application that gives an inadequaterendering of the facts and grounds on which the claim isbased.

The Court consequently rejects the sixth preliminaryobjection raised by Nigeria.

Seventh Preliminary Objection(paras. 103-111)

In its seventh preliminary objection Nigeria contendsthat there is no legal dispute concerning delimitation of themaritime boundary between the two Parties which is at thepresent time appropriate for resolution by the Court.

Nigeria says that this is so for two reasons: in the firstplace, no determination of a maritime boundary is possibleprior to the determination of title in respect of the BakassiPeninsula. Secondly, at the juncture when there is adetermination of the question of title over the BakassiPeninsula, the issues of maritime delimitation will not beadmissible in the absence of prior sufficient action by theParties, on a footing of equality, to effect a delimitation "byagreement on the basis of international law".

The Court initially addresses the first argumentpresented by Nigeria. The Court accepts that it will bedifficult if not impossible to determine the delimitation ofthe maritime boundary between the Parties as long as thetitle over the Peninsula of Bakassi has not been determined.Since both questions are before the Court, it becomes amatter for the Court to arrange the order in which it

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addresses the issues in such a way that it can dealsubstantively with each of them. That is a matter which lieswithin the Court's discretion and which cannot be the basisof a preliminary objection. This argument therefore has tobe dismissed.

As to the second argument of Nigeria, the Court recallsthat, in dealing with the cases brought before it, it mustadhere to the precise request submitted to it. What is indispute between the Parties and what the Court has to decidenow is whether the alleged absence of sufficient effort atnegotiation constitutes an impediment for the Court toaccept Cameroon's claim as admissible or not. This matteris of a genuinely preliminary character and has to bedecided under Article 79 of the Rules of Court.

In this connection, Cameroon and Nigeria refer to theUnited Nations Convention on the Law of the Se a, to whichthey are parties.

However, the Court notes that, in this case, it has notbeen seized on the basis of Article 36, paragraph 1, of theStatute, and, in pursuance of it, in accordance with Part XVof the United Nations Convention on the Law of the Searelating to the settlement of disputes arising between theparties to the Convention with respect to its interpretation orapplication. It has been seized on the basis of declarationsmade under Article 36, paragraph 2, of the Statute, whichdeclarations do not contain any condition relating to priornegotiations to be conducted within a reasonable timeperiod. The second argument of Nigeria cannot therefore beupheld.

The Court finds in addition that, beyond point G (cf.point (3) of the submissions in Cameroon's Memorial), thedispute between the Parties has been defined wilh sufficientprecision for the Court to be validly seized of it.

It therefore rejects the seventh preliminary objection.

Eighth Preliminary Objection(paras. 112-117)

The Court then deals with the eighth and last of thepreliminary objections presented by Nigeria. With thatobjection Nigeria contends, in the context of andsupplementary to the seventh preliminary objection, that thequestion of maritime delimitation necessarily involves therights and interests of third States and is to that extentinadmissible.

The Court notes, as do the Parties, that the problem ofrights and interests of third States arises only for theprolongation, as requested by Cameroon, of the maritimeboundary seawards beyond point G.

What the Court has to examine under the eighthpreliminary objection is therefore whether that prolongationwould involve rights and interests of third States andwhether that would prevent it from proceeding to suchprolongation. The Court notes that from the geographicallocation of the territories of the other States bordering theGulf of Guinea, and in particular Equatorial Guinea and SaoTome and Principe, it appears that rights and interests ofthird States will become involved if the Court accedes to

Cameroon's request. The Court recalls that it has affirmed,that one of the fundamental principles of its Statute is that itcannot decide a dispute between States without the consentof those States to its jurisdiction. However, it has also statedthat it is not necessarily prevented from adjudicating whenthe judgment it is asked to give might affect the legalinterests of a State which is not a party to the case.

The Court cannot therefore, in the present case, give adecision on the eighth preliminary objection as apreliminary matter. In order to determine where a prolongedmaritime boundary beyond point G would run, where and towhat extent it would meet possible claims of other States,and how its judgment would affect the rights and interests ofthese States, the Court would of necessity have to deal withthe merits of Cameroon's request. At the same time, theCourt cannot rule out the possibility that the impact of thejudgment required by Cameroon on the rights and interestsof the third States could be such that the Court would beprevented from rendering it in the absence of these States,and that consequently Nigeria's eighth preliminaryobjection would have to be upheld at least in part. Whethersuch third States would choose to exercise their rights tointervene in these proceedings pursuant to the Statuteremains to be seen.

The Court concludes that therefore the eighthpreliminary objection of Nigeria does not possess, in thecircumstances of the case, an exclusively preliminarycharacter.

For the above reasons the Court, in the operativeparagraph of the Judgment, rejects the first preliminaryobjection by fourteen votes to three; the second by sixteenvotes to one; the third by fifteen votes to two; the fourth andthe fifth by thirteen votes to four; the sixth by fifteen votesto two; the seventh by twelve votes to five; declares, bytwelve votes to five, that the eighth preliminary objectiondoes not have, in the circumstances of the case, anexclusively preliminary character; and finds, by fourteenvotes to three, that, on the basis of Article 36, paragraph 2,of the Statute, it has jurisdiction to adjudicate upon thedispute; and, by fourteen votes to three, that the Applicationfiled by the Republic of Cameroon on 29 March 1994, asamended by the Additional Application of 6 June 1994, isadmissible.

Separate opinion of Judge Oda

Judge Oda shares the view of the Court that it hasjurisdiction to adjudicate on certain of the requestspresented unilaterally by Cameroon. In his view, however,the presentation of Cameroon's March 1994 Applicationand June 1994 Application, as well as the "submissions" inthe 1995 Memorial (which do not necessarily correspond tothe Applications), is inadequate. This makes the presentcase extremely complicated and difficult to follow.However, Judge Oda finds that Cameroon's contentions arebasically two in number: one being a request to specify theboundary line both on land and at sea and the other being

the judicial settlement of the matter of the trespass whichtook place in the border areas, namely in the BakassiPeninsula, in Lake Chad and at certain land borders.

With regard to the indication of a boundary, Judge Odapointed out that, apart from the question of the delimitationof the offshore areas in the mouth of the Cross River, andthe prolongation of the delimitation of the exclusiveeconomic zone and the continental shelf in the ocean area inthe Gulf of Guinea — issues totally dependent on theterritoriality of the Bakassi Peninsula — the delimitation ofthe maritime boundary cannot be the object of theadjudication of the Court, unless it is requested jointly bythe Parties, as the simple failure of negotiations betweenStates does not mean that a "legal dispute" has occurredunder Article 36 (2) of the Statute. The simple specificationof the ¡and boundary also cannot be deemed as constitutinga "legal dispute" which the Court can entertain, unlessjointly requested to do so by the Parties under Article 36 (1)of the Statute.

Judge Oda holds the view that the real "legal dispute" inthe present case involves Cameroon's claim to sovereigntyover the Bakassi Peninsula, the part of Lake Chad andcertain border areas — which sovereignty has, according toCameroon, been violated by incursions of Nigerian civiliansand military personnel — and Nigeria's challenge to such aclaim. If the Court is in a position to entertain Cameroon'sApplication, it should certainly decide whether or notCameroon's claims to sovereignty over the disputed areasare justified, but this would not be the same as a simplerequest to specify the boundary line, over which matter theCourt does not have jurisdiction. Judge Oda further statedthat, in his view, the larger part of the issues advanced byNigeria regarding the "legal dispute" on sovereignty overthe boundary areas are matters that should be dealt with atthe merits phase.

Separate opinion of Judge Vereshchetin

In his separate opinion, Judge Vereshchetin states that heis unable to vote in favour of point 1 (e) of the Judgment,dealing with the fifth preliminary objection of Nigeria,because of his belief that the finding on which that part ofthe Judgment is based is not duly supported by the evidenceoffered by the Applicant and does not stand the test ofobjective determination.

For the Court to decide on the existence of a disputebetween the two Parties as to the legal bases of the whole ofthe boundary, it must previously have been established thatthe Republic of Nigeria challenges the validity of the legaltitle to the whole of the boundary relied on by the Republicof Cameroon, or relies on a different legal title, or places adifferent interpretation on a given legal instrument relatingto the entire boundary. None of those conclusions may be"positively" inferred from the documents or statementspresented to the Court.

The repeated statements of Nigeria to the effect thatthere is no dispute concerning "boundary delimitation assuch" and the reserved and cautious formulations in its replygiven to the question of the Court may signify the

disinclination of Nigeria to unfold its legal arguments on themerits. True, they may also be viewed as evidence of theprobable emergence of a broader dispute. However, the realscope of such a dispute, if any, its parameters and concreteconsequences can be clarified only at the merits stage whenthe Court has compared the maps produced by both Partiesand more fully heard and assessed the substance of theirinterpretation of the respective legal instruments. In theview of Judge Vereshchetin, this prompts the conclusionthat the fifth objection of Nigeria does not possess anexclusively preliminary character within the meaning ofArticle 79, paragraph 7, of the Rules of Court, and thereforecannot be dismissed at this stage of the proceedings.

Separate opinion of Judge Higgins

Judge Higgins has voted with the majority on allelements in the Court's Judgment save for paragraph (1) (g)of the dispositif.

In its seventh preliminary objection Nigeria claimed thatthere "is no legal dispute concerning delimitation of themaritime boundary between the two Parties which is at thepresent time appropriate for resolution by the Court"because, first, it was necessary initially to determine title inrespect of the Bakassi Peninsula and second, there was an"absence of sufficient action by the Parties, on a footing ofequality, to effect a delimitation by 'agreement on the basisof international law'".

Judge Higgins agrees with the response of the Court inrejecting each of these claims on inadmissibility. In herseparate opinion she contends, however, that there wasanother matter which the Court should have addressedproprio motu, namely that no dispute appears to existrelating to the maritime boundary, at least beyond point G asdesignated by Cameroon. This emerges both from the wayCameroon itself formulates its Application, where it asks fora delimitation of the maritime boundary "In order to preventany dispute arising ..." (emphasis added) and from theabsence of any evidence offered in the written or oralpleadings as to the existence of such a dispute. There havebeen no claims beyond point G that have been put by oneparty and rejected by the other.

The fact that Nigeria and Cameroon have not been ableto have detailed negotiations on the line beyond point Gdoes not mean that a dispute exists beyond that point onCameroon's proposed line, suggested for the first time inthese proceedings before the Court.

Nor can it be the case that the existence of a territorialdispute automatically entitles an applicant State to requestthe delimitation of the maritime boundary, without anythingfurther being required to be shown as to that maritimefrontier.

Although it is not normally the task of the Court tosuggest additional grounds of inadmissibility beyond those arespondent State chooses to advance, the existence of adispute is a requirement of the Court's jurisdiction underArticle 38 of the Statute and the Court should haveaddressed the matter proprio motu.

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Separate opinion of Judge Parra-Aranguren

Judge Parra-Aranguren voted against subparagraph 1 (d)of the operative part of the Judgment, which rejects thefourth preliminary objection raised by Nigeria requestingthe Court not to determine in these proceedings theboundary in Lake Chad, to the extent that that boundaryconstitutes or is determined by the tripoitit Nigeria-Cameroon-Chad in the Lake, because its location directlyaffects a third State, the Republic of Chad. On this point theCourt did not follow its decision in the case concerningMilitary and Paramilitary Activities in and againstNicaragua (Nicaragua v. United States of America),Jurisdiction and Admissibility, where it had stated that thedetermination of the third States "affected" by the decisionis not in itself a jurisdictional problem, but a questionbelonging to the merits (I.C.J. Reports 1984, p. 425, para.76). This is the applicable principle and in the Judge's view,at this stage of the proceedings the Court is not entitled todecide, as it has done, that the future determination on themerits of the tripoint Nigeria-Cameroon-Chad will not haveany consequence for the Republic of Chad. The Court'sdecision unreasonably precludes any subsequentintervention by the Republic of Chad under Article 62 of theStatute of the Court. Therefore the fourth preliminaryobjection raised by Nigeria should not have been rejectedand the Court should have declared that, in thecircumstances of the case, the objection was; not of anexclusively preliminary character.


In his separate opinion Judge Kooijmans sets out why hevoted against paragraphs 1 (g) and 2 of the dispositif. Hevoted against paragraph 1 (g), as in his opinion the seventhpreliminary objection should have been partially upheld,since there does not exist a legal dispute between the Partiesas to the continuation of the maritime boundary beyondpoint G. Although he agrees that the point was not raisedspecifically by Nigeria, he is of the opinion that the Courtshould have determined proprio motu whether there is adispute in the sense of the Statute. In the present caseCameroon requested the Court to determine the whole of themaritime boundary without ever before having formulated aspecific claim with regard to the more seaward part of thatboundary. It was only in the Memorial that its submissionwas further substantiated. It therefore cannot be said thatthere is a claim of Cameroon which, at the date of the filingof the Application, was "positively opposed" by Nigeria asthe Court according to its case-law requires.

Since in his view the seventh objection should have beenupheld as regards the maritime boundary beyond point Gand since the issue of the rights and interests of third parties(the subject of the eighth preliminary objection) only arisesin respect of that part of the boundary, that objection hasbecome without object. Judge Kooijmans consequentlyvoted against paragraph 2. But also for other reasons hecannot agree with what the Court said with regard to theeighth objection. Although in general an objection dealingwith rights and interests of third States does not possess an

exclusively preliminary character, it is Judge Kooijmans'view that in the present case the Court, for reasons ofjudicial propriety, would have done better to uphold it in thepreliminary phase. The most important third countryinvolved is Equatorial Guinea. Both Cameroon and Nigeriaagreed in 1993 that State's involvement in the delimitationof the boundary was essential and that negotiations shouldget started. In view of this recognition by Cameroon of thenecessity of negotiations it seems not proper and reasonableto induce Equatorial Guinea to reveal its legal position bymeans of an intervention under Article 62 of the Statutebefore such negotiations have even begun.

Dissenting opinion of Vice-President Weeramantry

Vice-President Weeramantry, in his dissenting opinion,expresses disagreement with the Court's findings onNigeria's first objection. The Vice-President expresses theview that the 1957 decision in Right of Passage over IndianTerritory is in need of review. That decision implies that theState which is sought to be bound by the declaration ofanother State can be so bound without knowing of thatdeclaration, and thus overlooks the consensual basis of theCourt's jurisdiction under Article 36, paragraph 2, of theStatute. It also does not give effect to the imperative termsof Article 36, paragraph 4, requiring communication by theSecretariat of such declarations. The opinion sets out eightreasons why, in Judge Weeramantry's view, the Right ofPassage decision needs to be reviewed.

The opinion also draws in perspectives fromcomparative law regarding the notion of consensus and theneed for communication of acceptance if a consensualrelationship is to be formed. These perspectives can be usedunder Article 38, paragraph 1 (c) of the Statute. Referring,inter alia, to Grotius' endorsement of the need forcommunication of acceptance if a State is to be bound by aconsensual obligation, the opinion also stresses the need forensuring that the party sought to be bound should not betaken by surprise.

Dissenting opinion of Judge Koroma

In his dissenting opinion Judge Koroma regretted that hecould not share the opinion of the majority of the Court thatit has jurisdiction to pass upon Cameroon's Application. Inhis view, for a State to be entitled to invoke the compulsoryjurisdiction of the Court, the conditions stipulated in Article36, paragraphs 2 and 4, of the Statute must have been met.In a situation where those conditions have not beensatisfied, as in the present case, jurisdiction cannot be saidto have been conferred on the Court, nor can the Courtimpose such jurisdiction on a State against its will.

The Judge further stated that this phase of the mattershould have been governed by the provisions of the Statute,rather than the Court allowing its decision to have beensubstantively controlled by the decision in the Right ofPassage case.

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Dissenting opinion of Judge Ajibola

In my dissenting opinion I voted against the decision ofthe majority of the Members of the Court on the first, third,fourth, fifth, sixth, second part of the seventh and the eighthpreliminary objections filed by Nigeria. I, however, votedwith the majority of the Members of the Court with regardto the decision of the Court on the second preliminaryobjection and the first part of the seventh preliminaryobjection and I state my reasons for doing so therein.

The most important aspect of this dissenting opiniondeals with my disagreement with the decision of the Courtto follow its earlier decision in the case concerning Right ofPassage over Indian Territory, which I now consider to bebad case-law. Fundamentally, the reason for so doing is

premised on the fact that Article 36 (4) of the Statute waswrongly or inadequately interpreted in 1957 and the timehas come for the same to be corrected after 41 years.Paragraph 4 of Article 36 provides that declarations underthe Optional Clause "shall" be "deposited" with theSecretary-General of the United Nations and the same"shall" be "transmitted" to all the States Members and to theRegistrar of the Court. While the Court rightly and properlyinterpreted the former in the 1957 case it failed to do so inthe case of the latter requirement for the main reason thatsuch a situation would bring "uncertainty" into the operationof the declaration vis-à-vis the "accepting State". Thisargument is most unconvincing and it is anything but acorrect interpretation of Article 36 (4) as a whole.

112. CASE CONCERNING THE VIENNA CONVENTION ON CONSULAR RELATIONS(PARAGUAY v. UNITED STATES OF AMERICA) (DISCONTINUANCE)

Order of 10 November 1998

In the case concerning the Vienna Convention onConsular Relations (Paraguay v. United States of America)at the request of Paraguay, on 10 November 1998, the Courtmade an Order recording the discontinuance of theproceedings and directing the removal of the case from theCourt's List.

The dispute brought by Paraguay to the Court concernedalleged violations of the Vienna Convention on ConsularRelations of 24 April 1963 with respect to the case of Mr.Angel Francisco Breard, a Paraguayan national convicted ofmurder in Virginia (United States), whose execution hadbeen scheduled for 14 April 1998 and who was eventuallyexecuted on that date.

The Court was composed as follows: Vice-PresidentWeeramantry, Acting President; President Schwebel; JudgesOda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi,Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek; Registrar Valencia-Ospina.

The full text of the Order reads as follows:"The International Court of Justice,Composed as above,Having regard to Article 48 of the Statute of the

Court and to Article 89 of the Rules of Court,Having regard to the Application filed in the

Registry of the Court on 3 April 1998, whereby theRepublic of Paraguay instituted proceedings against theUnited States of America for 'violations of the ViennaConvention on Consular Relations [of 24 April 1963]'allegedly committed by the United States,

Having regard to the request for the indication ofprovisional measures submitted by Paraguay on 3 April1998 and to the Order made by the Court on 9 April1998, by which it indicated provisional measures.

Having regard to the Orders of 9 April 1998 and 8June 1998, by which the Vice-President of the Court,acting as President, fixed and subsequently extended thetime limits for the filing of written pleadings on themerits, and having regard to the Memorial filed byParaguay on 9 October 1998;

Whereas, by a letter of 2 November 1998, filed in theRegistry that same day, the Agent of Paraguay informedthe Court that his Government wished to discontinue theproceedings with prejudice, and accordingly requestedthat the case be removed from the List;

Whereas a copy of this letter was immediatelycommunicated to the Government of the United States,which was informed that the senior judge, actingpursuant to Articles 13, paragraph 3, and 89, paragraphs2 and 3, of the Rules of Court, had fixed 30 November1998 as the time limit within which the United Statescould state whether it opposed the discontinuance;

Whereas, by a letter of 3 November 1998, a copy ofwhich was filed in the Registry that same day, the Agentof the United States informed the Court that hisGovernment concurred in Paraguay's discontinuance ofthe proceedings with prejudice, and in its request that thecase be removed from the List,

Places on record the discontinuance by the Republicof Paraguay of the proceedings instituted by theApplication filed on 3 April 1998; and

Orders that the case be removed from the List."

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113. CASE CONCERNING FISHERIES JURISDICTION (SPAIN v. CANADA)(JURISDICTION OF THE COURT)

Judgment of 4 December 1998

In its Judgment on jurisdiction in the case concerningFisheries Jurisdiction (Spain v. Canada) the Court, bytwelve votes against five, declared that it had no jurisdictionto adjudicate upon the dispute brought in 1995 by Spain.

The Court was composed as follows: PresidentSchwebcl; Vice-President Weeramantry; Judges Oda,Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer,Koroma, Vereshchetin, Higgins, Parra -Aranguren,Kooijmans. Rezek; Judges ad hoc Lalonde, TorresBernárdez; Registrar Valencia-Ospina.

The text of the operative paragraph of the Judgmentreads as follows:

"89. For these reasons,THE COURTBy twelve votes to five,Finch that it has no jurisdiction to adjudicate upon

the dispute brought before it by the Application filed bythe Kingdom of Spain on 28 March 1995.

IN FAVOUR: President Schwebel; Judges Oda,Guillaume, Herczegh, Shi, Fleischhauer, Koroma,Higgins, Parra-Aranguren, Kooijmans, Rezek; Judge adhoc Lalonde;

AGAINST: Vice-President Weeramantry; JudgesBedjaoui, Ranjeva, Vereshchetin; Judge ad hoc TorresBernárdez."

President Schwebel and Judges Oda, Koroma andKooijmans appended separate opinions to the Judgment ofthe Court. Vice-President Weeramantry, Judges Bedjaoui,Ranjeva and Vereshchetin, and Judge ad hoc TorresBernárdez appended dissenting opinions to the Judgment ofthe Court.

Review of the proceedings and submissions of theParties

(paras. 1-12)

The Court begins by recalling that on 28 March 1995,Spain instituted proceedings against Canada in respect of adispuie relating to the amendment, on 12 May 1994, of theCanadian Coastal Fisheries Protection Act, and thesubsequent amendments to the regulations implementingthat Act, as well as to specific actions taken on the basis of

the amended Act and its regulations, including the pursuit,boarding and seizure on the high seas, on 9 March 1995, ofa fishing vessel — the Estai — flying the Spanish flag. TheApplication invoked as the basis of the jurisdiction of theCourt the declarations whereby both States have accepted itscompulsory jurisdiction in accordance with Article 36,paragraph 2, of its Statute.

By letter of 21 April 1995, the Ambassador of Canada tothe Netherlands informed the Court that, in hisGovernment's opinion, the Court "manifestly lacksjurisdiction to deal with the Application filed by Spain ...,by reason of paragraph 2 (d) of the Declaration, dated 10May 1994, whereby Canada accepted the compulsoryjurisdiction of the Court".

At a meeting between the President of the Court and therepresentatives of the Parties it was agreed that the questionof the jurisdiction of the Court should be separatelydetermined before any proceedings on the merits; agreementwas also reached on time limits for the filing of writtenpleadings on that question. A Memorial by Spain and aCounter-Memorial by Canada on the question of thejurisdiction of the Court were duly filed within the timelimits prescribed by an Order of the President of 2 May1995.

After Spain had expressed the wish to be authorized tosubmit a Reply and Canada had opposed that request, theCourt, by an Order of 8 May 1996, decided that it wassufficiently informed, and that the presentation by theParties of further written pleadings on the question of theCourt's jurisdiction therefore did not appear necessary.Public hearings were held between 9 and 17 June 1998.

In the Application, the following requests were made bySpain:

"As for the precise nature of the complaint, theKingdom of Spain requests:

(A) that the Court declare that the legislation ofCanada, insofar as it claims to exercise a jurisdictionover ships flying a foreign flag on the high seas, outsidethe exclusive economic zone of Canada, is not opposableto the Kingdom of Spain;

(B) that the Court adjudge and declare that Canadais bound to refrain from any repetition of the actscomplained of, and to offer to the Kingdom of Spain thereparation that is due, in the form of an indemnity theamount of which must cover all the damages and injuriesoccasioned; and

(C) that, consequently, the Court declare also thatthe boarding on the high seas, on 9 March 1995, of theship Estai flying the flag of Spain and the measures ofcoercion and the exercise of jurisdiction over that shipand over its captain constitute a concrete violation of the

45

aforementioned principles and norms of internationallaw."In the oral proceedings, the following submissions were

presented by the Parties:On behalf of the Spanish Government, at the sitting of 15

June 1998:"At the end of our oral arguments, we again note that

Canada has abandoned its allegation that the disputebetween itself and Spain has become moot. At least, itappears to have understood that it cannot be asserted thatthe Spanish Application, having no further puipose forthe future, merely amounted to a request for adeclaratory judgment. Nor does it say — a fact of whichwe take note — that the agreement between theEuropean Union and Canada has extinguished thepresent dispute.

Spain's final submissions are therefore as follows:We noted at the outset that the subject matter of the

dispute is Canada's lack of title to act on the high seasagainst vessels flying the Spanish flag, the fact thatCanadian fisheries legislation cannot be invoked againstSpain, and reparation for the wrongful acts perpetratedagainst Spanish vessels. These matters are not includedin Canada's reservation to the jurisdiction of the Court.

We also noted that Canada cannot claim tosubordinate the application of its reservation to the solecriterion of its national legislation and its own appraisalwithout disregarding your competence, under Article 36,paragraph 6, of the Statute, to determine your ownjurisdiction.

Lastly, we noted that the use of force in arresting theEstai and in harassing other Spanish vessels on the highseas, as well as the use of force contemplated inCanadian Bills C-29 and C-8, can also not be included inthe Canadian reservation, because it contravenes theprovisions of the Charter.

For all the above reasons, we ask the Court toadjudge and declare that it has jurisdiction in this case."On behalf of the Canadian Government, at the sitting of

17 June 1998:"''May it please the Court to adjudge and declare that

the Court has no jurisdiction to adjudicate upon theApplication filed by Spain on 28 March 1995."

Background to the case(paras. 13-22)

The Court begins with an account of the background tothe case.

On 10 May 1994 Canada deposited with the Secretary-General of the United Nations a new declaration ofacceptance of the compulsory jurisdiction of the Court.Canada's prior declaration of 10 September 1985 hadalready contained the three reservations set forth insubparagraphs (a), (b) and (c) of paragraph 2 of the newdeclaration. Subparagraph (d) of the 1994 declaration,however, set out a new, fourth reservation, further excluding

from the jurisdiction of the Court "(Ú?) disputes arising out ofor concerning conservation and management measurestaken by Canada with respect to vessels fishing in theNAFO Regulatory Area, as defined in the Convention onFuture Multilateral Cooperation in the Northwest AtlanticFisheries, 1978, and the enforcement of such measures."

On the same day that the Canadian Governmentdeposited its new declaration, it submitted to Parliament BillC-29 amending the Coastal Fisheries Protection Act byextending its area of application to include the RegulatoryArea of the Northwest Atlantic Fisheries Organization(NAFO). Bill C-29 was adopted by Parliament, and receivedthe Royal Assent on 12 May 1994. The Coastal FisheriesProtection Regulations were also amended, on 25 May1994, and again on 3 March 1995, when Spanish andPortuguese fishing vessels were taken up in Table IV ofSection 21 (the category of fishing vessels which wereprohibited from fishing for Greenland halibut in the areaconcerned).

On 12 May 1994, following the adoption of Bill C-8,Canada also amended Section 25 of its Criminal Coderelating to the use of force by police officers and other peaceofficers enforcing the law. This Section applied as well tofisheries protection officers.

On 9 March 1995, the Estai, a fishing vessel flying theSpanish flag and manned by a Spanish crew, wasintercepted and boarded some 245 miles from the Canadiancoast, in Division 3L of the NAFO Regulatory Area (GrandBanks area), by Canadian Government vessels. The vesselwas seized and its master arrested on charges of violationsof the Coastal Fisheries Protection Act and its implementingregulations. They were brought to the Canadian port of St.John's, Newfoundland, where they were charged withoffences under the above legislation, and in particular illegalfishing of Greenland halibut; part of the ship's catch wasconfiscated. The members of the crew were releasedimmediately. The master was released on 12 March 1995,following the payment of bail, and the vessel on 15 March

1995, following the posting of a bond.The same day that the Estai was boarded, the Spanish

Embassy in Canada sent two Notes Verbales to theCanadian Department of Foreign Affairs and InternationalTrade. The second of these stated inter alia that: "theSpanish Government categorically condemned] the pursuitand harassment of a Spanish vessel by vessels of theCanadian navy, in flagrant violation of the international lawin force, since these acts [took] place outside the 200-milezone".

In its turn, on 10 March 1995 the Canadian Departmentof Foreign Affairs and International Trade sent a NoteVerbale to the Spanish Embassy in Canada, in which it wasstated that "[t]he Estai resisted the efforts to board her madeby Canadian inspectors in accordance with internationalpractice" and that "the arrest of the Estai was necessary inorder to put a stop to the overfishing of Greenland halibutby Spanish fishermen".

Also on 10 March 1995, the European Community andits member States sent a Note Verbale to the Canadian

46

Department of Foreign Affairs and International Tradewhich protested against the Canadian action.

On 16 April 1995, an "Agreement constituted in theform of an Agreed Minute, an Exchange of Letters, anExchange of Notes and the Annexes thereto between theEuropean Community and Canada on fisheries in thecontext of the NAFO Convention" was initialled; thisAgreement was signed in Brussels on 20 April 1995. Itconcerned the establishment of a Protocol to strengthen theNAFO Conservation and Enforcement Measures"; theimmediate implementation on a provisional basis, of certaincontrol and enforcement measures; the total allowable catchfor 1995 for Greenland halibut within the area concerned;and certain management arrangements for stocks of thisfish.

The Agreed Minutes further provided as follows: "TheEuropean Community and Canada maintain their respectivepositions on the conformity of the amendment of 25 May1994 to Canada's Coastal Fisheries Protection Act, andsubsequent regulations, with customary international lawand the NAFO Convention. Nothing in this Agreed Minuteshall prejudice any multilateral convention to which theEuropean Community and Canada, or any Member State ofthe European Community and Canada, are parties, or theirability to preserve and defend their rights in conformity withinternational law, and the views of either Parry with respectto any question relating to the Law of the Sea." TheEuropean Community emphasized that the stay ofprosecution against the vessel Estai and its master wasessential for the application of the Agreed Minute.

On 18 April 1995 the proceedings against the Estai andits master were discontinued by order of the Attorney-General of Canada; on 19 April 1995 the bond wasdischarged and the bail was repaid with interest; andsubsequently the confiscated portion of the catch wasreturned. On 1 May 1995 (he Coastal Fisheries ProtectionRegulations were amended so as to remove Spain andPortugal from Table IV to Section 21. Finally, Ihe Proposalfor Improving Fisheries Control and Enforcement, containedin the Agreement of 20 April 1995, was adopted by NAFOat its annual meeting held in September 1995 and becamemeasures binding on all Contracting Parties with effect from29 November 1995.

The subject of the dispute(paras. 23-35)

Neither of the Parties denies that there exists a disputebetween them. Each Party, however, characterizes thedispute differently. Spain has characterized the dispute asone relating to Canada's lack of entitlement to exercisejurisdiction on the high seas, and the non-opposability of itsamended Coastal Fisheries Protection legislation andregulations to third States, including Spain. Spain furthermaintains that Canada, by its conduct, has violated Spain'srights under international law and that such violation entitlesit to reparation. Canada stales that the dispute concerns theadoption of measures for the conservation and management

of fisheries stocks with respect to vessels fishing in theNAFO Regulatory Area and their enforcement.

Spain insists that it is free, as the Applicant in this case,to characterize the dispute that it wishes the Court toresolve.

The Court begins by observing that there is no doubt thatit is for the Applicant, in its Application, to present to theCourt the dispute with which it wishes to seize the Courtand to set out the claims which it is submitting to it.Paragraph 1 of Article 40 of the Statute of the Court requiresmoreover that the "subject of the dispute" be indicated inthe Application; and, for its part, paragraph 2 of Article 38of the Rules of Court requires "the precise nature of theclaim" to be specified in the Application. In a number ofinstances in the past the Court has had occasion to refer tothese provisions. It has characterized them as "essentialfrom the point of view of legal security and the goodadministration of justice".

In order to identify its task in any proceedings institutedby one State against another, the Court must begin byexamining the Application. However, it may happen thatuncertainties or disagreements arise with regard to the realsubject of the dispute with which the Court has been seized,or to the exact nature of the claims submitted to it. In suchcases the Court cannot be restricted to a consideration of theterms of the Application alone nor, more generally, can itregard itself as bound by the claims of the Applicant.

It is for the Court itself, while giving particular attentionto the formulation of the dispute chosen by the Applicant, todetermine on an objective basis the dispute dividing theparties, by examining the position of both Parties. It willbase itself not only on the Application and finalsubmissions, but on diplomatic exchanges, publicstatements and other pertinent evidence.

In order to decide on the preliminary issue of jurisdictionwhich arises in the present case, the Court will ascertain thedispute between Spain and Canada, taking account ofSpain's Application, as well as the various written and oralpleadings placed before the Court by the Parties.

The filing of the Application was occasioned by specificacts of Canada which Spain contends violated its rightsunder international law. These acts were carried out on thebasis of certain enactments and regulations adopted byCanada, which Spain regards as contrary to internationallaw and not opposable to it. It is in that context that thelegislative enactments and regulations of Canada should beconsidered. The specific acts which gave rise to the presentdispute are the Canadian activities on the high seas inrelation to the pursuit of the Estai, the means used toaccomplish its arrest and the fact of its arrest, and thedetention of the vessel and arrest of its master, arising fromCanada's amended Coastal Fisheries Protection Act andimplementing regulations. The essence of the disputebetween the Parties is whether these acts violated Spain'srights under international law and require reparation. TheCourt must now decide whether the Parties have conferredupon it jurisdiction in respect of that dispute.

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The jurisdiction of the Court(paras. 36-84)

As Spain sees it, Canada has in principle accepted thejurisdiction of the Court through its declaration underArticle 36, paragraph 2, of the Statute, and it is for Canadato show that the reservation contained in paragraph 2 (d)thereto does exempt the dispute between the Parties fromthis jurisdiction. Canada, for its part, asserts that Spain mustbear the burden of showing why the clear words ofparagraph 2 (d) do not withhold this matter from thejurisdiction of the Court.

The Court points out that the establishment or otherwiseof jurisdiction is not a matter for the parties but for theCourt itself. Although a party seeking to assert a fact mustbear the burden of proving it, this has no relevance for theestablishment of the Court's jurisdiction, which is a"question of law to be resolved in the light of the relevantfacts". That being so, there is no burden of proof to bedischarged in the matter of jurisdiction.

Declarations of acceptance of the Court's compulsoryjurisdiction and their interpretation

(paras. 39-56)

As the basis of jurisdiction, Spain founded its claimsolely on the declarations made by the Parties pursuant toArticle 36, paragraph 2, of the Statute. On 21 April 1995Canada informed the Court, by letter, that in its view theCourt lacked jurisdiction to entertain the Applicationbecause the dispute was within the plain terms of thereservation in paragraph 2 (d) of the Canadian declaration of10 May 1994. This position was elaborated in its Counter-Memorial of February 1996, and confirmed at the hearings.From the arguments brought forward by Spain the Courtconcludes that Spain contends that the interpretation ofparagraph 2 (d) of its declaration sought for by Canadawould not only be an anti-statutory interpretation, but alsoan anti-Charter interpretation and an anti-generalinternational law interpretation, and thus should not beaccepted. The issue for the Court is consequently todetermine whether the meaning to be accorded to theCanadian reservation allows the Court to declare that it hasjurisdiction to adjudicate upon the dispute brought before itby Spain's Application.

Different views were proffered by the Parties as to therules of international law applicable to the interpretation ofreservations to optional declarations made under Article 36,paragraph 2, of the Statute. In Spain's view, suchreservations were not to be interpreted so as to allowreserving States to undermine the system of compulsoryjurisdiction. Moreover, the principle of effectiveness meantthat a reservation must be interpreted by reference to theobject and purpose of the declaration, which was theacceptance of the compulsory jurisdiction of the Court.Spain did not accept that it was making the argument thatreservations to the compulsory jurisdiction of the Courtshould be interpreted restrictively; it explained its positionin this respect in the following terms:

"It is said that Spain argues for the most restrictivescope permitted of reservations, namely a restrictiveinterpretation of them ... This is not true. Spain supportsthe most limited scope permitted in the context ofobserving of the general rule of interpretation laid downin Article 31 of the Vienna Convention on the Law ofTreaties."

Spain further contended that the contra proferentemrule, under which, when a text is ambiguous, it must beconstrued against the party who drafted it, applied inparticular to unilateral instruments such as declarations ofacceptance of the compulsory jurisdiction of the Court andthe reservations which they contained. Finally, Spainemphasized that a reservation to the acceptance of theCourt's jurisdiction must be interpreted so as to be inconformity with, rather than contrary to, the Statute of theCourt, the Charter of the United Nations and generalinternational law. For its part, Canada emphasized theunilateral nature of such declarations and reservations andcontended that the latter were to be interpreted in a naturalway, in context and with particular regard for the intentionof the reserving State.

The Court recalls that the interpretation of declarationsmade under Article 36, paragraph 2, of the Statute, and ofany reservations they contain, is directed to establishingwhether mutual consent has been given to the jurisdiction ofthe Court. It is for each State, in formulating its declaration,to decide upon the limits it places upon its acceptance of thejurisdiction of the Court: "This jurisdiction only existswithin the limits within which it has been accepted".Conditions or reservations thus do not by their termsderogate from a wider acceptance already given. Rather,they operate to define the parameters of the State'sacceptance of the compulsory jurisdiction of the Court.There is thus no reason to interpret them restrictively. Thisis true even when, as in the present case, the relevantexpression of a State's consent to the Court's jurisdiction,and the limits to that consent, represent a modification of anearlier expression of consent, given within wider limits; it isthe declaration in existence that alone constitutes the unityto be interpreted, with the same mies of interpretationapplicable to all its provisions, including those containingreservations.

The regime relating to the interpretation of declarationsmade under Article 36 of the Statute which are unilateralacts of State sovereignty, is not identical with thatestablished for the interpretation of treaties by the ViennaConvention on the Law of Treaties. In the event, the Courthas in earlier cases elaborated the appropriate rules for theinterpretation of declarations and reservations.

In accordance with those rules the Court will interpretthe relevant words of a declaration including a reservationcontained therein in a natural and reasonable way, havingdue regard to the intention of the State concerned at the timewhen it accepted the compulsory jurisdiction of the Court.The intention of a reserving State may be deduced not onlyfrom the text of the relevant clause, but also from thecontext in which the clause is to be read, and an

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examination of evidence regarding the circumstances of itspreparation and the purposes intended to be served. In thepresent case the Court has such explanations in ihe form ofCanadian ministerial statements, parliamentary debates,legislative proposals and press communiqués.

It follows from the foregoing analysis that the contraproferentem rule has no role to play in this case ininterpreting the reservation contained in the unilateraldeclaration made by Canada under Article 36, paragraph 2,of the Statute.

The Court was also addressed by both Parties on theprinciple of effectiveness. Certainly, this principle has animportant role in the law of treaties and in the jurisprudenceof this Court; however, what is required in the first place fora reservation to a declaration made under Article 36,paragraph 2, of the Statute, is that it should be interpreted ina manner compatible with the effect sought by the reservingState.

Spain has contended that, in case of doubt, reservationscontained in declarations are to be interpreted consistentlywith legality and that any interpretation which isinconsistent with the Statute of the Court, the Charter of theUnited Nations or with general international law isinadmissible. Spain argues that, to comply with theseprecepts, it is necessary to interpret the phrase ''disputesarising out of or concerning conservation and managementmeasures taken by Canada with respect to vessels fishing inthe NAFO Regulatory Area ... and the enforcement of suchmeasures" to refer only to measures which, since they relateto areas of the high seas, must come within the frameworkof an existing international agreement or be directed atstateless vessels. It further argues that an enforcement ofsuch measures which involves a recourse to force on thehigh seas against vessels flying flags of other States couldnot be consistent with international law and that this factortoo requires an interpretation of the reservation differentfrom that given to it by Canada.

The Court observes that Spain's position is not inconformity with the principle of interpretation whereby areservation to a declaration of acceptance of the compulsoryjurisdiction of the Court is to be interpreted in a natural andreasonable way, with appropriate regard for the intentions ofthe reserving State and the purpose of the reservation. Inpoint of fact, reservations from the Court's jurisdiction maybe made by States for a variety of reasons; sometimesprecisely because they feel vulnerable about the: legality oftheir position or policy. Nowhere in the Court's case-lawhas it been suggested that interpretation in accordance withthe legality under international law of the matters exemptedfrom the jurisdiction of the Court is a rule that governs theinterpretation of such reservations. There is a fundamentaldistinction between the acceptance by a State of the Court'sjurisdiction and the compatibility of particular acts withinternational law. The former requires consent. The latterquestion can only be reached when the Court deals with themerits, after having established its jurisdiction and havingheard full legal argument by both parties. Whether or notStates accept the jurisdiction of the Court, they remain in all

cases responsible for acts attributable to them that violatethe rights of other States. Any resultant disputes are requiredto be resolved by peaceful means, the choice of which,pursuant to Article 33 of the Charter, is left to the parties.

Subparagraph (d) of paragraph 2 of Canada'sdeclaration of 10 May 1994

(paras. 57-84)

In order to determine whether the Parties have accordedto the Court jurisdiction over the dispute brought before it,the Court must now interpret subparagraph (d) of paragraph2 of Canada's declaration, having regard to the rules ofinterpretation which it has just set out.

Before commencing its examination of the text of thereservation itself, the Court observes that the newdeclaration differs from its predecessor in one respect only:the addition, to paragraph 2, of a subparagraph (d)containing the reservation in question. It follows that thisreservation is not only an integral part of the currentdeclaration but also an essential component of it, and henceof the acceptance by Canada of the Court's compulsoryjurisdiction.

The Court further notes, in view of the facts assummarized above, the close links between Canada's newdeclaration and its new coastal fisheries protectionlegislation, as well as the fact that it is evident from theparliamentary debates and the various statements of theCanadian authorities that the purpose of the new declarationwas to prevent the Court from exercising its jurisdictionover matters which might arise with regard to theinternational legality of the amended legislation and itsimplementation.

The Court recalls that subparagraph 2 (d) of theCanadian declaration excludes the Court's jurisdiction in thefollowing terms:

"disputes arising out of or concerning conservation andmanagement measures taken by Canada with respect tovessels fishing in the NAFO Regulatory Area, as definedin the Convention on Future Multilateral Cooperation inthe Northwest Atlantic Fisheries, 1978, and theenforcement of such measures".

Canada contends that the dispute submitted to the Courtis precisely of the kind envisaged by the cited text; it fallsentirely within the terms of the subparagraph and the Courtaccordingly has no jurisdiction to entertain it. For Spain, onthe other hand, whatever Canada's intentions, they were notachieved by the words of the reservation, which does notcover the dispute; thus the Court has jurisdiction. In supportof this view Spain relies on four main arguments: first, thedispute which it has brought before the Court falls outsidethe terms of the Canadian reservation by reason of itssubject matter; secondly, the amended Coastal FisheriesProtection Act and its implementing regulations cannot, ininternational law, constitute "conservation and managementmeasures"; thirdly, the reservation covers only "vessels"which are stateless or flying a flag of convenience; andfourthly, the pursuit, boarding and seizure of the Estai

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cannot be regarded in international law as "the enforcementof..." conservation and management "measures". The Courtexamines each of these arguments in turn.

Meaning of the term "disputes arising out of orconcerning "

(paras. 62-63)

The Court begins by pointing out that, in excluding fromits jurisdiction "disputes arising out of or concerning" theconservation and management measures in question andtheir enforcement, the reservation does not reduce thecriterion for exclusion to the "subject matter" of the dispute.The words of the reservation — "disputes arising out of orconcerning" — exclude not only disputes whose immediate"subject matter" is the measures in question and theirenforcement, but also those "concerning" such measuresand, more generally, those having their "origin" in thosemeasures {"arising out of) — that is to say, those disputeswhich, in the absence of such measures, would not havecome into being.

The Court has already found, in the present case, that adispute does exist between the Parties, and it has identifiedthat dispute. It must now determine whether that dispute hasas its subject matter the measures mentioned in thereservation or their enforcement, or both, or concerns thosemeasures, or arises out of them. In order to do this, thefundamental question which the Court must now decide isthe meaning to be given to the expression "conservation andmanagement measures ..." and "enforcement of suchmeasures" in the context of the reservation.

Meaning of "conservation and management measures"(paras. 64-73)

Spain recognizes that the term "measure" is "an abstractword signifying an act or provision, a démarche or thecourse of an action, conceived with a precise aim in view"and that in consequence, in its most general sense, theexpression "conservation and management measure" mustbe understood as referring to an act, step or proceedingdesigned for the purpose of the "conservation andmanagement of fish". However, in Spain's view thisexpression, in the particular context of the Canadianreservation, must be interpreted more restrictively. Spain'smain argument, on which it relied throughout theproceedings, is that the term "conservation and managementmeasures" must be interpreted here in accordance withinternational law and that in consequence it must, inparticular, exclude any unilateral "measure" by a Statewhich adversely affected the rights of other States outsidethat State's own area of jurisdiction. Hence, in internationallaw only two types of measures taken by a coastal Statecould, in practice, be regarded as "conservation andmanagement measures": those relating to the State'sexclusive economic zone; and those relating to areas outsidethat zone, insofar as these came within the framework of aninternational agreement or were directed at stateless vessels.Measures not satisfying these conditions were not

conservation and management measures but unlawful actspure and simple.

Canada, by contrast, stresses the very wide meaning ofthe word "measure". It takes the view that this is a "genericterm", which is used in international conventions toencompass statutes, regulations and administrative action.Canada further argues that the expression "conservation andmanagement measures" is "descriptive" and not"normative"; it covers "the whole range of measures takenby States with respect to the living resources of the sea".

The Court points out that it need not linger over thequestion whether a "measure" may be of a "legislative"nature. As the Parties have themselves agreed, in itsordinary sense the word is wide enough to cover any act,step or proceeding, and imposes no particular limit on theirmaterial content or on the aim pursued thereby. Numerousinternational conventions include "laws" among the"measures" to which they refer. The Court further points outthat, in the Canadian legislative system as in that of manyother countries, a statute and its implementing regulationscannot be dissociated. The statute establishes the generallegal framework and the regulations permit the applicationof the statute to meet the variable and changingcircumstances through a period of time. The regulationsimplementing the statute can have no legal existenceindependently of that statute, while conversely the statutemay require implementing regulations to give it effect.

The Court shares with Spain the view that aninternational instrument must be interpreted by reference tointernational law. However, in arguing that the expression"conservation and management measures" as used in theCanadian reservation can apply only to measures "inconformity with international law", Spain would appear tomix two issues. It is one thing to seek to determine whethera concept is known to a system of law, in this caseinternational law, whether it falls within the categoriesproper to that system and whether, within that system, aparticular meaning attaches to it: the question of theexistence and content of the concept within the system is amatter of definition. It is quite another matter to seek todetermine whether a specific act falling within the scope ofa concept known to a system of law violates the normativerules of that system: the question of the conformity of theact with the system is a question of legality.

According to international law, in order for a measure tobe characterized as a "conservation and managementmeasure", it is sufficient that its purpose is to conserve andmanage living resources and that, to this end, it satisfiesvarious technical requirements. It is in this sense that theterms "conservation and management measures" have longbeen understood by States in the treaties which theyconclude. The same usage is to be found in the practice ofStates. Typically, in their enactments and administrativeacts, States describe such measures by reference to factualand scientific criteria.

Reading the words of the reservation in a "natural andreasonable" manner, there is nothing which permits theCourt to conclude that Canada intended to use the

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expression "conservation and management measures" in asense different from that generally accepted in internationallaw and practice. Moreover, any other interpretation of thatexpression would deprive the reservation of its intendedeffect.

After an examination of the amendments made byCanada on 12 May 1994 to the Coastal Fisheries ProtectionAct and on 25 May 1994 and 3 March 1995 to the CoastalFisheries Protection Regulations the Court concludes thatthe "measures" taken by Canada in amending its coastalfisheries protection legislation and regulations constitute"conservation and management measures" in the sense inwhich that expression is commonly understood ininternational law and practice and has been used in theCanadian reservation.

Meaning to be attributed to the word "vessels "'(paras. 74-77)

The Court goes on to observe that the conservation andmanagement measures to which this reservation refers aremeasures "taken by Canada with respect to vessels fishingin the NAFO Regulatory Area, as defined in the Conventionon Future Multilateral Cooperation in the NorthwestAtlantic Fisheries, 1978". As the NAFO "Regulatory Area"as defined in the Convention is indisputably part of the highseas, the only remaining issue posed by this part of thereservation is the meaning to be attributed to the word"vessels". Spain argues that it is clear from theparliamentary debates which preceded the adoption of BillC-29 that the latter was intended to apply only to statelessvessels or to vessels flying a flag of convenience. Itfollowed, according to Spain — in view of the close linksbetween the Act and the reservation — that the latter alsocovered only measures taken against such vessels. Canadaaccepts that, when Bill C-29 was being debated, there werea number of references to stateless vessels and to vesselsflying flags of convenience, for at the time such vesselsposed the most immediate threat to the conservation of thestocks that it sought to protect. However, Canada denies thatits intention was to restrict the scope of the Act and thereservation to these categories of vessels.

The Court observes that the Canadian reservation refersto "vessels fishing ...", that is to say all vessels fishing in thearea in question, without exception. It would clearly havebeen simple enough for Canada, if this had been its realintention, to qualify the word "vessels" so as to restrict itsmeaning in the context of the reservation. In the opinion ofthe Court the interpretation proposed by Spain cannot beaccepted, for it runs contrary to a clear text, which,moreover, appears to express the intention of its author.Neither can the Court share the conclusions drawn by Spainfrom the parliamentary debates cited by it.

Meaning and scope of the phrase "and the enforcementof such measures "

(paras. 78-84)

The Court then examines the phrase "and theenforcement of such measures", on the meaning and scopeof which the Parties disagree. Spain contends that anexercise of jurisdiction by Canada over a Spanish vessel onthe high seas entailing the use of force falls outside ofCanada's reservation to the Court's jurisdiction.

The Court notes that, following the adoption of Bill C-29, the provisions of the Coastal Fisheries Protection Actare of a character and type to be found in legislation ofvarious nations dealing with fisheries conservation andmanagement, as well as in Article 22 (1) (/) of the UnitedNations Agreement on Straddling Stocks of 1995. Thelimitations on the use of force specified in the CoastalFisheries Protection Regulations Amendment of May 1994also bring the authorized use of force within the categoryfamiliar in connection with enforcement of conservationmeasures. The Court further notes that the purpose of otherCanadian enactments referred to by Spain appears to havebeen to control and limit any authorized use of force, thusbringing it within the general category of measures inenforcement of fisheries conservation.

For all of these reasons the Court finds that the use offorce authorized by the Canadian legislation and regulationsfalls within the ambit of what is commonly understood asenforcement of conservation and management measures andthus falls under the provisions of paragraph 2 (d) ofCanada's declaration. This is so notwithstanding that thereservation does not in terms mention the use of force.Boarding, inspection, arrest and minimum use of force forthose purposes are all contained within the concept ofenforcement of conservation and management measuresaccording to a "natural and reasonable" interpretation of thisconcept.

The Court concludes by stating that in its view, thedispute between the Parties, as it has been identified in thisJudgment, had its origin in the amendments made byCanada to its coastal fisheries protection legislation andregulations and in the pursuit, boarding and seizure of theEstai which resulted therefrom. Equally, the Court has nodoubt that the said dispute is very largely concerned withthese facts. Having regard to the legal characterizationplaced by the Court upon those facts, it concludes that thedispute submitted to it by Spain constitutes a dispute"arising out o f and "concerning" "conservation andmanagement measures taken by Canada with respect tovessels fishing in the NAFO Regulatory Area" and "theenforcement of such measures". It follows that this disputecomes within the terms of the reservation contained inparagraph 2 (d) of the Canadian declaration of 10 May1994. The Court consequently has no jurisdiction toadjudicate upon the present dispute.

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Separate opinion of President Schwebel

President Schwebel, in a separate opinion, held that,contrary to Spain's argument, a reservation to a declarationunder the optional clause is not ineffective insofar as itexcludes actions by the declarant State that are illegal underinternational law. A very purpose of a reservation may be todebar the Court from passing upon legally questionableactions.

Nor does Canada's reservation embody a self-judgingproviso in violation of the authority of the Court todetermine its jurisdiction.

Spanish counsel argued that Canada's reservation asinterpreted by Canada is "a nullity" and that it "excludesnothing, since it can apply to nothing". While not acceptingthis argument, President Schwebel concluded that if,arguendo, these contentions of Spain are correct, it followsthat the nullity or ineffectiveness of the reservation entailsthe nullity of the declaration as a whole. The Canadianreservation is an essential element of the declaration, but forwhich the declaration would not have been made. When, asin this case, the reservation has been treated by the declarantas such an essential one, the Court is not free to hold thereservation invalid or ineffective while treating theremainder of the declaration to be in force. If the Spanishargument on the results to be attached to Canada'sinterpretation of the reservation is accepted, there is no basiswhatever in this case for the jurisdiction of the Court.


Judge Oda fully concurs with the operative part of theJudgment.

Judge Oda nonetheless considers it appropriate, lest thereal issues in the case should be buried in obscurity, to spellout what issues existed in the dispute between Canada andSpain.

He considers that the subject of the "dispute" in thepresent case relates to the Estai incident. In his view,Canada's legislative enactments in 1994/1995 are to beexamined, but only in the context of that incident. The Estaiincident occurred in the "Regulatory Area" of the 1979NAFO Convention, which area lies beyond the exclusiveeconomic zone where the coastal States exercise fisheriesjurisdiction. Judge Oda makes it plain that, within theframework of the NAFO Convention, the adoption ofmeasures of conservation and management of fisheryresources in the Regulatory Area is the responsibility of theNAFO Fisheries Commission, but not of any particularcoastal State. He has stressed that the whole chain of eventsregarding the Estai incident unfolded irrespective of theNAFO Convention.

Judge Oda thus suggests that the only issue in disputewas whether Canada violated the rule of international lawby claiming and exercising fisheries jurisdiction on the highseas, or whether Canada was justified, irrespective of theNAFO Convention, in exercising fisheries jurisdiction in anarea of the high seas on the ground of its honestly heldbelief that the conservation of certain fish stocks was

urgently required as a result of the fishery conservationcrisis in the Northwest Atlantic.

Judge Oda is of the opinion, however, that the solequestion to be decided by the Court at the present stage ofthe case is whether the dispute falls within the purview ofthe clause whereby Canada declared its acceptance of theCourt's jurisdiction on 10 May 1994.

He considers it to be clear, given the basic principle thatthe Court's jurisdiction is based on the consent of sovereignStates, that a declaration to accept the compulsoryjurisdiction of the Court under Article 36, paragraph 2, ofthe Statute, and any reservations attached thereto, must,because of the declaration's unilateral character, beinterpreted not only in a natural way and in context, but alsowith particular regard for the intention of the declarantState. Any interpretation of a respondent State's declarationagainst the intention of that State will contradict the veiynature of the Court's jurisdiction, because the declaration isan instrument drafted unilaterally.

He further states that the fact that Canada made itsdeclaration containing the reservation set out in paragraph 2(d) only a few days prior to enacting the amendments to itsfisheries legislation clearly indicates the true intention ofCanada in respect of those amendments and of any disputewhich might arise as a result of their implementation.

Judge Oda is at a loss to understand why the Courtshould have felt it necessary to devote so much time to itsinterpretation of the wording of that reservation. Aftermaking an analysis of the development of the law of the sea,particularly as it concerns marine living resources. JudgeOda notes that there exists no fixed or concrete concept of"conservation and management measures".

It is clear to Judge Oda that Canada, having reservedfrom the Court's jurisdiction any "disputes arising out of orconcerning conservation and management measures", had inmind — in a very broad sense and without restriction andshowing great common sense — any dispute which mightarise following the enactment and enforcement of legislationconcerning fishing, whether for the purpose of conservationof stocks or for management of fisheries (allocation ofcatches), in its offshore areas, whether within its exclusiveeconomic zone or outside it.

Judge Oda points out that no diplomatic negotiationstook place between Spain and Canada with regard to theenactment in 1994 and 1995 of Canada's national legislationor its amendment, and that there was no further diplomaticnegotiation between the two countries over the Estaiincident. He notes that after the conclusion on 20 April 1995of the Agreement between the EC and Canada, the disputearising out of the Estai incident was practically solved.Judge Oda suggests that the dispute could have been solvedif negotiations between Spain and Canada had been held.

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Judge Oda refrains from entering into the debatableissue of whether a legal dispute may be submittedunilaterally to the Court only after diplomatic negotiationsbetween the disputing parties have been exhausted or atleast initiated. He submits, however, that it could have beenquestioned, even at this jurisdictional stage — separatelyfrom the issue of whether the Court has jurisdiction toentertain Spain's Application — whether Spain'sApplication of 28 March 199.5 in the present case was reallyadmissible to the Court at all.


In his separate opinion, Judge Koroma emphasized theabsolute and unfettered freedom of a State to participate ornot to participate in the optional clause system. As acorollary, he confinned that a State is entitled to attach to itsdeclaration made under the optional clause a reservationexcluding or limiting the Court's jurisdiction to apply theprinciples and rules of international law which the Courtwould have applied, had the subject matter not beenexcluded from the jurisdiction of the Court.

In Judge Koroma's view, flowing from first principles,once it is established that a dispute falls within the categoryof the subject matter defined or excluded in a reservation,then that dispute is precluded from the jurisdiction of theCourt, whatever the scope of the rules which havepurportedly been violated. He agreed with the Court'sfinding that, once it had determined that the measures ofconservation and management referred to in the reservationcontained in the Canadian declaration were measures of akind which could be categorized as conservation andmanagement of the resources of the sea, and were consistentwith customary norms and well-established practice, thenthe Court was bound to decline to found jurisdiction on thebasis of the principles which have been invoked.

Judge Koroma pointed out that it is in this sense that heunderstands the statement in the Judgment that "thelawfulness of the acts which a reservation to a declarationseeks to exclude from the jurisdiction of the Court has norelevance for the interpretation of the terms of thatreservation".

In other words, the Court's jurisdiction to adjudicate in adispute derives from the Statute and the consent of a State asexpressed in its declaration arid not from the applicable law.

In the judge's view, what was determinative in thismatter was whether Canada had made a declaration underthe optional clause, whether that declaration excludeddisputes arising out of or concerning conservation andmanagement measures and whether the acts complained offall within the category of the excluded acts. The Court inresponding affirmatively to those questions, not onlyreached the right decision but affirmed that its compulsoryjurisdiction is based on the previous consent of the Stateconcerned and subject to the limits of that consent.

Accordingly, and flowing from the above principles,since Canada had excluded from the jurisdiction of theCourt "disputes arising out of or concerning conservation

and management measures", the question whether the Courtwas entitled to exercise its jurisdiction must depend on thesubject matter which had been excluded and not on theapplicable laws or on the rules which were said to have beenviolated.

Finally, Judge Koroma emphasized that this Judgmentshould not be viewed as an abdication of the Court's judicialfunction to pronounce on the validity of a declaration and itsreservation, but rather should be seen as a reaffirmation ofthe principle that the character of a declaration makes itnecessary for the Court to determine the scope and contentof the consent of a declarant State. The Court reserves itsinherent right to decide that a reservation has been invokedin bad faith, and to reject the view of the State in question.


Judge Kooijmans concurs with the Court's finding that ithas no jurisdiction to entertain the dispute submitted bySpain. He cast his vote, however, with a heavy heart sincethe Court's Judgment bears testimony to the inherentweakness of the optional clause system. The making ofreservations by a State to its declaration of acceptance of thecompulsory jurisdiction of the Court under Article 36,paragraph 2 of the Statute has never been controversial(with the exception of reservations which are contrary to theStatute itself). The Court, therefore, has to apply the law asit stands.

In the present case Canada has submitted a newdeclaration in which it added a reservation in order toprevent the Court from scrutinizing the legality of an actionit intended to undertake. According to present internationallaw Canada was fully entitled to do so. Nevertheless, itseems to be a legitimate question how far a State can go inaccepting the compulsory jurisdiction of the Court, therebyexpressing its conviction that adjudication is the mostappropriate method to settle a wide range of conceivable butnot imminent legal disputes, at the same time exemptingfrom the Court's jurisdiction an anticipated and thereforeimminent dispute. According to Judge Kooijmans it wouldnot have been beyond the Court's mandate to draw attentionto the risks to which the optional clause system is exposedsince this system is an integral and essential element of theStatute of which the Court is the guardian. In this contextJudge Kooijmans draws attention to the fact thatcompulsory adjudication is more than a matter of procedurebut that it also touches upon the substance of the law. Stateswho know that they can be brought to court will inevitablybe more inclined to see the law in terms of how they think acourt would apply it.


Vice-President Weeramantiy, in his dissenting opinion,observes that there is no question of the invalidity of theCanadian reservation. The reservation is a valid one whichCanada was well entitled to make. The Court's task is tointerpret this valid reservation. Would this reservation covercertain actions that commenced as conservation measures,

53

but were also alleged to involve fundamental breaches ofinternational law, including violation of the freedom of thehigh seas, the unilateral use of force by Canada, andinfringements of Spain's sovereignty over its vessels at sea?

Vice-President Weeramantry's view is that it is a matterfor the Court's discretion as to whether such matters fallwithin the general part of the declaration (which gives theCourt jurisdiction over all disputes arising after thedeclaration), or under the reservation relating toconservation measures. Where violations of basic principlesof international law, extending even to violation of Charterprinciples are alleged, Vice-President Weeramantry is of theview that the dispute falls within the general referral ratherthan the particular exception. It seems unreasonable that themere fact that such acts originated in conservation measuresshould preserve them from Court scrutiny even when theyhave extended so far beyond the reach of the reservationsclause as to enter the area of violations of basic principles ofinternational law.

Optional clause jurisdiction represents a haven oflegality within the international system and, while Stateshave unfettered autonomy to decide whether to enter thesystem, once they do so they are bound by its rules and bythe basic principles of international law which prevailtherein. It is not possible to contract out of the applicabilityof the latter, once a State has opted to enter the system.

The Spanish allegations are as yet unproved, and apreliminary objection to jurisdiction can succeed only if theCourt would still lack jurisdiction, even assuming that allthe alleged circumstances will eventually be proved. InVice-President Weeramantry's view, the Court cannot sohold, as some of the circumstances alleged would, if proved,give jurisdiction to the Court under the general part of thedeclaration. The objection raised by Canada is therefore notof an exclusively preliminary character.

Vice-President Weeramantry also examines thehistorical origins of the optional clause with a view tostressing the difficulty with which the limited jurisdiction ofthe Court was achieved. The expectation at the time of thecreation of this jurisdiction was that it would develop withuse. An unduly narrow interpretation of the clause, whenother interpretations are reasonably available within theframework of the declaration considered as a whole, wouldcontract rather than develop this jurisdiction.

Dissenting opinion of Judge Bedjaoui

I. General Introduction

Canada's twice formulated reservations would appear toreflect its hesitation, or reluctance, to submit to the sanctionof the International Court issues which it regards as vital,and in relation to which it considers the applicable law tobe, in the words of the Canadian Foreign Minister,"inadequate, non-existent or irrelevant". The point was thatCanada was not entirely satisfied with the Montego BayConvention of 10 December 1982 on the Law of the Sea,which for this reason it has not ratified and which, in its

view, failed to settle fully the problem of overfishing, thusjeopardizing fisheries resources for future generations.Canada has frequently expressed its dissatisfaction andinvoked the "emergency", or "state of necessity", which it iscurrently undergoing in this regard.

The Court had to rule on its jurisdiction by examiningthe meaning and scope of Canada's reservation, but it wasnot entitled to ignore the fact that, if it accepted such areservation, it was leaving the author of that reservation freeto combat foreign overfishing by unilaterally giving itselfpowers over the high seas for as long as no settlement hadbeen reached between itself and the States concerned. Thisaccount of the background to the case was necessary,inasmuch as, where a reservation has been formulatedratione materiae, it cannot prime facie be understoodwithout some minimal reference to the substantive issuesinvolved.

The case would have been perfectly simple if the duty ofthe Court had merely been to ascertain the meaning of theexpression "conservation and management measures"contained in the reservation, and to declare that "theenforcement of those measures" against the Spanish fishingvessel Estai was precisely covered by the terms of thatreservation, thus preventing the Court from entertaining anyclaim in this regard. The emphasis has to be placed onanother far more important term of the reservation, thatwhich places Canada's action, in geographical terms, "in theNAFO Regulatory Area", that is to say outside the 200-milelimit. And indeed the Estai was boarded some 245 miles offthe Canadian coast.

The purpose of the reservation is to signal urbi et orbithat Canada claims special jurisdiction over the high seas.The Court cannot interpret or accept this reservation in thesame way as it would interpret or accept an ordinaryreservation, since, without any need for a consideration ofthe merits, its terms prima facie disclose a violation of abasic principle of international law. This is an issue whichthe Court cannot simply ignore by restricting itself to anexternal and superficial interpretation of the reservation. Itcannot be right for the Court to content itself in this casewith a purely formal view of the reservation, disregardingits material content — a content which does not requireinvestigation involving an examination of the merits, sinceit is abundantly clear that the reservation affects atraditionally established right. This is the real flavour of thisfascinating case.

The Court cannot content itself with declaring that theboarding on the high seas of a foreign fishing vessel simplyconstitutes enforcement of conservation and managementmeasures taken by Canada, and thus hold that that incidentis covered by a reservation entirely depriving it ofjurisdiction, for this would be to utilize the screen of"conservation and management measures", interpreted in anartificial manner, without any regard for what suchmeasures involve in terms of their violation of a well-established principle of international law.

It follows that the only proper attitude is to interpret andassess the said "conservation and management measures" by

54

reference to international law. It is in this corpus of the lawof nations that a definition of such measures must be sought.And two options, and two only, accordingly presentthemselves to the Court at this stage of the proceedings:either, at the very least, to state that it cannot readily findany well-established international definition of suchmeasures applicable to the case before it, and that it isaccordingly obliged to touch on the merits of the case bygoing further in its examination of the facts and of theirimplications in terms of the international practice of States,and in consequence to declare that Canada's objection tojurisdiction is not of an exclusively preliminary characterwithin the meaning of Article 79, paragraph 7, of the Rulesof Court; or, on the other hand, to declare that it does haveavailable to it an undisputed international deilnition ofconservation and management measures, which, applied tothis case, obliges it to interpret the Canadian reservation asinvalid and not opposable to these proceedings insofar as itpurports to cover acts occurring on the high seas, andaccordingly not capable of constituting a bar to the Court'sjurisdiction to proceed to an examination of the merits.

Judge Bedjaoui has not dealt with all the po:nts whichappear to him disputable in the Judgment — in particularthe theoretical and practical implications of the methods ofinterpretation employed therein, or at least the manner inwhich the Judgment formulates a number of these points(see in particular paragraphs 46 to 54 of the Judgment) —but has restricted himself to raising three importantquestions on which, to his great regret, he finds himselfobliged to express his disagreement with the majority of theCourt:

- the subject matter of the dispute;- the validity of the Canadian reservation;- the definition of conservation and management

measures.

II. The subject matter of the dispute

What is unique about the present case and at the sametime gives it its great interest from the legal point of view, isthe persistent disagreement between the applicant State andthe Respondent with regard to the actual subject matter ofthe dispute — a disagreement now extended by another, justas far-reaching, between the majority of the Court and theminority on the same point. This is a situation rarelyencountered in the Court's jurisprudence.

It is of course the Applicant who has the initiative andwho defines — at its own procedural risk — the subject ofthe dispute which it wishes to bring before the Court. In thisregard it enjoys a clear procedural right, deriving from itsstatus as Applicant, to seek and to obtain from the Court aruling on the subject of the dispute which it has submitted toit and on that alone, to the exclusion of all others (subject,of course, to any incidental proceeding). Spain, as asovereign State and as applicant State, enjoyed theundisputed right to bring before the Court — at its ownclear procedural risk — any aspect of the dispute which itconsidered it might legitimately submit, and it had an

inalienable legal interest in seeking and obtaining a rulingon the specific dispute whose subject matter it had clearlydefined.

Spain clearly indicated the precise matter on which itwas bringing Canada before the Court. In both its writtenand its oral pleadings, it consistently complained of "a veryserious infringement of a right deriving from its sovereignstatus, namely exclusive jurisdiction over vessels flying itsflag on the high seas".

It was an altogether different subject matter thatCanada — notwithstanding its status as respondent State —raised against Spain. It invoked issues of fishing and of theconservation and management of fisheries resources withinthe NAFO Regulatory Area, and consequently contendedthat this was the true subject of the dispute, which wasexcluded from the jurisdiction of the Court by virtue ofreservation (d) inserted by Canada in its new declarationnotified on 10 May 1994 (two days before the adoption ofBill C-29 amending the Coastal Fisheries Protection Act).

There is of course a connection between the subjectmatter of the dispute, as defined by the Applicant for thepurposes of the proceedings which it instituted, butregrettably cannot pursue, and the subject matter alleged bythe Respondent to be the true one, now settled and emptiedof substance. However, that connection in no way justifiedthe substitution by the Court of the second subject for thefirst one as defined by the Applicant.

The Court cannot in any sense modify "the decor" orchange the subject of the dispute. For, if it did so, it wouldbe rendering judgment in a case altogether different fromthat submitted to it by the Applicant. The Court's role is togive an appropriate legal characterization to those claimsof the applicant State which properly come within theframework of the subject matter of the dispute as that Statehas defined it in its Application. This does not mean that theCourt has the power to alter the subject matter put before it.Still less can the respondent State propose a different subjectmatter to the Court. That would be to hear a different case.

Thus, while Spain proclaims its sovereignty on the highseas over its vessels, Canada speaks of conservation andmanagement measures. While Spain invokes a "conflict ofjurisdiction" on the high seas, Canada opposes to it a"conflict over fisheries conservation and management". Inbrief, Spain talks of State sovereignty, Canada of fisheriesconservation and management.

In the present case, the Court has based itself on ajurisprudence which is either not entirely relevant or appearsto have been interpreted incorrectly.

III. The validity of the Canadian reservation

It would of course be absurd to cast doubt, in anydegree, on the sovereign power of a State to maintain oramend, whether by restricting or by extending it, adeclaration of acceptance of the Court's jurisdiction, or towithdraw it whenever it wishes — always subject, of course,to compliance with the procedure (and in particular anyprior notice) established by that State itself in its

55

declaration. Doctrine and jurisprudence are unanimous onthis point.

However, a State's freedom to attach reservations orconditions to its declaration must be exercised in conformitywith the Statute and Rules of Court, with the Charter of theUnited Nations, and more generally with international lawand with what this judge would venture to call "l'ordrepublic internationaV'.

Within this optional clause "system", as currentlystructured within the framework of the ''''international legalcorpus" — that is to stay, neither total chaos nor an absurd"bric-a-brac" (Jean Combacau) — and which we call"international law", a State's freedom is immense, butcannot be regarded as limitless. Any person is free to join aclub or not to do so, but if they consent to join, then theymust abide by the rules governing the club's activities.

A declarant State has obligations vis-ci-vis the clause"system " and its participants, current or potential, and alsoto the party to whom that clause is ultimately addressed,namely the International Court. It is not entitled to causethat "system" to implode, since it also now owes it duties —the counterpart of the rights which it derives from it. Thepossibility of withdrawing from the system remains fullyopen to it, but what is not acceptable is that it should distortor pervert it, or compromise its existence or operation whileremaining within it.

In the present case, I cannot but feel a certain sense ofdisquiet. These were events which occurred over a specificperiod of two days, 10 and 12 May 1994, during whichalmost simultaneously Canada formulated its reservation,thus precluding any review by the Court, lodged a Bill withParliament and had it adopted. There is every reason tothink that, in so acting, Canada wished to protect itself inadvance against any judicial action, so as to be completelyfree to follow a particular line of conduct, over whoselegality it had certain doubts.

This is not what one might have expected of a countiylike Canada, which for over 70 years has set an example ofits attachment to the Court's jurisdiction and of its respectfor international law. Nor is it a welcome situation forCanada's traditional NAFO partners, or for theinternational community, or for the optional clause"system ", or for the Court itself.

Tlte latter has, most regrettably, failed to recognize thatrecourse to a reservation, in circumstances where a Statewishes to undertake specific acts of doubtful internationallegality, risks having a seriously damaging effect on thecredibility of the optional clause "system ".

If, for reasons of domestic or international policy, whichmay moreover be perfectly legitimate, a declarant Statefinds itself embarrassed by the terms of its declaration, itshould provisionally withdraw that declaration for theperiod required by the political action which it iscontemplating, rather than attaching to it— lam tempted tosay, encumbering and undermining it — a reservationintended to cover a purpose which might very well beregarded as unlawful.

According to a maxim of French civil law, "you cannotvalidly both give and take away". A declarant State cannottake away with one hand what it has given with the other. Itcannot do homage to international justice by submittingitself to the latter's verdict in respect of those acts where itconsiders that it has behaved correctly, while shunning thatsame justice in the case of those acts whose legality it fearsmay be questionable. It is not possible for a declarant Stateto remodel the philosophy of the clause "system" in thisway., still less to bend that "system" to suit its owncontradictory requirements, or to mix two incompatibleaims.

IV. The definition of "conservation and managementmeasures "

The question of the "applicable law" for purposes ofdefining the expression "conservation and managementmeasures" has taken on great importance in this case.

Judge Bedjaoui is all the more convinced that thisexpression cannot be interpreted otherwise than within theframework of international law. And since, in thesecircumstances, the definition and content of that expressioncan be fully ascertained only at the merits stage, it followsthat it is only at that point that the Court would be in aposition to determine whether the Canadian legislation andthe resultant actions taken against Spanish vessels comewithin the international definition of such measures andtheir enforcement, and hence are excluded from thejurisdiction of the Court by virtue of reservation (d). Inother words, this is a case where Article 79, paragraph 7,should have been applied, with the result that examinationof the definition and precise content of "conservation andmanagement measures " would have been postponed to themerits stage, these being matters not having an exclusivelypreliminary character.

Canada's reservation (d) refers to "conservation andmanagement measures", taken or enforced by it againstfishing vessels within the "NAFO Regulatory Area". TheCourt was therefore bound to interpret that expression inorder to identify the scope of the reservation.

Nor does the Judgment take sufficient account of thenew approach embodied in the international concept of"conservation and management measures", an approachalready evident at the First United Nations Conference onthe Law of the Sea, which resulted in the "Convention onFishing and Conservation of the Living Resources of theHigh Seas", then formalized in the Montego BayConvention and, indeed, already described in 1974 in theCourt's Judgment in the Fisheries case.

It is perfectly clear that this new approach could onlybe — and has indeed been — an international one;otherwise the chaos created by overfishing would have beenreplaced by a different form of chaos — that produced byeach State taking, as and wherever it thought fit, whateverconservation and management measures it wished. To limitthis progression to a simple harmonization of the technicalaspects of fishing, as the Judgment has done, is to ignore theentire development in the law which, both now and over the

56

last two or three decades, has been taking place in the fieldof conservation and management measures, and which givesjudicial expression to a profound need on the part of Statesfor clarification, harmonization and cooperation. Suchmeasures cannot therefore simply be reduced to any acttaken by a State with regard to its choice of conservationtechniques, whilst ignoring the fact that such measures nowhave to be inserted into an international network of rightsand obligations which the States have created forthemselves. Here, economic logic and legal logic have tocombine — and indeed do so in all internationalinstruments — in order to avoid the chaos both ofuncontrolled overfishing and of illegal regulation.Compatibility with international law is an integral part ofthe international definition of conservation and managementmeasures; it is "built in". It is not a matter of adjudicating onthe merits or ruling in any way on responsibility. It is simplya question of stating that, on a true interpretation of theexpression "conservation and management measures", thereservation cannot act as a bar to jurisdiction.

The notion of "conservation and management measures"cannot be confined, contrary to what the Judgment states, tosimple "factual" or "technical" matters, but has to be takento refer to those types of measure which the "'new legalorder of the sea" has been gradually regulating, with theresult that such measures now constitute an objective legalcategory which cannot be other than part of internationallaw.

Paragraph 70 of the Judgment sets out to give thedefinition to be found in "international law" of the conceptof "conservation and management measures", since itbegins with the words: "According to international law,...".But, strangely, the paragraph ends with a paragraph inwhich the Judgment removes from that definition —notwithstanding that it is claimed to be the definition under"international law" — all references to the legal elements(such as the status or identity of the author of the measuresor the maritime area affected by them), retaining only thetechnical and scientific aspects. How could internationallaw possibly supply such an incomplete definition, which,taken literally, would appear to authorize the violation ofthe most firmly established principle of this sameinternational law, namely freedom of the high seas? JudgeBedjaoui cannot be persuaded that he is touching here uponan issue going to the merits, that of legality. In reality hehas stopped short of doing so, confining himself to pointingout that, if the Judgment is to be followed, then internationallaw must be bent on a course of self-destruction insupplying a definition which allows it to be so directlyviolated. How is it possible so flagrantly to turninternational law against itself?

It accordingly follows that the Canadian measuresrelating to the high seas cannot be interpreted on the basis ofCanada's own internal legal order — for this in effect iswhat the Judgment has done — since the definition ofconservation and management measures which theJudgment claims to draw from international law hasultimately been reduced to a standard technical definition —

the very same that underlies the Canadian legislation and itsimplementing rules — without any regard for respect of theprinciple of freedom of the high seas. On the basis of itsreservation as thus interpreted by the Judgment, Canada isprotected against the sanction of review by the Court. But inreality conservation and management measures can beassessed only by reference to international law. If this isso— and it cannot be otherwise — then the Court wasbound to declare itself competent at this stage and toundertake an examination of the merits in order to determinewhether the measures taken against the Spanish vesselswere in fact conservation and management measures (seeArticle 79, paragraph 7, of the Rules of Court).

Dissenting opinion of Judge Ranjeva

In a dissenting opinion appended to the Judgment, JudgeRanjeva expressed the wish that this Judgment should notbe interpreted as sounding the death-knell of the optionalclause system under Article 36, paragraph 2, of the Statuteof the International Court of Justice. He fears a desertionfrom the Court as a forum for the settlement of disputes, inthe absence of guarantees to ensure the integrity of thesubject matter of the dispute as presented in the Applicationsubmitted by the applicant State. In Judge Ranjeva's view itwas not appropriate for the Court to seek to define thesubject matter of the dispute at the preliminary stage.Whether the subject matter was interpreted broadly as theApplicant wished, or narrowly, the question, at thisincidental stage of the proceedings, was whether thepreliminary dispute on questions of jurisdiction andadmissibility came within the terms of the reservationformulated by Canada.

The case-law cited in the Judgment is not relevant tojustify a restatement of the subject matter of the dispute as itwas presented in the Application. In those decisions theCourt restated the terms of the dispute after carrying out adetailed examination, in light of the evidence available to it,of those matters constantly and consistently claimed by theApplicant. Moreover, in the absence of claims by theRespondent on the merits, or of any counter-claim, theCourt is necessarily bound by the terms of the claim asformulated in the Application.

With regard to the interpretation of the Canadianreservation contained in subparagraph 2 (d) of Canada'sdeclaration of 10 May 1994, Judge Ranjeva agrees with themajority of the Members of the Court on the importance ofascertaining the intention of the author of the reservation.But, in his view, a reservation to jurisdiction, whileunilateral in origin, is international in its effects, since itbecomes part of the network made up of all the declarationsunder Article 36, paragraph 2, of the Statute. It follows that,in filing its unilateral application, the Applicant accepts allthe conditions laid down by the author of the reservation,and a contractual link arises between the two parties to thelitigation. It is therefore difficult to see how the reservationcan be inteipreted without recourse to the rules, principlesand methods of interpretation of international agreements,and outside the framework of the Law of the Sea

57

Convention of 1982, which constitutes the lowestdenominator common to the parties. Moreover, retracing thehistorical background to Article 1 of the 1995 Agreement onStraddling Stocks, one of the two instruments relevant to adefinition of conservation and management measures, JudgeRanjeva recalls that it was on the initiative of Canada thatthat Agreement included a reference to the definitionscontained in the Montego Bay Convention, with a view todefining more clearly what was meant by conservation andmanagement measures. Tn the opinion of this Member of theCourt, there is no contrary international practice of States orof international organizations which would contradict hisanalysis and confirm the definition given by the Court.

In Judge Ranjeva's view, Canada's objections were notof an exclusively preliminary character.


Judge Vereshchetin found himself unable to concur withthe arguments and findings in the Judgment relating to twoprincipal points:

(a) the subject matter of the dispute between the Parties,and

(b) the effects of the Canadian reservation on the Court'sjurisdiction in this case.

As to the first point of his disagreement, JudgeVereshchetin takes the view that the scope of the disputebetween the Parties is much broader than the pursuit andarrest of the Estai and the consequences thereof. Quite apartfrom this proximate cause of the dispute, it would appearthat what underlies it are different perceptions by the Partiesof the rights and obligations which a coastal State may ormay not have in a certain area of the high seas; or, moregenerally, different perceptions of the relationship betweenthe exigencies of the law of the sea, on the one hand, andenvironmental law on the other. The Court had no goodreason for redefining and narrowing the subject matter ofthe dispute presented by the Applicant.

With regard to the effects of the Canadian reservation,Judge Vereshchetin considers that, while a State isabsolutely free to join or not to join the optional clausesystem, its freedom to make reservations and conditions tothe declaration deposited under Article 36, paragraph 2, ofthe Statute is not absolute. For example, it is uncontestedthat the Court cannot give effect to a condition imposingcertain terms on the Court's procedure which run counter tothe latter's Statute or Rules. Generally, reservations andconditions must not undermine the very raison d'être of theoptional clause system. The Court as "an organ andguardian" of international law may not accord to adocument the legal effect sought by the State from which itemanates, without having regard to the compatibility of thesaid document with the basic requirements of internationallaw.

On the other hand, the Court cannot impute bad faith toa State. Therefore, it should seek to interpret declarationsand reservations thereto as consistent with international law.A term of a declaration or of a reservation may have a wider

or narrower meaning in common parlance or in some otherdiscipline, but for the Court "the natural and ordinary"meaning of the term is that attributed to it in internationallaw. The Canadian reservation would be consistent with theinternational law of the sea if the expression "conservationand management measures", obtaining in the text of thereservation, were to be understood in the sense accepted inrecent multilateral agreements directly related to the subjectcovered by the reservation. In those agreements, the concept"conservation and management measures" is characterizedby reference not merely to factual and scientific criteria,.butalso to legal ones.

In the view of Judge Vereshchetin, "due regard" given tothe declarant's intention, in the circumstances of the case,has not revealed with certainty'"the evident intention of thedeclarant" at the time material for the interpretation of thereservation. In any event,' this intention cannot becontrolling and conclusive for the outcome of theinterpretation by the Court.

Judge Vereshchetin considers that the scope (rationemateriae and ratione personae) of the Canadian reservation,as well as its implications for the Court's jurisdiction in thiscase., could not be established with certainty by the Court.Therefore, the correct course of action for the Court wouldhave been to find that in the circumstances of the case theobjections of Canada did not have an exclusivelypreliminary character.

Dissenting opinion of Judge Torres Bernárdez

In his dissenting opinion Judge Torres Bernárdezconcludes that the Court has full jurisdiction to adjudicateon the dispute brought before it by the Application filed bySpain on 28 March 1995.

He has reached this conclusion after a thorough study of:- the subject matter of the dispute (where he was in total

disagreement with the definition adopted by a majorityof the Court, a definition which in his view accords withneither the applicable law nor with the relevantjurisprudence of the Court, or with that of the PermanentCourt);

- the optional clause system in general, including the rolewithin that system of the principles of good faith andmutual confidence;

- the question of the admissibility or opposability asagainst Spain, in the circumstances of the case, of thereservation contained in subparagraph 2 (d) of Canada'sdeclaration (in relation to which, in the judge's view, theCourt has declined to exercise its right of review overabuse of the optional clause system);

- and the interpretation of Canada's declaration of 10 May1994, including the reservation contained insubparagraph 2 (d). In this regard Judge TorresBernárdez expresses his conviction that the subject ofthe interpretation which the Court is called upon toundertake is Canada's declaration itself, including thereservation in subparagraph (d), and not, as theJudgment claims, the political or other reasons which led

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Canada to make its unilateral acceptance, on 10 May1994, of the compulsory jurisdiction of the Courttogether with the said reservation; Judge TorresBernárdez rejects the extreme subjectivity displayed bythe majority in the Judgment in their approach tointerpretation, an approach which he considers to becontrary to current international law and to the principleof legal certainty in relations between declarant States. .The basic reasons on which his dissenting opinion are

founded are three. First, the fundamental role of theprinciple of good faith, both in the modus operandi of theoptional clause system and in the interpretation andapplication by the Court of declarations made by Statesunder Article 36, paragraph 2, of its Statute. Secondly, theequally fundamental distinction which must always bedrawn between, on the one. hand, the principle of consent bythe States concerned to the jurisdiction of the Court and, onthe other, an interpretation, in accordance with the rules of

interpretation laid down by international law, of the consentobjectively demonstrated in declarations at the time of theirdeposit with the Secretary-General of the United Nations.Finally, the no less fundamental requirement of internationalprocedure that, in the interest of the principle of the equalityof the parties, the sovereign right of the applicant State todefine the subject matter of the dispute which it issubmitting to the Court must be just as fully respected as thesovereign right of the respondent State to seek to oppose theCourt's jurisdiction by presenting preliminary or otherobjections, or by filing a counter-claim of its own.

Each of these fundamental reasons is sufficient in itselfto make it impossible for Judge Torres Bernárdez tosubscribe to a judgment, the effect of which will, he fears,be particularly negative, even beyond the present case, forthe development of the optional clause system as a means ofacceptance by States of the compulsory jurisdiction of theCourt in accordance with Article 36 of the Court's Statute.

114. REQUEST FOR INTERPRETATION OF THE JUDGMENT OF 11 JUNE 1998 INTHE CASE CONCERNING THE LAND AND MARITIME BOUNDARY BETWEENCAMEROON AND NIGERIA (CAMEROON v. NIGERIA), PRELIMINARYOBJECTIONS (NIGERIA v. CAMEROON)

Judgment of 25 March 1999

In its Judgment, the Court by thirteen votes against threedeclared inadmissible Nigeria's request for interpretation ofthe Judgment delivered by the Court on 11 June 1998 in thecase concerning the Land and Maritime Boundaiy betweenCameroon and Nigeria (Cameroon v. Nigeria), PreliminaryObjections.

This was the first time that the Court had been calledupon to rule on a request for interpretation of a judgment onpreliminary objections.

In its Judgment, the Court further rejected unanimouslyCameroon's request that Nigeria bear the additional costscaused to Cameroon by the request for interpretation.

The Court was composed as follows: PresidentSchwebel; Vice-President Weeramantry; Judges Oda,Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer,Koroma, Vereshchetin, Higgins, Parra-Aranguren,Kooijmans; Judges ad hoc Mbaye, Ajibola; RegistrarValencia-Ospina.

The full text of the operative paragraph of the Judgment ••reads as follows:

"19. For these reasons,THE COURT,(1) by thirteen votes to three,

Declares inadmissible the request for interpretationof the Judgment of 11 June 1998 in the case concerningthe Land and Maritime Boundary between Cameroonand Nigeria (Cameroon v. Nigeria), PreliminaryObjections, presented by Nigeria on 28 October 1998;

IN FAVOUR: President Schwebel; Judges Oda,Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi,Fleischhauer, Vereshchetin, Higgins, Parra-Aranguren,Kooijmans; Judge ad hoc Mbaye;

AGAINST: Vice-President Weeramantry; JudgeKoroma; Judge ad hoc Ajibola.

(2) Unanimously,Rejects Cameroon's request that Nigeria bear the

additional costs caused to Cameroon by the above-mentioned request for interpretation."

Vice-President Weeramantry, Judge Koroma, and Judgead hoc Ajibola appended dissenting opinions to theJudgment of the Court.

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History of the proceedings and submissions of theParties

(paras. 1-7)

The Court begins by recalling that, on 28 October 1998,Nigeria instituted proceedings whereby, referring to Article98 of the Rules of Court, it requested the Court to interpretthe Judgment delivered by the Court on 11 June 1998 in thecase concerning the Land and Maritime Boundary betweenCameroon and Nigeria (Cameroon v. Nigeria) (PreliminaryObjections). Nigeria's request was communicated toCameroon, which filed written observations on the requestwithin the time limit fixed therefor. In the light of thedossier thus submitted to it, the Court, considering that ithad sufficient information on the positions of the Parties,did not deem it necessary to invite them "to furnish furtherwritten or oral explanations", as Article 98, paragraph 4, ofthe Rules allows it to do.

Nigeria chose Mr. Bola Ajibola and Cameroon Mr. KébaMbaye to sit as judges ad hoc in the case.

The Parties presented the following submissions:On behalf of Nigeria:in the Application:

"On the basis of the foregoing considerations,Nigeria requests the Court to adjudge and declare thatthe Court's Judgment of 11 June 1998 is to beinterpreted as meaning that:so far as concerns the international responsibility whichNigeria is said to bear for certain alleged incidents:

(a) the dispute before the Court does not include anyalleged incidents other than (at most) those specified inCameroon's Application of 29 March 1994 andAdditional Application of 6 June 1994;

(b) Cameroon's freedom to present additional factsand legal considerations relates (at most) only to thosespecified in Cameroon's Application of 29 March 1994and Additional Application of 6 June 1994; and

(c) the question whether facts alleged by Cameroonare established or not relates (at most) only to thosespecified in Cameroon's Application of 29 March 1994and Additional Application of 6 June 1994."On behalf of Cameroon:in the written observations:

"On these grounds,Having regard to the Request for Interpretation

submitted by the Federal Republic of Nigeria dated 21October 1998, the Republic of Cameroon makes thefollowing submissions:

1. The Republic of Cameroon leaves it to the Courtto decide whether it has jurisdiction to rule on a requestfor interpretation of a decision handed down followingincidental proceedings and, in particular, with regard toa judgment concerning the preliminary objections raisedby the defending Party;

2. The Republic of Cameroon requests the Court:- Primarily:

To declare the request by the Federal Republic ofNigeria inadmissible; to adjudge and declare that there isno reason to interpret the Judgment of 11 June 1998;

- Alternatively:To adjudge and declare that the Republic of

Cameroon is entitled to rely on all facts, irrespective oftheir date, that go to establish the continuing violation byNigeria of its international obligations; that the Republicof Cameroon may also rely on such facts to enable anassessment to be made of the damage it has suffered andthe adequate reparation that is due to it."

The Court's jurisdiction over Nigeria's request forinterpretation

(paras. 8-11)

The Court first addresses the question of its jurisdictionover the request for interpretation submitted by Nigeria.Nigeria states that, in the case concerning the Land andMaritime Boundary between. Cameroon and Nigeria(Cameroon v. Nigeria), Cameroon alleged that Nigeria boreinternational responsibility "for certain incidents said tohave occurred at various places at Bakassi and Lake Chadand along the length of the frontier between those tworegions". Nigeria contends that the Court's Judgment of 11June 1998 does not specify "which of these allegedincidents are to be considered further as part of the merits ofthe case". Thus Nigeria maintains that the Judgment "isunclear [as to] whether Cameroon was entitled at varioustimes, after the submission of its Amended Application, tobring before the Court new incidents". Nigeria furtheremphasizes "the inadmissibility of treating as part of thedispute brought before the Court by the Applications ofMarch and June 1994 alleged incidents occurringsubsequently to June 1994". The Judgment of 11 June 1998was accordingly to be interpreted as meaning "that so far asconcerns the international responsibility [of] Nigeria ... thedispute before the Court does not include any allegedincidents other than (at most) those specified in [the]Application ... and Additional Application".

Cameroon, for its part, recalls in its written observationsthat, in its Judgment of 11 June 1998, the Court rejectedseven of Nigeria's preliminary objections and stated that theeighth objection was not of an exclusively preliminarycharacter; the Court further recognized that it hadjurisdiction to adjudicate upon the dispute and found thatthe Application of Cameroon of 29 March 1994, asamended by the Additional Application of 6 June 1994, wasadmissible. Cameroon declares that the Parties "do not haveto 'apply' such a judgment; they only have to take note ofit". While leaving the question to the appreciation of theCourt, it states that "there are very serious doubts about thepossibility of bringing a request for interpretation of ajudgment concerning preliminary objections".

The Court observes that Article 60 of the Statuteprovides: "The judgment is final and without appeal. In theevent of dispute as to the meaning or scope of the judgment,the Court shall construe it upon the request of any party."By virtue of the second sentence of Article 60, the Court has

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jurisdiction to entertain requests for interpretation of anyjudgment rendered by it. This provision makes nodistinction as to the type of judgment concerned. It follows,therefore, that a judgment on preliminary objections, just aswell as a judgment on the merits, can be the object of arequest for interpretation. However, "the second, sentence ofArticle 60 was inserted in order, if necessary, to enable theCourt to make quite clear the points which had been settledwith binding force in a judgment,... a request which has notthat object does not come within the terms of this provision"{Interpretation of Judgments Nos. 7 and 8 (Factory atChorzów), Judgment No. 11, 1927, P.C.I.J., Series A, No.13,p. 11). In consequence any request for interpretation mustrelate to the operative part of the judgment and cannotconcern the reasons for the judgment except insofar as theseare inseparable from the operative part.

The Court then recalls that in the case concerning theLand and Maritime Boundary between Cameroon andNigeria, Nigeria had put forward a sixth preliminaryobjection "to the effect that there is no basis for a judicialdetermination that Nigeria bears international responsibilityfor alleged frontier incursions"; and that in the operativepart of its Judgment of 11 June 1998, the Court [r]ejects thesixth preliminary objection. The reasons for this are set outin paragraphs 98 to 101 of the Judgment. These deal indetail with Cameroon's rights as regards the presentation of"facts and legal considerations" that it might wish to putforward in support of its submissions seeking a rulingagainst Nigeria. These reasons are inseparable from theoperative part of the Judgment and in this regard the requesttherefore meets the conditions laid down by Article 60 ofthe Statute in order for the Court to have jurisdiction toentertain a request for interpretation of a judgment.

The admissibility of Nigeria's request(paras. 12-16)

The Court then examines the admissibility of Nigeria'srequest. It observes that the question of the admissibility ofrequests for interpretation of the Court's judgments needsparticular attention because of the need to avoid impairingthe finality, and delaying the implementation, of thesejudgments. It is not without reason that Article 60 of theStatute lays down, in the first place, that judgments are"final and without appeal". The language and structure ofArticle 60 reflect the primacy of the principle of resjudicata. That principle must be maintained.

The Court then recalls that in the case concerning theLand and Maritime Boundary between Cameroon andNigeria, Cameroon, in its Application as amended by itsAdditional Application, complained in 1994 "of grave andrepeated incursions of Nigerian groups and aimed forcesinto Cameroonian territory all along the frontier between thetwo countries". It further requested the Court to adjudge thatthe "internationally unlawful acts" alleged to have occurredin the Bakassi and Lake Chad regions involve theresponsibility of Nigeria. Cameroon developed thesesubmissions in its Memorial of 1995 and its observations of1996, mentioning some incidents having occurred in other

frontier areas or after the date of the Additional Application.To these submissions, Nigeria raised its sixth objection toadmissibility. It considered that Cameroon must "essentiallyconfine itself to the facts ... presented in its Application";and concluded that any subsequent attempt to enlarge thescope of the case was inadmissible and that "additions"presented subsequently with a view to establishing Nigeria'sresponsibility must be disregarded.

The Court points out that by its Judgment of 11 June1998, it rejected Nigeria's sixth preliminary objection, andexplained that "[t]he decision on Nigeria's sixth preliminaryobjection hinges upon the question of whether therequirements which an application must meet and which areset out in Article 38, paragraph 2, of the Rules of Court aremet", adding that the term "succinct" used in Article 38,paragraph 2, of the Rules does not mean "complete" anddoes not preclude later additions to the statement of the factsand grounds on which the claim is based. The Courtreiterates that the question of the conditions for theadmissibility of an application at the time of its introduction,and the question of the admissibility of the presentation ofadditional facts and legal grounds, are two different things.In its Judgment of 11 June 1998, the Court indicated that thelimit of the freedom to present additional facts and legalconsiderations is that there must be no transformation of thedispute brought before the Court by the application intoanother dispute which is different in character. With regardto Nigeria's sixth preliminary objection, the Judgment of 11June 1998 has concluded that "[i]n this case, Cameroon hasnot so transformed the dispute" and that Caineroon'sApplication met the requirements of Article 38 of the Rules(ibid., p. 319, para. 100). Thus, the Court made nodistinction between "incidents" and "facts"; it found thatadditional incidents constitute additional facts, and that theirintroduction in proceedings before the Court is governed bythe same rules. In this respect there is no need for the Courtto stress that it has and will strictly apply the principle ofaudi alteram part em. It follows from the foregoing that theCourt has already clearly dealt with and rejected, in itsJudgment of 1 1 June 1998, the first of the three submissions[submission (a)] presented by Nigeria at the end of itsrequest for interpretation.

The Court would therefore be unable to entertain thisfirst submission without calling into question the effect ofthe Judgment concerned as res judicata. The two othersubmissions, [(b) and (c)] endeavour to remove from theCourt's consideration elements of law and fact which it has,in its Judgment of 11 June 1998, already authorizedCameroon to present, or which Cameroon has not yet putforward. In either case, the Court would be unable toentertain these submissions. It follows from the foregoingthat Nigeria's request for interpretation is inadmissible.

The Court, in view of the conclusions reached above,finds that there is no need for it to examine whether there is,between the Parties, a "dispute as to the meaning or scope of

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the judgment" of 11 June 1998, as contemplated by Article60 of the Statute.

Cost of the proceedings(para. 18)

With regard to Cameroon's request that Nigeria becharged with the additional costs caused to Cameroon byNigeria's request, the Court sees no reason to depart in thepresent case from the general rule set forth in Article 64 ofthe Statute, which confirms the "basic principle regardingthe question of costs in contentious proceedings beforeinternational tribunals, to the effect that each party shallbear its own" (Application for Review of Judgement No. 158of the United Nations Administrative Tribunal, AdvisoryOpinion, I.C.J. Reports 1973, p. 212, para. 98).


Vice-President Weeramantry expressed agreement withthe Court that the Application of Nigeria met the conditionslaid down in Article 60 of the Statute giving the Courtjurisdiction to entertain Nigeria's request for interpretationof the Court's Judgment of 11 June 1998. However, hestated that he disagreed with the Court's conclusion thatNigeria's request for interpretation was inadmissible.

He points out that there is a distinction betweensubsequent facts and subsequent incidents. Subsequent factsrelating to an incident already pleaded would be admissible,but not subsequent facts in the sense of subsequentincidents. Nigeria was therefore entitled to seek aclarification of this aspect.

The critical date for determining what incidents may bepleaded is the date of filing of the application. If laterincidents could be brought in, this would pose majorobstacles to the proper presentation and conduct of the case.


In his dissenting opinion, Judge Koroma regretted thathe could not support the Judgment, as in his view the Courtshould have acceded to the request and found it admissiblesince it met all the criteria and conditions necessary for theinterpretation of a judgment.

He maintained that the Court's Judgment of 11 June1998 had laid itself open to possible misconstruction by theParties leading to confusion, which, if not clarified, could beat variance with the provisions of the Statute and Rules ofCourt.

In his view, the real purpose of an interpretation is forthe Court to give precision and clarification of the meaningand scope of the Judgment in question and when the Courtstated that it had not distinguished between "incidents" and"facts" in its Judgment of 11 June 1998 and had found that"additional incidents" constituted "additional facts", therewas room for clarification.

Judge Koroma also stated that the request should havebeen declared admissible, as the Applicant had establishedits interests, both in law and in fact, which were worthy oflegal protection and would ensure that the other Partyobserved the obligations imposed by the Statute and Rulesof Court.


Judge Ajibola, in his dissenting opinion, first explainedwhy he is of the opinion that the Court, in view of theclearly contentious nature of Nigeria's Application, shouldhave allowed for a second round of pleadings.

He then stated that he agreed with the Court's Judgmentinsofar as the questions of jurisdiction and of costs wereconcerned; but that he was of the view that the Court shouldhave considered the Nigerian Application admissible.

The Court should have interpreted its Judgment of 11June 1998 because in the two paragraphs that Nigeria isrequesting the Court to interpret, the Court has decided onthe issue of the procedural right of Cameroon to:(a) develop what is "said" in its "Application" and(b) present "additional facts". But quite clearly the Courthas not determined the issue of additional incidents or newincidents.

The Court should therefore, in Judge Ajibola's view,have clarified the category of incidents alleged byCameroon to be relevant: are they pre-1994 incidents only,or pre- and post-1994 incidents? The issue of whatadditional facts are required from Cameroon should equallyhave been spelt out very clearly by the Court: are theseadditional facts in relation to the incidents before theApplications of Cameroon in 1994 or do they includeadditional facts concerning incidents subsequent to the year1994? If the Court agrees that Cameroon may file additional

facts, is the Court also saying that Cameroon can fileparticulars of additional incidents after 1994?

Judge Ajibola finally pointed out that, in his view, theword "dispute" in Article 36, paragraph 2, of the Court'sStatute relates only to pre-existing disputes or incidents thatoccurred before the filing of an application, but definitelynot to a future dispute.

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115. DIFFERENCE RELATING TO IMMUNITY FROM LEGAL PROCESS OF ASPECIAL RAPPORTEUR OF THE COMMISSION ON HUMAN RIGHTS

Advisory opiniom of 29 April 1999

The Court handed down its advisory opinion on therequest of the Economic and Social Council (ECOSOC),one of the six principal organs of the United Nations, in thecase concerning the Difference Relating to Immunity fromLegal Process of a Special Rapporteur of the Commissionon Human Rights.

The Court was of the opinion, by fourteen votes to one,that Article VI, Section 22, of the Convention on thePrivileges and Immunities of the United Nations was"applicable" in the case of Dato' Param Cumaraswamy, aMalaysian jurist who was appointed Special Rapporteur onthe Independence of Judges and Lawyers by the UnitedNations Commission on Human Rights in 1994, and that hewas "entitled to immunity from legal process of every kindfor the words spoken by him during an interview aspublished in an article in the November 1995 issue ofInternational Commercial Litigation".

In its Advisory Opinion, the Court held that theGovernment of Malaysia should have informed theMalaysian courts of the finding of the Secretary-Generaland that these courts should have dealt with the question ofimmunity as a preliminary issue to be expeditiouslydecided. It unanimously stated that Mr. Cumaraswamyshould be "held financially harmless for any costs imposedupon him by the Malaysian courts, in particular taxedcosts".

The Court also found, by thirteen votes to two, that theGovernment of Malaysia now had "the obligation tocommunicate [the] advisory opinion to the Malaysiancourts, in order that Malaysia's international obligations begiven effect and [Mr.] Cumaraswamy's immunity berespected".

The Court was composed as follows;: PresidentSchwebel; Vice-President Weeramantry: Judges Oda,Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer,Koroma, Vereshchetin, Higgins, Parra-Aranguren,Kooijmans, Rezek; Registrar Valencia-Ospina.

The full text of the final paragraph of the opinion readsas follows:

"67. For these reasons,The CourtIs of the opinion:(I) (a) By fourteen votes to one,That Article VI, Section 22, of the Convention on the

Privileges and Immunities of the United Nations isapplicable in the case of Dato' Param Cumaraswamy as

Special Rapporteur of the Commission on Human Rightson the Independence of Judges and Lawyers;

IN FAVOUR: President Schwebel; Vice-PresidentWeeramantry; Judges Oda, Bedjaoui, Guillaume,Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin,Higgins, Parra-Aranguren, Kooijmans, Rezek;

AGAINST: Judge Koroma;(b) By fourteen votes to one,That Dato' Param Cumaraswamy is entitled to

immunity from legal process of every kind for the wordsspoken by him during an interview as published in anarticle in the November 1995 issue of InternationalCommercial Litigation;


AGAINST: Judge Koroma;(2) (a) By thirteen votes to two,That the Government of Malaysia had the obligation

to inform the Malaysian courts of the finding of theSecretary-General that Dato' Param Cumaraswamy wasentitled to immunity from legal process;

IN FAVOUR: President Schwebel; Vice-PresidentWeeramantry; Judges Bedjaoui, Guillaume, Ranjeva,Herczegh, Shi, Fleischhauer, Vereshchetin, Higgins,Parra-Aranguren, Kooijmans, Rezek;

AGAINST: Judges Oda, Koroma;(b) By fourteen votes to one,That the Malaysian courts had the obligation to deal

with the question of immunity from legal process as apreliminary issue to be expeditiously decided in liminelitis;


AGAINST: Judge Koroma;(3) Unanimously,That Dato' Param Cumaraswamy shall be held

financially harmless for any costs imposed upon him bythe Malaysian courts, in particular taxed costs;

(4) By thirteen votes to two,That the Government of Malaysia has the obligation

to communicate this advisory opinion to the Malaysiancourts, in order that Malaysia's international obligationsbe given effect and Dato' Param Cumaraswamy'simmunity be respected;

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IN FAVOUR: President Schwebel; Vice-PresidentWeeramantry; Judges Bedjaoui, Guillaume, Ranjeva,Herczegh, Shi, Fleischhauer, Vereshchetin, Higgins,Parra-Aranguren, Kooijmans, Rezek;

AGAINST: Judges Oda, Koroma."

Vice-President Weeramantry and Judges Oda and Rezekappended separate opinions to the Advisory Opinion of theCourt. Judge Koroma appended a dissenting opinion.

Review of the proceedings and summary of facts(paras. 1-21)

The Court begins by recalling that the question on whichit has been requested to give an advisory opinion is set forthin decision 1998/297 adopted by the United NationsEconomic and Social Council (hereinafter called the"Council") on 5 August 1998. Decision 1998/297 reads asfollows:

"The Economic and Social Council,Having considered the note by the Secretary-General

on the privileges and immunities of the SpecialRapporteur of the Commission on Human Rights on theindependence of judges and lawyers,1

Considering that a difference has arisen between theUnited Nations and the Government of Malaysia, withinthe meaning of Section 30 of the Convention on thePrivileges and Immunities of the United Nations, withrespect to the immunity from legal process of Dato'Param Cumaraswamy, the Special Rapporteur of theCommission on Human Rights on the independence ofjudges and lawyers,

Recalling General Assembly resolution 89 (I) of 11December 1946,

1. Requests on a priority basis, pursuant to Article96, paragraph 2, of the Charter of the United Nationsand in accordance with General Assembly resolution89 (I), an advisory opinion from the International Courtof Justice on the legal question of the applicability ofArticle VI, Section 22, of the Convention on thePrivileges and Immunities of the United Nations in thecase of Dato' Param Cumaraswamy as SpecialRapporteur of the Commission on Human Rights on theindependence of judges and lawyers, taking into accountthe circumstances set out in paragraphs 1 to 15 of thenote by the Secretary-General1, and on the legalobligations of Malaysia in this case;

2. Calls upon the Government of Malaysia to ensurethat all judgements and proceedings in this matter in theMalaysian courts are stayed pending receipt of the

'E/1998/94.

advisory opinion of the International Court of Justice,which shall be accepted as decisive by the parties."Enclosed with the letter of transmittal of the Secretary-

General was a note by him dated 28 July 1998 and entitled"Privileges and Immunities of the Special Rapporteur of theCommission on Human Rights on the Independence ofJudges and Lawyers" (E/l 998/94) and an addendum to thatnote.

After outlining the successive stages of the proceedings(paras. 2-9), the Court observes that in its decision1998/297, the Council asked the Court to take into account,for purposes of the advisory opinion requested, the"circumstances set out in paragraphs 1 to 15 of the note bythe Secretary-General" (E/l998/94). The text of thoseparagraphs is then reproduced. They set out the following:

In 1946, the General Assembly adopted, pursuant toArticle 105 (3) of the Charter, the Convention on thePrivileges and Immunities of the United Nations (theConvention), to which 137 member States have becomeparties and provisions of which have been incoiporated byreference into many hundreds of agreements relating to theUnited Nations and its activities. The Convention is, interalia, designed to protect various categories of persons,including "Experts on Mission for the United Nations",from all types of interference by national authorities. Inparticular, Section 22 (b) of Article VI of the Conventionprovides:

"Section 22: Experts (other than officials coming withinthe scope of Article V) performing missions for theUnited Nations shall be accorded such privileges andimmunities as are necessary for the independent exerciseof their functions during the period of their missions,including time spent on journeys in connection withtheir missions. In particular they shall be accorded:

(b) in respect of words spoken or written and actsdone by them in the course of the performance of theirmission, immunity from legal process of every kind.This immunity from legal process shall continue to beaccorded notwithstanding that the persons concerned areno longer employed on missions for the UnitedNations."In its Advisory Opinion of 14 December 1989 (in the so-

called "Mazilu" case), the International Court of Justice heldthat a Special Rapporteur of the Subcommission on thePrevention of Discrimination and Protection of Minoritiesof the Commission on Human Rights was an "expert onmission" within the meaning of Article VI of theConvention.

The Commission on Human Rights in 1994 appointedDato' Param Cumaraswamy, a Malaysian jurist, as theCommission's Special Rapporteur on the Independence ofJudges and Lawyers. His mandate consists of tasksincluding, inter alia, to enquire into substantial allegationsconcerning, and to identify and record attacks on, theindependence of the judiciary, lawyers and court officials.Mr. Cumaraswamy has submitted four reports to theCommission on the execution of his mandate. After the thirdreport containing a section on the litigation pending against

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him in the Malaysian civil courts, the Commission, in April1997, renewed his mandate for an additional three years.

As a result of an article published on the basis of aninterview which the Special Rapporteur gave to a magazine(Tnternatio7ial Commercial Litigation) in November 1995,two commercial companies in Malaysia asserted that thesaid article contained defamatory words that had "broughtthem into public scandal, odium and contempt". Eachcompany filed a suit against him for damages amounting toM$ 30 million (approximately US$ 12 million each),"including exemplary damages for slander".

Acting on behalf of the Secretary-General, the LegalCounsel of the United Nations considered the circumstancesof the interview and of the controverted passages of thearticle and determined that Dato' Param Cumaraswamy wasinterviewed in his official capacity as Special Rapporteur onthe Independence of Judges and Lawyers, that the articleclearly referred to his United Nations capacity and to theSpecial Rapporteur's global mandate to investigateallegations concerning the independence of the judiciary andthat the quoted passages related to such allegations. On 15January 1997, the Legal Counsel, in a note verbale,"requested the competent Malaysian authorities to promptlyadvise the Malaysian courts of the Special Rapporteur'simmunity from legal process" with respect to that particularcomplaint. On 20 January 1997, the Special Rapporteurfiled an application in the High Court of Kuala Lumpur (thetrial court in which the suit had been filed) to set asideand/or strike out the plaintiffs' writ, on the ground that thewords that were the subject of the suits had been spoken byhim in the course of performing his mission for the UnitedNations as Special Rapporteur on the Independence ofJudges and Lawyers. The Secretary-General issued a noteon 7 March 1997 confirming that "the words whichconstitute the basis of plaintiffs' complaint in this case werespoken by the Special Rapporteur in the course of hismission" and that the Secretary-General "thereforemaintains that Dato' Param. Cumaraswamy is immune fromlegal process with respect thereto". The Special Rapporteurfiled this note in support of his above-mentionedapplication.

In spite of representations that had been made by theOffice of Legal Affairs, a certificate filed by the MalaysianMinister for Foreign Affairs with the trial court failed torefer in any way to the note that the Secretary-General hadissued a few days earlier and that had in the meantime beenfiled with the court, nor did it indicate that in this respect,i.e., in deciding whether particular words or acts of anexpert fell within the scope of his mission, the determinationcould exclusively be made by the Secretary-General, andthat such determination had conclusive effect and thereforehad to be accepted as such by the court. In spite of repeatedrequests by the Legal Counsel, the Minister for ForeignAffairs refused to amend his certificate or to supplement itin the manner urged by the United Nations.

On 28 June 1997, the competent judge of the MalaysianHigh Court for Kuala Lumpur concluded that she was"unable to hold that the Defendant is absolutely protected by

the immunity he claims", in part because she considered thatthe Secretary-General's note was merely "an opinion" withscant probative value and no binding force upon the courtand that the Minister for Foreign Affairs' certificate "wouldappear to be no more than a bland statement as to a state offact pertaining to the Defendant's status and mandate as aSpecial Rapporteur and appears to have room forinterpretation". The Court ordered that the SpecialRapporteur's motion be dismissed with costs, that costs betaxed and paid forthwith by him and that he file and servehis defence within 14 days. On 8 July, the Court of Appealdismissed Mr. Cumaraswamy's motion for a stay ofexecution.

In July 1997, the Legal Counsel called on the MalaysianGovernment to intervene in the current proceedings so thatthe burden of any further defence, including any expensesand taxed costs resulting therefrom, could be assumed bythe Government; to hold Mr. Cumaraswamy harmless inrespect of the expenses he had already incurred or that werebeing taxed to him in respect of the proceedings so far; and,so as to prevent the accumulation of additional expenses andcosts and the further need to submit a defence until thematter of his immunity was definitively resolved betweenthe United Nations and the Government, to support a motionto have the High Court proceedings stayed until suchresolution. The Legal Counsel referred to the provisions forthe settlement of differences arising out of the interpretationand application of the 1946 Convention that might arisebetween the Organization and a member State, which are setout in Section 30 of the Convention, and indicated that if theGovernment decided that it could not or did not wish toprotect and to hold harmless the Special Rapporteur in theindicated manner, a difference within the meaning of thoseprovisions might be considered to have arisen between theOrganization and the Government of Malaysia.

Section 30 of the Convention provides as follows:"Section 30: All differences arising out of theinterpretation or application of the present conventionshall be referred to the International Court of Justice,unless in any case it is agreed by the parties to haverecourse to another mode of settlement. If a differencearises between the United Nations on the one hand and aMember on the other hand, a request shall be made foran advisory opinion on any legal question involved inaccordance with Article 96 of the Charter and Article 65of the Statute of the Court. The opinion given by theCourt shall be accepted as decisive by the parties."On 10 July, yet another lawsuit was filed against the

Special Rapporteur. On 11 July, the Secretary-Generalissued a note corresponding to the one of 7 March 1997 andalso communicated a note verbale with essentially the sametext to the Permanent Representative of Malaysia with therequest that it be presented formally to the competentMalaysian court by the Government. On 23 October and 21November 1997, new plaintiffs filed third and fourthlawsuits against the Special Rapporteur. On 27 October and22 November 1997, the Secretary-General issued identicalcertificates of the Special Rapporteur's immunity.

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On 7 November 1997, the Secretary-General advised thePrime Minister of Malaysia that a difference might havearisen between the United Nations and the Government ofMalaysia and about the possibility of resorting to theInternational Court of Justice pursuant to Section 30 of theConvention. Nonetheless on 19 February 1998, the FederalCourt of Malaysia denied Mr. Cumaraswamy's applicationfor leave to appeal stating that he was neither a sovereignnor a full-fledged diplomat but merely "an unpaid, part-timeprovider of information".

The Secretary-General then appointed a Special Envoy,Maître Yves Fortier of Canada, who, after two official visitsto Kuala Lumpur, and after negotiations to reach an out-of-court settlement had failed, advised that the matter shouldbe referred to the Council to request an advisory opinionfrom the International Court of Justice. The United Nationshad exhausted all efforts to reach either a negotiatedsettlement or a joint submission through the Council to theInternational Court of Justice. In this connection, theGovernment of Malaysia had acknowledged theOrganization's right to refer the matter to the Council torequest an advisory opinion in accordance with Section 30of the Convention, advised the Secretary-General's SpecialEnvoy that the United Nations should proceed to do so, andindicated that, while it would make its own presentations tothe International Court of Justice, it did not oppose thesubmission of the matter to that Court through the Council.

After reproducing paragraphs 1-15 of the Secretary-General's note, the Court then refers to the dossier ofdocuments submitted to it by the Secretary-General, whichcontains additional information that bears on anunderstanding of the request to the Court, concerning thecontext in which Mr. Cumaraswamy was asked to givehis comments; concerning the proceedings againstMr. Cumaraswamy in the High Court of Kuala Lumpur,which did not pass upon Mr. Cumaraswamy's immunity inlimine litis, but held that it had jurisdiction to hear the casebefore it on the merits, including making a determination ofwhether Mr. Cumaraswamy was entitled to any immunity, adecision upheld by both the Court of Appeal and the FederalCourt of Malaysia; and concerning the regular reports,which the Special Rapporteur made to the Commission onHuman Rights and in which he reported on the lawsuitsinitiated against him. The Court further refers to theconsideration and adoption without a vote by the Council ofthe draft decision requesting the Court to give an advisoryopinion on the question formulated therein, and the fact thatat that meeting, the Observer for Malaysia confirmed hisprevious criticism of the Secretary-General's note, but madeno comment on the terms of the question to be put to theCourt as now formulated by the Council. Finally,Malaysia's information on the status of proceedings in theMalaysian courts is referred to.

The Court's power to give an advisory opinion(paras. 22-27)

The Court begins by observing that this is the first timethat the Court has received a request for an advisory opinionthat refers to Article VIII, Section 30, of the GeneralConvention, quoted above.

This section provides for the exercise of the Court'sadvisory function in the event of a difference between theUnited Nations and one of its Members. The existence ofsuch a difference does not change the advisory nature of theCourt's function, which is governed by the terms of Article96 of the Charter and Article 65 of the Statute. A distinctionshould thus be drawn between the advisory nature of theCourt's task and the particular effects that parties to anexisting dispute may wish to attribute, in their mutualrelations, to an advisory opinion of the Court, which, "assuch, ... has no binding force". These particular effects,extraneous to the Charter and the Statute which regulate thefunctioning of the Court, are. derived from separateagreements; in the present case Article VIII, Section 30, ofthe General Convention provides that "[t]he opinion givenby the Court shall be accepted as decisive by the parties".That consequence has been expressly acknowledged by theUnited Nations and by Malaysia.

The power of the Court to give an advisory opinion isderived from Article 96, paragraph 2, of the Charter andfrom Article 65 of the Statute. Both provisions require thatthe question forming the subject matter of the request shouldbe a "legal question". This condition is satisfied in thepresent case, as all participants in the proceedings haveacknowledged, because the advisory opinion requestedrelates to the interpretation of the General Convention, andto its application to the circumstances of the case of theSpecial Rapporteur, Dato' Param Cumaraswamy.

Article 96, paragraph 2, of the Charter also requires thatthe legal questions forming the subject matter of advisoryopinions requested by authorized organs of the UnitedNations and specialized agencies shall arise "within thescope of their activities". The fulfilment of this conditionhas not been questioned by any of the participants in thepresent proceedings. The Court finds that the legal questionssubmitted by the Council in its request concern the activitiesof the Commission since they relate to the mandate of itsSpecial Rapporteur appointed "to inquire into substantialallegations concerning, and to identify and record attackson, the independence of the judiciary, lawyers and courtofficials".

Discretionary power of the Court(paras. 28-30)

As the Court held in its Advisory Opinion of 30 March1950, the permissive character of Article 65 of the Statute"gives the Court the power to examine whether thecircumstances of the case are of such a character as shouldlead it to decline to answer the Request" {Interpretation ofPeace Treaties with Bulgaria, Hungary and Romania, FirstPhase. Advisory Opinion, I.C.J. Reports 1950, p. 72). In the

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present case, the Court, having established its jurisdiction,finds no compelling reasons not to give the advisory opinionrequested by the Council. Moreover, no participant in theseproceedings questioned the need for the Court to exercise itsadvisory function in this case.

The question on which the opinion is requested(paras. 31-37)

As the Council indicated in the preamble to its decision1998/297, that decision was adopted by the Council on thebasis of the note submitted by the Secretary-General on"Privileges and Immunities of the Special Rapporteur of theCommission on Human Rights on the Independence ofJudges and Lawyers". Paragraph 1 of the operative part ofthe decision refers expressly to paragraphs 1 to 15 of thatnote but not to paragraph 21, containing two questions thatthe Secretary-General proposed submitting to the Court. TheCourt would point out that the wording of the questionsubmitted by the Council is quite different from thatproposed by the Secretary-General.

Participants in these proceedings, including Malaysiaand other States, have advanced differing views as to whatis the legal question to be answered by the Court. The Courtobserves that it is for the Council — and not for a memberState or the Secretary-General — to formulate the terms of aquestion that the Council wishes to ask. Accordingly, theCourt will now answer the question as formulated by theCouncil.

AppUcability of Article VI, Section 22, of the GeneralConvention to Special Rapporteurs of the HumanRights Commission

(paras. 38-46)

The Court initially examines the first part of the questionlaid before the Court by the Council, which is:

"the legal question of the applicability of Article VI,Section 22, of the Convention on the Privileges andImmunities of the United Nations in the ease of Dato'Param Cumaraswamy as Special Rapporteur of theCommission on Human Rights on the independence ofjudges and lawyers, taking into account thecircumstances set out in paragraphs 1 to 15 of the noteby the Secretary-General...".

From the deliberations which took place in ¿he Council itis clear that the request of the Council does not only pertainto the threshold question whether Mr. Cumaraswamy wasand is an expert on mission in the sense of Article VI,Section 22, of the General. Convention but, in the event ofan affirmative answer to this question, to the consequencesof that finding in the circumstances of the casie. The Courtnotes that Malaysia became a party to the GeneralConvention, without reservation, on 28 October 1957. [Partof Section 22 of Article VI of that Convention is quotedabove, on p. 2.]

The Court then recalls that in its Advisory Opinion of 14December J 989 (in the so-called "Mazilu" case) it stated:

"The purpose of Section 22 is ... evident, namely, toenable the United Nations to entrust missions to personswho do not have the status of an official of theOrganization, and to guarantee them 'such privilegesand immunities as are necessary for the independentexercise of their functions'. ... The essence of the matterlies not in their administrative position but in the natureof their mission." (I.CJ. Reports 1989, p. 194, para. 47)In that same Advisory Opinion, it concluded that a

Special Rapporteur who is appointed by the Sub-Commission on Prevention of Discrimination and Protectionof Minorities and is entrusted with a research mission mustbe regarded as an expert on mission within the meaning ofArticle VI, Section 22, of the General Convention.

The Court finds that the same conclusion must be drawnwith regard to Special Rapporteurs appointed by the HumanRights Commission, of which the Sub-Commission is asubsidiary organ. It observes that Special Rapporteurs of theCommission usually are entrusted not only with a researchmission but also with the task of monitoring human rightsviolations and reporting on them. But what is decisive isthat they have been entrusted with a mission by the UnitedNations and are therefore entitled to the privileges andimmunities provided for in Article VI, Section 22, thatsafeguard the independent exercise of their functions. Afterexamining Mr. Cumaraswamy's mandate, the Court findsthat he must be regarded as an expert on mission within themeaning of Article VI, Section 22, as from 21 April 1994,that by virtue of this capacity the provisions of this Sectionwere applicable to him at the time of his statements at issue,and that they continue to be applicable.

The Court finally observes that Malaysia hasacknowledged that Mr. Cumaraswamy, as SpecialRapporteur of the Commission, is an expert on mission andthat such experts enjoy the privileges and immunitiesprovided for under the General Convention in their relationswith States parties, including those of which they arenationals or on the territory of which they reside. Malaysiaand the United Nations are in full agreement on these points,as are the other States participating in the proceedings.

Applicability of Article VI, Section 22, of the GeneralConvention in the specific circumstances of the case

(paras. 47-56)

The Court then considers the question whether theimmunity provided for in Section 22 (b) applies to Mr.Cumaraswamy in the specific circumstances of the case;namely, whether the words used by him in the interview, aspublished in the article in International CommercialLitigation (November 1995 issue), were spoken in thecourse of the performance of his mission, and whether hewas therefore immune from legal process with respect tothese words.

In the process of determining whether a particular experton mission is entitled, in the prevailing circumstances, to theimmunity provided for in Section 22 (b), the Secretary-General of the United Nations has a pivotal role to play. TheSecretary-General, as the chief administrative officer of the

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Organization, has the authority and the responsibility toexercise the necessary protection where required. Article VI,Section 23, of the General Convention provides that"[privileges and immunities are granted to experts in theinterests of the United Nations and not for the personalbenefit of the individuals themselves". In exercisingprotection of United Nations experts, the Secretary-Generalis therefore protecting the mission with which the expert isentrusted. In that respect, the Secretary-General has theprimary responsibility and authority to protect the interestsof the Organization and its agents, including experts onmission.

The determination whether an agent of the Organizationhas acted in the course of the performance of his missiondepends upon the facts of a particular case. In the presentcase, the Secretary-General, or the Legal Counsel of theUnited Nations on his behalf, has on numerous occasionsinformed the Government of Malaysia of his finding thatMr. Cumaraswamy had spoken the words quoted in thearticle in International Commercial Litigation in hiscapacity as Special Rapporteur of the Commission and thathe consequently was entitled to immunity from "every kind"of legal process. The Secretary-General was reinforced inthis view by the fact that it has become standard practice ofSpecial Rapporteurs of the Commission to have contact withthe media.

The Court notes that Mr. Cumaraswamy was explicitlyreferred to several times in the article "Malaysian Justice onTrial" in International Commercial Litigation in hiscapacity as United Nations Special Rapporteur on theIndependence of Judges and Lawyers, and further that in itsvarious resolutions the Commission took note of the SpecialRapporteur's reports and of his methods of work. In 1997, itextended his mandate for another three years. TheCommission presumably would not have so acted if it hadbeen of the opinion that Mr. Cumaraswamy had gonebeyond his mandate and had given the interview toInternational Commercial Litigation outside the course ofhis functions. Thus the Secretary-General was able to findsupport for his findings in the Commission's position.

The Court concludes that it is not called upon in thepresent case to pass upon the aptness of the terms used bythe Special Rapporteur or his assessment of the situation. Inany event, in view of all the circumstances of this case,elements of which are set out in paragraphs 1 to 15 of thenote by the Secretary-General, the Court is of the opinionthat the Secretary-General correctly found that Mr.Cumaraswamy, in speaking the words quoted in the articlein International Commercial Litigation, was acting in thecourse of the performance of his mission as SpecialRapporteur of the Commission. Consequently, Article VI,Section 22 (ft), of the General Convention is applicable tohim in the present case and affords Mr. Cumaraswamyimmunity from legal process of every kind.

Legal obligations of Malaysia in the case(paras. 57-65)

The Court then deals with the second part of theCouncil's question, namely, "the legal obligations ofMalaysia in this case". Rejecting Malaysia's argument thatit is premature to deal with that question, the Court pointsout that the difference which has arisen between the UnitedNations and Malaysia originated in the failure of theGovernment of Malaysia to inform the competent Malaysianjudicial authorities of the Secretary-General's finding thatMr. Cumaraswamy had spoken the words at issue in thecourse of the performance of his mission and was, therefore,entitled to immunity from legal process. It is as from thetime of this omission that the question before the Court mustbe answered.

As the Court has observed, the Secretary-General, as thechief administrative officer of the Organization, has theprimaiy responsibility to safeguard the interests of theOrganization; to that end, it is up to him to assess whetherits agents acted within the scope of their functions and,where he so concludes, to protect these agents, includingexperts on mission, by asserting their immunity. This meansthat the Secretary-General has the authority andresponsibility to inform the government of a member Stateof his finding and, where appropriate, to request it to actaccordingly and, in particular, to request it to bring hisfinding to the knowledge of the local courts if acts of anagent have given or may give rise to court proceedings. Thatfinding, and its documentary expression, creates apresumption of immunity which can only be set aside forthe most compelling reasons and is thus to be given thegreatest weight by national courts. The governmentalauthorities of a party to the General Convention aretherefore under an obligation to convey such information tothe national courts concerned, since a proper application ofthe Convention by them is dependent on such information.Failure to comply with this obligation, among others, couldgive rise to the institution of proceedings under Article VIII,Section 30, of the General Convention.

The Court concludes that the Government of Malaysiahad an obligation, under Article 105 of the Charter andunder the General Convention, to inform its courts of theposition taken by the Secretary-General. According to awell-established rule of international law, the conduct of anyorgan of a State must be regarded as an act of that State.Because the Government did not transmit the Secretary-General's finding to the competent courts, and the Ministerfor Foreign Affairs did not refer to it in his own certificate,Malaysia did not comply with the above-mentionedobligation.

Section 22 (b) of the General Convention explicitlystates that experts on mission shall be accorded immunityfrom legal process of every kind in respect of words spokenor written and acts done by them in the course of theperformance of their mission. By necessary implication,questions of immunity are therefore preliminary issueswhich must be expeditiously decided in limine litis. This is agenerally recognized principle of law, and Malaysia was

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under an obligation to respect it. The Malaysian courts didnot rule in limine litis on the immunity of :he SpecialRapporteur, thereby nullifying the essence of the immunityrule contained in Section 22 (b). Moreover, costs were taxedto Mr. Cumaraswamy while the question of immunity wasstill unresolved. As indicated above, the conduct of an organof a State — even an organ independent of the executivepower — must be regarded as an act of that State.Consequently, Malaysia did not act in accordance with itsobligations under international law.

The Court adds that the immunity from legal process towhich it finds Mr. Cumaraswamy entitled entails holdingMr. Cumaraswamy financially harmless for any costsimposed upon him by the Malaysian courts, i:n particulartaxed costs.

It further observes that, according to Article VIII,Section 30, of the General Convention, the opinion given bythe Court shall be accepted as decisive by the parties to thedispute. Malaysia has acknowledged its obligations underSection 30. Since the Court holds that Mr. Cumaraswamy isan expert on mission who under Section 22 (b) is entitled toimmunity from legal process, the Government of Malaysiais obligated to communicate this advisory opinion to thecompetent Malaysian courts, in order that Malaysia'sinternational obligations be given effect and Mr.Cumaraswamy's immunity be respected.

Finally, the Court points out that the question ofimmunity from legal process is distinct from the issue ofcompensation for any damages incurred as a result of actsperformed by the United Nations or by its agents acting intheir official capacity. The United Nations may be requiredto bear responsibility for the damage arising from such acts.However, as is clear from Article VIII, Section 29, of theGeneral Convention, such compensation claims against theUnited Nations shall not be dealt with by national courts butshall be settled in accordance with the appropriate modes ofsettlement that the "United Nations shall make provisionsfor" pursuant to Section 29. The Court furthermoreconsiders that it need hardly be said that all agents of theUnited Nations, in whatever official capacity they act, musttake care not to exceed the scope of their functions, andshould so comport themselves as to avoid claim!; against theUnited Nations.

Separate opinion of Vice-President Weeramantry

Vice-President Weeramantry, in his separate opinion,stresses his agreement with the principles set out in theCourt's Opinion that national courts should immediately benotified of any finding by the Secretary-General concerningthe immunity of a United Nations agent, and that theSecretary-General's finding carries a presumption ofimmunity which can only be set aside for the mostcompelling reasons.

This Opinion draws attention to the differences betweenclaims to immunity of State functionaries and such claims

by United Nations functionaries, for the latter function inthe interests of the community of nations as represented bythe United Nations, and not on behalf of any particularState. The jurisprudence that has grown up regarding therights of domestic courts to determine questions relating tothe immunities of the representatives or officials of oneState for their actions in another State is therefore notnecessarily applicable in its entirety where United Nationspersonnel are involved. If a domestic court is free todisregard the determination of the Secretary-General ontheir immunities, many problems would arise in relation toUnited Nations activity in a number of areas.

There is also a need for uniformity in the jurisprudencerelating to this matter, irrespective of where a particularrapporteur functions. It is not conducive to the evolution ofa uniform system of international administrative law ifrapporteurs could have different privileges depending onwhere they function. This underlines the importance of theconclusiveness of the Secretary-General's determination.

It need scarcely be stressed that rapporteurs, in makingstatements to the media, will always be expected to ensurethat they act within the limits of the performance of theirmission.


Judge Oda points out that, while the Court was requestedby ECOSOC to reply on the issue relating to the legalimmunity to be granted to Mr. Cumaraswamy, the SpecialRapporteur of the United Nations Commission on HumanRights, with regard to the words he spoke during aninterview with a business journal, the question had,however, originally been formulated differently, the issuethen being whether the United Nations Secretary-Generalhad the exclusive authority to determine whether Mr.Cumaraswamy would be entitled to legal immunity. JudgeOda expresses his apprehension that the Court's AdvisoryOpinion seems to be more concerned with the Secretary-General's competence, rather than with the legal immunityto be granted to Mr. Cumaraswamy.

Judge Oda considers that the issue to be decided iswhether Mr. Cumaraswamy should be immune from legalprocess of the Malaysian courts in respect of what he statedin the interview with a business journal on account of whichdefamation suits were brought against him in the Malaysiancourts by certain private companies. The essential issue,according to Judge Oda, is related not to the words spokenby Mr. Cumaraswamy but to whether he spoke the words inthe course of the performance of his mission as a SpecialRapporteur of the Commission on Human Rights. JudgeOda takes the view that the contact the Special Rapporteurmaintained with the media in connection with his mandatefalls in general within the mission of a special rapporteur. Inthis respect, Judge Oda supports the conclusion of the Courtas set out in paragraphs (1) (a), (1 ) (b) and paragraph (3) ofthe operative part.

Judge Oda is in full agreement with the Court when itstates in paragraph (2) (b) of the operative part that theMalaysian courts had the obligation to deal with the

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question of immunity from legal process as a preliminaryissue to be expeditiously decided in limine litis.

Judge Oda cannot, however, agree with the Court'sfindings in paragraph (2) (a) and paragraph (4) of theoperative part, which relate to the legal obligations ofMalaysia, as put to the Court in the second questioncontained in the request for advisory opinion. In his view,Malaysia, as a State, is responsible for not having ensuredthat Mr. Cumaraswamy enjoyed legal immunity. However,whether the Government of Malaysia should have informedits national courts of the view of the United NationsSecretary-General is not a relevant matter in this respect.Furthermore, Judge Oda cannot see any such obligation ofthe Government of Malaysia to communicate this AdvisoryOpinion to the Malaysian national courts, as it is obviousthat Malaysia, as a State, is bound to accept this AdvisoryOpinion, under Article VIII, Section 30, of the Conventionon the Privileges and Immunities of the United Nations, asdecisive.


Judge Rezek, while sharing the views of the majority,wishes to emphasize that the obligation incumbent uponMalaysia is not merely to notify the Malaysian courts of thefinding of the Secretary-General, but to ensure that theimmunity is respected. In his view, a government willensure respect for immunity if it uses all the means at itsdisposal in relation to the judiciary in order to have thatimmunity applied, in exactly the same way as it defends itsown interests and positions before the courts. Membershipof an international organization requires that every State, inits relations with the organization and its agents, display anattitude at least as constructive as that which characterizesdiplomatic relations.


In his dissenting opinion Judge Koroma stated that,much as he would have liked to vote in favour of theAdvisory Opinion if it would help to settle differencesbetween the United Nations Organization and theGovernment of Malaysia, however, he was unable to do soin the face of the Convention, the general principles ofjustice and his own legal conscience.

Judge Koroma emphasized that the dispute was notabout the human rights of the Special Rapporteur or whetherthe Government of Malaysia was in breach of its obligationsunder the Human Rights Conventions to which it is a party.Rather the dispute was about whether the SpecialRapporteur was immune from legal process for wordsspoken by him and whether such words were spoken in theperformance of his mission, and hence the applicability ofthe Convention.

Judge Koroma pointed to the differences in the questionproposed by the Secretary-General to the Economic andSocial Council (ECOSOC) for submission to the Court foran advisory opinion and the Council's subsequentreformulation of the question without explanation. While herecognized the right of ECOSOC to formulate the question,he maintained that the Court in exercising its judicialdiscretion need not answer the question if it was tendentiousand left the Court with no option but to give its judicialimprimatur to a particular viewpoint. On the other hand, inhis view, if the Court was disposed to answer the question,it should have answered the "real question". Moreover, inorder to determine whether the Convention was applicable,the Court should have enquired into the facts of the case andnot relied on the finding of another organ.

He stressed that whether the Convention was applicableto the Special Rapporteur was not an abstract question andthat the answer should have been predicated on whether thewords spoken were spoken in the performance of hismission — a matter of mixed law and fact — to bedetermined on its merits, that it would be only after such adetermination that the Court would be in a position to saywhether the Convention was applicable. In his opinion, thecriteria taken into consideration by the Court — such as theSpecial Rapporteur's appointment by the Human RightsCommission and the finding by the Secretary-General thatMr. Cumaraswamy had acted in the performance of hismission — while they were to be given recognition andtreated with respect, were not conclusive, and judiciallyinsufficient to conclude that the Convention was applicable.

He noted that the observation by the Court that "[i]t needhardly be said that all agents of the United Nations, inwhatever official capacity they act, must take care not toexceed the scope of their functions, and should so comportthemselves as to avoid claims against the United Nations",is not without particular importance and significance in thiscase.

In Judge Koroma's view, the Government of Malaysia'sobligation under the Convention is one of result not one ofmeans and the Convention does not stipulate any particularmethod or means of implementation. Once the Court hadresponded that the Convention was applicable, theGovernment of Malaysia would assume its obligations,including holding the Special Rapporteur harmless for anytaxed costs imposed upon him, which was unnecessary toreflect in the operative paragraphs of the Opinion.

Finally, while he shared the Court's position that therendering of an advisory opinion should be seen as itsparticipation in the work of the Organization to achieve itsaims and objectives and that only compelling reasons shouldrestrain it from answering a request, he considered it equallyimportant that, even in giving an advisory opinion, theCourt cannot and should not depart from the essential rulesguiding its activity as a court.

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116. CASE CONCERNING LEGALITY OF USE OF FORCE (YUGOSLAVIA v.BELGIUM) (PROVISIONAL MEASURES)

Order of 2 June 1999

In an Order issued in the case concerning Legality ofUse of Force (Yugoslavia v. Belgium), the Court rejected bytwelve votes to four the request for the indication ofprovisional measures submiited by the Federal Republic ofYugoslavia (FRY). The Court also stated that it remainedseized of the case. It reserved the subsequent procedure forfurther decision by fifteen votes to one.

The Court was composed as follows: Vice-PresidentWeeramantry, Acting President; President Schwebel; JudgesOda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi,Fleischhauer. Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans; Judges ad hoc Kreca, E>uinslaeger;Registrar Valencia-Ospina.

The full text of the operative paragraph of the Orderreads as follows:

"51. For these reasons,THE COURT,(1) By twelve votes to four,Rejects the request for the indication of provisional

measures submitted by the Federal Republic ofYugoslavia on 29 April 1999;

IN FAVOUR: President Schwebel; Judges Oda,Bedjaoui, Guillaume, Ranjeva, Herczegh, Fleischhauer,Koroma, Higgins, Parra-Aranguren, Kooijmans; Judgead hoc Duinslaeger;

AGAINST: Vice-President Weeramaniry, ActingPresident; Judges Shi, Vereshchetin; Judge ad hocKreca;

(2) By fifteen votes to one,Reserves the subsequent procedure for further

decision.IN FAVOUR: Vice-President Weeramantry, Acting

President; President Schwebel; Judges Bedjaoui,Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer,Koroma, Vereshchetin, Higgins, Parra-Aranguren,Kooijmans; Judges ad hoc Kreca, Duinslaeger;

AGAINST: Judge Oda."

Judge Koroma appended a declaration to the Court'sOrder. Judges Oda, Higgins, Parra-Aranguren andKooijmans appended separate opinions. Vice-PresidentWeeramantry, Acting President, Judges Shi andVereshchetin, and Judge ad hoc Kreca appended dissentingopinions.

Background information

On 29 April 1999 Yugoslavia filed an Applicationinstituting proceedings against Belgium "for violation of theobligation not to use force", accusing that State of bombingYugoslav territory "together with other Member States ofNATO". On the same day, it submitted a request for theindication of provisional measures, asking the Court toorder Belgium to "cease immediately its acts of use offorce" and to "refrain from any act of threat or use of force"against the FRY.

As a basis for the jurisdiction of the Court, Yugoslaviainvoked the declarations by which both States had acceptedthe compulsory jurisdiction of the Court in relation to anyother State accepting the same obligation (Article 36,paragraph 2, of the Statute of the Court), and Article IX ofthe Convention on the Prevention and Punishment of theCrime of Genocide, adopted by the United Nations GeneralAssembly on 9 December 1948. Article IX of the GenocideConvention provides that disputes between the contractingparties relating to the interpretation, application orfulfilment of the Convention shall be submitted to theInternational Court of Justice. In a supplement to itsApplication submitted to the Court on 12 May 1999,Yugoslavia invoked, as an additional ground of jurisdiction,Article 4 of the Convention of Conciliation, JudicialSettlement and Arbitration between Belgium and theKingdom of Yugoslavia, signed at Belgrade on 25 March1930.

Reasoning of the Court

In its Order, the Court first emphasizes that it is "deeplyconcerned with the human tragedy, the loss of life, and theenormous suffering in Kosovo which form the background"of the dispute and "with the continuing loss of life andhuman suffering in all parts of Yugoslavia". It declares itself"profoundly concerned with the use of force in Yugoslavia",which "under the present circumstances ... raises veryserious issues of international law". While being "mindfulof the purposes and principles of the United Nations Charterand of its own responsibilities in the maintenance of peaceand security under the Charter and [its] Statute", the Court"deems it necessary to emphasize that all parties before itmust act in conformity with their obligations under theUnited Nations Charter and other rules of international law,including humanitarian law".

The Court then points out that it "does not automaticallyhave jurisdiction over legal disputes between States" andthat "one of the fundamental principles of its Statute is that

71

it cannot decide a dispute between States without theconsent of those States to its jurisdiction". It cannot indicateprovisional measures without its jurisdiction in the casebeing established prima facie.

Concerning the first basis of jurisdiction invoked, theCourt observes that under the terms of its declaration,Yugoslavia limits its acceptance of the Court's compulsoryjurisdiction to "disputes arising or which may arise after thesignature of the present Declaration, with regard to thesituations or facts subsequent to this signature". Itemphasizes that although Belgium did not base anyargument on this provision, the Court must consider whateffects it might have prima facie upon its jurisdiction. In thisregard, the Court states, it is sufficient to decide whether thedispute brought to the Court "arose" before or after 25 April1999, the date on which the declaration was signed. It findsthat the bombings began on 24 March 1999 and have beenconducted continuously over a period extending beyond 25April 1999. The Court has thus no doubt that a "legaldispute ... 'arose' between Yugoslavia and [Belgium], as itdid also with the other NATO member States, well before25 April 1999". The Court concludes that the declarationsmade by the Parties do not constitute a basis on which thejurisdiction of the Court could prima facie be founded in thecase.

As to Belgium's argument that Yugoslavia is not amember State of the United Nations in view of UnitedNations General Assembly resolution 47/1 (1992), nor inconsequence a party to the Statute of the Court, so thatYugoslavia cannot subscribe to the optional clause ofcompulsory jurisdiction, the Court maintains that it need notconsider this question, taking into account its finding thatthe declarations do not constitute a basis of jurisdiction.

Concerning Article IX of the Genocide Convention, theCourt states that it is not disputed that both Yugoslavia andBelgium are parties to that Convention, without reservation,and that Article IX accordingly appears to constitute a basison which the jurisdiction of the Court might be founded.The Court however finds that it must ascertain whether thebreaches of the Convention alleged by Yugoslavia arecapable of falling within the provisions of that instrumentand whether, as a consequence, the dispute is one overwhich the Court might have jurisdiction ratione materiae. Inits Application, Yugoslavia contends that the subject of thedispute concerns inter alia "acts of the Kingdom of Belgiumby which it has violated its international obligation ... not todeliberately inflict conditions of life calculated to cause thephysical destruction of a national group". It contends thatthe sustained and intensive bombing of the whole of itsterritory, including the most heavily populated areas,constitutes "a serious violation of Article II of the GenocideConvention", that it is the Yugoslav nation as a whole andas such that is targeted and that the use of certain weaponswhose long-term hazards to health and the environment arealready known, and the destruction of the largest part of thecountry's power supply system, with catastrophicconsequences of which the Respondent must be aware,"impl[yj the intent to destroy, in whole or in part", the

Yugoslav national group as such. For its part, Belgium,referring to the definition of genocide contained in theConvention, emphasizes the importance of "the intentionalelement, the intent to destroy all or part of an ethnic, racialor religious [group]". It asserts that Yugoslavia cannot"produce the slightest evidence of such intention" on thepart of Belgium in this case. It appears to the Court that,according to the Convention, the essential characteristic ofgenocide is the intended destruction of a national, ethnical,racial or religious group; the Court further states that "thethreat or use of force against a State cannot in itselfconstitute an act of genocide within the meaning of ArticleII of the Genocide Convention". It adds that in its opinion, itdoes not appear at the present stage of the proceedings thatthe bombings which form the subject of the YugoslavApplication "indeed entail the element of intent, towards agroup as such, required by the provision" mentioned above.The Court considers therefore that it is not in a position tofind, at this stage of the proceedings, that the acts imputedby Yugoslavia to Belgium are capable of coming within theprovisions of the Genocide Convention; and Article IXcannot accordingly constitute a basis on which thejurisdiction of the Court could prima facie be founded in thecase.

As to Article 4 of the Convention of Conciliation,Judicial Settlement and Arbitration between Belgium andthe Kingdom of Yugoslavia, the Court observes that "theinvocation by a party of a new basis of jurisdiction in thesecond round of oral argument on a request for theindication of provisional measures has never beforeoccurred in the Court's practice", that "such action at thislate stage, when not accepted by the other party, seriouslyjeopardizes the principle of procedural fairness and thesound administration of justice" and that in consequence theCourt cannot take into consideration this new title ofjurisdiction.

The Court having found that it has "no prima faciejurisdiction to entertain Yugoslavia's Application, either onthe basis of Article 36, paragraph 2, of the Statute or ofArticle IX of the Genocide Convention" and having "takenthe view that it cannot, at this stage of the proceedings, takeaccount of the additional basis of jurisdiction invoked byYugoslavia", it follows that the Court "cannot indicate anyprovisional measure whatsoever". However, the findingsreached by the Court "in no way prejudge the question ofthe jurisdiction of the Court to deal with the merits of thecase" and they "leave unaffected the right of theGovernments of Yugoslavia and Belgium to submitarguments in respect of those questions".

The Court finally observes that "there is a fundamentaldistinction between the question of the acceptance by a Stateof the Court's jurisdiction and the compatibility of particularacts with international law". "The former requires consent;the latter question can only be reached when the Court dealswith the merits after having established its jurisdiction andhaving heard full legal arguments by both parties." Itemphasizes that "whether or not States accept thejurisdiction of the Court, they remain in any event

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responsible for acts attributable to them that violateinternational law, including humanitarian law" and that "anydisputes relating to the legality of such acts are required tobe resolved by peaceful means, the choice of which,pursuant to Article 33 of the Charter, is left to the parties".In this context, "the parties should take care not to aggravateor extend the dispute". The Court reaffirms that "when sucha dispute gives rise to a threat to the peace, brsach of thepeace or act of aggression, the Security Council has specialresponsibilities under Chapter VII of the Charter".


In his declaration Judge Koroma observed that thesewere perhaps the most serious cases that have ever comebefore the Court for provisional measures. He stated thatjurispradentially such measures were designed to preventviolence, the use of force, to safeguard international peaceand security as well as serving as an important part of thedispute settlement process under the Charter of the UnitedNations. In his view the indication of such measurestherefore represents one of the most important Junctions ofthe Court.

But the granting of such a relief, he stressed, could onlybe done in accordance with the Statute of the Court. In thisregard, and in the light of the jurisprudence of the Court,where prima facie jurisdiction is absent or othercircumstances predominate, the Court will not grant therequest for provisional measures.

Nevertheless, he considered the Court, being theprincipal judicial organ of the United Nations, whoseprimary raison d'être remains the preservation ofinternational peace and security, to be under a positiveobligation to contribute to the maintenance of internationalpeace and security and to provide a judicial framework forthe resolution of a legal conflict, especially one which notonly threatens international peace and security but alsoinvolves enormous human suffering and continuing loss oflife. He had therefore joined with the other Members of theCourt in calling for the peaceful resolution of this conflictpursuant to Article 33 of the Charter, and in urging theParties not to aggravate or extend the dispute and to respectinternational law, including humanitarian law and thehuman rights of all the citizens of Yugoslavia.


Judge Oda supports the decision of the Court indismissing the requests for the indication of provisionalmeasures by the Federal Republic of Yugoslavia against tenrespondent States. While favouring the decision of the Courtto remove the case from the General List of the Court in thecases of Spain and the United States, Judge Oda votedagainst the decision in the other eight cases in which theCourt ordered that it "[r]eserves the subsequent procedurefor further decision", because he believes that those eightcases should also be removed at this stage from the GeneralList of the Court.

Judge Oda considers that the Federal Republic ofYugoslavia is not a Member of the United Nations and thusnot a party to the Statute of the International Court ofJustice. The Applications presented by the Federal Republicof Yugoslavia should therefore be declared inadmissible forthis reason alone and should be removed from the GeneralList of the Court.

He nevertheless then goes on to discuss whether, if theFederal Republic of Yugoslavia were to be considered aparty to the Statute, it could have brought the presentApplications on the basis of certain legal instruments. Afterhaving examined the meaning of (i) the optional clause ofthe Court's Statute, (ii) the background to the 1930 and1931 instruments with Belgium and the Netherlands,respectively, and (iii) the 1948 Genocide Convention, hereaches the conclusion that none of these instruments grantthe Court jurisdiction in any of the ten Applications.

Judge Oda agrees with the Court that, as it has no basisof jurisdiction, it must reject the requests for the indicationof provisional measures in all ten cases. However, heconsiders that, the Court having decided that it has nojurisdiction to entertain the cases, not even prima facie, thatthis can only mean that it has no jurisdiction whatsoever inany of the cases. It follows, in Judge Oda's view, that notonly in the cases of Spain and the United States, in whichthe Court states that it manifestly lacks jurisdiction, but inall the other cases, the Applications should be dismissed atthis stage, given that the Court has found that there is noteven a prima facie basis of jurisdiction.

Judge Oda also points out that, while the Court makes adistinction between the Applications, even though they dealvirtually with the same subject matter, this distinction,which came about simply because of the different positionswhich individual States happened to take towards thevarious instruments that are to be applied concerning theCourt's jurisdiction, will lead to differing results concerningthe future proceedings in each of the cases. In Judge Oda'sview this is an illogical situation, which supports hiscontention that all ten cases should be dismissed in theirentirety at this stage.


Judge Higgins in her separate opinions addresses twoissues that arise in relation to those cases where the FederalRepublic of Yugoslavia claims jurisdiction on the basis ofArticle 36, paragraph 2, of the Statute. The first issueconcerns temporal limitations to so-called "optionalclauses", and in particular the question of when a disputearises and when the relevant events have occurred. Theseconcepts are analysed in connection with Yugoslavia's owndeclaration. The second issue addresses the question ofexactly what has to be shown for the Court to be satisfied ithas prima facie jurisdiction when it is considering theindication of provisional measures. It is suggested that somejurisdictional issues are so complex that they cannot beaddressed at all at this phase; their holding over for a laterphase does not stand in the way of the Court determining

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whether or not it has prima facie jurisdiction for thepurposes of Article 41.

Separate opinion of Judge Parra-Arangwen

Judge Parra-Aranguren recalls that Yugoslavia maintainsthat "the bombing of Yugoslav populated areas constitute abreach of Article II of the Genocide Convention", acontention denied by the Respondent; that a legal disputeexists between the Parties because of the existence of "asituation in which the two sides hold clearly opposite viewsconcerning the question of the performance or non-performance of certain treaty obligations", as the Courtstated in its decision of 11 July 1996 (Application of theConvention on the Prevention and Punishment of the Crimeof Genocide (Bosnia and Herzegovina v. Yugoslavia), l.C.J.Reports 1996 (II), pp. 614-615, para. 29); and that accordingto Article IX of the Genocide Convention, "disputesbetween the Contracting Parties relating to the interpretationor fulfilment of the present Convention" shall be submittedto the International Court of Justice. Therefore, in hisopinion the Court has prima facie jurisdiction to decideupon the provisional measures requested by Yugoslavia.

Yugoslavia requested the Court to indicate that theRespondent "shall cease immediately the acts of use of forceand shall refrain from any act of threat or use of forceagainst the Federal Republic of Yugoslavia". However, thethreat or use of force against a State cannot in itselfconstitute an act of genocide within the meaning of theGenocide Convention. Consequently, Yugoslavia isrequesting the indication of provisional measures that do notaim to guarantee its rights under the Genocide Convention,i.e., the right not to suffer acts which may be characterizedas genocide crimes by the Convention. Therefore, in theopinion of Judge Parra-Aranguren, the measures requestedby Yugoslavia should not be indicated.


1. Judge Kooijmans joined a separate opinion to theOrder of the Court in the cases of Yugoslavia versusBelgium, Canada, the Netherlands, Portugal, Spain and theUnited Kingdom, respectively.

He does not agree with the Court's view thatYugoslavia's declaration of acceptance of the compulsoryjurisdiction of the Court of 25 April 1999 cannot provide abasis of jurisdiction in the present case, even prima facie,because of the reservations incorporated in the declarationsof Spain and the United Kingdom, cq. because of thetemporal limitation contained in Yugoslavia's declaration(cases against Belgium, Canada, the Netherlands andPortugal). He is of the view that the Court lacks prima faciejurisdiction because of the controversial validity ofYugoslavia's declaration. This validity issue constitutes apreliminary issue and should, therefore, have been dealtwith by the Court as a threshold question.

Since this issue is of no relevance in the four other cases(against France, Germany, Italy and the United States) asthese States themselves do not recognize the compulsory

jurisdiction of the Court, there is no need for a separateopinion in those cases.

2. Article 36, paragraph 2, of the Statute explicitlystates that only States which are party to the Statute canrecognize the compulsory jurisdiction of the Court bydepositing a declaration of acceptance with the Secretary-General of the United Nations. Member States of thatorganization are eo ipso party to the Statute. All sixRespondents contended, that since the Federal Republic ofYugoslavia is not a Member of the United Nations, itsdeclaration of acceptance has not been validly made.

3. On 22 September 1992 the General Assembly, on therecommendation of the Security Council, decided that theFederal Republic of Yugoslavia cannot continueautomatically the membership of the former SocialistFederal Republic of Yugoslavia and therefore that it shouldapply for membership in the United Nations. Until that timeit shall not participate in the work of the General Assembly(res. 47/1). The Federal Republic of Yugoslavia neverapplied for membership.

4. In its present Orders the Court avoids the question ofthe contested validity of Yugoslavia's declaration. It takesthe position that it need not consider this issue since thedeclaration cannot provide the Court with a basis for primafacie jurisdiction on other grounds.

5. Judge Kooijmans is of the view that the Court'sreasoning in this respect is inconsistent. Such other groundsonly become relevant if the validity of the declaration — atleast for the present stage of the proceedings — is accepted.The Court's reasoning is based on a presumption of validityand the Court should have said so and have given itsarguments for it.

6. According to Judge Kooijmans there certainly wasno need for the Court to take a definitive stand onYugoslavia's membership of the United Nations. He is fullyaware that resolution 47/1 is unprecedented and raises anumber of highly complex legal questions, which require athorough analysis and careful evaluation by the Court at alater stage of the proceedings.

Difficult though the question may be, the relevantdecisions have been taken by the organs of the UnitedNations which have exclusive authority in matters ofmembership (Security Council and General Assembly) andthey cannot be overlooked or ignored.

7. According to Judge Kooijmans the doubts, raised bythe decisions of the competent United Nations bodies withregard to Yugoslavia's membership and the ensuing validityof its declaration, are, however, so serious that the Courtshould have concluded that this declaration cannot provideit with a basis for prima facie jurisdiction. The Court shouldnot indicate provisional measures unless its competence toentertain the dispute appears to be reasonably probable andthis test of reasonable probability cannot be passed becauseof the doubtful validity of the declaration.

8. If that is the case, issues like reservations andtemporal limitations on which the cases were decided by theCourt, become irrelevant since they are wholly conditionedby the preliminary question of the declaration's validity.

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Dissenting opinion office-President Weeramantry

Vice-President Weeramantry in his dissenting opiniontakes the view that the Court has prima facie jurisdiction inthis case and that provisional measures should have beenissued against both Parties. Lives are being lost daily andvast numbers of people including women, children, the agedand the infirm are continuously exposed to physical dangerand suffering, and important issues of law are involved,which go to the fundamentals of the international rule oflaw, the peaceful resolution of disputes and the Charterprovisions relating to the prohibition of the use c i force.

If the Court has prima facie jurisdiction it is eminently acase in which provisional measures should have been issuedon both Parties.

He disagreed with the Court's reasoning that the actscomplained of relate back to 24 March the date when thebombing commenced and that therefore there was a lack ofprima facie jurisdiction as the operative date specified inYugoslavia's declaration was 25 April. In his view theclaims of Yugoslavia became legal claims only when theacts complained of were performed and not when the entirebombing campaign was planned. He bases this view on theprinciples usually applied in determining when a legal claimarises. The claims of Yugoslavia thus arose after the datespecified in Yugoslavia's declaration (25 April) and not onthe date when the bombing commenced (24 March). TheCourt therefore does have prima facie jurisdiction over thecase.

He disagreed with the contention that the involvement ofa political element rendered the matter unsuitable for theissue of provisional measures.

The Court performs a role complementary to that ofother United Nations organs in the maintenance of peaceand the peaceful settlement of disputes. It is also the role ofthe Court to facilitate negotiations between the: Parties andto assist them towards the peaceful settlement of disputes.Interim measures containing such provisions would haveserved a useful purpose. There is ample suppor: for such anapproach in the jurisprudence of the Court as well as in theinherent powers of the Court.

A precondition to the issue of interim measures wouldbe that the Applicant should immediately cease from anyviolence towards the people of Kosovo and that the return ofrefugees and other displaced persons should be facilitatedunder international safeguards. The provisional measuresshould also have called for the immediate cessation of theuse of force against Yugoslavia. These requirements areinterlinked.

The Court is heir to the judicial traditions of theprincipal forms of civilization and the peaceful settlement ofdisputes is a strong tradition in the civilizations, of the East.For example the peaceful settlement of dispules is deeplyembedded in the Buddhist tradition. The Court'sjurisprudence could be enriched by this perspective, whichwould also have given it support in the issue of provisionalmeasures with a view to restraining the use of force on both

sides, and assisting in promoting negotiation and settlementbetween the Parties.

Dissenting opinion of Judge Shi

In the four cases of Yugoslavia against Belgium,Canada, the Netherlands and Portugal, Judge Shi disagreeswith the Court's findings that, given the limitation rationetemporis contained in Yugoslavia's declaration ofacceptance of compulsory jurisdiction, the Court lackedprima facie jurisdiction under Article 36, paragraph 2, of theStatute for the indication of provisional measures requestedby Yugoslavia.

By that declaration, signed on 25 April 1999,Yugoslavia recognized compulsory jurisdiction "in alldisputes arising or which may arise after the signature of thepresent Declaration, with regard to the situations or factssubsequent to this signature ...". In cases where the Court isconfronted with such a "double exclusion formula", it has toascertain both the date of the dispute and the situations orfacts with regard to which the dispute has arisen.

As to the first aspect of the time condition, the Court hasto determine what is the subject matter of the dispute, whichin the present cases consists of a number of constituentelements. The section "Subject of the Dispute" in each ofYugoslavia's Applications indicates that subject matter to beacts of the Respondent by which it has violated itsinternational obligations not to use force against anotherState, not to intervene in the internal affairs of another State,not to violate the sovereignty of another State, to protect thecivilian population and civilian objects in wartime, toprotect the environment, etc.

Prior to the coming into existence of all the constituentelements, the dispute cannot be said to arise. Though theaerial bombing of the territory of Yugoslavia began someweeks before the critical date of signature of the declaration,aerial bombing and its effects as such do not constitute adispute. It is true that prior to the critical date, Yugoslaviahad accused NATO of illegal use of force against it. Thiscomplaint constitutes at the most one of the manyconstituent elements of the dispute. Besides, NATO cannotbe identified with, nor be the Respondent in the presentcases ratione personae. The dispute only arose at the datesubsequent to the signature of the declaration.

Regarding the second aspect of the time condition, thedispute relates to the alleged breach of various internationalobligations by acts of force, in the form of aerial bombing ofthe territories of Yugoslavia, which are attributed by theApplicant to the respondent State. It is obvious that thealleged breach of obligations by such a "continuing" act firstoccurred at the moment when the act began, weeks beforethe critical date. Given that the acts of aerial bombingcontinued well beyond the critical date and still continue,the time of commission of the breach extends over thewhole period during which the acts continue and ends onlywhen the acts of the respondent State cease.

The conclusion may be drawn that the limitation rationetemporis contained in Yugoslavia's declaration in no way

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constitutes a bar to founding prima facie jurisdiction uponArticle 36, paragraph 2, of the Statute for the purpose ofindicating provisional measures in the present case.

Moreover, for reasons similar to those expressed in thedeclarations relating to the other six cases, Judge Shi regretsthat the Court, being confronted with a situation of greaturgency, failed to make a general statement appealing to theParties to act in compliance with their obligations under theUnited Nations Charter and all the rules of international lawrelevant to the situation, and at least not to aggravate orextend their disputes immediately upon receipt ofYugoslavia's request and regardless of what might be theCourt's conclusion on prima facie jurisdiction pending itsfinal decision. The Court also failed to make use of Article75, paragraph 1, of the Rules of Court to decide the requestsproprio motu, despite Yugoslavia having so asked.

For these reasons, Judge Shi felt compelled to voteagainst operative paragraph (1) of the four Orders.


Judge Vereshchetin begins his dissenting opinion with ageneral statement, attached to all the Orders of the Court, inwhich he holds that the extraordinary and unprecedentedcircumstances of the cases before the Court imposed on it aneed to act promptly and, if necessary, proprio motu. Afterthat, he proceeds to explain why he has no doubt that primafacie jurisdiction under Article 36, paragraph 2, of theStatute of the Court exists with regard to the Applicationsinstituted against Belgium, Canada, the Netherlands andPortugal. As far as Belgium and the Netherlands areconcerned, the Court also has prima facie jurisdiction underthe Agreements signed between Belgium and Yugoslavia on25 March 1930 and between the Netherlands andYugoslavia on 11 March 1931.

Judge Vereshchetin disagrees with two cornerstonepropositions on which, in his opinion, rest the arguments tothe contrary upheld in the Orders of the Court. The firstproposition is that the text of the Yugoslav declarationaccepting the jurisdiction of the Court, and in particular thewording of the reservation contained therein, does not grantprima facie jurisdiction to the Court. The second propositionis that the timing of the presentation by Yugoslavia of theadditional bases for jurisdiction does not allow the Court toconclude that it has prima facie jurisdiction in respect of thecases instituted against Belgium and the Netherlands.

As concerns the first proposition, Judge Vereshchetintakes the view that the Court, by refusing to take intoaccount the clear intention of Yugoslavia, reads itsdeclaration in a way that could lead to the absurd conclusionthat Yugoslavia intended by its declaration of acceptance ofthe Court's jurisdiction to exclude the jurisdiction of theCourt over its Applications instituting proceedings againstthe Respondents.

As to the second proposition connected with theinvocation of additional grounds of jurisdiction in relation toBelgium and the Netherlands, in the opinion of JudgeVereshchetin, the legitimate concern of the Court over the

observance of "the principle of procedural fairness and thesound administration of justice" cannot be stretched to suchan extent as to exclude a priori the additional basis ofjurisdiction from its consideration, solely because therespondent States have not been given adequate time toprepare their counter-arguments. Admittedly, it cannot beconsidered normal for a new basis of jurisdiction to beinvoked in the second round of the hearings. However, therespondent States were given the possibility of presentingtheir counter-arguments to the Court, and they used thispossibility to make various observations and objections tothe new basis of jurisdiction. If necessary, they could haveasked for the prolongation of the hearings. In turn, theApplicant may reasonably claim that the belated invocationof the new titles of jurisdiction was caused by theextraordinary situation in Yugoslavia, in which thepreparation of the Applications had been carried out underconditions of daily aerial bombardment by the Respondents.

The refusal of the majority to take into consideration thenew bases of jurisdiction is clearly contrary to Article 38 ofthe Rules of Court and to the Court's jurisprudence. Therefusal to have due regard to the intention of a State makinga declaration of acceptance of the Court's jurisdiction is alsoincompatible with the Court's case-law and with thecustomary rules for interpreting legal instruments. In theview of Judge Vereshchetin, all the requirements for theindication of provisional measures, flowing from Article 41of the Court's Statute and from its well-establishedjurisprudence, have been met, and the Court shouldundoubtedly have indicated such measures so far as theabove four States are concerned.

Dissenting opinion of Judge Kreca

In his dissenting opinion Judge Kreca points out thefollowing relevant issues:

Judge Kreca finds that none of the equalization functionsof the institution of judge ad hoc have been met in thispartie ular case. The letter and spirit of Article 31, paragraph2, of the Statute of the Court, applied to this particular case,imply the right of Yugoslavia, as the applicant State, tochoose as many judges ad hoc to sit on the Bench as isnecessary to equalize the position of applicant State and thatof the respondent States which have judges of theirnationality on the Bench and which share the same interest.In concreto, the inherent right to equalization in thecomposition of the Bench, as an expression of afundamental rule of equality of parties, means that theFederal Republic of Yugoslavia should have the right tochoose five judges ad hoc, since even five out of tenrespondent States (United States, the United Kingdom,France, Germany, and the Netherlands) have their nationaljudges sitting on the Bench.

At the same time, according to coherent jurisprudence ofthe Court, none of the respondent States were entitled toappoint a judge ad hoc {Territorial Jurisdiction of theInternational Commission of the River Oder, CustomsRégime between Germany and Austria).

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There is no need to say that the above-mentioned issuesare of upmost specific weight in view of the fact thatobviously the meaning of such issues is not restricted to theprocedure, but that it may have a far-reaching concretemeaning.

Judge Kreca finds that in the recent practice of theCourt, in particular that in which individuals were directlyaffected, a high standard of humanitarian concern in theproceedings for the indication of interim measures has beenformed, a standard which commanded sufficient inherentstrength to brash aside some relevant, both procedural andmaterial, rules governing the institution of provisionalmeasures (exampli causa, the LaGrand case). Thus,humanitarian considerations, independently from the normsof international law regulating human rights and liberties,have, in a way, gained autonomous legal significance; theyhave transcended the moral and philanthropic sphere, andentered the sphere of law.

In the case at hand, it seems that "humanitarian concern"has lost the acquired autonomous legal position. The factneeds to be stressed in view of the special circumstances ofthis case. Unlike the recent practice of the Court,"humanitarian concern" has as its object the fate of an entirenation, in the literal sense. The Federal Republic ofYugoslavia and its national and ethnic groups have beensubjected for more than tv/o months now to continuedattacks of a very strong, highly organized air armada of themost powerful States of the world. At the same time, thearsenal used in the attacks on Yugoslavia contains alsoweapons whose effects have no limitations either in space orin time such as depleted uranium which cause far-reachingand irreparable damage to the health of the wholepopulation.

Judge Kreca finds that, as regards the membership ofYugoslavia in the United Nations, the Court remainedconsistent with its "avoidance" position, persisting in itsstatement that it "need not consider this question for thepurpose of deciding whether or not it can indicateprovisional measures in the present case". But it is theprofound conviction of Judge Kreca that the Court shouldhave answered the question whether the Federal Republic ofYugoslavia can or cannot, in the light of the content ofGeneral Assembly resolution 47/1 and of the practice of theworld Organization, be considered to be a Member of theUnited Nations and especially party to the Statute of theCourt; namely the text of resolution 47/1 makes no mentionof the status of the Federal Republic of Yugoslavia as aparty to the Statute of the International Court of Justice.Judge Kreca is equally convinced that, especially becausethe Court should have answered that question, both thecontent of the resolution which represents coniradictio inadiecto and in particular the practice of the worldOrganization after its adoption over a period of nearly sevenyears, offered ample arguments for it to pronounce itself onthis matter.

Judge Kreca is of the opinion that the extensive use ofarmed force, in particular if it is used against objects andmeans constituting conditions of normal life, can be

conducive to "inflicting on the group conditions of life"bringing about "its physical destruction" (GenocideConvention, Article II).

Judge Kreca goes on to say that it can be argued thatsuch acts are in the function of degrading the militarycapacity of the Federal Republic of Yugoslavia. But such anexplanation can hardly be regarded as a serious argument.For the spiral of such a line of thinking may easily come to apoint when, having in mind that military power is after allcomprised of people, even mass killing of civilians can beclaimed to constitute some sort of precautionary measurethat should prevent the maintenance or, in case ofmobilization, the increase of military power of a State.

Judge Kreca also points out that, in the incidentalproceedings the Court cannot and should not concern itselfwith the definitive qualification of the intent to impose uponthe group conditions in which the survival of the group isthreatened. Having in mind the purpose of provisionalmeasures, it can be said that at this stage of the proceedingsit is sufficient to establish that, in the conditions ofextensive bombing, there is an objective risk of bringingabout conditions in which the survival of the group isthreatened.

Judge Kreca finds that the stance of the Court as regardsjurisdiction of the Court ratione temporis is highlyquestionable for two basic reasons. Firstly, for reasons of ageneral nature to do with the jurisprudence of the Court inthis particular matter, on the one hand, and with the natureof the proceedings for the indication of provisionalmeasures, on the other and, secondly, for reasons of aspecific nature deriving from circumstances of the case inhand. As far as jurisdiction of the Court is concerned, itseems incontestable that a liberal approach towards thetemporal element of the Court's jurisdiction in theindication of provisional measures has become apparent. Itis understandable that the proceeding for the indication ofprovisional measures is surely not designed for the purposeof the final and definitive establishment of the jurisdictionof the Court. The determinant "prima facie" itself impliesthat what is involved is not definitely establishedjurisdiction, but the jurisdiction deriving or supposed to benormally deriving from a relevant legal fact which isdefined as the "title of jurisdiction". It could be said that the"title of jurisdiction" is sufficient per se to constitute primafacie jurisdiction except in the case of the absence ofjurisdiction on the merits is manifest {Fisheries Jurisdictioncases).

Judge Kreca disagrees with the stance of the Courtregarding the additional ground of jurisdiction (Article 4 ofthe 1930 Treaty), since he finds that three essentialconditions necessary to qualify the additional ground asadmissible are met in this particular case:

(a) that the Applicant makes it clear that it intends toproceed upon that basis;

(b) that the result of invoking additional grounds is notto transform the dispute brought before the Court by theApplication into another dispute which is different incharacter; and

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(c) that additional grounds afford a basis on which thejurisdiction of the Court to entertain the Application mightbe prima facie established.

At the same time he points out that even if the documentin which the Applicant pointed to the Treaty of 1930 as

additional grounds of jurisdiction were declared"inadmissible", the Court could not have ignored the factthat the Treaty exists. In that case, the Court could havedifferentiated between the document as such and the Treatyof 1930, per se, as a basis of jurisdiction.

117. CASE CONCERNING LEGALITY OF USE OF FORCE (YUGOSLAVIA v.CANADA) (PROVISIONAL MEASURES)


In an Order issued in the case concerning Legality ofUse of Force (Yugoslavia v. Canada), the Court rejected bytwelve votes to four the request for the indication ofprovisional measures submitted by the Federal Republic ofYugoslavia (FRY). The Court also stated that it remainedseized of the case. It reserved the subsequent procedure forfurther decision by fifteen votes to one.

The Court was composed as follows: Vice-PresidentWeeramantry, Acting President; President Schwebel; JudgesOda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi,Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans; Judges ad hoc Lalonde, Kreca;Registrar Valencia-Ospina.

The complete text of the operative paragraph of theOrder reads as follows:

"47. For these reasons,THE COURT,(1) By twelve votes to four,Rejects the request for the indication of provisional


IN FAVOUR: President Schwebel; Judges Oda,Bedjaoui, Guillaume, Ranjeva, Herczegh, Fleischhauer,Koroma, Higgins, Parra-Aranguren, Kooijmans; Judgead hoc Lalonde;

AGAINST: Vice-President Weeramantry, ActingPresident; Judges Shi, Vereshchetin; Judge ad hocKreca;



President; President Schwebel; Judges Bedjaoui,Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer,Koroma, Vereshchetin, Higgins, Parra-Aranguren,Kooijmans; Judges ad hoc Lalonde, Kreca;


Judge Koroma appended a declaration to the Order ofthe Court. Judges Oda, Higgins, Parra-Aranguren and

Kooijmans appended separate opinions to the Order of theCourt. Vice-President Weeramantry, Acting President,Judges Shi and Vereshchetin, and Judge ad hoc Kreca

appended dissenting opinions to the Order of the Court.


On 29 April 1999 Yugoslavia filed an Applicationinstituting proceedings against Canada "for violation of theobligation not to use force", accusing that State of bombingYugoslav territory "together with other Member States ofNATO". On the same day, it submitted a request for theindication of provisional measures, asking the Court toorder Canada to "cease immediately its acts of use of force"and to "refrain from any act of threat or use of force"against the FRY.

As a basis for the jurisdiction of the Court, Yugoslaviainvoked the declarations by which both States had acceptedthe compulsory jurisdiction of the Court in relation to anyother State accepting the same obligation (Article 36,paragraph 2, of the Statute of the Court), and Article IX ofthe Convention on the Prevention and Punishment of theCrime of Genocide, adopted by the United Nations GeneralAssembly on 9 December 1948.

Article IX of the Genocide Convention provides thatdisputes between the contracting parties relating to theinterpretation, application or fulfilment of the Conventionshall be submitted to the International Court of Justice.


In its Order, the Court first emphasizes that it is "deeplyconcerned with the human tragedy, the loss of life, and theenormous suffering in Kosovo which form the background"of the dispute and "with the continuing loss of life andhuman suffering in all parts of Yugoslavia". It declares itself"profoundly concerned with the use of force in Yugoslavia",which "under the present circumstances ... raises very

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serious issues of international law". While being: "mindfulof the purposes and principles of the United Nations Charterand of its own responsibilities in the maintenance of peaceand security under the Charter and [its] Statute", the Court"deems it necessary to emphasize that all parties; before itmust act in conformity with their obligations under theUnited Nations Charter and other rules of international law,including humanitarian law".

The Court then points out that it "does not automaticallyhave jurisdiction over legal disputes between States" andthat "one of the fundamental principles of its Staiute is thatit cannot decide a dispute between States without theconsent of those States to its jurisdiction". It cannot indicateprovisional measures without its jurisdiction in the casebeing established prima facie.

Concerning the first basis of jurisdiction invoked, theCourt observes that under the terms of its declaration,Yugoslavia limits its acceptance of the Court's compulsoryjurisdiction to "disputes arising or which may arise after thesignature of the present Declaration, with regard to thesituations or facts subsequent to this signature". It states thatin order to assess whether it has jurisdiction in the case, it issufficient to decide whether the dispute brought to the Court"arose" before or after 25 April 1999, the date on which thedeclaration was signed. It finds that the bombings, began on24 March 1999 and have been conducted continuously overa period extending beyond 25 April 1999.

The Court has thus no doubt that a "legal dispute ...'arose' between Yugoslavia and [Canada], as it did alsowith the other NATO member States, well before 25 April1999". The Court concludes that the declarations made bythe Parties do not constitute a basis on which the jurisdictionof the Court could prima facie be founded in the case.

As to Canada's arguments that Yugoslavia's declarationaccepting the compulsory jurisdiction of the Court "is atransparent nullity" and that Yugoslavia is not a memberState of the United Nations in view of United NationsSecurity Council resolution 777 (1992) and United NationsGeneral Assembly resolution 47/1 (1992), nor a party to theStatute of the Court, the Court maintains that it need notconsider this question, taking into account its finding thatthe declarations do not constitute a basis of jurisdiction.

Concerning Article IX of the Genocide Convention, theCourt states that it is not disputed that both Yugoslavia andCanada are parties to that Convention, without reservation,and that Article IX accordingly appears to constitute a basison which the jurisdiction of the Court might be founded.The Court however finds that it must ascertain whether thebreaches of the Convention alleged by Yugoslavia arecapable of falling within the provisions of that instrumentand whether, as a consequence, the dispute is one overwhich Ihe Court might have jurisdiction ratione materiae. Inits Application, Yugoslavia contends that the subject of thedispute concerns inter alia "acts of Canada by which it hasviolated its international obligation ... not to deliberatelyinflict conditions of life calculated to cause the physicaldestruction of a national group". It contends that thesustained and intensive bombing of the whole of its

territory, including the most heavily populated areas,constitutes "a serious violation of Article II of the GenocideConvention", that it is the Yugoslav nation as a whole andas such that is targeted and that the use of certain weaponswhose long-term hazards to health and the environment arealready known, and the destruction of the largest part of thecountry's power supply system, with catastrophicconsequences of which the Respondent must be aware,"impl[y] the intent to destroy, in whole or in part", theYugoslav national group as such. For its part, Canadacontends that "the essence of genocide is intention anddestruction — the destruction of entire populations", thatthe Applicant "did not even attempt to address the questionof intent" and that the concept of genocide cannot beequated with the use of force or even aggression. It appearsto the Court that, according to the Convention, the essentialcharacteristic of genocide is the intended destruction of anational, ethnical, racial or religious group; the Court furtherstates that "the threat or use of force against a State cannotin itself constitute an act of genocide within the meaning ofArticle II of the Genocide Convention". It adds that in itsopinion, it does not appear at the present stage of theproceedings that the bombings which form the subject of theYugoslav Application "indeed entail the element of intent,towards a group as such, required by the provision"mentioned above. The Court considers therefore that it isnot in a position to find, at this stage of the proceedings, thatthe acts imputed by Yugoslavia to Canada are capable ofcoming within the provisions of the Genocide Convention;and Article IX cannot accordingly constitute a basis onwhich the jurisdiction of the Court could prima facie befounded in the case.

The Court concludes that it "lacks prima faciejurisdiction to entertain Yugoslavia's Application" and thatit "cannot therefore indicate any provisional measurewhatsoever". However, the findings reached by the Court"in no way prejudge the question of the jurisdiction of theCourt to deal with the merits of the case" and they "leaveunaffected the right of the Governments of Yugoslavia andCanada to submit arguments in respect of those questions".

The Court finally observes that "there is a fundamentaldistinction between the question of the acceptance by a Stateof the Court's jurisdiction and the compatibility of particularacts with international law". "The former requires consent;the latter question can only be reached when the Court dealswith the merits after having established its jurisdiction andhaving heard full legal arguments by both parties". Itemphasizes that "whether or not States accept thejurisdiction of the Court, they remain in any eventresponsible for acts attributable to them that violateinternational law, including humanitarian law" and that "anydisputes relating to the legality of such acts are required tobe resolved by peaceful means, the choice of which,pursuant to Article 33 of the Charter, is left to the parties".In this context, "the parties should take care not to aggravateor extend the dispute". The Court reaffirms that "when sucha dispute gives rise to a threat to the peace, breach of thepeace or act of aggression, the Security Council has specialresponsibilities under Chapter VII of the Charter".

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In his declaration Judge Koroma observed that thesewere perhaps the most serious cases that have ever comebefore the Court for provisional measures. He stated thatjurisprudentially such measures were designed to preventviolence, the use of force, to safeguard international peaceand security as well as serving as an important part of thedispute settlement process under the Charter of the UnitedNations. In his view the indication of such measurestherefore represents one of the most important functions ofthe Court.




Judge Oda supports the decision of the Court indismissing the requests for the indication of provisionalmeasures by the Federal Republic of Yugoslavia against tenrespondent States. While favouring the decision of the Courtto remove the case from the General List of the Court in thecases of Spain and the United States, Judge Oda votedagainst the decision in the other eight cases in which theCourt ordered that it "[r]eserves the subsequent procedurefor further decision", because he believes that those eightcases should also be removed at this stage from the GeneralList of the Court.


He nevertheless then goes on to discuss whether, if theFederal Republic of Yugoslavia were to be considered aparty to the Statute, it could have brought the presentApplications on the basis of certain legal instruments. Afterhaving examined the meaning of (i) the optional clause of

the Court's Statute, (ii) the background to the 1930 and1931 instruments with Belgium and the Netherlands,respectively, and (iii) the 1948 Genocide Convention, hereaches the conclusion that none of these instruments grantthe Court jurisdiction in any of the ten Applications.




Judge Higgins in her separate opinions addresses twoissues that arise in relation to those cases where the FederalRepublic of Yugoslavia claims jurisdiction on the basis ofArticle 36, paragraph 2, of the Statute. The first issueconcerns temporal limitations to so-called "optionalclauses", and in particular the question of when a disputearises and when the relevant events have occurred. Theseconcepts are analysed in connection with Yugoslavia's owndeclaration. The second issue addresses the question ofexactly what has to be shown for the Court to be satisfied ithas prima facie jurisdiction when it is considering theindication of provisional measures. It is suggested that somejurisdictional issues are so complex that they cannot beaddressed at all at this phase; their holding over for a laterphase does not stand in the way of the Court determiningwhether or not it has prima facie jurisdiction for thepurposes of Article 41.


Judge Parra-Aranguren recalls that Yugoslavia maintainsthat "the bombing of Yugoslav populated areas constitute abreach of Article II of the Genocide Convention", acontention denied by the Respondent; that a legal disputeexists between the Parties because of the existence of "asituation in which the two sides hold clearly opposite viewsconcerning the question of the performance or non-performance of certain treaty obligations", as the Court

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stated in its decision of 11 July 1996 (Application of theConvention on the Prevention and Punishment of the Crimeof Genocide (Bosnia and Herzegovina v. Yugoslavia), I.C.J.Reports 1996 (II), pp. 614-615, para. 29,); and thai accordingto Article IX of the Genocide Convention, "disputesbetween the Contracting Parties relating to the interpretationor fulfilment of the present Convention" shall be: submittedto the International Court of Justice. Therefore, in hisopinion the Court has prima facie jurisdiction to decideupon the provisional measures requested by Yugoslavia.

Yugoslavia requested the Court to indicate that theRespondent "shall cease immediately the acts of use of forceand shall refrain from any act of threat or use of forceagainst the Federal Republic of Yugoslavia". However, thethreat or use of force against a State cannot in itselfconstitute an act of genocide within the meaning of theGenocide Convention. Consequently, Yugoslavia isrequesting the indication of provisional measures that do notaim to guarantee its rights under the Genocide Convention,i.e., the right not to suffer acts which may be characterizedas genocide crimes by the Convention. Therefore, in theopinion of Judge Parra-Aran guren, the measures requestedby Yugoslavia should not be indicated.




Since this issue is of no relevance in the four other cases(against France, Germany, Italy and the United States) asthese States themselves do not recognize the compulsoryjurisdiction of the Court, there is no need for a separateopinion in those cases.

2. Article 36, paragraph 2, of the Statute; explicitlystates that only States which are party to the Statute canrecognize the compulsory jurisdiction of the Court bydepositing a declaration of acceptance with the Secretary-General of the United Nations. Member States of thatOrganization are eo ipso party to the Statute. All sixRespondents contended, thai since the Federal Republic ofYugoslavia is not a Member of the United Nations, itsdeclaration of acceptance has not been validly made.









Judge Weeramantry has filed a dissenting opinion in thiscase on the same grounds as in Yugoslavia v. Belgium.


In the four cases of Yugoslavia against Belgium,Canada, the Netherlands and Portugal, Judge Shi disagreeswith the Court's findings that, given the limitation ratione

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temporis contained in Yugoslavia's declaration ofacceptance of compulsory jurisdiction, the Court lackedprima facie jurisdiction under Article 36, paragraph 2, of theStatute for the indication of provisional measures requestedby Yugoslavia.



Prior to the coming into existence of all the constituentelements, the dispute cannot be said to arise. Though theaerial bombing of the territory of Yugoslavia began someweeks before the critical date of signature of the declaration,aerial bombing and its effects as such do not constitute adispute. It is true that prior to the critical date, Yugoslaviahad accused NATO of illegal use of force against it. Thiscomplaint constitutes at the most one of the manyconstituent elements of the dispute. Besides, NATO cannotbe identified with, nor be the Respondent in the presentcases ratione personae. The dispute only arose at the datesubsequent to the signature of the declaration.


The conclusion may be drawn that the limitation rationetemporis contained in Yugoslavia's declaration in no wayconstitutes a bar to founding prima facie jurisdiction uponArticle 36, paragraph 2, of the Statute for the purpose ofindicating provisional measures in the present case.

Moreover, for reasons similar to those expressed in thedeclarations relating to the other six cases, Judge Shi regretsthat the Court, being confronted with a situation of greaturgency, failed to make a general statement appealing to theParties to act in compliance with their obligations under the

United Nations Charter and all the rules of international lawrelevant to the situation, and at least not to aggravate orextend their disputes immediately upon receipt ofYugoslavia's request and regardless of what might be theCourt's conclusion on prima facie jurisdiction pending itsfinal decision. The Court also failed to make use of Article75, paragraph 1, of the Rules of Court to decide the requestsproprio motii, despite Yugoslavia having so asked.





As concerns the first proposition. Judge Vereshchetintakes the view that the Court, by refusing to take intoaccount the clear intention of Yugoslavia, reads itsdeclaration in a way that could lead to the absurd conclusionthat Yugoslavia intended by its declaration of acceptance ofthe Court's jurisdiction to exclude the jurisdiction of theCourt over its Applications instituting proceedings againstthe Respondents.

As to the second proposition connected with theinvocation of additional grounds of jurisdiction in relation toBelgium and the Netherlands, in the opinion of JudgeVereshchetin, the legitimate concern of the Court over theobservance of "the principle of procedural fairness and thesound administration of justice" cannot be stretched to suchan extent as to exclude a priori the additional basis ofjurisdiction from its consideration, solely because therespondent States have not been given adequate time toprepare their counter-arguments. Admittedly, it cannot beconsidered normal for a new basis of jurisdiction to beinvoked in the second round of the hearings. However, therespondent States were given the possibility of presenting

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their counter-arguments to the Court, and they used thispossibility to make various observations and objections tothe new basis of jurisdiction. If necessary, they could haveasked for the prolongation of the hearings. In turn, theApplicant may reasonably claim that the belated invocationof the new titles of jurisdiction was caused by theextraordinary situation in Yugoslavia, in which thepreparation of the Applications had been carried out underconditions of daily aerial bombardment by the Respondents.




Judge Kreca finds that none of the equalization functionsof the institution of judge ad hoc have been met in thisparticular case. The letter and spirit of Article 31, paragraph2, of the Statute of the Court, applied to this particular case,imply the right of Yugoslavia, as the applicant State, tochoose as many judges ad hoc to sit on the Bench as isnecessary to equalize the position of applicant State and thatof the respondent States which have judges of theirnationality on the Bench and which share the same interest.//; concreto, the inherent right to equalization in thecomposition of the Bench, as an expression of afundamental rule of equality of parties, means that theFederal. Republic of Yugoslavia should have the right tochoose five judges ad hoc, since even five out of tenrespondent States (United States, the United Kingdom,France, Germany, and the Netherlands) have their nationaljudges sitting on the Bench.

At the same time, according to coherent jurisprudence ofthe Court, none of the respondent States were entitled toappoint a judge ad hoc (Territorial Jurisdiction of theInternational Commission of the River Oder. CustomsRégime between Germany and Austria).


Judge Kreca finds that in the recent practice of theCourt, in particular that in which individuals were directlyaffected, a high standard of humanitarian concern in theproceedings for the indication of interim measures has been

formed, a standard which commanded sufficient inherentstrength to brush aside some relevant, both procedural andmaterial, rules governing the institution of provisionalmeasures (exampli causa, the LaGrand case). Thus,humanitarian considerations, independently from the normsof international law regulating human rights and liberties,have, in a way, gained autonomous legal significance; theyhave transcended the moral and philanthropic sphere, andentered the sphere of law.

In the case at hand, it seems that "humanitarian concern"has lost the acquired autonomous legal position. The factneeds to be stressed in view of the special circumstances ofthis case. Unlike the recent practice of the Court,"humanitarian concern" has as its object the fate of an entirenation, in the literal sense. The Federal Republic ofYugoslavia and its national and ethnic groups have beensubjected for more than two months now to continuedattacks of a very strong, highly organized air armada of themost powerful States of the world. At the same time, thearsenal used in the attacks on Yugoslavia contains alsoweapons whose effects have no limitations either in space orin time such as depleted uranium which cause far-reachingand irreparable damage to the health of the wholepopulation.

Judge Kreca finds that, as regards the membership ofYugoslavia in the United Nations, the Court remainedconsistent with its "avoidance" position, persisting in itsstatement that it "need not consider this question for thepurpose of deciding whether or not it can indicateprovisional measures in the present case". But it is theprofound conviction of Judge Kreca that the Court shouldhave answered the question whether the Federal Republic ofYugoslavia can or cannot, in the light of the content ofGeneral Assembly resolution 47/1 and of the practice of theworld Organization, be considered to be a Member of theUnited Nations and especially party to the Statute of theCourt; namely the text of resolution 47/1 makes no mentionof the status of the Federal Republic of Yugoslavia as aparty to the Statute of the International Court of Justice.Judge Kreca is equally convinced that, especially becausethe Court should have answered that question, both thecontent of the resolution which represents contradictio inadiecto and in particular the practice of the worldOrganization after its adoption over a period of nearly sevenyears, offered ample arguments for it to pronounce itself onthis matter.

Judge Kreca is of the opinion that the extensive use ofarmed force, in particular if it is used against objects andmeans constituting conditions of normal life, can beconducive to "inflicting on the group conditions of life"bringing about "its physical destruction" (GenocideConvention, Article II).

Judge Kreca goes on to say that it can be argued thatsuch acts are in the function of degrading the militarycapacity of the Federal Republic of Yugoslavia. But such anexplanation can hardly be regarded as a serious argument.For the spiral of such a line of thinking may easily come to apoint when, having in mind that military power is after all

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comprised of people, even mass killing of civilians can beclaimed to constitute some sort of precautionary measurethat should prevent the maintenance or, in case ofmobilization, the increase of military power of a State.


Judge Kreca finds that the stance of the Court as regardsjurisdiction of the Court ratione temporis is highlyquestionable for two basic reasons. Firstly, for reasons of ageneral nature to do with the jurisprudence of the Court inthis particular matter, on the one hand, and with the nature

of the proceedings for the indication of provisionalmeasures, on the other and, secondly, for reasons of aspecific nature deriving from circumstances of the case inhand. As far as jurisdiction of the Court is concerned, itseems incontestable that a liberal approach towards thetemporal element of the Court's jurisdiction in theindication of provisional measures has become apparent. Itis understandable that the proceeding for the indication ofprovisional measures is surely not designed for the purposeof the final and definitive establishment of the jurisdictionof the Court. The determinant "prima facie" itself impliesthat what is involved is not definitely establishedjurisdiction, but the jurisdiction deriving or supposed to benormally deriving from a relevant legal fact which isdefined as the "title of jurisdiction". It could be said that the"title of jurisdiction" is sufficient per se to constitute primafacie jurisdiction except in the case of the absence ofjurisdiction on the merits is manifest {Fisheries Jurisdictioncases).

118. CASE CONCERNING LEGALITY OF USE OF FORCE (YUGOSLAVIA v.FRANCE) (PROVISIONAL MEASURES)


In an Order issued in the case concerning Legality ofUse of Force (Yugoslavia v. France), the Court rejected bytwelve votes to three the. request for the indication ofprovisional measures submitted by the Federal Republic ofYugoslavia (FRY). The Court also stated that it could not atthat stage of proceedings, accede to France's request that thecase be removed from the List. It thus remained seized ofthe case and the subsequent procedure had been reserved forfurther decision by fourteen votes to one.

The Court was composed as follows: Vice-PresidentWeeramantry, Acting President; President Schwebel; JudgesOda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi,Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans; Judge ad hoc Kreca; RegistrarValencia-Ospina.

Guillaume, Ranjeva, Herczegh, Fleischhauer, Koroma,Higgins, Parra-Aranguren, Kooijmans;

AGAINST: Judges Shi, Vereshchetin; Judge ad hocKreca;

(2) By fourteen votes to one,Reserves the subsequent procedure for further


President; President Schwebel; Judges Bedjaoui,Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer,Koroma, Vereshchetin, Higgins, Parra-Aranguren,Kooijmans; Judge ad hoc Kreca;


The complete text of the operative paragraph of theOrder is as follows:

"39. For these reasons,THE COURT,(1) By twelve votes to three,Rejects the request for the indication of provisional


IN FAVOUR: Vice-President Weeramantry, ActingPresident; President Schwebel; Judges Oda, Bedjaoui,

Vice-President Weeramantry, Acting President, andJudges Shi, Koroma and Vereshchetin appendeddeclarations to the Order of the Court. Judges Oda andParra-Aranguren appended separate opinions to the Order ofthe Court. Judge ad hoc Kreca appended a dissentingopinion to the Order of the Court.

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On 29 April 1999 Yugoslavia filed an applicationinstituting proceedings against France "for violation of theobligation not to use force", accusing that State of bombingYugoslav territory "together with other Member States ofNATO" (see Press Communiqué 99/17). On the same day, itsubmitted a request for the indication of provisionalmeasures, asking the Court to order France to "ceaseimmediately its acts of use of force" and to "refrain fromany act of threat or use of force" against the FRY.

As a basis for the jurisdiction of the Court, Yugoslaviainvoked Article IX of the Convention on the Prevention andPunishment of the Crime of Genocide, adopted by theUnited Nations General Assembly on 9 December 1948, aswell as Article 38, paragraph 5, of the Rules of Court.Article IX of the Genocide Convention provides thatdisputes between the contracting parties relating to theinterpretation, application or fulfilment of the Conventionshall be submitted to the International Court of Justice. Asto Article 38, paragraph 5, of the Rules of Court, it providesthat when a State files an application against another Statewhich has not accepted the jurisdiction of the Court, theapplication is transmitted to that other State, but no action istaken in the proceedings unless and until that State hasaccepted the Court's jurisdiction for the purposes of thecase.



The Court then points out that it "does not automaticallyhave jurisdiction over legal disputes between States" andthat "one of the fundamental principles of its Statute is thatit cannot decide a dispute between States without theconsent of those States to its jurisdiction". It cannot indicateprovisional measures without its jurisdiction in the casebeing established prima facie.

Concerning Article IX of the Genocide Convention, theCourt states that it is not disputed that both Yugoslavia andFrance are parties to that Convention, without reservation,and that Article IX accordingly appears to constitute a basison which the jurisdiction of the Court might be founded.The Court however finds that it must ascertain whether thebreaches of the Convention alleged by Yugoslavia are

capable of falling within the provisions of that instrumentand whether, as a consequence, the dispute is one overwhich the Court might have jurisdiction ratione materiae. Inits Application, Yugoslavia contends that the subject of thedispute concerns inter alia "acts of the Republic of Franceby which it has violated its international obligation ... not todeliberately inflict conditions of life calculated to cause thephysical destruction of a national group". It contends thatthe sustained and intensive bombing of the whole of itsterritory, including the most heavily populated areas,constitutes "a serious violation of Article II of the GenocideConvention", that it is the Yugoslav nation as a whole andas such that is targeted and that the use of certain weaponswhose long-term hazards to health and the environment arealready known, and the destruction of the largest part of thecountry's power supply system, with catastrophicconsequences of which the Respondent must be aware,"impl[y] the intent to destroy, in whole or in part", theYugoslav national group as such. For its part, Francecontends that the genocide, as defined by the 1948Convention, consists of two elements: "One objective: thedestruction of all or part of a national or religious group assuch. The other is subjective: an intention to achieve thisresult, which is in conflict ... with 'the most elementaryprinciples of morality'". It asserts that "the NATO forces ...are making all efforts to ensure that the civilian populationsuffers no needless harm" and stresses "the manifestabsence in this case of the element of intention" and "thetotal silence of the applicant State" on this point. It appearsto the Court that, according to the Convention, the essentialcharacteristic of genocide is the intended destraction of anational, ethnical, racial or religious group; the Court furtherstates that "the threat or use of force against a State cannotin itself constitute an act of genocide within the meaning ofArticle II of the Genocide Convention". It adds that in itsopinion, it does not appear at the present stage of theproceedings that the bombings which form the subject of theYugoslav Application "indeed entail the element of intent,towards a group as such, required by the provision"mentioned above. The Court considers therefore that it isnot in a position to find, at this stage of the proceedings, thatthe acts imputed by Yugoslavia to France are capable ofcoming within the provisions of the Genocide Convention;and Article IX cannot accordingly constitute a basis onwhich the jurisdiction of the Court could prima facie befounded in the case.

As to Article 38, paragraph 5, of the Rules of Court, theCourt stresses that, in the absence of consent by France, itcannot exercise jurisdiction in the case, even prima facie.

The Court concludes that it "lacks prima faciejurisdiction to entertain Yugoslavia's Application" and thatit "cannot therefore indicate any provisional measurewhatsoever". However, the findings reached by the Court"in no way prejudge the question of the jurisdiction of theCourt to deal with the merits of the case" and they "leaveunaffected the right of the Governments of Yugoslavia andFrance to submit arguments in respect of those questions".

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Declaration of Vice-President Weeramantiy

Judge Weeramantry expressed the view that even thoughthe Court did not issue provisional measures, it still had thepower to issue an appeal to both Parties to the effect thatthey should act in accordance with their obligations underthe Charter of the United Nations and other rules ofinternational law including humanitarian law and do nothingto aggravate or extend the conflict.

It had this power as it was still seized of the case andwould be so seized of it until the hearing, and because thiswas not a case of manifest lack of jurisdiction.

He thought this was the appropriate course to befollowed. The Court itself had referred to its profoundconcern with the human tragedy and loss of life involvedand to its own responsibilities for the maintenance of peaceand security under the Charter and the Statute of the Court.

Such an appeal would also be well within the Court'sinherent jurisdiction as more fully explained in hisdissenting opinion in Yugoslavia v. Belgium.

Such an appeal would carry more value than the merereference to these matters in the Order itself.

Declaration of Judge Shi

Judge Shi agrees with the majority that in the cases ofYugoslavia against France, Germany, Italy and the UnitedKingdom there is no prima facie jurisdiction, and in thecases of Yugoslavia against Spain and the United States noteven prima facie jurisdiction, for the indication ofprovisional measures requested by the Applicant.

Nevertheless, he is of the opinion that, being confrontedwith a situation of great urgency arising from the use offorce in and against Yugoslavia, and upon receipt of therequests by the Applicant for the indication of provisionalmeasures, the Court ought to have issued a generalstatement appealing to the Parties to act in compliance withtheir obligations under the United Nations Charter and allother rules of international law relevant to the situation, and

at least not to aggravate or extend their dispute, regardlessof what might be the Court's conclusion on prima faciejurisdiction pending its final decision.

Nothing in the Statute or Rules of Court prohibits theCourt: from so acting. Also, given the responsibilities of theCourt: within the general framework for the maintenance ofpeace and security under the Charter, and under the Statuteas an integral part of the Charter, to issue such a statement iswithin the implied powers of the Court in the exercise of itsjudicial functions. Obviously, the Court has failed to take anopportunity to make its due contribution to the maintenanceof peace and security when that is most needed.

Moreover, in spite of the request of Yugoslavia that theCourt exercise its powers under Article 75, paragraph 1, ofthe Rules of Court to decide proprio motu Yugoslavia'srequest to indicate provisional measures, the Court failed toexercise that power, in contrast to its decision to make useof that power in the recent LaGrand case (Germany v. theUnited States of America) in a situation not as urgent as inthe present case.

For these reasons, Judge Shi felt compelled to voteagainst operative paragraph (1) of the six Orders.





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Declaration of Judge Vereshchetin

The extraordinary circumstances in which Yugoslaviamade its request for interim measures of protection imposeda need to react immediately. The Court should havepromptly expressed its profound concern over the unfoldinghuman misery, loss of life and serious violations ofinternational law which by the time of the request werealready a matter of public knowledge. It is unbecoming forthe principal judicial organ of the United Nations, whosevery raison d'être is the peaceful resolution of internationaldisputes, to maintain silence in such a situation. Even ifultimately the Court may come to the conclusion that, due toconstraints in its Statute, it cannot indicate fully fledgedprovisional measures in accordance with Article 41 of theStatute in relation to one or another of the respondent States,the Court is inherently empowered, at the very least,immediately to call upon the Parties neither to aggravate norto extend the conflict and to act in accordance with theirobligations under the Charter of the United Nations. Thispower flows from its responsibility for the safeguarding ofinternational law and from major considerations of publicorder. Such an authoritative appeal by the "World Court",which would also be consistent with Article 41 of its Statuteand Article 74, paragraph 4, and Article 75, paragraph 1, ofits Rules, could have a sobering effect on the partiesinvolved in the military conflict, unprecedented in Europeanhistory since the end of the Second World War.

The Court was urged to uphold the rule of law in thecontext of large-scale gross violations of international law,including of the Charter of the United Nations. Instead ofacting expeditiously and, if necessary, proprio motn, in itscapacity as "the principal guardian of international law", themajority of the Court, more than one month after therequests were made, rejected them in a sweeping way inrelation to all the cases brought before the Couit, includingthose where the prima facie jurisdiction of the Court couldhave been clearly established. Moreover, this decision hasbeen taken in a situation in which deliberate intensificationof bombardment of the most heavily populated areas iscausing unabated loss of life among non-combatants andphysical and mental harm to the population in all parts ofYugoslavia.

For the foregoing reasons, Judge Vereshchetin cannotconcur with the inaction of the Court in this matter,although he concedes that in some of the cases instituted bythe Applicant the basis of the Court's jurisdiction, at thisstage of the proceedings, is open to doubt, and in relation toSpain and the United States is non-existent.

Sepárale opinion of Judge Oda

Judge Oda supports the decision of the Court indismissing the requests for the indication of provisionalmeasures by the Federal Republic of Yugoslavia against tenrespondent States. While favouring the decision of the Courtto remove the case from the General List of the Court in thecases of Spain and the United States, Judge Oda votedagainst the decision in the other eight cases in which the

Court ordered that it "[r]eserves the subsequent procedurefor further decision", because he believes that those eightcases should also be removed at this stage from the GeneralList of the Court.






Judge Parra-Aranguren recalls that Yugoslavia maintainsthat "the bombing of Yugoslav populated areas constitute abreach of Article II of the Genocide Convention", acontention denied by the Respondent; that a legal disputeexists between the Parties because of the existence of "asituation in which the two sides hold clearly opposite viewsconcerning the question of the performance or non-performance of certain treaty obligations", as the Courtstated in its decision of 11 July 1996 {Application of theConvention on the Prevention and Punishment of the Crimeof Genocide (Bosnia and Herzegovina v. Yugoslavia), I. C.J.Reports 1996 (II), pp. 614-615, para. 29); and that according

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to Article IX of the Genocide Convention, "disputesbetween the Contracting Parties relating to the interpretationor fulfilment of the present Convention" shall be submittedto the International Court of Justice. Therefore, in hisopinion the Court has prima facie jurisdiction to decideupon the provisional measures requested by Yugoslavia.




Judge Kreca finds that none of the equalization functionsof the institution of judge ad hoc have been met in thisparticular case. The letter and spirit of Article 31, paragraph2, of the Statute of the Court, applied to this particular case,imply the right of Yugoslavia, as the applicant State, tochoose as many judges ad hoc to sit on the Bench as isnecessary to equalize the position of applicant State and thatof the respondent States which have judges of theirnationality on the Bench and which share the same interest.In concreto, the inherent right to equalization in thecomposition of the Bench, as an expression of afundamental rule of equality of parties, means that theFederal Republic of Yugoslavia should have the right tochoose five judges ad hoc, since even five out of tenrespondent States (United States, the United Kingdom,France, Germany, and the Netherlands) have their nationaljudges sitting on the Bench.

At the same time, according to coherent jurisprudence ofthe Court, none of the respondent States were entitled toappoint a judge ad hoc (Territorial Jurisdiction of theInternational Commission of the River Oder; CustomsRégime between Germany and Austria).


Judge Kreca finds that in the recent practice of theCourt, in particular that in which individuals were directly

affected, a high standard of humanitarian concern in theproceedings for the indication of interim measures has beenformed, a standard which commanded sufficient inherentstrength to brush aside some relevant, both procedural andmaterial, rules governing the institution of provisionalmeasures (exampli causa, the LaGrand case). Thus,humanitarian considerations, independently from the normsof international law regulating human rights and liberties,have, in a way, gained autonomous legal significance; theyhave transcended the moral and philanthropic sphere, andentered the sphere of law.





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119. CASE CONCERNING LEGALITY OF USE OF FORCE (YUGOSLAVIA v.GERMANY) (PROVISIONAL MEASURES)


In an Order issued in the case concerning Legality ofUse of Force (Yugoslavia v. Germany), the Court rejectedby twelve votes to three the request for the indication ofprovisional measures submitted by the Federal Republic ofYugoslavia (FRY). The Court also stated that it remainedseized of the case. It reserved the subsequent procedure forfurther decision by fourteen votes to one.



"38. For these reasons,THE COURT,(1) By twelve votes to three;Rejects the request for the indication of provisional


IN FAVOUR: Vice-President Weeramantry, ActingPresident; President Schwebel; Judges Oda, Bedjaoui,Guillaume, Ranjeva, Herczegh, Fleischhauer, Koroma,Higgins, Parra-Aranguren, Kooijmans;


(2) By fourteen votes to one;Reserves the subsequent procedure for further



AGAINST: Judge Oda.

Vice-President Weeramantry, Acting President, andJudges Shi, Koroma and Vereshchetin appendeddeclarations to the Order of the Court. Judges Oda andParra-Aranguren appended separate opinions to the Order ofthe Court. Judge ad hoc Kreca appended a dissentingopinion to the Order of the Court.


On 29 April 1999 Yugoslavia filed an Applicationinstituting proceedings against Germany "for violation ofthe obligation not to use force", accusing that State ofbombing Yugoslav territory "together with other MemberStates of NATO". On the same day, it submitted a requestfor the indication of provisional measures, asking the Courtto order Germany to "cease immediately its acts of use offorce" and to "refrain from any act of threat or use of force"against the FRY.




The Court then points out that it "does not automaticallyhave jurisdiction over legal disputes between States" andthat "one of the fundamental principles of its Statute is thatit cannot decide a dispute between States without the

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consent of those States to its jurisdiction". It cannot indicateprovisional measures without its jurisdiction in the casebeing established prima facie.

Concerning Article IX of the Genocide Convention, theCourt states that it is not disputed that both Yugoslavia andGermany are parties to that Convention, without reservation,and that Article IX accordingly appears to constitute a basison which the jurisdiction of the Court might be founded.The Court however finds that it must ascertain whether thebreaches of the Convention alleged by Yugoslavia arecapable, of falling within the provisions of that instrumentand whether, as a consequence, the dispute is one overwhich the Court might have jurisdiction ratione materiae. Inits Application, Yugoslavia contends that the subject of thedispute concerns inter alia "acts of the Federal Republic ofGerrnany by which it has violated its internationalobligation ... not to deliberately inflict conditions of lifecalculated to cause the physical destruction of a nationalgroup". It contends that the sustained and intensive bombingof the whole of its territory, including the most heavilypopulated areas, constitutes "a serious violation of Article IIof the. Genocide Convention", that it is the Yugoslav nationas a whole and as such that is targeted and that the use ofcertain weapons whose long-term hazards to health and theenvironment are already known, and the destruction of thelargest part of the country's power supply system, withcatastrophic consequences of which the Respondent must beaware, "impl[y] the intent to destroy, in whole or in part",the Yugoslav national group as such. For its part, Germanycontends that even if true, the breaches of internationalobligations alleged by Yugoslavia in its Application do notenter the definition of Article II of the GenocideConvention. It appears to the Court that, according to theConvention, the essential characteristic of genocide is theintended destruction of a national, ethnical, racial orreligious group; the Court further states that "the threat oruse of force against a State cannot in itself constitute an actof genocide within the meaning of Article II of theGenocide Convention". It adds that in its opinion, it doesnot appear at the present stage of the proceedings that thebombings which form the subject of the YugoslavApplication "indeed entail the element of intent, towards agroup as such, required by the provision" mentioned above.The Court considers therefore that it is not in a position tofind, at this stage of the proceedings, that the acts imputedby Yugoslavia to Germany are capable of coming within theprovisions of the Genocide Convention; and Article IXcannot accordingly constitute a basis on which thejurisdiction of the Court could prima facie be founded in thecase.

As to Article 38, paragraph 5, of the Rules of Court, theCourt stresses that, in the absence of consent by Germany, itcannot exercise jurisdiction in the case, even prima facie.

The Court concludes that it "lacks prima faciejurisdiction to entertain Yugoslavia's Application" and thatit "cannot therefore indicate any provisional measurewhatsoever". However, the findings reached by the Court"in no way prejudge the question of the jurisdiction of the

Court to deal with the merits of the case" and they "leaveunaffected the right of the Governments of Yugoslavia andGermany to submit arguments in respect of thosequestions".


Declaration of Vice-President Weeramantry








Nevertheless, he is of the opinion that, being confrontedwith a situation of great urgency arising from the use offorce in and against Yugoslavia, and upon receipt of the

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requests by the Applicant for the indication of provisionalmeasures, the Court ought to have issued a generalstatement appealing to the Parties to act in compliance withtheir obligations under the United Nations Charter and allother rules of international law relevant to the situation, andat least not to aggravate or extend their dispute, regardlessof whait might be the Court's conclusion on prima faciejurisdiction pending its final decision.

Nothing in the Statute or Rules of Court prohibits theCourt from so acting. Also, given the responsibilities of theCourt within the general framework for the maintenance ofpeace and security under the Charter, and under :he Statuteas an integral part of the Charter, to issue such a statement iswithin the implied powers of the Court in the exercise of itsjudicial, functions. Obviously, the Court has failed to take anopportunity to make its due contribution to the maintenanceof peace and security when that is most needed.

Moreover, in spite of the request of Yugoslavia that theCourt exercise its powers under Article 75, paragraph 1, ofthe Rules of Court to decide proprio motn Yugoslavia'srequest to indicate provisional measures, the Court failed toexercise that power, in contrast to its decision to make useof that power in the recent LaGrand case (Germany v. theUnited States of America) in a situation not as urgent as inthe present case.



In his declaration Judge Koroma observed that thesewere perhaps the most serious cases that have ever comebefore the Court for provisional measures. He stated thatjurisprudentially such measures were designed ;o preventviolence, the use of force, to safeguard international peaceand security as well as serving as an important part of thedispute settlement process under the Charter of the UnitedNations. In his view the indication of such measurestherefore represents one of the most important functions ofthe Court.


Nevertheless, he considered the Court, being theprincipal judicial organ of the United Nations, whoseprimaiy raison d'être remains the preservation ofinternational peace and security, to be under a positiveobligation to contribute to the maintenance of internationalpeace and security and to provide a judicial framework forthe resolution of a legal conflict, especially one which notonly threatens international peace and security but alsoinvolves enormous human suffering and continuing loss oflife. He had therefore joined with the other Members of theCourt in calling for the peaceful resolution of this conflictpursuant to Article 33 of the Charter, and in urging the

Parties not to aggravate or extend the dispute and to respectinternational law, including humanitarian law and thehuman rights of all the citizens of Yugoslavia.


The extraordinary circumstances in which Yugoslaviamade its request for interim measures of protection imposeda need to react immediately. The Court should havepromptly expressed its profound concern over the unfoldinghuman misery, loss of life and serious violations ofinternational law which by the time of the request werealready a matter of public knowledge. It is unbecoming forthe principal judicial organ of the United Nations, whosevery raison d'être is the peaceful resolution of internationaldisputes, to maintain silence in such a situation. Even ifultimately the Court may come to the conclusion that, due toconstraints in its Statute, it cannot indicate fully fledgedprovisional measures in accordance with Article 41 of theStatute in relation to one or another of the respondent States,the Court is inherently empowered, at the very least,immediately to call upon the Parties neither to aggravate norto extend the conflict and to act in accordance with theirobligations under the Charter of the United Nations! Thispower flows from its responsibility for the safeguarding ofinternational law and from major considerations of publicorder. Such an authoritative appeal by the "World Court",which would also be consistent with Article 41 of its Statuteand Article 74, paragraph 4, and Article 75, paragraph 1, ofits Rules, could have a sobering effect on the partiesinvolved in the military conflict, unprecedented in Europeanhistory since the end of the Second World War.

The Court was urged to uphold the rule of law in thecontext of large-scale gross violations of international law,including of the Charter of the United Nations. Instead ofacting expeditiously and, if necessary, proprio motil, in itscapacity as "the principal guardian of international law", themajority of the Court, more than one month after therequests were made, rejected them in a sweeping way inrelation to all the cases brought before the Court, includingthose where the prima facie jurisdiction of the Court couldhave been clearly established. Moreover, this decision hasbeen taken in a situation in which deliberate intensificationof bombardment of the most heavily populated areas iscausing unabated loss of life amongst non-combatants andphysical and mental harm to the population in all parts ofYugoslavia.



Judge Oda supports the decision of the Court indismissing the requests for the indication of provisionalmeasures by the Federal Republic of Yugoslavia against ten

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respondent States. While favouring the decision of the Courtto remove the case from the General List of the Court in thecases of Spain and the United States, Judge Oda votedagainst the decision in the other eight cases in which theCourt ordered that it "[Reserves the subsequent procedurefor further decision", because.he believes that those eightcases should also be removed at this stage from the GeneralList of the Court.

Judge Oda considers that the Federal Republic ofYugoslavia is not a Member of the United Nations and thusnot a party to the Statute of the International Court ofJustice. The Applications presented by the Federal Republicof Yugoslavia should therefore be declared inadmissible forthis reason alone and should be removed from the GeneralList of. the Court.





Judge Parra-Aranguren recalls that Yugoslavia maintainsthat "the bombing of Yugoslav populated areas constitute abreach of Article II of the Genocide Convention", acontention denied by the Respondent; that a legal disputeexists between the Parties because of the existence of "asituation in which the two sides hold clearly opposite viewsconcerning the question of the performance or non-performance of certain treaty obligations", as the Court

stated in its decision of 11 July 1996 {Application of theConvention on the Prevention and Punishment of the Crimeof Genocide (Bosnia and Herzegovina v. Yugoslavia), I.C.J.Reports 1996 (II), pp. 614-615, para. 29); and that accordingto Article IX of the Genocide Convention, "disputesbetween the Contracting Parties relating to the interpretationor fulfilment of the present Convention" shall be submittedto the International Court of Justice. Therefore, in hisopinion the Court has prima facie jurisdiction to decideupon the provisional measures requested by Yugoslavia.







Judge Kreca finds that in the recent practice of theCourt, in particular that in which individuals were directlyaffected, a high standard of humanitarian concern in the

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proceedings for the indication of interim measures has beenformed, a standard which commanded sufficient inherentstrength to brush aside some relevant, both procedural andmaterial, rules governing the institution of provisionalmeasures (exampli causa, the LaGrand case). Thus,humanitarian considerations, independently from the normsof international law regulating human rights and liberties,have, in a way, gained autonomous legal significance; theyhave transcended the moral and philanthropic sphere, andentered the sphere of law.


Judge Kreca is of the opinion that the extensive use of

armed force, in particular if it is used against objects andmeans constituting conditions of normal life, can beconducive to "inflicting on the group conditions of life"bringing about "its physical destruction" (GenocideConvention, Article II). .



120. CASE CONCERNING LEGALITY OF USE OF FORCE (YUGOSLAVIA v. ITALY)(PROVISIONAL MEASURES)


In an Order issued in the case concerning Legality ofUse of Force (Yugoslavia v. Italy), the Court rejected bythirteen votes to three the request for the indication ofprovisional measures submitted by the Federal Republic ofYugoslavia (FRY). The Court also stated that it could not atthat stage of proceedings, accede to Italy's request that thecase be removed from the List. It thus remained seized ofthe case. The subsequent procedure had been reserved forfurther decision by fifteen votes to one.

The Court was composed as follows: Vice-PresidentWeeramantry, Acting President; President Schwebel; JudgesOda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi,Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans; Judges ad hoc Gaja, Kreca;Registrar Valencia-Ospina.

The complete text of the operative paragraph of theOrder is as follows:

"39. For these reasons,

THE COURT,(1) By thirteen votes to three,Rejects the request for the indication of provisional


IN FAVOUR: Vice-President Weeramantry, ActingPresident; President Schwebel; Judges Oda, Bedjaoui,Guillaume, Ranjeva, Herczegh, Fleischhauer, Koroma,Higgins, Parra-Aranguren, Kooijmans; Judge ad hocGaja;




President; President Schwebel; Judges Bedjaoui,Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer,Koroma, Vereshchetin, Higgins, Parra-Aranguren,Kooijmans; Judges ad hoc Gaja, Kreca;


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Vice-Président Weeramantry, Acting President, JudgesShi, Koroma and Vereshchetin, and Judge ad hoc Gajaappended declarations to the Order of the Court. Judges Odaand Parra-Aranguren appended. separate opinions to theOrder of the Court. Judge ad hoc Kreca appended adissenting opinion to the Order of the Court.


On 29 April 1999 Yugoslavia filed an Applicationinstituting proceedings against Italy "for violation of theobligation not to use force", accusing that State of bombingYugoslav territory "together with other Member States ofNATO". On the same day, it submitted a request for theindication of provisional measures, asking the Court toorder Italy to "cease immediately its acts of use of force"and to "refrain from any act of threat or use of force"against the FRY.





Concerning Article IX of the Genocide Convention, theCourt states that it is not disputed that both Yugoslavia andItaly are parties to that Convention, without reservation, andthat Article IX accordingly appears to constitute a basis onwhich the jurisdiction of the Court might be founded. TheCourt however finds that it must ascertain whether thebreaches of the Convention alleged by Yugoslavia arecapable of falling within the provisions of that instrumentand whether, as a consequence, the dispute is one overwhich the Court might have jurisdiction ratione materiae. Inits Application, Yugoslavia contends that the subject of thedispute concerns inter alia "acts of the Italian Republic bywhich it has violated its international obligation ... not todeliberately inflict conditions of life calculated to cause thephysical destruction of a national group". It contends thatthe sustained and intensive bombing of the whole of itsterritory, including the most heavily populated areas,constitutes "a serious violation of Article II of the GenocideConvention", that it is the Yugoslav nation as a whole andas such that is targeted and that the use of certain weaponswhose long-term hazards to health and the environment arealready known, and the destruction of the largest part of thecountry's power supply system, with catastrophicconsequences of which the Respondent must be aware,"impl[y] the intent to destroy, in whole or in part", theYugoslav national group as such. For its part, Italy contendsthat "[manifestly, both the subjective element and theobjective element of the crime of genocide are lacking", thatthe "action taken by the NATO Member States is directed atthe territory of the [FRY] and not at its people" and thatthere is "absence of ... deliberate and intentional desire toachieve [the] inherent objective [of the crime]". It appears tothe Court that, according to the Convention, the essentialcharacteristic of genocide is the intended destruction of anational, ethnical, racial or religious group; the Court furtherstates that "the threat or use of force against a State cannotin itself constitute an act of genocide within the meaning ofArticle II of the Genocide Convention". It adds that in itsopinion, it does not appear at the present stage of theproceedings that the bombings which form the subject of theYugoslav Application "indeed entail the element of intent,towards a group as such, required by the provision"mentioned above. The Court considers therefore that it isnot in a position to find, at this stage of the proceedings, thatthe acts imputed by Yugoslavia to Italy are capable ofcoming within the provisions of the Genocide Convention;and Article IX cannot accordingly constitute a basis onwhich the jurisdiction of the Court could prima facie befounded in the case.

As to Article 38, paragraph 5, of the Rules of Court, theCourt stresses that, in the absence of consent by Italy, itcannot exercise jurisdiction in the case, even prima facie.

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The Court concludes that it "lacks prima faciejurisdiction to entertain Yugoslavia's Application" and thatit 'cannot therefore indicate any provisional measurewhatsoever". However, the findings reached by the Court"in no way prejudge the question of the jurisdiction of theCourt to deal with the merits of the case" and they "leaveunaffected the right of the Governments of Yugoslavia andItaly to submit arguments in respect of those questions".

The Court finally observes that "there is a fundamentaldistinction between the question of the acceptance by a Stateof the Court's jurisdiction and the compatibility of particularacts with international law". "The former requires consent;the latter question can only be reached when the Court dealswith the merits after having established its jurisdiction andhaving heard full legal arguments by both parties." Itemphasizes that "whether or not States accept thejurisdiction of the Court, they remain in any eventresponsible for acts attributable to them that violateinternational law, including humanitarian law" and that "anydisputes relating to the legality of such acts are required tobe resolved by peaceful means, the choice of which,pursuant to Article 33 of the Charter, is left to the parties".In this context, "the parties should take care not to aggravateor extend the dispute". The Court reaffirms that "when sucha dispute gives rise to a threat to the peace, breach of thepeace or act of aggression., the Security Council has specialresponsibilities under Chapter VII of the Charter".

Declaration of Vice-Président Weeramantry

Judge Weeramantry expressed the view thai even thoughthe Court did not issue provisional measures, it still had thepower to issue an appeal to both Parties to the effect thatthey should act in accordance with their obligations underthe Charter of the United Nations and other rules ofinternational law including humanitarian law and do nothingto aggravate or extend the conflict.






Judge Shi agrees with the majority that in the cases ofYugoslavia against France, Germany, Italy and the UnitedKingdom there is no prima facie jurisdiction., and in thecases of Yugoslavia against Spain and the United States noteven prima facie jurisdiction, for the indication ofprovisional measures requested by the Applicant.

Nevertheless, he is of the opinion that, being confrontedwith a situation of great urgency arising from the use offorce in and against Yugoslavia, and upon receipt of therequests by the Applicant for the indication of provisionalmeasures, the Court ought to have issued a generalstatement appealing to the Parties to act in compliance withtheir obligations under the United Nations Charter and allother rules of international law relevant to the situation, andat least not to aggravate or extend their dispute, regardlessof what might be the Court's conclusion on prima faciejurisdiction pending its final decision.

Nothing in the Statute or Rules of Court prohibits theCourt from so acting. Also, given the responsibilities of theCourt within the general framework for the maintenance ofpeace and security under the Charter, and under the Statuteas an integral part of the Charter, to issue such a statement iswithin the implied powers of the Court in the exercise of itsjudicial functions. Obviously, the Court has failed to take anopportunity to make its due contribution to the maintenanceof peace and security when that is most needed.






Nevertheless, he considered the Court, being theprincipal judicial organ of the United Nations, whoseprimary raison d'être remains the preservation ofinternational peace and security, to be under a positiveobligation to contribute to the maintenance of internationalpeace and security and to provide a judicial framework forthe resolution of a legal conflict, especially one which notonly threatens international peace and security but alsoinvolves enormous human suffering and continuing loss of

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life. He had therefore joined with the other Members of theCourt in calling for the peaceful resolution of this conflictpursuant to Article 33 of the Charter, and in urging theParties not to aggravate or extend the dispute and to respectinternational law, including humanitarian law and thehuman rights of all the citizens of Yugoslavia.



The Court was urged to uphold the rule of law in thecontext of large-scale gross violations of international law,including of the Charter of the United Nations. Instead ofacting expeditiously and, if necessary, proprio motu, in itscapacity as "the principal guardian of international law", themajority of the Court, more than one month after therequests were made, rejected them in a sweeping way inrelation to all the cases brought before the Court, includingthose where the prima facie jurisdiction of the Court couldhave been clearly established. Moreover, this decision hasbeen taken in a situation in which deliberate intensificationof bombardment of the most heavily populated areas iscausing unabated loss of life amongst non-combatants andphysical and mental harm to the population in all parts ofYugoslavia.


Declaration of Judge Gaja

In his declaration concerning the Order in the caseconcerning Legality of Use of Force {Yugoslavia v. Italy),Judge Gaja gave some explanation why this case should notbe removed from the List. In his view an Order to remove acase should be given when the jurisdictional basis that isinvoked by the applicant State is manifestly inexistent.When no reasonable connection exists between the disputesubmitted to the Court and the treaty including ajurisdictional clause which the Applicant invokes, the sameapplies if no reasonable connection could conceivablyappear at a subsequent stage of the proceedings.


Judge Oda supports the decision of the Court indismissing the requests for the indication of provisionalmeasures by the Federal Republic of Yugoslavia against tenrespondent States. While favouring the decision of the Courtto remove the case from the General List of the Court in thecases of Spain and the United States, Judge Oda votedagainst the decision in the other eight cases in which theCourt: ordered that it '*[r]eserves the subsequent procedurefor further decision", because he believes that those eightcases should also be removed at this stage from the GeneralList of the Court.




Judge Oda also points out that, while the Court makes adistinction between the Applications, even though they dealvirtually with the same subject matter, this distinction,

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which came about simply because of the different positionswhich individual States happened to take lowards thevarious instruments that are to be applied concerning theCourt's jurisdiction, will lead to differing results; concerningthe future proceedings in each of the cases. In Judge Oda'sview this is an illogical situation, which supports hiscontention that all ten cases should be dismissed in theirentirety at this stage.


Judge Parra-Aranguren recalls that Yugoslavia maintainsthat "the bombing of Yugoslav populated areas constitute abreach of Article II of the Genocide Convention", acontention denied by the Respondent; that a legal disputeexists between the Parties because of the existence of "asituation in which the two sides hold clearly opposite viewsconcerning the question of the performance or non-performance of certain treaty obligations", as the Courtstated in its decision of 11 July 1996 (Application of theConvention on the Prevention and Punishment of the Crimeof Genocide (Bosnia and Herzegovina v. Yugoslavia), I.C.J.Reports 1996 (II), pp. 614-615, para. 29); and that accordingto Article IX of the Genocide Convention, "disputesbetween the Contracting Parties relating to the interpretationor fulfilment of the present Convention" shall be submittedto the International Court of Justice. Therefore, in hisopinion the Court has prima facie jurisdiction to decideupon the provisional measures requested by Yugoslavia.

Yugoslavia requested the Court to indicate that theRespondent "shall cease immediately the acts oí" use of forceand shall refrain from any act of threat or use of forceagainst the Federal Republic of Yugoslavia". However, thethreat or use of force against a State cannot in itselfconstitute an act of genocide within the meaning of theGenocide Convention. Consequently, Yugoslavia isrequesting the indication of provisional measures that do notaim to guarantee its rights under the Genocide Convention,i.e., the right not to suffer acts which may be characterizedas genocide crimes by the Convention. Therefore, in theopinion of Judge Parra-Aranguren, the measures requestedby Yugoslavia should not be indicated.



Judge Kreca finds that none of the equalization functionsof the institution of judge ad hoc have been met in thisparticular case. The letter and spirit of Article 31, paragraph2, of the Statute of the Court, applied to this particular case,imply the right of Yugoslavia, as the applicant State, tochoose as many judges ad hoc to sit on the Bench as isnecessary to equalize the position of applicant State and thatof the respondent States which have judges of theirnationality on the Bench and which share the same interest.In concreto, the inherent right to equalization in thecomposition of the Bench, as an expression of afundamental rule of equality of parties, means that the

Federal Republic of Yugoslavia should have the right tochoose five judges ad hoc, since even five out of tenrespondent States (United States, the United Kingdom,France, Germany, and the Netherlands) have their nationaljudges sitting on the Bench.



Judge Kreca finds that in the recent practice of theCourt, in particular that in which individuals were directlyaffected, a high standard of humanitarian concern in theproceedings for the indication of interim measures has beenformed, a standard which commanded sufficient inherentstrength to brush aside some relevant, both procedural andmaterial, rules governing the institution of provisionalmeasures (exampli causa, the LaGrand case). Thus,humanitarian considerations, independently from the normsof international law regulating human rights and liberties,have, in a way, gained autonomous legal significance; theyhave transcended the moral and philanthropic sphere, andentered the sphere of law.



Judge Kreca goes on to say that it can be argued thatsuch acts are in the function of degrading the militarycapacity of the Federal Republic of Yugoslavia. But such anexplanation can hardly be regarded as a serious argument.For the spiral of such a line of thinking may easily come to apoint when, having in mind that military power is after allcomprised of people, even mass killing of civilians can beclaimed to constitute some sort of precautionary measure

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that should prevent the maintenance or, in case ofmobilization, the increase of military power of a State.

Judge Kreca also points out that, in the incidentalproceedings the Court cannot and should not concern itselfwith the definitive qualification of the intent to impose uponthe group conditions in which the survival of the group is

threatened. Having in mind the purpose of provisionalmeasures, it can be said that at this stage of the proceedingsit is sufficient to establish that, in the conditions ofextensive bombing, there is an objective risk of bringingabout conditions in which the survival of the group isthreatened.

121. CASE CONCERNING LEGALITY OF USE OF FORCE (YUGOSLAVIA v.NETHERLANDS) (PROVISIONAL MEASURES)


In an Order issued in the case concerning Legality ofUse of Force (Yugoslavia v. Netherlands), the Courtrejected by eleven votes to four the request for theindication of provisional measures submitted by the FederalRepublic of Yugoslavia (FRY). The Court also stated that itremained seized of the case. It reserved the subsequentprocedure for further decision by fourteen votes to one.

The Court was composed as follows: Vice-PresidentWeeramantry, Acting President; President Schwebel; JudgesOda, Bedjaoui., Guillaume, Ranjeva, Herczegh, Shi,Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans; Judge ad hoc Kreca; RegistrarValencia-Ospina.


"51. For these reasons,THE COURT,(1) By eleven votes to four,Rejects the request for the indication of provisional


IN FAVOUR: President Schwebel; Judges Oda,Bedjaoui, Guillaume, Ranjeva, Herczegh, Fleischhauer,Koroma, Higgins, Parra-Aranguren, Kooijmans;

AGAINST: Vice-President Weeramantry, ActingPresident; Judges Shi, Vereshchetin; Judge ad hoc Kreca;

(2) By fourteen votes to one.Reserves the subsequent procedure for further






On 29 April 1999 Yugoslavia filed an Applicationinstituting proceedings against the Netherlands "forviolation of the obligation not to use force", accusing thatState of bombing Yugoslav territory "together with otherMember States of NATO". On the same day, it submitted arequest for the indication of provisional measures, askingthe Court to order the Netherlands to "cease immediately itsacts of use of force" and to "refrain from any act of threat oruse of force" against the FRY.

As a basis for the jurisdiction of the Court, Yugoslaviainvoked the declarations by which both States had acceptedthe compulsory jurisdiction of the Court in relation to anyother State accepting the same obligation (Article 36,paragraph 2, of the Statute of the Court), and Article IX ofthe Convention on the Prevention and Punishment of theCrime of Genocide, adopted by the United Nations GeneralAssembly on 9 December 1948.

Article IX of the Genocide Convention provides thatdisputes between the contracting parties relating to theinterpretation, application or fulfilment of the Conventionshall be submitted to the International Court of Justice. In asupplement to its Application submitted to the Court on 12May 1999, Yugoslavia invoked, as an additional ground ofjurisdiction, Article 4 of the Treaty of Judicial Settlement,Arbitration and Conciliation between the Netherlands andthe Kingdom of Yugoslavia, signed at The Hague on 11March 1931.

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In its Order, the Court first emphasizes that it is "deeplyconcerned with the human tragedy, the loss of life, and theenormous suffering in Kosovo which form the background"of the dispute and "with the continuing loss of life andhuman suffering in all parts of Yugoslavia". It declares itself"profoundly concerned with the use of force in Yugoslavia",which "under the present circumstances ... raises veryserious issues of international law". While being "mindfulof the purposes and principles of the United Nations Charterand of its own responsibilities in the maintenance of peaceand security under the Charter and [its] Statute", the Court"deems it necessary to emphasize that all parties before itmust act in conformity with their obligations under theUnited Nations Charter and other rules of international law,including humanitarian lav/".


Concerning the first basis of jurisdiction invoked, theCourt observes that under the terms of its declaration,Yugoslavia limits its acceptance of the Court's compulsoryjurisdiction to "disputes arising or which may arise after thesignature of the present Declaration, with regard to thesituations or facts subsequent to this signature". It states thatin order to assess whether it has jurisdiction in the case, it issufficient to decide whether the dispute brought to the Court"arose" before or after 25 April 1999, the date on which thedeclaration was signed. It finds that the bombings began on24 March 1999 and have been conducted continuously overa period extending beyond 25 April 1999. The Court hasthus no doubt that a "legal dispute ... 'arose' betweenYugoslavia and [the Netherlands], as it did also with theother NATO member States, well before 25 April 1999".The Court concludes that the declarations made by theParties do not constitute a basis on which the jurisdiction ofthe Court could prima facie be founded in the case.

As to the arguments of the Netherlands that Yugoslaviais not a member State of the United Nations in view ofUnited Nations Security Council resolutions 757 and 777(1992) and United Nations General Assembly resolutions47/1 (1992) and 48/88 (1993), nor a party to the Statute ofthe Court, so that Yugoslavia could not validly make thedeclaration accepting the compulsory jurisdiction of theCourt, the Court maintains that it need not consider thisquestion, taking into account its finding that the declarationsdo not constitute a basis of jurisdiction.

Concerning Article IX of the Genocide Convention, theCourt states that it is not disputed that both Yugoslavia andthe Netherlands are parties to that Convention, withoutreservation, and that Article IX accordingly appears toconstitute a basis on which the jurisdiction of the Courtmight be founded. The Court however finds that it mustascertain whether the breaches of the Convention alleged by

Yugoslavia are capable of falling within the provisions ofthat instrument and whether, as a consequence, the disputeis one over which the Court might have jurisdiction rationemateriae. In its Application, Yugoslavia contends that thesubject of the dispute concerns inter alia "acts of theKingdom of the Netherlands by which it has violated itsinternational obligation ... not to deliberately inflictconditions of life calculated to cause the physicaldestruction of a national group". It contends that thesustained and intensive bombing of the whole of itsterritory, including the most heavily populated areas,constitutes "a serious violation of Article II of the GenocideConvention", that it is the Yugoslav nation as a whole andas such that is targeted and that the use of certain weaponswhose long-term hazards to health and the environment arealready known, and the destruction of the largest part of thecountry's power supply system, with catastrophicconsequences of which the Respondent must be aware,"implfy] the intent to destroy, in whole or in part", theYugoslav national group as such. According to theNetherlands, Yugoslavia's Application "fails to refer to theconditions that form the core of the crime of genocide underthe Convention, namely 'the intent to destroy, in whole or inpart, a national, ethnical, racial or religious group, as such'"and the Court accordingly lacks jurisdiction rationemateriae on the basis of Article IX. It appears to the Courtthat, according to the Convention, the essentialcharacteristic of genocide is the intended destruction of anational, ethnical, racial or religious group; the Court furtherstates that "the threat or use of force against a State cannotin itself constitute an act of genocide within the meaning ofArticle II of the Genocide Convention". It adds that in itsopinion, it does not appear at the present stage of theproceedings that the bombings which form the subject of theYugoslav Application "indeed entail the element of intent,towards a group as such, required by the provision"mentioned above. The Court considers therefore that it isnot in a position to find, at this stage of the proceedings, thatthe acts imputed by Yugoslavia to the Netherlands arecapable of coming within the provisions of the GenocideConvention; and Article IX cannot accordingly constitute abasis on which the jurisdiction of the Court could primafacie be founded in the case.

As to Article 4 of the Treaty of Judicial Settlement,Arbitration and Conciliation between the Netherlands andthe Kingdom of Yugoslavia, the Court observes that "theinvocation by a party of a new basis of jurisdiction in thesecond round of oral argument on a request for theindication of provisional measures has never beforeoccurred in the Court's practice", that "such action at thislate stage, when not accepted by the other party, seriouslyjeopardizes the principle of procedural fairness and thesound administration of justice" and that in consequence theCourt cannot take into consideration this new title ofjurisdiction.

The Court having found that it has "no prima faciejurisdiction to entertain Yugoslavia's Application, either onthe basis of Article 36, paragraph 2, of the Statute or ofArticle IX of the Genocide Convention" and having "taken

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the view that it cannot, at this stage of the proceedings, takeaccount of the additional basis of jurisdiction invoked byYugoslavia", it follows that the Court "cannot indicate anyprovisional measure whatsoever". However, the findingsreached by the Court "in no way prejudge the question ofthe jurisdiction of the Court to deal with the merits of thecase" and they "leave unaffected the right of theGovernments of Yugoslavia and the Netherlands to submitarguments in respect of those questions".





Nevertheless, he considered the Court, being theprincipal judicial organ of the United Nations, whoseprimary raison d'être remains the preservation ofinternational peace and security, to be under a positiveobligation to contribute to the maintenance of internationalpeace and security and to provide a judicial framework forthe resolution of a legal conflict, especially one which notonly threatens international peace and security but alsoinvolves enormous human suffering and continuing loss oflife. He had therefore joined with the other Members of theCourt in calling for the peaceful resolution of this conflictpursuant to Article 33 of the Charter, and in urging the

Parties not to aggravate or extend the dispute and to respectinternational law, including humanitarian law and thehuman, rights of all the citizens of Yugoslavia.


Judge Oda supports the decision of the Court indismissing the requests for the indication of provisionalmeasures by the Federal Republic of Yugoslavia against tenrespondent States. While favouring the decision of the Courtto remove the case from the General List of the Court in thecases of Spain and the United States, Judge Oda votedagainst the decision in the other eight cases in which theCourt ordered that it "[Reserves the subsequent procedurefor further decision", because he believes that those eightcases should also be removed at this stage from the GeneralList of the Court.





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Judge Higgins in her separate opinions addresses twoissues that arise in relation to those cases where the FederalRepublic of Yugoslavia claims jurisdiction on the basis ofArticle 36, paragraph 2, of the Statute. The first issueconcerns temporal limitations to so-called "optionalclauses", and in particular the question of when a disputearises and when the relevant events have occurred. Theseconcepts are analysed in connection with Yugoslavia's owndeclaration. The second issue addresses the question ofexactly what has to be shown for the Court to be: satisfied ithas prima facie jurisdiction when it is considering theindication of provisional measures. It is suggested that somejurisdictional issues are so complex that they cannot beaddressed at all at this phase; their holding over for a laterphase does not stand in the way of the Court determiningwhether or not it has prima facie jurisdiction for thepurposes of Article 41.


Judge Parra-Aranguren recalls that Yugoslavia maintainsthat "the bombing of Yugoslav populated areas constitute abreach of Article II of Ihe Genocide Convention", acontention denied by the Respondent; that a legal disputeexists between the Parties because of the existence of "asituation in which the two sides hold clearly opposite viewsconcerning the question of the performance or non-performance of certain treaty obligations", as the Courtstated in its decision of 11 July 1996 {Application of theConvention on the Prevention and Punishment of the Crimeof Genocide (Bosnia and Herzegovina v. Yugoslavia), I.C.J.Reports 1996 (II), pp. 614-615, para. 29); and that accordingto Article IX of the Genocide Convention, "disputesbetween the Contracting Parties relating to the interpretationor fulfilment of the present Convention" shall be submittedto the International Court of Justice. Therefore, in hisopinion the Court has prima facie jurisdiction to decideupon the provisional measures requested by Yugoslavia.

Yugoslavia requested the Court to indicate that theRespondent "shall cease immediately the acts of use of forceand shall refrain from any act of threat or use of forceagainst the Federal Republic of Yugoslavia". However, thethreat or use of force against a State cannot in itselfconstitute an act of genocide within the meaning of theGenocide Convention. Consequently, Yugoslavia isrequesting the indication of provisional measures; that do notaim to guarantee its rights under the Genocide Convention,i.e., the right not to suffer acts which may be characterizedas genocide crimes by the Convention. Therefore, in theopinion of Judge Parra-Aranguren, the measures requestedby Yugoslavia should not be indicated.










Difficult though the question may be, the relevantdecisions have been taken by the organs of the UnitedNations which have exclusive authority in matters of

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membership (Security Council and General Assembly) andthey cannot be overlooked or ignored.









Prior to the coming into existence of all the constituentelements, the dispute cannot be said to arise. Though theaerial bombing of the territory of Yugoslavia began someweeks before the critical date of signature of the declaration,aerial bombing and its effects as such do not constitute adispute. It is true that prior to the critical date, Yugoslaviahad accused NATO of illegal use of force against it. Thiscomplaint constitutes at the most one of the many

constituent elements of the dispute. Besides, NATO cannotbe identified with, nor be the Respondent in the presentcases ratione personae. The dispute only arose at the datesubsequent to the signature of the declaration.



Moreover, for reasons similar to those expressed in thedeclarations relating to the other six cases, Judge Shi regretsthat the Court, being confronted with a situation of greaturgency, failed to make a general statement appealing to theParties to act in compliance with their obligations under theUnited Nations Charter and all the rules of international lawrelevant to the situation, and at least not to aggravate orextend their disputes immediately upon receipt ofYugoslavia's request and regardless of what might be theCourt's conclusion on prima facie jurisdiction pending itsfinal decision. The Court also failed to make use of Article75, paragraph 1, of the Rules of Court to decide the requestsproprio motu, despite Yugoslavia having so asked.

For these reasons, Judge Shi felt compelled to voteagainst operative paragraph (1 ) of the four Orders.



Judge Vereshchetin disagrees with two cornerstonepropositions on which, in his opinion, rest the arguments tothe contrary upheld in the Orders of the Court. The firstproposition is that the text of the Yugoslav declarationaccepting the jurisdiction of the Court, and in particular the

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wording of the reservation contained therein, does not grantprima facie jurisdiction to the Court. The second propositionis that the timing of the presentation by Yugoslavia of theadditional bases for jurisdiction does not allow the Court toconclude that it has prima facie jurisdiction in respect of thecases instituted against Belgium and the Netherlands.


As to the second proposition connected with theinvocation of additional grounds of jurisdiction in relation toBelgium and the Netherlands, in the opinion of JudgeVereshchetin, the legitimate concern of the Court over theobservance of "the principle of procedural fairness and thesound administration of justice" cannot be stretched to suchan extent as to exclude a priori the additional basis ofjurisdiction from its consideration, solely because therespondent States have not been given adequate time toprepare their counter-arguments. Admittedly, it cannot beconsidered normal for a new basis of jurisdiction to beinvoked in the second round of the hearings. However, therespondent States were given the possibility of presentingtheir counter-arguments to the Court, and they used thispossibility to make various observations and objections tothe new basis of jurisdiction. If necessary, they could haveasked for the prolongation of the hearings. In turn, theApplicant may reasonably claim that the belated invocationof the new titles of jurisdiction was caused by theextraordinary situation in Yugoslavia, in which thepreparation of the Applications had been carried out underconditions of daily aerial bombardment by the Respondents.

The refusal of the majority to take into consideration thenew bases of jurisdiction is clearly contrary to Article 38 ofthe Rules of Court and .to the Court's jurisprudence. Therefusal to have due regard to the intention of a State makinga declaration of acceptance of the Court's jurisdiction is alsoincompatible with the Court's case-law and with thecustomary rules for interpreting legal instruments. In theview of Judge Vereshchetin, all the requirements for theindication of provisional measures, flowing from Article 41of the Court's Statute and from its well-establishedjurisprudence, have been met, and the Court shouldundoubtedly have indicated such measures so far as theabove four States are concerned.



Judge Kreca finds that none of the equalization functionsof the institution of judge ad hoc have been met in thisparticular case. The letter and spirit of Article 31, paragraph2, of the Statute of the Court:, applied to this particular case,imply the right of Yugoslavia, as the applicant State, to

choose as many judges ad hoc to sit on the Bench as isnecessary to equalize the position of applicant State and thatof the respondent States which have judges of theirnationality on the Bench and which share the same interest.In concreto, the inherent right to equalization in thecomposition of the Bench, as an expression of afundamental rule of equality of parties, means that theFederal Republic of Yugoslavia should have the right tochoose five judges ad hoc, since even five out of tenrespondent States (United States, the United Kingdom,France, Germany, and the Netherlands) have their nationaljudges sitting on the Bench.

At the same time, according to coherent jurisprudence ofthe Court, none of the respondent States were entitled toappoint a judge ad hoc {Territorial Jurisdiction of theInternational Commission of the River Oder; CustomsRégime between Germany and Austria).


Judge Kreca finds that in the recent practice of theCourt, in particular that in which individuals were directlyaffected, a high standard of humanitarian concern in theproceedings for the indication of interim measures has beenformed, a standard which commanded sufficient inherentstrength to brush aside some relevant, both procedural andmaterial, rules governing the institution of provisionalmeasures (exampli causa, the LaGrand case). Thus,humanitarian considerations, independently from the normsof international law regulating human rights and liberties,have, in a way, gained autonomous legal significance; theyhave transcended the moral and philanthropic sphere, andentered the sphere of law.


Judge Kreca finds that, as regards the membership ofYugoslavia in the United Nations, the Court remainedconsistent with its "avoidance" position, persisting in itsstatement that it "need not consider this question for thepurpose of deciding whether or not it can indicateprovisional measures in the present case. But it is theprofound conviction of Judge Kreca that the Court shouldhave answered the question whether the Federal Republic of

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Yugoslavia can or cannot, in the light of the content ofGeneral Assembly resolution 47/1 and of the practice of theworld Organization, be considered to be a Member of theUnited Nations and especially party to the Statute of theCourt; namely the text of resolution 47/1 makes no mentionof the status of the Federal Republic of Yugoslavia as aparty to the Statute of the International Court of Justice.Judge Kreca is equally convinced that, especially becausethe Court should have answered that question, both thecontent of the resolution which represents eontradictio inadiecto and in particular the practice of the worldOrganization after its adoption over a period of nearly sevenyears, offered ample arguments for it to pronounce itself onthis matter.




Judge Kreca finds that the stance of the Court as regardsjurisdiction of the Court ratione temporis is highlyquestionable for two basic reasons. Firstly, for reasons of ageneral nature to do with the jurisprudence of the Court inthis particular matter, on the one hand, and with the natureof the proceedings for the indication of provisionalmeasures, on the other and, secondly, for reasons of aspecific nature deriving from circumstances of the case in

hand. As far as jurisdiction of the Court is concerned, itseems incontestable that a liberal approach towards thetemporal element of the Court's jurisdiction in theindication of provisional measures has become apparent. Itis understandable that the proceeding for the indication ofprovisional measures is surely not designed for the purposeof the final and definitive establishment of the jurisdictionof the Court. The determinant "prima facie" itself impliesthat what is involved is not definitely establishedjurisdiction, but the jurisdiction deriving or supposed to benormally deriving from a relevant legal fact which isdefined as the "title of jurisdiction". It could be said that the"title of jurisdiction" is sufficient^/- se to constitute primafacie jurisdiction except in the case of the absence ofjurisdiction on the merits is manifest (Fisheries Jurisdictioncases).

Judge Kreca disagrees with the stance of the Courtregarding the additional ground of jurisdiction (Article 4 ofthe 1931 Treaty), since he finds that three essentialconditions necessary to qualify the additional ground asadmissible are met in this particular case:

(a) that the Applicant makes it clear that it intends toproceed upon that basis;

(b) that the result of invoking additional grounds is notto transform the dispute brought before the Court by theApplication into another dispute which is different incharacter; and

(c) that additional grounds afford a basis on which thejurisdiction of the Court to entertain the Application mightbe prima facie established.

It should be stressed, in the opinion of Judge Kreca, thatthe 19.31 Treaty was concluded and designed for the purposeof dealing with disputes which may arise between theContracting Parties through "conciliation, judicialsettlement and arbitration" per definitionem affords a basison which the jurisdiction of the Court to entertain theApplication may be established. Article 4 (1) stipulated that"the dispute shall be submitted jointly under a specialagreement" and, as that obviously is not the case, onlyparagraph 2 of the said Article may be the appropriate basisof jurisdiction of the Court pro futuro.

At the same time he points out that even if the documentin which the Applicant pointed to the Treaty of 1931 asadditional grounds of jurisdiction were declared"inadmissible", the Court could not have ignored the factthat the Treaty exists. In that case, the Court could havedifferentiated between the document as such and the Treatyof 1931, per se, as a basis of jurisdiction.

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122. CASE CONCERNING LEGALITY OF USE OF FORCE (YUGOSLAVIA v.PORTUGAL) (PROVISIONAL MEASURES)


In an Order issued in the case concerning Legality ofUse of Force (Yugoslavia v. Portugal), the Court rejected byeleven votes to four the request for the indication ofprovisional measures submitted by the Federal Republic ofYugoslavia (FRY). The Court also stated that it remainedseized of the case. It reserved the subsequent procedure forfurther decision by fourteen votes to one.



"50. For these reasons,THE COURT,(1) By eleven votes to four,Rejects the request for the indication of provisional


IN FAVOUR: President Schwebel; Judges Oda,Bedjaoui, Guillaume, Ranjeva, Herczegh, FLeischhauer,Koroma, Higgins, Parra-Aranguren, Kooijmans;

AGAINST: Vice-President Weeramaniry, ActingPresident; Judges Shi, Vereshchetin; Judge ad hocKreca;







On 29 April 1999 Yugoslavia filed an Applicationinstituting proceedings against Portugal "for violation of theobligation not to use force", accusing that State of bombingYugoslav territory "together with other Member States ofNATO". On the same day, it submitted a request for theindication of provisional measures, asking the Court toorder Portugal to "cease immediately its acts of use offorce" and to "refrain from any act of threat or use of force"against the FRY.

As a basis for the jurisdiction of the Court, Yugoslaviainvoked the declarations by which both States had acceptedthe compulsory jurisdiction of the Court in relation to anyother State accepting the same obligation (Article 36,paragraph 2, of the Statute of the Court), and Article IX ofthe Convention on the Prevention and Punishment of theCrime of Genocide, adopted by the United Nations GeneralAssembly on 9 December 1948. Article IX of the GenocideConvention provides that disputes between the contractingparties relating to the interpretation, application orfulfilment of the Convention shall be submitted to theInternational Court of Justice.




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Concerning the first basis of jurisdiction invoked, theCourt observes that under the terms of its declaration,Yugoslavia limits its acceptance of the Court's compulsoryjurisdiction to "disputes arising or which may arise after thesignature of the present Declaration, with regard to thesituations or facts subsequent to this signature". It states thatin order to assess whether it has jurisdiction in the case, it issufficient to decide whether the dispute brought to the Court"arose" before or after 25 April 1999, the date on which thedeclaration was signed. It finds that the bombings began on24 March 1999 and have been conducted continuously overa period extending beyond 25 April 1999. The Court hasthus no doubt that a "legal dispute ... 'arose' betweenYugoslavia and [Portugal], as it did also with the otherNATO member States, well before 25 April 1999". TheCourt concludes that the declarations made by the Parties donot constitute a basis on which the jurisdiction of the Courtcould prima facie be founded in the case.

As to Portugal's argument that Yugoslavia is not aMember State of the United Nations in view of UnitedNations Security Council resolutions 777 (1992) and 821(1993), as well as of General Assembly resolutions 47/1(1992) and 48/8 (1993), nor a party to the Statute of theCourt, the Court maintains that it need not consider thisquestion, taking into account its finding that the declarationsdo not constitute a basis of jurisdiction.

Concerning Article IX of the Genocide Convention, theCourt finds that it must ascertain whether the breaches ofthe Convention alleged by Yugoslavia are capable of fallingwithin the provisions of that instrument and whether, as aconsequence, the dispute is one over which the Court mighthave jurisdiction ratione materiae. In its Application,Yugoslavia contends that the subject of the dispute concernsinter alia "acts of Portugal by which it has violated itsinternational obligation ... not to deliberately inflictconditions of life calculated to cause the physicaldestruction of a national group". It contends that thesustained and intensive bombing of the whole of itsterritory, including the most heavily populated areas,constitutes "a serious violation of Article II of the GenocideConvention", that it is the Yugoslav nation as a whole andas such that is targeted and that the use of certain weaponswhose long-term hazards to health and the environment arealready known, and the destruction of the largest part of thecountry's power supply system, with catastrophicconsequences of which the Respondent must be aware,"implfy] the intent to destroy, in whole or in part", theYugoslav national group as such. For its part, Portugalcontends that "the specific intent which is necessary for thecrime [of genocide]'s existence is absent in the case", thatthe actions in which Portugal allegedly took part "are clearlyinadequate to the commitment of a crime that would requirea selective effort in the choice of the victims, incompatiblewith the contingent effect of the employed means" and thatin consequence, "both the objective and subjective elementsof the crime are missing". It appears to the Court that,according to the Convention, the essential characteristic ofgenocide is the intended destruction of a national, ethnical,racial or religious group; the Court further states that "the

threat or use of force against a State cannot in itselfconstitute an act of genocide within the meaning of ArticleII of the Genocide Convention". It adds that in its opinion, itdoes not appear at the present stage of the proceedings thatthe bombings which form the subject of the YugoslavApplication "indeed entail the element of intent, towards agroup as such, required by the provision" mentioned above.The Court considers therefore that it is not in a position tofind, at this stage of the proceedings, that the acts imputedby Yugoslavia to Portugal are capable of coming within theprovisions of the Genocide Convention; and Article IXcannot accordingly constitute a basis on which thejurisdiction of the Court could prima facie be founded in thecase.

Concerning Portugal's argument that at the date onwhich Yugoslavia filed its Application ... "Portugal was notparty to the Genocide Convention — although its instrumentof accession had already been deposited in the UnitedNations", the Court considers that with regard to the findingit reached on Article IX of the Genocide Convention as abasis of jurisdiction, there is no need for it to consider thisquestion for the purpose of deciding whether or not it canindicate provisional measures in the case.

The Court concludes that it "lacks prima faciejurisdiction to entertain Yugoslavia's Application" and thatit "cannot therefore indicate any provisional measurewhatsoever". However, the findings reached by the Court"in no way prejudge the question of the jurisdiction of theCourt to deal with the merits of the case" and they "leaveunaffected the right of the Governments of Yugoslavia andPortugal to submit arguments in respect of those questions".



In his declaration Judge Koroma observed that thesewere perhaps the most serious cases that have ever comebefore the Court for provisional measures. He stated thatjurisprudentially such measures were designed to preventviolence, the use of force, to safeguard international peaceand security as well as serving as an important part of the

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dispute settlement process under the Charter cf the UnitedNations. In his view the indication of such measurestherefore represents one of the most important functions ofthe Court.


Nevertheless, he considered the Court, being theprincipal judicial organ of the United Nations, whoseprimary raison d'être remains the preservation ofinternational peace and security, to be under a positiveobligation to contribute to the maintenance of internationalpeace and security and to provide a judicial framework forthe resolution of a legal conflict, especially one which notonly threatens international peace and security but alsoinvolves enormous human suffering and continuing loss oflife. He had therefore joined with the other Members of theCourt in calling for the peaceful resolution of this conflictpursuant to Article 33 of the Charter, and i:i urging theParties not to aggravate or extend the dispute and to respectinternational law, including humanitarian law and thehuman rights of all the citizens of Yugoslavia.


Judge Oda supports the decision of the Court indismissing the requests for the indication of provisionalmeasures by the Federal Republic of Yugoslavia against tenrespondent States. While favouring the decision of the Courtto remove the case from the General List of the: Court in thecases of Spain and the United States, Judge Oda votedagainst the decision in the other eight cases in which theCourt ordered that it "[r]eserves the subsequent procedurefor further decision", because he believes that those eightcases should also be removed at this stage from the GeneralList of the Court.

Judge Oda considers that the Federal Republic ofYugoslavia is not a Member of the United Nations and thusnot a party to the Statute of the International Court ofJustice. The Applications presented by the Federal Republicof Yugoslavia shouid therefore be declared inadmissible forthis reason alone and should be removed from the GeneralList of the Court.


Judge Oda agrees with the Court that, as it has no basisof jurisdiction, it must reject the requests for the indication

of provisional measures in all ten cases. However, heconsiders that, the Court having decided that it has nojurisdiction to entertain the cases, not even prima facie, thatthis can only mean that it has no jurisdiction whatsoever inany of the cases. It follows, in Judge Oda's view, that notonly in the cases of Spain and the United States, in whichthe Court states that it manifestly lacks jurisdiction, but inall the other cases, the Applications should be dismissed atthis stage, given that the Court has found that there is noteven a prima facie basis of jurisdiction.





Judge Parra-Aranguren recalls that Yugoslavia maintainsthat "the bombing of Yugoslav populated areas constitute abreach of Article II of the Genocide Convention", acontention denied by the Respondent; that a legal disputeexists between the Parties because of the existence of "asituation in which the two sides hold clearly opposite viewsconcerning the question of the performance or non-performance of certain treaty obligations", as the Courtstated in its decision of 11 July 1996 (Application of theConvention on the Prevention and Punishment of the Crimeof Genocide (Bosnia and Herzegovina v. Yugoslavia), I.C.J.Reports 1996 (II), pp. 614-615, para. 29); and that accordingto Article IX of the Genocide Convention, "disputesbetween the Contracting Parties relating to the interpretationor fulfilment of the present Convention" shall be submitted

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to the International Court of Justice. Therefore, in hisopinion the Court has prima facie jurisdiction to decideupon the provisional measures requested by Yugoslavia.






2. Article 36, paragraph 2, of the Statute explicitlystates that only States which are party to the Statute canrecognize the compulsory jurisdiction of the Court bydepositing a declaration of acceptance with the Secretary-General of the United Nations. Member States of thatorganization are eo ipso party to the Statute. All sixRespondents contended that since the Federal Republic ofYugoslavia is not a Member of the United Nations, itsdeclaration of acceptance has not been validly made.

3. On 22 September 1992 the General Assembly, on therecommendation of the Security Council, decided that theFederal Republic of Yugoslavia cannot continueautomatically the membership of the former SocialistFederal Republic of Yugoslavia and therefore that it shouldapply for membership in the United Nations. Until that timeit shall not participate in the work of the General Assembly

(res. 47/1). The Federal Republic of Yugoslavia neverapplied for membership.











By that declaration, signed on 25 April 1999,Yugoslavia recognized compulsory jurisdiction "in all

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disputes arising or which may arise after the signature of thepresent Declaration, with regard to the situations or factssubsequent to this signature ...". In cases where the Court isconfronted with such a "double exclusion formula", it has toascertain both the date of the dispute and the si.-uations orfacts with regard to which the dispute has arisen.

As to the first aspect of the time condition, the: Court hasto determine what is the subject matter of the dispute, whichin the present cases consists of a number of constituentelements. The section "Subject of the Dispute" in each ofYugoslavia's Applications indicates that subject matter to beacts of the Respondent by which it has violated itsinternational obligations not to use force against anotherState, not to intervene in the internal affairs of another State,not to violate the sovereignty of another State, to protect thecivilian population and civilian objects in wartime, toprotect the environment, etc.

Prior to the coming into existence of all the constituentelements, the dispute cannot be said to arise. I'hough theaerial bombing of the territory of Yugoslavia began someweeks before the critical date of signature of the declaration,aerial bombing and its effects as such do not constitute adispute. It is true that prior to the critical date, Yugoslaviahad accused NATO of illegal use of force against it. Thiscomplaint constitutes at the most one of the manyconstituent elements of the dispute. Besides, NATO cannotbe identified with, nor be the Respondent in the presentcases ratione personae. The dispute only arose at the datesubsequent to the signature of the declaration.

Regarding the second aspect of the time condition, thedispute relates to the alleged breach of various internationalobligations by acts of force, in the form of aerial bombing ofthe territories of Yugoslavia, which are attributed by theApplicant to the respondent State. It is obvious that thealleged breach of obligations by such a "continuing" act firstoccurred at the moment when the act began, weeks beforethe critical date. Given that the acts of aerial bombingcontinued well beyond the critical date and still continue,the time of commission of the breach extend» over thewhole period during which the acts continue and ends onlywhen the acts of the respondent State cease.


Moreover, for reasons similar to those expressed in thedeclarations relating to the other six cases, Judge Shi regretsthat the Court, being confronted with a situation of greaturgency, failed to make a general statement appealing to theParties to act in compliance with their obligations; under theUnited Nations Charter and all the rules of international lawrelevant to the situation, and at least not to aggravate orextend their disputes immediately upon receipt ofYugoslavia's request and regardless of what might be theCourt's conclusion on prima facie jurisdiction pending itsfinal decision. The Court also failed to make use of Article

75, paragraph 1, of the Rules of Court to decide the requestsproprio motn, despite Yugoslavia having so asked.






As to the second proposition connected with theinvocation of additional grounds of jurisdiction in relation toBelgium and the Netherlands, in the opinion of JudgeVereshchetin, the legitimate concern of the Court over theobservance of "the principle of procedural fairness and thesound administration of justice" cannot be stretched to suchan extent as to exclude a priori the additional basis ofjurisdiction from its consideration, solely because therespondent States have not been given adequate time toprepare their counter-arguments. Admittedly, it cannot beconsidered normal for a new basis of jurisdiction to beinvoked in the second round of the hearings. However, therespondent States were given the possibility of presentingtheir counter-arguments to the Court, and they used thispossibility to make various observations and objections tothe new basis of jurisdiction. If necessary, they could haveasked for the prolongation of the hearings. In turn, theApplicant may reasonably claim that the belated invocationof the new titles of jurisdiction was caused by the

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extraordinary situation in Yugoslavia, in which thepreparation of the Applications had been carried out underconditions of daily aerial bombardment by the Respondents.





At the same time, according to coherent jurisprudence ofthe Court, none of the respondent States were entitled toappoint a judge ad hoc {Territorial Jurisdiction of theInternational Commission of the River Oder; CustomsRégime between Germany and Austria).


Judge Kreca finds that in the recent practice of theCourt, in particular that in which individuals were directlyaffected, a high standard of humanitarian concern in theproceedings for the indication of interim measures has beenformed, a standard which commanded sufficient inherentstrength to brush aside some relevant, both procedural andmaterial, rules governing the institution of provisionalmeasures (exampli causa, the LaGrand case). Thus,humanitarian considerations, independently from the normsof international law regulating human rights and liberties,

have, in a way, gained autonomous legal significance; theyhave transcended the moral and philanthropic sphere, andentered the sphere of law.


Judge Kreca finds that, as regards the membership ofYugoslavia in the United Nations, the Court remainedconsistent with its "avoidance" position, persisting in itsstatement that it "need not consider this question for thepurpose of deciding whether or not it can indicateprovisional measures in the present case. But it is theprofound conviction of Judge Kreca that the Court shouldhave answered the question whether the Federal Republic ofYugoslavia can or cannot, in the light of the content ofGeneral Assembly resolution 47/1 and of the practice of theworld Organization, be considered to be a Member of theUnited Nations and especially party to the Statute of theCourt; namely the text of resolution 47/1 makes no mentionof the status of the Federal Republic of Yugoslavia as aparty to the Statute of the International Court of Justice.Judge Kreca is equally convinced that, especially becausethe Court should have answered that question, both thecontent of the resolution which represents contradictio inadiecto and in particular the practice of the worldOrganization after its adoption over a period of nearly sevenyears, offered ample arguments for it to pronounce itself onthis matter.



Judge Kreca also points out that, in the incidentalproceedings the Court cannot and should not concern itself

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with the definitive qualification of the intent to impose uponthe group conditions in which the survival of the group isthreatened. Having in mind the purpose of provisionalmeasures, it can be said that at this stage of the proceedingsit is sufficient to establish that, in the conditions ofextensive bombing, there is an objective risk of bringingabout conditions in which the survival of the group isthreatened.

Judge Kreca finds that the stance of the Court as regardsjurisdiction of the Court ratione temporis is highlyquestionable for two basic reasons. Firstly, for reasons of ageneral nature to do with the jurisprudence of the Court inthis particular matter, on the one hand, and with 1:he natureof the proceedings for the indication of provisionalmeasures, on the other and, secondly, for reasons of aspecific nature deriving from circumstances of the case in

hand. As far as jurisdiction of the Court is concerned, itseems incontestable that a liberal approach towards thetemporal element of the Court's jurisdiction in theindication of provisional measures has become apparent. Itis understandable that the proceeding for the indication ofprovisional measures is surely not designed for the purposeof the final and definitive establishment of the jurisdictionof the Court. The determinant "prima facie" itself implieslhat what is involved is not definitely establishedjurisdiction, but the jurisdiction deriving or supposed to benormally deriving from a relevant legal fact which isdefined as the "title of jurisdiction". It could be said that the"title of jurisdiction" is sufficient per se to constitute primafacie jurisdiction except in the case of the absence ofjurisdiction on the merits is manifest (Fisheries Jurisdictioncases).

123. CASE CONCERNING LEGALKTY OF USE OF FORCE (YUGOSLAVIA v. SPAIN)(PROVISIONAL MEASURES)


In an Order issued in the case concerning Legality ofUse of Force (Yugoslavia v. Spain), the Court rejected byfourteen votes to two the request for the indication ofprovisional measures submitted by the Federal Republic ofYugoslavia (FRY).

In its Order, the Court, having found that it manifestlylacked jurisdiction to entertain the case, decided to dismissit. It ordered by thirteen votes to three that the case beremoved from the List.

The Court was composed as follows: Vice-PresidentWeeramantry, Acting President; President Schwebel; JudgesOda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi,Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans; Judges ad hoc Torres Bernárdez,Kreca; Registrar Valencia-Ospina.


40. For these reasons,"THE COURT,(1) By fourteen votes to two,Rejects the request for the indication of provisional


IN FAVOUR: Vice-President Weeramantry, ActingPresident; President Schwebel; Judges Oda, Bedjaoui,Guillaume, Ranjeva, Herczegh, Fleischhauer, Koroma,Higgins, Parra-Aranguren, Kooijmans; Judges ad hocTorres Bernárdez, Kreca;

AGAINST: Judges Shi, Vereshchetin;(2) By thirteen votes to three,Orders that the case be removed from the List.IN FAVOUR: Vice-President Weeramantry, Acting

President; President Schwebel; Judges Oda, Bedjaoui,Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer,Koroma, Higgins, Kooijmans; Judge ad hoc TorresBernárdez;

AGAINST: Judges Vereshchetin, Parra-Aranguren;Judge ad hoc Kreca.

Judges Shi, Koroma and Vereshchetin appendeddeclarations to the Court's Order. Judges Oda, Higgins,Parra-Aranguren and Kooijmans, and Judge ad hoc Krecaappended separate opinions.


On 29 April 1999 Yugoslavia filed an Applicationinstituting proceedings against Spain "for violation of theobligation not to use force", accusing that State of bombingYugoslav territory "together with other Member States ofNATO" (see Press Communiqué 99/17). On the same day, itsubmitted a request for the indication of provisionalmeasures, asking the Court to order Spain to "ceaseimmediately its acts of use of force" and to "refrain fromany act of threat or use of force'" against the FRY.

I l l




The Court then points out that it "does not automaticallyhave jurisdiction over legal disputes between States" andthat "one of the fundamental principles of its Statute is thatit cannot decide a dispute between States without theconsent of those States to its jurisdiction". It cannot indicateprovisional measures without its jurisdiction in the casebeing established prima facie (at first sight).

Concerning the first basis of jurisdiction invoked, theCourt observes that Spain contended that its declarationcontains a reservation which is relevant to the case. Underthe terms of that reservation, Spain does not recognize thejurisdiction of the Court in respect of "disputes to which theother party or parties have accepted the compulsoryjurisdiction of the Court less than 12 months prior to thefiling of the application bringing the dispute before theCourt". The Court notes that Yugoslavia deposited itsdeclaration of acceptance of the compulsory jurisdiction ofthe Court with the United Nations Secretary-General on 26April 1999 and that it brought the dispute to the Court on 29April 1999. It states that there can be no doubt that theconditions for the exclusion of the Court's jurisdictionprovided for in Spain's declaration are satisfied. The Courtconcludes that the declarations made by the Partiesmanifestly cannot constitute a basis of jurisdiction in thecase, even prima facie.

As for Spain's argument that Yugoslavia is not amember State of the United Nations in view of UnitedNations Security Council resolution 777 (1992) and UnitedNations General Assembly resolution 47/1 (1992), nor a

party to the Statute of the Court, and that it cannot appearbefore the Court, the Court maintains that it need notconsider this question, taking into account its finding thatthe declarations do not constitute a basis of jurisdiction.

Concerning Article IX of the Genocide Convention, theCourt states that it is not disputed that both Yugoslavia andSpain are parties to that Convention, but that Spain'sinstrument of accession, deposited with the United NationsSecretary-General on 13 September 1968, contains areservation "in respect of the whole of Article IX". Since theGenocide Convention does not prohibit reservations andsince Yugoslavia did not object to the Spanish reservation,the Court considers that Article IX manifestly does notconstitute a basis of jurisdiction in the case, even primafacie.

The Court concludes that it "manifestly lacksjurisdiction to entertain Yugoslavia's Application" and that"it cannot therefore indicate any provisional measurewhatsoever". It adds that "within a system of consensualjurisdiction, to maintain on the General List a case uponwhich it appears certain that the Court will not be able toadjudicate on the merits would most assuredly notcontribute to the sound administration of justice".

The Court finally observes that "there is a fundamentaldistinction between the question of the acceptance by a Stateof the Court's jurisdiction and the compatibility of particularacts with international law". "The former requires consent;the latter question can only be reached when the Court dealswith the merits after having established its jurisdiction andhaving heard full legal arguments by both parties." Itemphasizes that "whether or not States accept thejurisdiction of the Court, they remain in any eventresponsible for acts attributable to them that violateinternational law, including humanitarian law" and that "anydisputes relating to the legality of such acts are required tobe resolved by peaceful means, the choice of which,pursuant to Article 33 of the Charter, is left to the parties".In this context, "the parties should take care not to aggravateor extend the dispute". The Court reaffirms that "when sucha dispute gives rise to a threat to the peace, breach of thepeace or act of aggression, the Security Council has specialresponsibilities under Chapter VII of the Charter".



Nevertheless, he is of the opinion that, being confrontedwith a situation of great urgency arising from the use offorce in and against Yugoslavia, and upon receipt of therequests by the Applicant for the indication of provisionalmeasures, the Court ought to have issued a generalstatement appealing to the Parties to act in compliance withtheir obligations under the United Nations Charter and allother rules of international law relevant to the situation, and

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at least not to aggravate or extend their dispute, regardlessof what might be the Court's conclusion on prima faciejurisdiction pending its final decision.







Nevertheless, he considered the Court, being theprincipal judicial organ of the United Nations, whoseprimary raison d'être remains the presei-vation ofinternational peace and security, to be under a positiveobligation to contribute to the maintenance of internationalpeace and security and to provide a judicial framework forthe resolution of a legal conflict, especially one which notonly threatens international peace and security but alsoinvolves enormous human suffering and continuing loss oflife. He had therefore joined with the other Members of theCourt in calling for the peaceful resolution of this conflictpursuant to Article 33 of the Charter, and in urging theParties not to aggravate or extend the dispute and to respectinternational law, including humanitarian law and thehuman rights of all the citizens of Yugoslavia.



The Court was urged to uphold the rule of law in thecontext of large-scale gross violations of international law,including of the Charter of the United Nations. Instead ofacting expeditiously and, if necessary, proprio motu, in itscapacity as "the principal guardian of international law", themajority of the Court, more than one month after therequests were made, rejected them in a sweeping way inrelation to all the cases brought before the Court, includingthose where the prima facie jurisdiction of the Court couldhave been clearly established. Moreover, this decision hasbeen taken in a situation in which deliberate intensificationof bombardment of the most heavily populated areas iscausing unabated loss of life amongst non-combatants andphysical and mental harm to the population in all parts ofYugoslavia.



Judge Oda supports the decision of the Court indismissing the requests for the indication of provisionalmeasures by the Federal Republic of Yugoslavia against tenrespondent States. While favouring the decision of the Courtto remove the case from the General List of the Court in thecases of Spain and the United States, Judge Oda votedagainst the decision in the other eight cases in which the

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Court ordered that it "[rjeserves the subsequent procedurefor further decision", because he believes that those eightcases should also be removed at this stage from the GeneralList of the Court.


He nevertheless then goes on to discuss whether, if theFederal Republic of Yugoslavia were to be considered aparty to the Statute, it could have brought the presentApplications on the basis of certain legal instruments. Afterhaving examined the meaning of (i) the optional clause ofthe Court's Statute, (ii) the background to the 1930 and1931 , instruments with Belgium and the Netherlands,respectively, and (iii) the 1948 Genocide Convention, hereaches the conclusion that none of these instruments grantthe Court jurisdiction in any of the ten Applications.




Judge Higgins in her separate opinions addresses twoissues that arise in relation to those cases where the FederalRepublic of Yugoslavia claims jurisdiction on the basis ofArticle 36, paragraph 2, of the Statute. The first issueconcerns temporal limitations to so-called "optionalclauses", and in particular the question of when a disputearises and when the relevant events have occurred. Theseconcepts are analysed in connection with Yugoslavia's owndeclaration. The second issue addresses the question ofexactly what has to be shown for the Court to be satisfied ithas prima facie jurisdiction when it is considering theindication of provisional measures. It is suggested that some

jurisdictional issues are so complex that they cannot beaddressed at all at this phase; their holding over for a laterphase does not stand in the way of the Court determiningwhether or not it has prima facie jurisdiction for thepurposes of Article 41.


Judge Parra-Aranguren recalls that Article 79 of theRules of Court prescribes that any objection by theRespondent to the jurisdiction of the Court shall be made inwriting within the time limit fixed for the delivery of theCounter-Memorial. Such preliminary objection shall bedecided as provided by paragraph 7 of the said Article 79.The Court has no discretionary powers to depart from therules established by Article 79; and the present proceedingshave not yet reached the stage when the Respondent maysubmit preliminary objections. Therefore, in his opinion,when deciding upon a request for provisional measures theCourt can neither make its final decision on jurisdiction nororder the removal of the case from the Court's List.





2. Article 36, paragraph 2, of the Statute explicitlystates that only States which are party to the Statute canrecognize the compulsory jurisdiction of the Court bydepositing a declaration of acceptance with the Secretary-General of the United Nations. Member States of thatorganization are eo ipso party to the Statute. All sixRespondents contended that since the Federal Republic ofYugoslavia is not a Member of the United Nations, itsdeclaration of acceptance has not been validly made.

3. On 22 September 1992 the General Assembly, on therecommendation of the Security Council, decided that theFederal Republic of Yugoslavia cannot continueautomatically the membership of the former Socialist

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Federal Republic of Yugoslavia and therefore thai it shouldapply for membership in the United Nations. Until that timeit shall not participate in the work of the General Assembly(res. 47/1). The Federal Republic of Yugoslavia neverapplied for membership.







Separate opinion of Judge Kreca

In his separate opinion Judge Kreca points out thefollowing relevant issues:




Judge Kreca points out that a reservation such as the onemade by Spain in respect to Article IX on the Conventionon the Prevention and Punishment of the Crime of Genocidedoes not contribute to the implementation of the concept ofan organized de jure international community. States do notexpress verbally their belief in international law, by makingdeclaratory vows, but by taking effective measures aimed atimplementation of human rights and fundamental freedoms.This is especially true in regard to the Genocide Conventionsince:

"In such a convention the contracting States do nothave any interests of their own; they merely have, oneand all, a common interest, namely, the accomplishmentof those high purposes which are the raison d'être of theconvention" (Advisory Opinion of the InternationalCourt of Justice)

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124. CASE CONCERNING LEGALITY OF USE OF FORCE (YUGOSLAVIA v. UNITEDKINGDOM) (PROVISIONAL MEASURES)


In an Order issued in the case concerning Legality ofUse of Force (Yugoslavia v. United Kingdom), the Courtrejected by twelve votes to three the request for theindication of provisional measures submitted by the FederalRepublic of Yugoslavia (FRY). The Court also stated that itremained seized of the case. It reserved the subsequentprocedure for further decision by fourteen votes to one.











Vice-President Weeramantry, Acting President, JudgesShi, Koroma and Vereshchetin appended declarations to theCourt's Order. Judges Oda, Higgins, Parra-Aranguren andKooijmans appended separate opinions. Judge ad hoc Krecaappended a dissenting opinion.


On 29 April 1999 Yugoslavia filed an Applicationinstituting proceedings against the United Kingdom "forviolation of the obligation not to use force", accusing thatState of bombing Yugoslav territory "together with otherMember States of NATO". On the same day, it submitted arequest for the indication of provisional measures, askingthe Court to order the United Kingdom to "ceaseimmediately its acts of use of force" and to "refrain fromany act of threat or use of force" against the FRY.



In its Order, the Court first emphasizes that it is "deeplyconcerned with the human tragedy, the loss of life, and theenoraious suffering in Kosovo which form the background"of the dispute and "with the continuing loss of life andhuman suffering in all parts of Yugoslavia". It declares itself"profoundly concerned with the use of force in Yugoslavia",which "under the present circumstances ... raises veryserious issues of international law". While being "mindfulof the purposes and principles of the United Nations Charterand of its own responsibilities in the maintenance of peaceand security under the Charter and [its] Statute", the Court"deems it necessary to emphasize that all parties before itmust act in conformity with their obligations under theUnited Nations Charter and other rules of international law,including humanitarian law".


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Concerning the first basis of jurisdiction invoked, theCourt observes that the United Kingdom contended that itsdeclaration contains reservations. Under the terms of one ofthose reservations, the United Kingdom does not recognizethe jurisdiction of the Court in respect of '"disputes inrespect of which any other Party to the dispute has acceptedthe compulsory jurisdiction of the ... Court ... in relation toor for the purposes of the dispute; or where the acceptanceof the Court's compulsory jurisdiction on behalf of anyother Party to the dispute was deposited or ratified less than12 months prior to the filing of the application bringing thedispute before the Court". The Court notes that Yugoslaviadeposited its declaration of acceptance of the compulsoryjurisdiction of the Court with the United Nations Secretary-General on 26 April 1999 and that it brought the dispute tothe Court on 29 April 1999. It states that there can be nodoubt that the conditions for the exclusion of the Court'sjurisdiction provided for in the declaration of the UnitedKingdom are satisfied. The Court concludes that thedeclarations made by the Parties manifestly cannotconstitute a basis of jurisdiction in the case, even primafacie.

As to the United Kingdom's argument that Yugoslavia isnot a member State of the United Nations in view of UnitedNations Security Council resolution 777 (1992) and UnitedNations General Assembly resolution 47/1 (1992), nor aparty to the Statute of the Court, so that Yugoslavia couldnot establish a jurisdictional link with parties to the Statuteby making a declaration accepting the compulsoryjurisdiction of the Court, the Court maintains that it need notconsider this question, taking into account its finding thatthe declarations do not constitute a basis of jurisdiction.

Concerning Article IX of the Genocide Convention, theCourt states that it is not disputed that both Yugoslavia andthe United Kingdom are parties to that Convention, withoutreservation, and that Article IX accordingly appears toconstitute a basis on which the jurisdiction of the Courtmight be founded. The Court however finds that it mustascertain whether the breaches of the Convention alleged byYugoslavia are capable of falling within the provisions ofthat instrument and whether, as a consequence, the disputeis one over which the Court might have jurisdiction rationemateriae. In its Application, Yugoslavia contends that thesubject of the dispute concerns inter alia "acts of the UnitedKingdom ... by which it has violated its internationalobligation ... not to deliberately inflict conditions of lifecalculated to cause the physical destruction of a nationalgroup". It contends that the sustained and intensive bombingof the whole of its territory, including the most heavilypopulated areas, constitutes "a serious violation of Article IIof the Genocide Convention", that it is the Yugoslav nationas a whole and as such that is targeted and that the use ofcertain weapons whose long-term hazards to health and theenvironment are already known, and the destruction of thelargest part of the country's power supply system, withcatastrophic consequences of which the Respondent must beaware, "impl[y] the intent to destroy, in whole or in part",the Yugoslav national group as such. For its part, the UnitedKingdom emphasizes that Yugoslavia has failed to adduce

any specific evidence of violations of the Convention andhas not established the intent required thereunder. It appearsto the Court that, according to the Convention, the essentialcharacteristic of genocide is the intended destruction of anational, ethnical, racial or religious group; the Court furtherstates that "the threat or use of force against a State cannotin itself constitute an act of genocide within the meaning ofArticle II of the Genocide Convention". It adds that in itsopinion, it does not appear at the present stage of theproceedings that the bombings which form the subject of theYugoslav Application "indeed entail the element of intent,towards a group as such, required by the provision"mentioned above. The Court considers therefore that it isnot in a position to find, at this stage of the proceedings, thatthe acts imputed by Yugoslavia to the United Kingdom arecapable of coming within the provisions of the GenocideConvention; and Article IX cannot accordingly constitute abasis on which the jurisdiction of the Court could primafacie be founded in the case.

The Court concludes that it "lacks prima faciejurisdiction to.entertain Yugoslavia's Application" and thatit "cannot therefore indicate any provisional measurewhatsoever". However, the findings reached by the Court"in no way prejudge the question of the jurisdiction of theCourt to deal with the merits of the case" and they "leaveunaffected the right of the Governments of Yugoslavia andthe United Kingdom to submit arguments in respect of thosequestions".


Declaration of Vice-President Weeramantry


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Nevertheless, he is of the opinion that, being confrontedwith a situation of great urgency arising from the use offorce in and against Yugoslavia, and upon receipt of therequests by the Applicant for the indication of provisionalmeasures, the Court ought to have issued a generalstatement appealing to the Parties to act in compliance withtheir obligations under the United Nations Charter and allother rules of international law relevant to the situation, andat least not to aggravate or extend their dispute, regardlessof what might be the Court's conclusion on prima faciejurisdiction pending its final decision.





In his declaration Judge Koroma observed that thesewere perhaps the most serious cases that have ever comebefore the Court for provisional measures. He stated that

jurisprudentially such measures were designed to preventviolence, the use of force, to safeguard international peaceand security as well as serving as an important part of thedispute settlement process under the Charter of the UnitedNations. In his view the indication of such measurestherefore represents one of the most important functions ofthe Court.





The Court was urged to uphold the rule of law in thecontext of large-scale gross violations of international law,

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including of the Charter of the United Nations. Instead ofacting expeditiously and, if necessary, proprio motu, in itscapacity as "the principal guardian of international law", themajority of the Court, more than one month after therequests were made, rejected them in a sweeping way inrelation to all the cases brought before the Court, includingthose where the prima facie jurisdiction of the Court couldhave been clearly established. Moreover, this decision hasbeen taken in a situation in which deliberate intensificationof bombardment of the most heavily populated areas iscausing unabated loss of life amongst non-combatants andphysical and mental harm to the population in all parts ofYugoslavia.



Judge Oda supports the decision of the Court indismissing the requests for the indication of provisionalmeasures by the Federal Republic of Yugoslavia against tenrespondent States. While favouring the decision of the Courtto remove the case from the General List of the Court in thecases of Spain and the United States, Judge Oda votedagainst the decision in the other eight cases m which theCourt: ordered that it "[r]eserves the subsequent procedurefor further decision", because he believes that those eightcases should also be removed at this stage from the GeneralList of the Court.


He nevertheless then goes on to discuss whether, if theFederal Republic of Yugoslavia were to be considered aparty to the Statute, it could have brought the presentApplications on the basis oí" certain legal instruments. Afterhaving examined the meaning of (i) the optional clause ofthe Court's Statute, (ii) the background to the 1930 and1931 instruments with Belgium and the Netherlands,respectively, and (iii) the 1948 Genocide Convention, hereaches the conclusion that none of these instruments grantthe Court jurisdiction in any of the ten Applications.

Judge Oda agrees with the Court that, as it lias no basisof jurisdiction, it must reject the requests for the indicationof provisional measures in all ten cases. However, heconsiders that, the Court having decided that it has nojurisdiction to entertain the cases, not even prima facie, thatthis can only mean that it has no jurisdiction whatsoever inany of the cases. It follows, in Judge Oda's view, that notonly in the cases of Spain and the United States, in whichthe Court states that it manifestly lacks jurisdiction, but in

all the other cases, the Applications should be dismissed atthis stage, given that the Court has found that there is noteven a prima facie basis of jurisdiction.





Judge Parra-Aranguren recalls that Yugoslavia maintainsthat "the bombing of Yugoslav populated areas constitute abreach of Article II of the Genocide Convention", acontention denied by the Respondent; that a legal disputeexists between the Parties because of the existence of "asituation in which the two sides hold clearly opposite viewsconcerning the question of the performance or non-performance of certain treaty obligations", as the Courtstated in its decision of 11 July 1996 (Application of theConvention on the Prevention and Punishment of the Crimeof Genocide (Bosnia and Herzegovina v. Yugoslavia). I.C.J.Reports 1996 (II), pp. 614-615, para. 29); and that accordingto Article IX of the Genocide Convention, "disputesbetween the Contracting Parties relating to the interpretationor fulfilment of the present Convention" shall be submittedto the International Court of Justice. Therefore, in hisopinion the Court has prima facie jurisdiction to decideupon the provisional measures requested by Yugoslavia.

Yugoslavia requested the Court to indicate that theRespondent "shall cease immediately the acts of use of forceand shall refrain from any act of threat or use of forceagainst the Federal Republic of Yugoslavia". However, the

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threat or use of force against a State cannot in itselfconstitute an act of genocide within the meaning of theGenocide Convention. Consequently, Yugoslavia isrequesting the indication of provisional measures that do notaim to guarantee its rights under the Genocide Convention,i.e., the right not to suffer acts which may be characterizedas genocide crimes by the Convention. Therefore, in theopinion of Judge Parra-Aranguren, the measures requestedby Yugoslavia should not be indicated.
















At the same time, according to coherent jurisprudence ofthe Court, none of the respondent States were entitled toappoint a judge ad hoc {Territorial Jurisdiction of the

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International Commission of the River Oder; CustomsRégime between Germany and Austria).


Judge Kreca finds that in the recent practice of theCourt, in particular that in which individuals were directlyaffected, a high standard of humanitarian concern in theproceedings for the indication of interim measures has beenformed, a standard which commanded sufficient inherentstrength to brush aside some relevant, both procedural andmaterial, rules governing the institution of provisionalmeasures (exampli causa, the LaGrand case). Thus,humanitarian considerations, independently from the normsof international law regulating human rights ami liberties,have, in a way, gained autonomous legal significance; theyhave transcended the moral and philanthropic sphere, andentered the sphere of law.

In the case at hand, it seems that "humanitarian concern"has lost the acquired autonomous legal position. The factneeds to be stressed in view of the special circumstances ofthis case. Unlike the recent practice of the Court,"humanitarian concern" has as its object the fate of an entirenation, in the literal sense. The Federal Republic ofYugoslavia and its national and ethnic groups have beensubjected for more than two months now to continuedattacks of a very strong, highly organized air armada of themost powerful States of the world. At the same time, thearsenal used in the attacks on Yugoslavia contains alsoweapons whose effects have no limitations either in space orin time such as depleted uranium which cause far-reachingand irreparable damage to the health of tie wholepopulation.

Judge Kreca finds that, as regards the membership ofYugoslavia in the United Nations, the Court remainedconsistent with its "avoidance" position, persisting in itsstatement that it "need not consider this question for thepurpose of deciding whether or not it can indicateprovisional measures in the present case. But it is theprofound conviction of Judge Kreca that the Court should

have answered the question whether the Federal Republic ofYugoslavia can or cannot, in the light of the content ofGeneral Assembly resolution 47/1 and of the practice of theworld Organization, be considered to be a Member of theUnited Nations and especially party to the Statute of theCourt; namely the text of resolution 47/1 makes no mentionof the status of the Federal Republic of Yugoslavia as aparty to the Statute of the International Court of Justice.Judge Kreca is equally convinced that, especially becausethe Court should have answered that question, both thecontent of the resolution which represents contradictio inadiecto and in particular the practice of the worldOrganization after its adoption over a period of nearly sevenyears, offered ample arguments for it to pronounce itself onthis matter.




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125. CASE CONCERNING LEGALITY OF USE OF FORCE (YUGOSLAVIA v. UNITEDSTATES OF AMERICA) (PROVISIONAL MEASURES)


In an Order issued in the case concerning Legality ofUse of Force (Yugoslavia v. United States of America), theCourt rejected by twelve votes to three the request for theindication of provisional measures submitted by the FederalRepublic of Yugoslavia (FRY).

In its Order, the Court, having found that it manifestlylacked jurisdiction to entertain the case, decided to dismissit. It .ordered by twelve votes to three that the case beremoved from the List.

, The Court was composed as follows: Vice-PresidentWeeramantry, Acting President; President Schwebel; JudgesOda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi,Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans; Judge ad hoc Kreca; RegistrarValencia-Ospina.






(2) By twelve votes to three,Orders that the case be removed from the List.IN FAVOUR: Vice-President Weeramantry, Acting

President; President Schwebel; Judges Oda, Bedjaoui,Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer,Koroma, Higgins, Kooijmans;

AGAINST: Judges Vereshchetin, Parra-Aranguren;Judge ad hoc Kreca."

Judges Shi, Koroma and Vereshchetin appendeddeclarations to the Court's Order. Judges Oda and Parra-Aranguren appended separate opinions. Judge ad hoc Krecaappended a dissenting opinion.


On 29 April 1999 Yugoslavia filed an Applicationinstituting proceedings against the United States of America"for violation of the obligation not to use force", accusingthat State of bombing Yugoslav territory "together withother Member States of NATO". On the same day, itsubmitted a request for the indication of provisionalmeasures, asking the Court to order the United States ofAmerica to "cease immediately its acts of use of force" andto "refrain from any act of threat or use of force" against theFRY.




The Court then points out that it "does not automaticallyhave jurisdiction over legal disputes between States" andthat "one of the fundamental principles of its Statute is thatit cannot decide a dispute between States without the

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consent of those States to its jurisdiction". It cannot indicateprovisional measures without its jurisdiction in the casebeing established prima facie.

Concerning Article IX of the Genocide Convention, theCourt states that it is not disputed that both Yugoslavia andthe United States of America are parties to that Convention,but that when the United States ratified the Convention on25 November 1988, it made a reservation. That reservationprovides that with reference to Article IX, before anydispute to which the United States is a party may besubmitted to the jurisdiction of the Court, "the specificconsent of the United States is required in each case".However, in this case, the United States has indicated that ithad not given specific consent and that it would not do so.Since the Genocide Convention does not prohibitreservations and since Yugoslavia did not object to thereservation made by the United States, the Court considersthat Article IX manifestly does not constitute a basis ofjurisdiction in the case, even prima facie.

As to Article 38, paragraph 5, of the Rules of Court, theCourt stresses that, in the absence of consent by the UnitedStates, it cannot exercise jurisdiction in the case, even primafacie.

The Court concludes that it "manifestly lacksjurisdiction to entertain Yugoslavia's Application" and that"it cannot therefore indicate any provisional measurewhatsoever". It adds that "within a system of consensualjurisdiction, to maintain on the General List a case uponwhich it appears certain that the Court will not be able toadjudicate on the merits would most assuredly notcontribute to the sound administration of justice".



Judge Shi agrees with the majority that in the cases ofYugoslavia against France, Germany, Italy and the UnitedKingdom there is no prima facie jurisdiction, and in thecases of Yugoslavia against Spain and the United S tates noteven prima facie jurisdiction, for the indication ofprovisional measures requested by the Applicant.

Nevertheless, he is of the opinion that, being confrontedwith a situation of great urgency arising from the use offarce in and against Yugoslavia, and upon receipt of therequests by the Applicant for the indication of provisionalmeasures, the Court ought to have issued a generalstatement appealing to the Parties to act in compliance withtheir obligations under the United Nations Charter and allother rules of international law relevant to the situation,' andat least not to aggravate or extend their dispute, regardlessof what might be the Court's conclusion on prima faciejurisdiction pending its final decision.


Moreover, in spite of the request of Yugoslavia that theCourt exercise its powers under Article 75, paragraph 1, ofthe Rules of Court to decide proprio motn Yugoslavia'srequest to indicate provisional measures, the Court failed toexercise that power, in contrast to its decision to make useof that power in the recent LaGrand case (Germany v\ theUnited States of America) in a situation not as urgent as inthe present case.





Nevertheless, he considered the Court, being theprincipal judicial organ of the United Nations, whoseprimary raison d'être remains the preservation ofinternational peace and security, to be under a positiveobligation to contribute to the maintenance of internationalpeace and security and to provide a judicial framework forthe resolution of a legal conflict, especially one which notonly threatens international peace and security but alsoinvolves enormous human suffering and continuing loss of

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life. He had therefore joined with the other Members of theCourt in calling for the peaceful resolution of this conflictpursuant to Article 33 of the Charter, and in urging theParties not to aggravate or extend the dispute and to respectinternational law, including humanitarian law and thehuman rights of all the citizens of Yugoslavia.



The Court was urged to uphold the rule of law in thecontext of large-scale gross violations of international law,including of the Charter of the United Nations. Instead ofacting expeditiously and, if necessary, proprio motn, in itscapacity as "the principal guardian of international law", themajority of the Court, more than one month after therequests were made, rejected them in a sweeping way inrelation to all the cases brought before the Court, includingthose where the prima facie jurisdiction of the Court couldhave been clearly established. Moreover, this decision hasbeen taken in a situation in which deliberate intensificationof bombardment of the most heavily populated areas iscausing unabated loss of life among non-combatants andphysical and mental harm to the population in all parts ofYugoslavia.



Judge Oda supports the decision of the Court indismissing the requests for the indication of provisional

measures by the Federal Republic of Yugoslavia against tenrespondent States. While favouring the decision of the Courtto remove the case from the General List of the Court in thecases of Spain and the United States, Judge Oda votedagainst the decision in the other eight cases in which theCourt ordered that it "[r]eserves the subsequent procedurefor further decision", because he believes that those eightcases should also be removed at this stage from the GeneralList of the Court.






Judge Parra-Aranguren recalls that Article 79 of theRules of Court prescribes that any objection by theRespondent to the jurisdiction of the Court shall be made inwriting within the time limit fixed for the delivery of theCounter-Memorial. Such preliminary objection shall bedecided as provided by paragraph 7 of the said Article 79.The Court has no discretionary powers to depart from the

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rules established by Article 79; and the present proceedingshave not yet reached the stage when the Respondent maysubmit preliminary objections. Therefore, in his opinion,when deciding upon a request for provisional measures theCourt can neither make its final decision on jurisdiction nororder the removal of the case from the Court's List.




At the same time, according to coherent jurisprudence ofthe Court, none of the respondent States were entitled toappoint a judge ad hoc (Territorial Jurisdiction of theInternational Commission of the River Oder, CustomsRégime between Germany and Austria).


Judge Kreca finds that in the recent practice of theCourt, in particular that in which individuals were directlyaffected, a high standard of humanitarian concern in theproceedings for the indication of interim measures has beenformed, a standard which commanded sufficient inherentstrength to brush aside some relevant, both procedural andmaterial, rules governing the institution of provisionalmeasures {exampli causa, the LaGrand case). Thus,humanitarian considerations, independently from the normsof international law regulating human rights and liberties,have, in a way, gained autonomous legal significance; theyhave transcended the moral and philanthropic sphere, andentered the sphere of law.

In the case at hand, it seems that "humanitarian concern"has lost the acquired autonomous legal position. The factneeds to be stressed in view of the special circumstances ofthis case. Unlike the recent practice oí" the Court,"humanitarian concern" has as its object the fate of an entirenation, in the literal sense. The Federal Republic of

Yugoslavia and its national and ethnic groups have beensubjected for more than two months now to continuedattacks of a very strong, highly organized air armada of themost powerful States of. the world. At the same time, thearsenal used in the attacks on Yugoslavia contains alsoweapons whose effects have no limitations either in space orin time such as depleted uranium which cause far-reachingand irreparable damage' to the health of the wholepopulation.

Judge Kreca points out that the first and the second of"understandings" lodged by the United States to-Article IIare actually reservations incompatible with the object andpurpose of the Genocide Convention. Namely,' at leastArticles II, III and IV of the Genocide Convention representius cogens. The norms of ¿its cogens are of an overridingcharacter; thus, they make null and void any act, be itunilateral, bilateral or multilateral, which is not inaccordance with them. Such a logical conclusion based onthe peremptory or absolutely binding nature of ius cogensnorms, expressing in the normative sphere the fundamentalvalues of the international community as a whole, have beenconfirmed in the North Sea Continental Shelf cases. Theonly possible way of excluding nullity effects in regard tothe United States' reservation to Article IX of the GenocideConvention, may lie in the interpretation that nullity affectsonly "understandings" and that it has no legal consequencesfor the reservation itself. But such an interpretation wouldrun counter to the fundamental rule of inseparability of theacts conflicting with the norm belonging to corpus iuriscogentis expressed in Article 44, paragraph 5, of the ViennaConvention on the Law of Treaties.




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126. LAND AND MARITIME BOUNDARY BETWEEN CAMEROON AND NIGERIA(CAMEROON v. NIGERIA) (Permission to intervene by Equatorial Guinea)

Order of 21 October 1999

By its Order the Court authorized Equatorial Guinea tointervene in the case concerning the Land and MaritimeBoundary between Cameroon and Nigeria (Cameroon v.Nigeria) "to the extent, in the manner and for the purposesset out in its Application for permission to intervene".

The Court took the decision unanimously.The Court was composed as follows: President

Schwebel; Vice-President Weeramantry; Judges Oda,Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer,Koroma, Vereshchetin, Higgins, Parra-Aranguren,Kooijmans, Rezek; Judges ad hoc Mbaye, Ajibola; RegistrarValencia-Ospina.

The complete text of the Order is as follows:"The International Court of Justice,Composed as above,After deliberation,Having regard to Articles 48 and 62 of the Statute of

the Court and to Articles 81, 83, 84 and 85 of the Rulesof Court,

Having regard to the Application filed by theRepublic of Cameroon in the Registry of the Court on 29March 1994 instituting proceedings against the FederalRepublic of Nigeria in respect of a dispute described as'relating] essentially to the question of sovereignty overthe Bakassi Peninsula', in which the Court was alsorequested 'to determine the course of the maritimeboundary between the two States beyond the line fixedin 1975',

Having regard to the Additional Applicationsubmitted by Cameroon on 6 June 1994,

Having regard to the Order of 16 June 1994,whereby the Court indicated that it had no objection tothe Additional Application being treated as anamendment to the initial Application and fixed the timelimits for the filing of the Memorial of Cameroon andthe Counter-Memorial of Nigeria, respectively,

Having regard to the Memorial filed by Cameroonand the preliminary objections submitted by Nigeriawithin the time limits thus fixed,

Having regard to the Judgment of 11 June 1998,whereby the Court ruled on the preliminary objectionsraised by Nigeria,

Having regard to the Order of 30 June 1998,whereby the Court fixed a new time limit for the filingof the Counter-Memorial of Nigeria, and to the Order of3 March 1999, whereby it extended that time limit,

Having regard to the Counter-Memorial filed byNigeria within the time limit thus extended,

Having regard to the Order of 30 June 1999,whereby the Court decided inter alia that Cameroonshould submit a Reply and Nigeria should submit aRejoinder, and fixed 4 April 2000 and 4 January 2001respectively as the time limits for the filing of thosepleadings,

Makes the following Order.1. Whereas, by a letter dated 27 June 1999, received

in the Registry on 30 June 1999, the Prime Minister ofthe Republic of Equatorial Guinea submitted to theCourt an 'Application ... to intervene in the caseconcerning the Land and Maritime Boundary betweenCameroon and Nigeria (Cameroon v. Nigeria) pursuantto Article 62 of the Statute of the Court and Article 81 ofthe Rules of the Court'; and whereas that same letterappointed H.E. Mr. Ricardo Mangue Obama N'Fube,Minister of State, Secretary-General of the Presidency ofthe Government, as Agent;

2. Whereas, in the introduction to its Application,Equatorial Guinea refers to the eighth preliminaryobjection raised by Nigeria in the case concerning theLand and Maritime Boundary between Cameroon andNigeria (Cameroon v. Nigeria) and quotes as followsparagraph 116 of the Judgment handed down by theCourt on 11 June 1998 on the objections of Nigeria(I.CJ. Reports 1998, p. 324):

'The Court notes that the geographical location ofthe territories of the other States bordering the Gulfof Guinea, and in particular Equatorial Guinea andSao Tome and Principe, demonstrates that it isevident that the prolongation of the maritimeboundary between the Parties ... will eventually runinto maritime zones where the rights and interests ofCameroon and Nigeria will overlap those of thirdStates. It thus appears that rights and interests ofthird States will become involved if the Courtaccedes to Cameroon's request ... The Court cannottherefore, in the present case, give a decision on theeighth preliminary objection as a preliminary matter.In order to determine where a prolonged maritimeboundary ... would run, where and to what extent itwould meet possible claims of other States, and howits judgment would affect the rights and interests ofthese States, the Court would of necessity have todeal with the merits of Cameroon's request. At thesame time, the Court cannot rule out the possibilitythat the impact of the judgment required byCameroon on the rights and interests of third Statescould be such that the Court would be prevented

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from rendering it in the absence of these States, andthat consequently Nigeria's eighth preliminaryobjection would have to be upheld at least in part.Whether such third States would choose to exercisetheir rights to intervene in these proceedingspursuant to the Statute remains to be seen.(Emphasis added)';

and whereas Equatorial Guinea adds:'It is in this context that Equatorial Guinea comes

before the Court. Equatorial Guinea wishes to bevery clear that it has no intention of intervening inthose aspects of the proceedings that relate to theland boundary between Cameroon and Nigeria,including determination of sovereignty over theBakassi Peninsula. It is only the maritime boundaryaspects of the case before the Court with whichEquatorial Guinea is concerned; and, as is explainedmore fully below, it is the purpose of EquatorialGuinea's intervention to inform the Court ofEquatorial Guinea's legal rights and interests so thatthese may remain unaffected as the Court proceedsto address the question of the maritime boundarybetween Cameroon and Nigeria, the parties to thecase before it. Equatorial Guinea does not seek tobecome a party to the case.';

3. Whereas, in its Application, Equatorial Guinea,referring to Article 81, paragraph 2 (a), of the Rules ofCourt sets out inter alia in these terms 'the interest of alegal nature which [it] considers may be affected by thedecision in that case':

'in accordance with its national law, EquatorialGuinea claims the sovereign rights and jurisdictionwhich pertain to it under international law up to themedian line between Equatorial Guinea and Nigeriaon the one hand, and between Equatorial Guinea andCameroon on the other hand. It is thesie legal rightsand interests which Equatorial Guinea seeks toprotect ... Equatorial Guinea ... wishes to emphasizethat it does not seek the Court's determination of itsboundaries with Cameroon or Nigeria. EquatorialGuinea does wish to protect its legal rights andinterests, however, and that requires that anyCameroon-Nigeria maritime boundary that may bedetermined by the Court should not cross over themedian line with Equatorial Guinea. If the Courtwere to determine a Cameroon-Nigeria maritimeboundary that extended into Equatorial Guineawaters, as defined by the median line, EquatorialGuinea's rights and interests would be prejudiced ...It is the purpose of Equatorial Guinea to present andto demonstrate its legal rights and interests to theCourt and, as appropriate, to state its views as to howthe maritime boundary claims of Cameroon orNigeria may or may not affect the legal rights andinterests of Equatorial Guinea';

4. Whereas, in its Application, Equatorial Guinea,referring to Article 81.. paragraph 2 (¿>) of the Rules of

Court, sets out 'the precise object of the intervention' asfollows:

'First, generally, to protect the legal rights of theRepublic of Equatorial Guinea in the Gulf of Guineaby all legal means available, and in this regard,therefore, to make use of the procedure establishedby Article 62 of the Statute of the Court.

Second, to inform the Court of the nature of thelegal rights and interests of Equatorial Guinea thatcould be affected by the Court's decision in the lightof the maritime boundary claims advanced by theParties to the case before the Court';5. Whereas, in its Application, Equatorial Guinea,

referring to Article 81, paragraph 2 (c) of the Rules ofCourt, expresses the following opinion concerning the'basis of jurisdiction which is claimed to exist asbetween [it] and the parties to the case':

'The Republic of Equatorial Guinea does notseek to be a party to the case before the Court. Thereis no basis for jurisdiction under the Statute andRules of the Court which arises out of the pre-existing understandings between Equatorial Guinea,Nigeria and Cameroon. Equatorial Guinea has notmade a declaration under Article 36.2 of the Statuteof the Court nor is there an agreement in forceamong the three States which confers jurisdiction onthe Court in this regard. It would be open, of course,to the three countries affirmatively to request theCourt not only to determine the Cameroon-Nigeriamaritime boundary but also to determine EquatorialGuinea's maritime boundaries with these two States.However, Equatorial Guinea has made no suchrequest and wishes to continue to seek to determineits maritime boundaries with its neighbours throughnegotiations.

Accordingly, Equatorial Guinea's request tointervene is based solely upon Article 62 of theStatute of the Court';6. Whereas, in ending its Application, Equatorial

Guinea formulates the following conclusion:'On the basis of the foregoing observations,

Equatorial Guinea respectfully requests permissionto intervene in the present proceedings betweenCameroon and Nigeria for the object and purposespecified herein, and to participate in thoseproceedings in accordance with Article 85 of theRules of the Court';7. Whereas, in accordance with Article 83,

paragraph 1, of the Rules of Court, the Deputy-Registrar,by letters dated 30 June 1999, transmitted certifiedcopies of the Application for permission to intervene tothe Government of Cameroon and the Government ofNigeria, which were informed that the Court had fixed16 August 1999 as the time limit for the submission oftheir written observations on that Application; andwhereas, in accordance with paragraph 2 of that sameprovision, the Deputy-Registrar, on 30 June 1999, also

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transmitted a copy of the Application to the Secretary-General of the United Nations;

8. Whereas Cameroon and Nigeria each submittedwritten observations within the time limit thus fixed; andwhereas the Registry transmitted to each Party a copy ofthe other's observations, as well as copies of theobservations of both Parties to Equatorial Guinea;

9. Whereas, in its written observations, Camerooninforms the Court that it 'has no objection in principle to[the intervention of Equatorial Guinea], limited to themaritime boundary, which could allow the Court to bebetter informed on the general background to the caseand to determine more completely the dispute submittedto it'; whereas it adds, referring to the Judgment handeddown by the Court on 11 June 1998 (PreliminaryObjections), that 'the Court envisaged the possibilitythat third States might intervene, among which wasclearly the Republic of Equatorial Guinea'; and whereasit considers that 'the intervention of Equatorial Guineashould allow the Court to decide on a delimitation of theboundary which will be stable and final in relation to theStates involved'; and whereas, in those same writtenobservations, Cameroon moreover

'entirely reserves its position in relation to thevalidity and possible consequences of the unilateraldelimitation undertaken by Equatorial Guinea, whoseclaims, based solely on the principle of equidistance,do not take into account the special geographicalfeatures of the area in dispute';

10. Whereas, in its written observations, Nigerianotes that 'Equatorial Guinea does not seek to interveneas a party in the proceedings'; and whereas it adds thefollowing:

'Whether or not Equatorial Guinea's Applicationis accepted, it will in Nigeria's view make nodifference to the legal position of Nigeria to thepresent proceedings, or to the jurisdiction of theCourt. On that basis, Nigeria leaves it to the Court tojudge whether and to what extent it is appropriate oruseful to grant Equatorial Guinea's Application';

11. Whereas communications were subsequentlyaddressed to the Registry by the Parties and byEquatorial Guinea, and whereas the Registry transmittedcopies of each of those communications to the other twoStates; whereas Equatorial Guinea, by a letter dated 3September 1999, noted that neither Cameroon norNigeria 'ha[d] objected in principle to the intervention ofEquatorial Guinea'; whereas Nigeria, by a letter dated 13September 1999, referred to certain passages in thewritten observations of Cameroon and maintained thatCameroon 'misrepresent[ed] the position' of EquatorialGuinea, in that '[a]s Nigeria understands the position,Equatorial Guinea did not seek to intervene as a party,but as a third party'; whereas Cameroon, by a letterdated 11 October 1999, indicated that 'it [did] notdispute the right of Equatorial Guinea to intervene as anon-party intervener' and expressed the view that 'it[was] not for Nigeria to take the place of Equatorial

Guinea in deciding on the latter's entitlement tointervene', it being for the Court itself to determine thelegal effects of such an intervention; and whereasEquatorial Guinea, in a further communication, dated 11October 1999, observed that 'there [could] be noquestion of the Court's eventual Judgment determiningthe maritime boundaries of Equatorial Guinea, whetherwith Cameroon or Nigeria' and that it '[sought] thestatus of a non-party intervener';

12. Whereas neither of the Parties objects to theApplication by Equatorial Guinea for permission tointervene being granted;

13. Whereas, in the opinion of the Court, EquatorialGuinea has sufficiently established that it has an interestof a legal nature which could be affected by anyjudgment which the Court might hand down for thepurpose of determining the maritime boundary betweenCameroon and Nigeria;

14. Whereas, moreover, as a Chamber of the Courthas already had occasion to observe,

'[s]o far as the object of [a State's] intervention is 'toinform the Court of the nature of the legal rights [ofthat State] which are in issue in the dispute', itcannot be said that this object is not a proper one: itseems indeed to accord with the function ofintervention' (Land, Island and Maritime Frontier-Dispute (El Salvador/Honduras), Application byNicaragua for permission to intervene, Judgment of13 September 1990, I.C.J. Reports 1990, p. 130,para. 90);

15. Whereas in addition, as the same Chamberpointed out,

'[i]t... follows ... from the juridical nature and fromthe purposes of intervention that the existence of avalid link of jurisdiction between the would-beintervener and the parties is not a requirement for thesuccess of the application. On the contrary, theprocedure of intervention is to ensure that a Statewith possibly affected interests may be permitted tointervene even though there is no jurisdictional linkand it therefore cannot become a party' (ibid., p. 135,para. 100);16. Whereas, in view of the position of the Parties

and the conclusions which the Court itself has reached,the Court considers that there is nothing to prevent theApplication by Equatorial Guinea for permission tointervene from being granted;

17. Whereas copies of the pleadings and documentsannexed, as filed in the case at present, have alreadybeen communicated to Equatorial Guinea pursuant toArticle 53, paragraph 1, of the Rules of Court; andwhereas a copy of the Reply of Cameroon and of theRejoinder of Nigeria, which the Court has directed themto submit pursuant to its Order of 30 June 1999, will alsobe so communicated; whereas, in accordance with theprovisions of Article 85 of the Rules of Court, it isnecessary to fix time limits for the filing, respectively, ofa 'written statement' by Equatorial Guinea and of

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'written observations' by Cameroon and by Nigeria onthat statement; and whereas those time limits must 'sofar as possible, coincide with those already fixed for thepleadings in the case', in the present instance by theabove-mentioned Order of 30 June 1999;

18. For these reasons,The Court,Unanimously,1. Decides that the Republic of Equatorial Guinea is

permitted to intervene in the case, pursuan: to Article 62of the Statute, to the extent, in the manner and for thepurposes set out in its Application for permission tointervene;

2. Fixes the following time limits for the filing ofthe written statement and the written observationsreferred to in Article 85, paragraph 1, of the Rules ofCourt:

4 April 2001 for the written statement of theRepublic of Equatorial Guinea;4 July 2001 for the written observations of theRepublic of Cameroon and of the Federal Republicof Nigeria;3. Reserves the subsequent procedure for further

decision."


On 30 June 1999 Equatorial Guinea filed an Applicationfor permission to intervene in the above-mentioned case. Itstated that the purpose of its intervention was "to protect[its] legal rights in the Gulf of Guinea by all legal means"and "to inform the Court of Equatorial Guinea's legal rightsand interests so that these may remain unaffected as theCourt proceeds to address the question of the maritime

boundary between Cameroon and Nigeria". EquatorialGuinea made it clear that it did not seek to intervene inthose aspects of the proceedings that relate to the landboundary between Cameroon and Nigeria, nor to become aparty to the case. It further stated that, although it would beopen to the three countries to request the Court not only todetermine the Cameroon-Nigeria maritime boundary butalso to determine Equatorial Guinea's maritime boundarywith these two States, Equatorial Guinea had made no suchrequest and wished to continue to seek to determine itsmaritime boundary with its neighbours by negotiation.

In support of its Application, Equatorial Guinea stressedthat one of the claims presented by Cameroon in itsMemorial of 16 March 1995 "ignored the legal rights ofEquatorial Guinea in the most flagrant way" because itdisregarded the median line (the line dividing maritimezones between two States of which every point isequidistant from the coasts of each of those States) and that,moreover, "in the bilateral diplomacy between Cameroonand Equatorial Guinea, Cameroon ... never once hinted thatit did not accept the median line as the maritime boundarybetween itself and Equatorial Guinea". Observing that "thegeneral maritime area where the interests of EquatorialGuinea, Nigeria and Cameroon come together is an area ofactive oil and gas exploration and exploitation", EquatorialGuinea maintained that "any judgment extending theboundary between Cameroon and Nigeria across the medianline with Equatorial Guinea [would] be relied upon byconcessionaires who would likely ignore EquatorialGuinea's protests and proceed to explore and exploitresources to the legal and economic detriment" of thatcountry.

Under Article 83 of the Rules of Court, EquatorialGuinea's Application was immediately communicated toCameroon and Nigeria, and the Court fixed 16 August 1999as the time limit for the filing of written observations bythose States.

127. CASE CONCERNING KASIKILI/SEDUDU ISLAND (BOTSWANA v. NAMIBIA)


In its judgment in the case concerning Kasikili/SeduduIsland (Botswana/Namibia), the Court found, by elevenvotes to four, that "the boundary between thï Republic ofBotswana and the Republic of Namibia follows the line ofthe deepest soundings in the northern channel of the ChobeRiver around Kasikili/Sedudu Island" and, by eleven votesto four again, that "Kasikili/Sedudu Island forms part of theterritory of the Republic of Botswana".

The Court added unanimously that, "in the two channelsaround Kasikili/Sedudu Island, the nationals of, and vesselsflying the flags of, the Republic of Botswana and theRepublic of Namibia shall enjoy equal national treatment".

The Court was composed as follows: PresidentSchwebel; Vice-President Weeramantry; Judges Oda,Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer,Koroma, Vereshchetin, Higgins, Parra-Aranguren,Kooijmans, Rezek; Registrar Valencia-Ospina.

The full text of the operative paragraph of the Judgmentreads as follows:

"104. For these reasons.

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THE COURT,(1 ) By eleven votes to four,Finds that the boundary between the Republic of

Botswana and the Republic of Namibia follows the lineof deepest soundings in the northern channel of theChobe River around Kasikili/Sedudu Island;

IN FAVOUR: President Schwebel; Judges Oda,Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Koroma,Vereshchetin, Higgins, Kooijmans;

AGAINST: Vice-President Weeramantry; JudgesFleischhauer, Parra-Aranguren, Rezek.

(2) By eleven votes to four,Finds that Kasikili/Sedudu Island forms part of the

territory of the Republic of Botswana;IN FAVOUR: President Schwebel; Judges Oda,

Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Koroma,Vereshchetin, Higgins, Kooijmans;

AGAINST: Vice-President Weeramantry; JudgesFleischhauer, Parra-Aranguren, Rezek.

(3) Unanimously,Finds that, in the two channels around

Kasikili/Sedudu Island, the nationals of, and vesselsflying the flags of, the Republic of Botswana and theRepublic of Namibia shall enjoy equal nationaltreatment."

Judges Ranjeva, Koroma, and Higgins appendeddeclarations to the judgment of the Court; Judges Oda andKooijmans appended separate opinions; and Vice-PresidentWeeramantry and judges Fleichhauer, Parra-Aranguren andRezek appended dissenting opinions.

Botswana's final submission as presented at the hearingof 5 March 1999 were as follows:

"May it please the Court:(1) to adjudge and declare:(a) that the northern and western channel of the

Chobe River in the vicinity of Kasikili/Sedudu Islandconstitutes the 'main channel' of the Chobe River inaccordance with the provisions of Article IN (2) of theAnglo-German Agreement of 1890; and

(b) consequently, sovereignty in respect of Kasikili/Sedudu Island vests exclusively in the Republic ofBotswana; and further

(2) to determine the boundary around Kasikili/Sedudu Island on the basis of the thalweg in the northernand western channel of the Chobe River."Namibia's final submissions read at the hearing of 2

March 1999 were as follows:"May it please the Court, rejecting all claims andsubmissions to the contrary, to adjudge and declare

1. The channel that lies to the south ofKasikili/Sedudu Island is the main channel of the ChobeRiver.

2. The channel that lies to the north ofKasikili/Sedudu Island is not the main channel of theChobe River.

3. Namibia and its predecessors have occupied andused Kasikili Island and exercised sovereign jurisdictionover it, with the knowledge and acquiescence ofBotswana and its predecessors since at least 1890.

4. The boundary between Namibia and Botswanaaround Kasikili/Sedudu Island lies in the centre (that isto say, the thalweg) of the southern channel of the ChobeRiver.

5. The legal status of Kasikili/Sedudu Island is thatit is a part of the territory under the sovereignty ofNamibia."

Review of the proceedings and submissions of theParties

(paras. 1-10)

By joint letter dated 17 May 1996, Botswana andNamibia transmitted to the Registrar the original text of aSpecial Agreement between the two States, signed atGaborone on 15 February 1996 and entered into force on 15May 1996, Article I of which reads as follows:

"The Court is asked to determine, on the basis of theAnglo-German Treaty of 1 July 1890 [an agreementbetween Great Britain and Germany respecting thespheres of influence of the two countries in Africa] andthe rules and principles of international law, theboundary between Namibia and Botswana aroundKasikili/Sedudu Island and the legal status of theisland."The Court then recites the successive stages of the

proceedings and sets out the submissions of the Parties:


The Court then gives a description of the geography ofthe area concerned, illustrated by three sketch maps.

Thereafter the Court recounts the history of the disputebetween the Parties which is set against the background ofthe nineteenth century race among the European colonialpowers for the partition of Africa. In the spring of 1890,Germany and Great Britain entered into negotiations with aview to reaching agreement concerning their trade and theirspheres of influence in Africa. The resulting Treaty of 1 July1980 delimited inter alia the spheres of influence ofGermany and Great Britain in south-west Africa; thatdelimitation lies at the heart of the present case.

In the ensuing century, the territories involvedexperienced various mutations in status. The independentRepublic of Botswana came into being on 30 September1966, on the territory of the former British Bechuanaland

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Protectorate, while Namibia (of which the Caprivi Stripfornis part) became independent on 21 March 1990.

Shortly after Namibian independence, differences arosebetween the two States concerning the location of theboundary around Kasikili/Sedudu Island. In May 1992, ii;was agreed to submit the determination of the boundaryaround the Island to a Joint Team of Technical Experts. InFebruary 1995, the Joint Team Report, in which the Teamannounced that it had failed to reach an agreed conclusionon the question put to it, was considered and it was decidedto submit the dispute to the International Court of Justice fora final and binding determination.

The rides of interpretation applicable to the 1890 Treaty(paras. 18-20)

The Court begins by observing that the law applicable tothe present case has its source first in the 1890 Treaty.,which Botswana and Namibia acknowledge to be bindingon them. As regards the interpretation of that Treaty, theCourt notes that neither Botswana nor Namibia are parties tothe Vienna Convention on the Law of Treaties of 23 May1969, but that both of them consider that Article 31 of theVienna Convention is eipplicable inasmuch as it reflects,customary international law.

According to Article 31 of the Vienna Convention on theLaw of Treaties:

"1 . A treaty shall be interpreted in good faith inaccordance with the ordinary meaning to be given to theterms of the treaty in their context and in the light of itsobject and purpose.

2. The context for the purpose of the interpretationof a treaty shall comprise, in addition to the text.including its preamble and annexes:

(a) any agreement relating to the treaty which wasmade between all the parties in connection with theconclusion of the treaty;

(b) any instrument which was made by one or moreparties in connection with the conclusion of the treatyand accepted by the other parties as an instrumentrelated to the treaty."The Court indicates that it shall proceed to interpret the

provisions of the 1890 Treaty by applying the rules ofinterpretation set forth in the 1969 Vienna Convention,recalling that

"a treaty must be inteipreted in good faith, in accordancewith the ordinary meaning to be given to its terms intheir context and in the light of its object and purpose.Interpretation must be based above all upon the text ofthe treaty. As a supplementary measure recourse may behad to means of interpretation such as the preparatorywork of the treaty." (Territorial Dispute (Libyan ArabJamahiriya/Chad), Judgment, I.C.J. Reports 1994,pp. 21-22, para. 41).

The text of the 1890 Treaty(paras. 21-46)

The Court first examines the text of the 1890 Treaty,Article III of which reads as follows:

"In Southwest Africa the sphere in which theexercise of influence is reserved to Germany is bounded:

1. To the south by a line commencing at the mouthof the Orange river, and ascending the north bank of thatriver to the point of its intersection by the 20th degree ofeast longitude.

2. To the east by a line commencing at the above-named point, and following the 20th degree of eastlongitude to the point of its intersection by the 22ndparallel of south latitude; it runs eastward along thatparallel to the point of its intersection by the 21st degreeof east longitude; thence it follows that degreenorthward to the point of its intersection by the 18thparallel of south latitude; it runs eastward along thatparallel till it reaches the river Chobe, and descends thecentre of the main channel of that river to its junctionwith the Zambesi, where it terminates.

It is understood that under this arrangement Germanyshall have free access from her Protectorate to theZambesi by a strip of territory which shall at no point beless than 20 English miles in width.

The sphere in which the exercise of influence isreserved to Great Britain is bounded to the west andnorthwest by the above-mentioned line. It includes LakeNgami.

The course of the above boundary is traced ingeneral accordance with a map officially prepared forthe British Government in 1889."As far as the region covered by the present case is

concerned, this provision locates the dividing line betweenthe spheres of influence of the contracting parties in the"main channel" of the River Chobe; however, neither this,nor any other provision of the Treaty, furnishes criteriaenabling that "main channel" to be identified. It must alsobe noted that in the English version refers to the "centre" ofthe main channel, while the German version uses the term"thalweg" of that channel (Thalweg des Hauptlaufes).Observing that Botswana and Namibia did not themselvesexpress any real difference of opinion on the meaning ofthese terms, the Court indicates that it will accordingly treatthe words "centre of the main channel" in Article III,paragraph 2, of the 1890 Treaty as having the same meaningas the words "Thalweg des Hauptlaufes". In the Court'sopinion, the real dispute between the Parties concerns thelocation of the main channel where the boundary lies. InBotswana's view, it is to be found "on the basis of thethalwegs in the northern and western channel of the Chobe",whereas in Namibia's view, it "lies in the centre (that is tosay thalwegs) of the southern channel of the Chobe River".The Court observes that by introducing the term "mainchannel" into the draft treaty, the contracting parties must beassumed to have intended that a precise meaning be given toit. For these reasons, the Court indicates that it will therefore

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proceed first to determine the main channel. In so doing, itwill seek to determine the ordinary meaning of the words"main channel" by reference to the most commonly usedcriteria in international law and practice, to which theParties have referred.

Criteria for identifying the "main channel"(paras. 29-42)

The Court notes that the Parties to the dispute agree onmany of the criteria for identifying the "main channel", butdisagree on the relevance and applicability of several ofthose criteria.

For Botswana, the relevant criteria are as follows:greatest depth and width; bed profile configuration;navigability; greater flow of water. Botswana also laysstress on the importance, from the standpoint ofidentification of the main channel, of "channel capacity","flow velocity" and "volume of flow". Namibiaacknowledges that:

"[pjossible criteria for identifying the main channel in ariver with more than one channel are the channel withthe greatest width, or the greatest depth, or the channelthat carries the largest proportion of the annual flow ofthe river. In many cases the main channel will have allthree of these characteristics."

It adds, however, referring to the sharp variations in thelevel of (he Chobe's waters, that:

"neither width nor depth are suitable criteria fordetermining which channel is the main channel."Among the possible criteria, Namibia therefore attaches

the greatest weight to the amount of flow: according to it,the main channel is the one "that carries the largestproportion of the annual flow of the river". Namibia alsoemphasized that another key task was to identify the channelthat is most used for river traffic.

The Court notes that the Parties have expressed theirviews on one or another aspect of the criteria, distinguishingbetween them or placing emphasis on their complementarityand their relationship with other criteria. Before coming to aconclusion on the respective role and significance of thevarious criteria thus chosen, the Court further notes that thepresent hydrological situation of the Chobe aroundKasikili/Sedudu Island may be presumed to be essentiallythe same as that which existed when the 1890 Treaty wasconcluded.

Depth(para. 32)

Notwithstanding all the difficulties involved in soundingthe depth of the channels and interpreting the results, theCourt concludes that the northern channel is deeper than thesouthern one, as regards mean depth, and even as regardsminimum depth.

Width(para. 33)

With regard to the width, the Court finds, on the basis ofa report dating from as early as 1912, aerial photographstaken between 1925 and 1985, and satellite pictures taken inJune 1975, that the northern channel is wider than thesouthern channel.

Flow of water(paras. 34-37)

With regard to the flow, i.e., the volume of watercarried, the Court is not in a position to reconcile the figuressubmitted by the Parties, who take a totally differentapproach to the definition of the channels concerned. TheCourt is of the opinion that the determination of the mainchannel must be made according to the low water baselineand not the floodline. The evidence shows that when theriver is in flood, the Island is submerged by flood water andthe entire region takes on the appearance of an enormouslake. Since the two channels are then no longerdistinguishable, it is not possible to determine the mainchannel in relation to the other channel. The Court thereforeis not persuaded by Namibia's argument concerning theexistence of a major "main" channel whose visible southernchannel would merely constitute the thalweg.

Visibility(para. 38)

The Court is further unable to conclude that, in terms ofvisibility — or of general physical appearance — thesouthern channel is to be preferred to the northern channel,as maintained by Namibia.

Bed profile configuration(para. 39)

Having examined the arguments, maps and photographsput forward by the Parties, the Court is also unable toconclude that, from its bed configuration, the southernchannel constitutes the principal and natural prolongation ofthe course of the Chobe before the bifurcation.

Navigability(paras. 40-42)

The Court notes that the navigability of watercoursesvaries greatly, depending on prevailing natural conditions.Those conditions can prevent the use of the watercourse inquestion by large vessels carrying substantial cargoes, butpermit light flat-bottomed vessels to navigate. In the presentcase, the data furnished by the Parties tend to prove that thenavigability of the two channels around Kasikili/SeduduIsland is limited by their shallowness. This situation inclinesthe Court to the view that, in this respect, the "mainchannel" in this part of the Chobe is that of the two whichoffers more favourable conditions for navigation. In theCourt's view, it is the northern channel which meets thiscriterion.

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For the foregoing reasons, the Court concludes that, inaccordance with the ordinary meaning of the terms thatappear in the pertinent provision of the 1890 Treaty, thenorthern channel of the River Chobe aroundKasikili/Sedudu Island must be regarded as its mainchannel. It observes that this conclusion is supported by theresults of three on-site surveys carried out in 1912.. 1948 and1985, which concluded that the main channel of the RiverChobe was the northern channel.

The object and purpose of the 1890 Treaty(paras. 43-46)

The Court then considers how and to what extent theobject and purpose of the treaty can clarify the meaning tobe given to its terms. While the treaty in question is not aboundary treaty proper but a treaty delimiting spheres ofinfluence, the Parties nonetheless accept it as the treatydetermining the boundary between their territories. Thecontracting powers, the Court observes, by opting for thewords "centre of the main channel", intended to establish aboundary separating their spheres of influence even in thecase of a river having more than one channel.

The Court notes that navigation appears to have been afactor in the choice of the contracting powers in delimitingtheir spheres of influence, but it does not consider thatnavigation was the sole objective of the provisions ofArticle III, paragraph 2, of the Treaty. In referring to themain channel of the Chobe, the parties sought both to securefor themselves freedom of navigation on the river and todelimit as precisely as possible their respective spheres ofinfluence.

The subsequent practice(paras. 47-80)

In the course of the proceedings, Botswana and Namibiamade abundant reference to the subsequent practice of theparties to the 1890 Treaty — and of their successors — asan element in the interpretation of that Treaty. While bothParties accept that interpretative agreements and subsequentpractice do constitute elements of treaty interpretation underinternational law, they disagree on the consequences to bedrawn from the facts in this case for purposes of theinterpretation of the 1890 Treaty.

Article 31, paragraph 3, of the 1969 Vienna Conventionon the Law of Treaties, which, as stated earlier, reflectscustomary law, provides, for the interpretation of treaties, asfollows:

"'3. There shall be taken into account, together withthe context:

(a) any subsequent agreement between the partiesregarding the interpretation of the treaty or theapplication of its provisions;

(b) any subsequent practice in the application of thetreaty which establishes the agreement of the partiesregarding its interpretations."

In support of its interpretation of Article III, paragraph 2,of the 1890 Treaty, Botswana relies principally on three setsof documents: a report on a reconnaissance of the Chobeproduced in August 1912 by an officer of the BechuanalandProtectorate Police, Captain Eason; an arrangement arrivedat in August 1951 between Major Trollope, Magistrate forthe Eastern Caprivi, and Mr. Dickinson, a DistrictCommissioner in the Bechuanaland Protectorate, togetherwith the correspondence that preceded and followed thatarrangement; and an agreement concluded in December1984 between the authorities of Botswana and South Africafor the conduct of a Joint Survey of the Chobe, togetherwith the resultant Survey Report.

The Eason Report (1912)(paras. 53-55)

The Court shares the view, put forward by Namibia andaccepted by Botswana in the final version of its argument,that the Eason Report and its surrounding circumstancescannot be regarded as representing "subsequent practice inthe application of the treaty" of 1890, within the meaning ofArticle 31, paragraph 3 {b), of the Vienna Convention.

The Trollope-Redman correspondence (1947-1951)(paras. 56-63)

In 1947, Mr. Ker, who was operating a transportbusiness in Bechuanaland, planned to bring timber down theChobe using the northern channel. He obtained thenecessary permission from the competent official in theCaprivi Strip, Major Trollope, but also raised the matterwith the Bechuanaland authorities. Following a Joint Reportentitled "Boundary between the Bechuanaland Protectorateand the Eastern Caprivi Zipfel: Kasikili Island" produced byMajor Trollope and Mr. Redman (District Commissioner atFCasane, Bechuanaland) in 1948, and forwarded to theirrespective authorities, there ensued an extendedcorrespondence between those authorities.

In 1951 an exchange of correspondence between Mr.Dickinson, who had in the meantime succeeded Mr.Redman as District Commissioner at Kasane(Bechuanaland) and Major Trollope led to the following"gentlemen's agreement":

"(a) That we agree to differ on the legal aspectregarding Kasikili Island, and the concomitant questionof the Northern Waterway;

(b) That the administrative arrangements which wehereafter make are entirely without prejudice to therights of the Protectorate and the Strip to pursue thelegal question mentioned in (a) should it at any timeseem desirable to do so and will not be used as anargument that either territory has made any admissionsor abandoned any claims; and

(c) That, having regard to the foregoing, the positionrevert to what it was de facto before the whole questionwas made an issue in 1947 — i.e. that Kasikili Islandcontinue to be used by Caprivi tribesmen and that the

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Northern Waterway continue to be used as a 'free forall' thoroughfare."Each side however made a caveat with regard to its

position in any future controversy over the Island.The Court observes that each of the Parties to the present

proceedings relies on the Trollope-Redman Joint Report andthe correspondence relating thereto in support of itsposition. From its examination of the extendedcorrespondence, the Court concludes that the above-mentioned events, which occurred between 1947 and 1951,demonstrate the absence of agreement between South Africaand Bechuanaland with regard to the location of theboundary around Kasikili/Sedudu Island and the status ofthe Island. Those events cannot therefore constitute"subsequent practice in the application of the treaty [of1890] which establishes the agreement of the partiesregarding its interpretation" (1969 Vienna Convention onthe Law of Treaties, Art. 31, para. 3 (b)). A fortiori, theycannot have given rise to an "agreement between the partiesregarding the interpretation of the treaty or the applicationof its provisions" (ibid., Art. 31, para. 3 (a)).

The Joint Survey of 1985(paras. 64-68)

In October 1984 an incident during which shots werefired took place between members of the Botswana DefenceForce and South African soldiers who were travelling byboat in the Chobe's southern channel. At a meeting held inPretoria on 19 December 1984 between representatives ofvarious South African and Botswanan ministries, it emergedthat the incident had arisen out of differences ofinterpretation as to the precise location of the boundaryaround Kasikili/Sedudu Island. At this meeting, referencewas made to the terms of the 1890 Treaty and it was agreed"that a joint survey should take place as a matter of urgencyto determine whether the main Channel of the Chobe Riveris located to the north or the south of the Sidudu/KasikiliIsland". The joint survey was carried out at the beginning ofJuly 1985. The conclusions of the survey report were asfollows:

"The main channel of the Chobe River now passesSidudu/Kasikili Island to the west and to the north of it.(See annexed maps)

The evidence available seems to point to the fact thatthis has been the case, at least, since 1912.

It was not possible to ascertain whether a particularlyheavy flood changed the course of the river between1890 and 1912. Captain Eason of the BechuanalandProtectorate Police states, on page 4 of Part I of thereport which has been referred to earlier, that floodsoccurred in 1899 and in June and July of 1909.

If the main channel of the river was ever situated tothe south of the island, it is probable that erosion in theSidudu Valley, the location of which can be seen in theannexed Map C, has caused the partial silting up of thesouthern channel.

Air photographs showing the channels of the river inthe vicinity of the island are available in the archives ofthe two national survey organizations. They were takenin 1925, 1943, 1972, 1977, 1981 and 1982. Nosubstantial change in the position of the channels isevident from the photographs."

Having examined the subsequent correspondencebetween the South African and Botswana authorities, theCourt finds that it cannot conclude therefrom that in 1984-1985 South Africa and Botswana had agreed on anythingmore than the despatch of the joint team of experts. Inparticular, the Court cannot conclude that the two Statesagreed in some fashion or other to recognize themselves aslegally bound by the results of the joint survey carried out inJuly 1985. Neither the record of the meeting held in Pretoriaon 19 December 1984 nor the experts' terms of referenceserve to establish that any such agreement was reached.Moreover, the subsequent correspondence between theSouth African and Botswana authorities appears to deny theexistence of any such agreement: in a Note of 4 November1985, Botswana called upon South Africa to accept thesurvey conclusions; not only did South Africa fail to acceptthem but on several occasions it emphasized the need forBotswana to negotiate and agree on the question of theboundary with the relevant authorities of South WestAfrica/Namibia, or indeed of the future independentNamibia.

Presence of Masubia on the Island(paras. 71-75)

In the proceedings Namibia, too, invoked in support ofits arguments the subsequent practice of the parties to the1890 Treaty. In its Memorial it contended that this conduct

"is relevant to the present controversy in three distinctways. In the first place, it corroborates the interpretationof the Treaty ... Second, it gives rise to a second andentirely independent basis for Namibia's claim under thedoctrines concerning acquisition of territory byprescription, acquiescence and recognition. Finally, theconduct of the parties shows that Namibia was inpossession of the Island at the time of termination ofcolonial rule, a fact that is pertinent to the application ofthe principle of utipossidetis."

The subsequent practice relied on by Namibia consistsof

"[t]he control and use of Kasikili Island by the Masubiaof Caprivi, the exercise of jurisdiction over the Island bythe Namibian governing authorities, and the silence byBotswana and its predecessors persisting for almost acentury with full knowledge of the facts ..."The Court indicates that it will not at this point examine

Namibia's argument concerning prescription. It will merelyseek to ascertain whether the long-standing, unopposed,presence of Masubia tribes people on Kasikili/Sedudu Islandconstitutes "subsequent practice in the application of the[1890] treaty which establishes the agreement of the partiesregarding its interpretation" (1969 Vienna Convention on

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the Law of Treaties, Art. 31, para. 3 (b)). To establish suchpractice, at least two criteria would have to be satisfied:first, that the occupation of the Island by the Masubia waslinked to a belief on the part of the Caprivi authorities thatthe boundary laid down by the 1890 Treaty followed thesouthern channel of the Chobe; and, second, that theBechuanaland authorities were fully aware of and acceptedthis as a confirmation of the Treaty boundary.

There is nothing that shows, in the opinion of the Court,that the intermittent presence on the Island of people fromthe Caprivi Strip was linked to territorial claims by theCaprivi authorities. It further seems to the Court that, as faras Bechuanaland, and subsequently Botswana, wereconcerned, the intermittent presence of the Masubia on theIsland did not trouble anyone and was tolerated, not leastbecause it did not appear to be connected with interpretationof the terms of the 1890 Treaty. The Court thus finds thatthe peaceful and public use of Kasikili/Sedudu Island, overa period of many years, by Masubia tribesmen from theEastern Caprivi does not constitute "subsequent practice inthe application of the [1890] treaty" within the meaning ofArticle 31, paragraph 3 {b), of the Vienna Convention on theLaw of Treaties.

The Court concludes from all of the foregoing that thesubsequent practice of the parties to the 1890 Treaty did notresult in any "agreement between the parties regarding theinterpretation of the treaty or the application of itsprovisions", within the meaning of Article 31, paragraph3 (a), of the 1969 Vienna Convention on the Law ofTreaties, nor did it result in any "practice in the applicationof the treaty which establishes the agreement of the partiesregarding its interpretation", within the meaning ofsubparagraph (b) of that same provision.

Maps as evidence(paras. 81-87)

Both Parties have submitted in evidence in support oftheir respective positions a large number of maps, datingback as far as 1880. Namibia points out that the majority ofthe maps submitted in these proceedings, even thoseemanating from British colonial sources and intended toshow the boundaries of Bechuanaland, tend to place theboundary around Kasikili/Sedudu Island in the southernchannel. Namibia relies on this as "a specialized form of'subsequent practice' and ... also an aspect both of theexercise of jurisdiction and the acquiescence in it thatmatures into prescriptive title". Botswana for its part placesless reliance on maps, pointing out, inter alia, that most ofthe early maps show too little detail, or are too small inscale, to be of value in this case. Botswana asserts, however,that the available maps and sketches indicate that, from thetime the Chobe was surveyed with any particularity byEuropean explorers from the 1860s onwards, a northchannel around the Island was known and regularlydepicted. Botswana does not, however, attempt todemonstrate that this places the boundary in the northern

channel. Rather, its overall position is that the map evidenceis far less consistent in placing the boundary in the southernchannel than Namibia claims.

The Court begins by recalling what the Chamber dealingwith the Frontier Dispute {Burkina Faso/Republic of Mali)case had to say on the evidentiary value of maps:

"maps merely constitute information which varies inaccuracy from case to case; of themselves, and by virtuesolely of their existence, they cannot constitute aterritorial title, that is, a document endowed byinternational law with intrinsic legal force for thepurpose of establishing territorial rights. Of course, insome cases maps may acquire such legal force, butwhere this is so the legal force does not arise solely fromtheir intrinsic merits: it is because such maps fall into thecategory of physical expressions of the will of the Stateor States concerned. This is the case, for example, whenmaps are annexed to an official text of which they forman integral part. Except in this clearly defined case, mapsare only extrinsic evidence of varying reliability orunreliability which may be used, along with otherevidence of a circumstantial kind, to establish orreconstitute the real facts." {I.C.J. Reports 1986, p. 582,para. 54)

After examining the map evidence produced in this case,the Court considers itself unable to draw conclusions fromit, in view of the absence of any map officially reflecting theintentions of the parties to the 1890 Treaty and of anyexpress or tacit agreement between them or their successorsconcerning the validity of the boundary depicted in a map,as well as in the light of the uncertainty and inconsistency ofthe cartographic material submitted to it. That evidencecannot therefore "endors[e] a conclusion at which a courthas arrived by other means unconnected with the maps"{Frontier Dispute (Burkina Faso/Republic of Mali), I.C.J.Reports 1986, p. 583, para. 56), nor can it alter the results ofthe Court's textual interpretation of the 1890 Treaty.

"Centre of the main channel" or Thalweg(paras. 88-89)

The foregoing interpretation of the relevant provisions ofthe 1890 Treaty leads the Court to conclude that theboundary between Botswana and Namibia aroundKasikili/Sedudu Island provided for in this Treaty lies in thenorthern channel of the Chobe River.

According to the English text of the Treaty, thisboundary follows the "centre" of the main channel; theGerman text uses the word "thalweg". The Court hasalready indicated that the parties to the 1890 Treaty intendedthese terms to be synonymous and that Botswana andNamibia had not themselves expressed any real differenceof opinion on this subject.

It is moreover clear from the travaux préparatoires ofthe Treaty that there was an expectation of navigation on theChobe by both contracting parties, and a common intentionto exploit this possibility. Although the parties in 1890 usedthe terms "thalweg" and "centre of the channel"

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interchangeably, the former reflects more accurately thecommon intention to exploit navigation than does the latter.Accordingly this is the term that the Court will considerdeterminative in Article III, paragraph 2.

Inasmuch as Botswana and Namibia agreed, in theirreplies to a question put by a Member of the Court, that thethalweg of the Chobe was formed by the line of deepestsoundings in that river, the Court concludes that theboundary follows that line in the northern channel aroundKasikili/Sedudu Island.

Acquisitive prescription(paras. 90-99)

The Court continues by observing that Namibia,however, claims title to Kasikili/Sedudu Island, not only onthe basis of the 1890 Treaty but also, in the alternative, onthe basis of the doctrine of prescription. Namibia argues that

"by virtue of continuous and exclusive occupation anduse of Kasikili Island and exercise of sovereignjurisdiction over it from the beginning of the century,with full knowledge, acceptance and acquiescence bythe governing authorities in Bechuanaland andBotswana, Namibia has prescriptive title to the Island".Botswana maintains that the Court cannot take into

consideration Namibia's arguments relating to prescriptionand acquiescence as these are not included in the scope ofthe question submitted to it under the terms of the SpecialAgreement.

The Court notes that under the terms of Article I of theSpecial Agreement it is asked to determine the boundarybetween Namibia and Botswana around Kasikili/SeduduIsland and the legal status of the Island "on the basis of theAnglo-German Treaty of 1 July 1890 and the rules andprinciples of international law". In the Court's view theSpecial Agreement, in referring to the "rules and principlesof international law", not only authorizes the Court tointerpret the 1890 Treaty in the light of those rules andprinciples but also to apply those rules and principlesindependently. The Court therefore considers that theSpecial Agreement does not preclude the Court fromexamining arguments relating to prescription put forward byNamibia.

After summarizing the arguments advanced by each ofthe Parties the Court observes that they agree betweenthemselves that acquisitive prescription is recognized ininternational law and that they further agree on theconditions under which title to territory may be acquired byprescription, but that their views differ on whether thoseconditions are satisfied in this case. Their disagreementrelates primarily to the legal inferences which may be drawnfrom the presence on Kasikili/Sedudu Island of the Masubiaof Eastern Caprivi: while Namibia bases its argumentprimarily on that presence, considered in the light of theconcept of "indirect rule", to claim that its predecessorsexercised title-generating State authority over the Island,Botswana sees this as simply a "private" activity, withoutany relevance in the eyes of international law.

The Court continues by pointing out that for presentpurposes, it need not concern itself with the status ofacquisitive prescription in international law or with theconditions for acquiring title to territory by prescription. TheCourt considers, for the reasons set out below, that theconditions cited by Namibia itself are not satisfied in thiscase and that Namibia's argument on acquisitiveprescription therefore cannot be accepted.

The Court observes that it follows from its examinationof the presence of the Masubia on the Island (see above) thateven if links of allegiance may have existed between theMasubia and the Caprivi authorities, it has not beenestablished that the members of this tribe occupied theIsland à titre de souverain, i.e., that they were exercisingfunctions of State authority there on behalf of thoseauthorities. Indeed, the evidence shows that the Masubiaused the Island intermittently, according to the seasons andtheir needs, for exclusively agricultural purposes; this use,which began prior to the establishment of any colonialadministration in the Caprivi Strip, seems to havesubsequently continued without being linked to territorialclaims on the part of the Authority administering theCaprivi. Admittedly, when, in 1947-1948, the question ofthe boundary in the region arose for the first time betweenthe local authorities of Bechuanaland Protectorate and ofSouth Africa, the Chobe's "main channel" around the Islandwas said to be the northern channel, but the South Africanauthorities relied on the presence of the Masubia on theIsland in order to maintain that they had title based onprescription. However, from then on the Bechuanalandauthorities took the position that the boundary was locatedin the northern channel and that the Island was part of theProtectorate; after some hesitation, they declined to satisfySouth Africa's claims to the Island, while at the same timerecognizing the need to protect the interests of the Caprivitribes. The Court infers from this, first, that forBechuanaland, the activities of the Masubia on the Islandwere an independent issue from that of title to the Islandand, second, that, as soon as South Africa officially claimedtitle, Bechuanaland did not accept that claim, whichprecluded acquiescence on its part.

In the Court's view, Namibia has not established withthe necessary degree of precision and certainty that acts ofState authority capable of providing alternative justificationfor prescriptive title, in accordance with the conditions setout by Namibia, were carried out by its predecessors or byitself with regard to Kasikili/Sedudu Island.

The legal status of the Island and the two channelsaround it

(paras. 100-103)

The Court's interpretation of Article III (2) of the 1890Treaty has led it to conclude that the boundary betweenBotswana and Namibia around Kasikili/Sedudu Islandfollows the line of deepest soundings in the northernchannel of the Chobe. Since the Court has not acceptedNamibia's argument on prescription, it follows that

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Kasikili/Sedudu Island forms part of the territory ofBotswana.

The Court observes, however, that the KasaneCommuniqué of 24 May 1992 records that the Presidents ofNamibia and Botswana agreed and resolved that:

"(c) existing social interaction between the people ofNamibia and Botswana should continue;

(d) the economic activities such as fishing shallcontinue on the understanding that fishing nets shouldnot be laid across the river;

(e) navigation should remain unimpeded includingfree movement of tourists".The Court, which by the terms of the Joint Agreement

between the Parties is empowered to determine the legalstatus of Kasikili/Sedudu Island concludes, in the light ofthe above-mentioned provisions of the Kasane Communiquéand in particular its subparagraph («?) and the interpretationof that subparagraph Botswana gave before the Court in thiscase, that the Parties have undertaken to one another thatthere shall be unimpeded navigation for craft of theirnationals and flags in the channels of Kasikili/SeduduIsland. As a result, in the southern channel ofKasikili/Sedudu Island, the nationals of Namibia, andvessels flying its flag, are entitled to, and shall enjoy, atreatment equal to that accorded by Botswana to its ownnationals and to vessels flying its own flag. Nationals of thetwo States, and vessels, whether flying the flag of Botswanaor of Namibia, shall be subject to the same conditions asregards navigation and environmental protection. In thenorthern channel, each Party shall likewise accord thenationals of, and vessels flying the flag of, the: other, equalnational treatment.

Declaration of Judge Ranjeva

Judge Ranjeva explains how he interprets the reply toArticle I of the Special Agreement concerning Articles IIand HI of the operative part of the Judgment relating to thestatus of Kasikili/Sedudu Island:

1. Given its effect, in terms of allocation of territory,the Judgment's choice of the northern channel as the mainchannel is the least improbable solution, in the absence of asystematic comparison of the two navigation channels; thisis the reason for the finding that Kasikili/Sedudu Islandforms part of Botswana territory.

2. The Kasane Communiqué created legal obligationsfor the two States parties to the dispute with regard to theenjoyment and exercise of rights by their nationals in therelevant area; in addition to navigation and fishing rights inthe channel, there is a right of free access to the: surroundingwaters and to the territory of Kasikili/Sedudu Island.

Further, as regards the presence of the Masubia onKasikili/Sedudu Island, the statement in paragraph 98 of theJudgment that:

"even if links of allegiance may have existed betweenthe Masubia and the Caprivi authorities, it has not beenestablished that the members of this tribe occupied theIsland à titre de souverain, i.e., that they were exercising

functions of State authority there on behalf of thoseauthorities"

is not of general import and relates only to the particularcircumstances of the present case.


In his declaration Judge Koroma stated that theGovernments of Namibia and Botswana should becommended for their decision to bring their dispute to theCourt for peaceful settlement. He recalled that similardisputes have in the past given rise to serious armedconflicts, endangering the peace and security of the Statesinvolved.

He further stated that, given its task, it was inevitablethat the Court would choose one of a possible number ofinterpretations of the 1890 Anglo-German Agreement asrepresenting the shared intention of the Parties regarding thelocation of the boundary and the status of the Island. Butthat in so doing, the Court also took into consideration theprinciple of uti possidetis, a recognized principle of theAfrican legal order regarding boundaries of African States.

The Judge added that, this notwithstanding, the Courthad ruled that the nationals and boats flying the flags of theRepublic of Botswana and the Republic of Namibia shouldenjoy equal treatment in the waters of each other's State inaccordance with the contemporary principles of the law ofinternational watercourses and the Kasane Communiqué.

In the Judge's view, the Judgment should invest theboundary between the two countries with the necessarylegal validity and ensured equitable treatment of a sharednatural resource.

Declaration of Judge Higgins

Judge Higgins states in her declaration that, contrary towhat is stated in the Judgment, the Court is not engaged inan exercise of treaty interpretation of words in their ordinarymeaning. Rather, the Court is applying, in 1997, to a riversection well understood today, a general term selected bythe Parties in 1890. In so doing, the Court mustsimultaneously have regard to the broad intentions of theParties in 1890 and the state of contemporary knowledgeabout the area in question.

In her view no great weight should be placed uponcriteria related to navigation, as we now know the hopes ofthe Parties regarding navigation to the Zambezi to bemisplaced. Realism requires us rather to emphasize criteriarelevant to the other intention of the Parties — to arrive at aclear frontier — that being an objective which is stillobtainable through the decision of the Court.

The question of general physical appearance is thusimportant. Although the Chobe Ridge is the most dominantbank in both channels, year round the northern channelappears to be broader and more visible. For Judge Higgins,many of the factors, while educational and interesting inthemselves, have little relevance to the task at hand.

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Judge Oda voted in favour of the operative part of theJudgment because he supports the Court's determinationthat the northern channel of the Chobe River constitutes theboundary between Botswana and Namibia.

However, Judge Oda finds it difficult to understandproperly the sequence of logic followed by the Court in theJudgment. In his view, the Judgment places excessivereliance on the Vienna Convention on the Law of Treaties,whereas, so Judge Oda believes, the case is not oneinvolving the application of that Convention for the purposeof the Court's interpretation of the 1890 Anglo-GermanTreaty. In addition, he does not agree with the Court'sapproach of viewing the past practice primarily from thestandpoint of whether this might constitute evidence of any"subsequent agreement" or "subsequent practice" within themeaning of the Vienna Convention.

Judge Oda accordingly sketches out the view that hetakes of the case.

After looking at the background to the presentation ofthe case to the Court, Judge Oda takes the view that, as thecompromis was not drafted with clarity, the Parties shouldhave been asked to clarify their common position as towhether they regard the determination of the boundary,which would then result in the determination of the legalstatus of Kasikili/Sedudu Island, as a single issue or whetherthey regard these as two separate issues.

Judge Oda is of the view that the definition of the mainchannel and, in particular, the identification of its location,depends largely on scientific knowledge, which the Courtshould have obtained by seeking the assistance of expertsappointed by it. That, however, the Court chose not to do.

Judge Oda, however, does not object to the conclusionthe Court has reached in its choice on its own initiative,without the assistance of independent experts, of thenorthern channel as the main channel of the Chobe River;and hence, as the boundary along the River between the twoStates.

Judge Oda agrees with the Court in denying that theconcept of "acquisitive prescription" has any role to play inthis case.

Judge Oda concludes that the northern channel has, forthe past several decades, as indicated by certain practicesand in certain survey reports of the region, been regarded asthe main channel separating the area of the northern andsouthern banks in the vicinity of Kasikili/Sedudu Island inthe Chobe River. These factors would, in Judge Oda's view(which is contrary to the position taken by the Court), be themost pertinent in assisting the Court now to determine theboundary between the two States. Judge Oda believes thatdetermination of the boundary was the original intention ofthe Parties in bringing this case by means of a compromis tothe International Court of Justice.


Judge Kooijmans has voted in favour of all parts of thedispositif of the Judgment. He disagrees, however, with theCourt's view that the Special Agreement by referring to the"rules and principles of international law" allows the Court

to apply these rules and principles independently of theTreaty and to examine Namibia's alternative claim that ithas title to Kasikili/Sedudu on the basis of the doctrine ofacquisitive prescription. According to Judge Kooijmans thispart of Namibia's claim should have been declaredinadmissible, since the Special Agreement precludes theCourt from determining the status of the Islandindependently of the Treaty and that is exactly what theCourt would have done if it had concluded that Namibia'sclaim is valid.

In the second part of his opinion Judge Kooijmansexpresses the view that the mutual commitments the Partieshave made in the Kasane Communiqué of 1992 with regardto the uses of the waters around Kasikili/Sedudu Island,clearly reflect recent developments in international law suchas the principle of the equitable and reasonable utilization ofshared water resources. The Chobe River around the Islandundoubtedly is part of a "watercourse" in the sense of the1997 Convention on the Non-Navigational Uses ofInternational Watercourses, which defines a watercourse asa "system of surface waters and ground waters constitutingby virtue of their physical relationship a unitary wholeflowing into a common terminus". Although thisConvention has not yet entered into force, it embodiescertain rules and principles, such as the rule of equitableutilization, which have become well-established ininternational law. The present use of the waters around theIsland for tourist purposes can hardly be identified astransport by river and is more similar to the uses for non-navigational purposes which are the subject of the 1997Convention. In their future dealings concerning the uses ofthe waters around Kasikili/Sedudu Island the Parties,therefore, should let themselves be guided by the rules andprinciples contained in the 1997 Convention.

Dissenting opinion of Vice-Président WeeramantryVice-President Weeramantry, in his dissenting opinion,

took the view that since the expressions "main channel" and"Thalweg des Hauptlaufes" in the 1890 Treaty admitted ofmore than one interpretation, the sense in which they wereundersiood contemporaneously by the Parties was animportant aid to their interpretation.

The regular use of Kasikili/Sedudu Island by theMasubian people for over half a century after the Treaty, theabsence of any acknowledgement by them of title in anyother State, the absence of any objection to such use or ofany assertion of claim by the predecessors in title ofBotswana — all these pointed to a contemporaneousunderstanding, by the parties to the Treaty and theirofficials, that the Masubia were not crossing nationalboundaries. Consequently, this pointed to the southernchannel of the Chobe as being the boundary indicated by the1890 Treaty. The conduct of governments more than half acentury later, when background circumstances and powerconfigurations had drastically changed, was not evidence ofcontemporaneous understanding.

The word "agreement" in Article 31, paragraph 3 (b), ofthe Vienna Convention on the Law of Treaties is notconfined to a verbal agreement, but covers common

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understanding which may be indicated by action or inaction,affirmation or silence.

The opinion discusses the thalweg principle and theambivalence of the scientific criteria and of navigability fordetermining the main channel.

The opinion points out the richness of K.asikili/SeduduIsland as a wildlife habitat and the legal principles that areattracted by this circumstance.

The opinion goes on to consider the equitablenavigational use of boundary rivers, and judicial responsesto a boundary demarcation which involves the dismantlingor division of an ecologically integral unit.

It also discusses the scope for equity in boundarydelimitation.

The differences between treaties dealing with spheres ofinfluence and strictly boundary treaties are examined, aswell as the significance of this distinction in the field ofboundary delimitation.

The question of joint international regimes to safeguardthe environment is discussed in some detail.

In the result, Vice-President Weeramantry's view, asexpressed in the opinion, is that, while the Island belongs toNamibia, a joint international regime between the twocountries should be set up to safeguard the environmentalinterests of the Island.

Dissenting opinion of Judge Fleischhcnier

Judge Fleischhauer has voted against paragraphs 1 and 2of the dispositif of the Court's Judgment; he dissents fromthe Court's interpretation of the term "main channel of thatriver"/ "Hauptlauf dieses Flusses" as meaning the northernrather than the southern channel of the Chobe River aroundKasikili/Sedudu Island. As the Court does not acceptNamibia's argument on prescriptive title to the Island, hisdissent on the interpretation of the term "main channel ofthat river"/ "Hauptlauf dieses Flusses" affects not only hisview on the location of the boundary but alsio his view onthe territorial status of the Island. This explains why hevoted not only against the first but also against the secondparagraph of the dispositif. Judge Fleisctihauer voted,however, in favour of the third paragraph.

While concurring with what the Court had to say aboutthe role of prescription in the case. Judge Fleischhauermakes an additional remark on this subject.

Dissenting opinion of Judge Parra- Aranguren1. Judge Parra-Aranguren observes, as does the

Judgment, that Botswana and Namibia are not in agreementas to the meaning of the phrase "the centre of the mainchannel (der Thalweg des Hauptlaufes) of the Chobe River"found in Article III, paragraph 2, of the 1890 Anglo-GermanAgreement; that the Treaty itself does not define it; that noother of its provisions provide by implication guidelinesuseful for this purpose; and that for this; reason suchexpression has to be interpreted according to customaryinternational law as expressed in Article 31 of the ViennaConvention on the Lav/ of Treaties of 23 May 1969.Therefore, in accordance with letter (b) of said Article 31, itis necessary to examine "any subsequent practice in the

application of the treaty which establishes the agreement ofthe parties regarding its interpretation"; always keeping inmind that such agreement may be established not onlythrough their joint or parallel conduct, but also through theactivity of only one of the parties, where this is assented toor not objected to by the other party.

2. Judge Parra-Aranguren considers that the Report ofCaptain Eason (1912); the Joint Report prepared byMr. Trollope and Mr. Redman (1948); the exchange ofletters which followed between 1948 and 1951; and Mr.Renew's Report (1965) lead to the conclusion that theMasubia of the Eastern Caprivi were the only tribesmenwho used Kasikili/Sedudu Island at least until 1914; thattheir occupation of Kasikili/Sedudu Island was peaceful andpublic; and that their chiefs "became in a certain senseagents of the colonial administration", as Botswanaacknowledges (see paragraph 85 of his dissenting opinion).Therefore, in his opinion, the subsequent practice ofGermany and Great Britain reflected their understandingthat Kasikili/Sedudu Island formed part of German SouthWest Africa and that the southern channel of the ChobeRiver was the "main channel" referred to in Article III,paragraph 2, of the 1890 Anglo-German Agreement.

3. Judge Parra-Aranguren states further that subsequentpractice of the parties to the 1890 Anglo-GermanAgreement is only relevant up to the beginning of the FirstWorld War, when the Eastern Caprivi was occupied byRhodesian forces in September 1914; that no subsequentpractice of the parties to the Treaty was possible whenBritish troops exercised de facto control over South WestAfrica; that in 1920 the League of Nations confirmed theestablishment of the Mandate over South West Africa; andthat during the existence of the Mandate over South WestAfrica (Namibia) neither of the parties to the 1890 Anglo-German Treaty had competence to recognize, either byexpress agreement or by subsequent practice, that theaforementioned "main channel" of the Chobe River was thenorthern channel and not the southern channel, since thisnew interpretation would have represented a modification ofthe territory submitted to the Mandate. Consequently, theoriginal understanding was maintained and for this reasonJudge Parra-Aranguren concludes that Kasikili/SeduduIsland forms part of Namibia and that the southern channelof the Chobe River is the "main channel" referred to inArticle III, paragraph 2, of the 1890 Anglo-GermanAgreement.

Dissenting opinion of Judge RezekIn his dissenting opinion Judge Rezek emphasizes the

ambiguities in the geography of the Kasikili/Sedudu area.He criticizes the arguments based on navigability, visibilityand the natural prolongation of the river at the bifurcation.He interprets the Anglo-German Treaty of 1890 in the lightof history, taking into account the practice of the parties, theprinciple of the equitable apportionment of the resources ofa watercourse, the cartography and the de facto occupationof the Island by the Caprivi Masubia. He finds that prioritymust go to those elements which place the boundary in thesouthern channel and accord Namibia sovereignty overKasikili/Sedudu.

139

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128. CASE CONCERNING THE AERIAL INCIDENT OF 10 AUGUST 1999(PAKISTAN v. INDIA) (JURISDICTION OF THE COURT)


In its judgment in the case concerning the AerialIncident of 10 August 1999 (Pakistan v. India), by a vote offourteen to two, the Court declared that it had no jurisdictionto adjudicate upon the dispute brought before it by Pakistanagainst India.

The Court was composed as follows: PresidentGuillaume; Vice-Président Shi; Judges Oda, Bedjaoui,Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin,Higgins, Parra-Aranguren, Kooijmans, Al-Khasawneh,Buergenthal; Judges ad hoc Pirzada, Reddy; RegistrarCouvreur.


"56. For these reasons,THE COURT,By fourteen votes to two,Finds that it has no jurisdiction to entertain the

Application filed by the Islamic Republic of Pakistan on21 September 1999.

IN FAVOUR: President Guillaume; Vice-PresidentShi; Judges Oda, Bedjaoui, Ranjeva, Herczegh,Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Buergenthal; Judge ad hocReddy;

AGAINST: Judge Al-Khasawneh; Judge ad hocPirzada."

Judges Oda and Koroma and Judge ad hoc Reddyappended separate opinions to the Judgment of the Court.Judge Al-Khasawneh and Judge ad hoc Pirzada appendeddissenting opinions to it.


(paras. 1-11)

On 21 September 1999, Pakistan filed in the Registry ofthe Court an Application instituting proceedings againstIndia in respect of a dispute relating to the destruction, on10 August 1999, of a Pakistani aircraft. In its Application,Pakistan founded the jurisdiction of the Court on Article 36,paragraphs 1 and 2, of the Statute and the declarationswhereby the two Parties have recognized the compulsoryjurisdiction of the Court.

By letter of 2 November 1999, the Agent of Indianotified the Court that his Government "wishfed] to indicateits preliminary objections to the assumption of jurisdictionby the ... Court ... on the basis of Pakistan's Application".Those objections, set out in a note appended to the letter,were as follows:

"(i) That Pakistan's Application did not refer to anytreaty or convention in force between India andPakistan which confers jurisdiction upon theCourt under Article 36 (1).

(ii) That Pakistan's Application fails to take intoconsideration the reservations to theDeclaration of India dated 15 September, 1974filed under Article 36 (2) of its Statute. Inparticular, Pakistan, being a Commonwealthcountry, is not entitled to invoke the jurisdictionof the Court as subparagraph 2 of paragraph 1of that Declaration excludes all disputesinvolving India from the jurisdiction of thisCourt in respect of any State which 'is or hasbeen a Member of the Commonwealth ofNations'.

(iii) The Government of India also submits thatsubparagraph 7 of paragraph 1 of itsDeclaration of 15 September, 1974 barsPakistan from invoking the jurisdiction of thisCourt against India concerning any disputearising from the interpretation or application ofa multilateral treaty, unless at the same time allthe parties to such a treaty are also joined asparties to the case before the Court. Thereference to the UN Charter, which is amultilateral treaty, in the Application ofPakistan as a basis for its claim would clearlyfall within the ambit of this reservation. Indiafurther asserts that it has not provided anyconsent or concluded any special agreementwith Pakistan which waives this requirement."

After a meeting held on 10 November 1999 by thePresident of the Court with the Parties, the latter agreed torequest the Court to determine separately the question of itsjurisdiction in this case before any proceedings on themerits, on the understanding that Pakistan would firstpresent a Memorial dealing exclusively with this question,to which India would have the opportunity of replying in aCounter-Memorial confined to the same question.

By Order of 19 November 1999, the Court, taking intoaccount the agreement reached between the Parties, decidedaccordingly and fixed time limits for the filing of aMemorial by Pakistan and a Counter-Memorial by India onthat question. Hearings were held from 3 to 6 April 2000.

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In the Application Pakistan requested the Court to judgeand declare as follows:

"(a) that the acts of India (as stated above) constitutebreaches of the various obligations under the Charter ofthe United Nations, customary international law andtreaties specified in the body of this Application forwhich the Republic of India bears exclusive legalresponsibility;

(b) that India is under an obligation to makereparations to the Islamic Republic of Pakistan for theloss of the aircraft and as compensation to the heirs ofthose killed as a result of the breaches of the obligationscommitted by it under the Charter of the United Nationsand relevant rules of customary international law andtreaty provisions."In the note attached to its letter of 2 November 1999,

India requested the Court:(i) to adjudge and declare that Pakistan's

Application is without any merit to invoke thejurisdiction of the Court against India in viewof its status as a Member of the Commonwealthof Nations; and

(ii) to adjudge and declare that Pakistan cannotinvoke the jurisdiction of the Court in respectof any claims concerning various provisions ofthe United Nations Charter, particularly Article2 (4) as it is evident that all the States parties tothe Charter have not been joined in theApplication and that, under the circumstances,the reservation made by India in subparagraph7 of paragraph 1 of its declaration would barthe jurisdiction of this Court."

At the close of the hearings Pakistan requested theCourt:

"(i) to dismiss the preliminary objections raised byIndia;

(ii) to adjudge and declare that it has jurisdiction todecide on the Application filed by Pakistan on21 September 1999; and

(iii) to fix time limits for the further proceedings inthe case."

India submitted "that the Court adjudge and declare thatit has no jurisdiction to consider the Application of theGovernment of Pakistan."

The Court begins by recalling that, to found thejurisdiction of the Court in this case, Pakistan relied in itsMemorial on:

(1) Article 17 of the General Act for Pacific Settlementof International Disputes, signed at Geneva on 26September 1928 (hereinafter called "the General Act of1928");

(2) the declarations made by the Parties pursuant toArticle 36, paragraph 2, of the Statute of the Court;

(3) paragraph 1 of Article 36 of the said Statute;and that India disputes each one of these bases ofjurisdiction. The Court examines in turn each of these basesof jurisdiction relied on by Pakistan.

Article 17 of the General Act of 1928(paras. 13-28)

Pakistan begins by citing Article 17 of the General Actof 1928, which provides:

"All disputes with regard to which the parties are inconflict as to their respective rights shall, subject to anyreservations which may be made under Article 39, besubmitted for decision to the Permanent Court ofInternational Justice, unless the parties agree, in themanner hereinafter provided, to have resort to an arbitraltribunal.It is understood that the disputes referred to aboveinclude in particular those mentioned in Article 36 of theStatute of the Permanent Court of International Justice."Pakistan goes on to point out that, under Article 37 of

the Statute of the International Court of Justice:"Whenever a treaty or convention in force provides forreference of a matter to ... the Permanent Court ofInternational Justice, the matter shall, as between theparties to the present Statute, be referred to theInternational Court of Justice."

Finally, Pakistan recalls that on 21 May 1931 BritishIndia had acceded to the General Act of 1928. It considersthat India and Pakistan subsequently became parties to theGeneral Act. It followed that the Court had jurisdiction toentertain Pakistan's Application on the basis of Article 17 ofthe General Act read with Article 37 of the Statute.

In reply, India contends, in the first place, that "theGeneral Act of 1928 is no longer in force and that, even if itwere, it could not be effectively invoked as a basis for theCourt's jurisdiction". It argues that numerous provisions ofthe General Act, and in particular Articles 6, 7, 9 and 43 to47 thereof, refer to organs of the League of Nations or to (hePermanent Court of International Justice; that, inconsequence of the demise of those institutions, the GeneralAct has "lost its original efficacy"; that the United NationsGeneral Assembly so found when in 1949 it adopted a newGeneral Act; that "those parties to the old General Actwhich have not ratified the new act" cannot rely upon theold Act except "insofar as it might still be operative", that is,insofar ... as the amended provisions are not involved; thatArticle 17 is among those amended in 1949 and that, as aresult, Pakistan cannot invoke it today.

Secondly, the Parties disagree on the conditions underwhich they succeeded in 1947 to the rights and obligationsof British India, assuming, as Pakistan contends, that theGeneral Act was then still in force and binding on BritishIndia. In this regard, India argues that the General Act wasan agreement of a political character which, by its nature,was not transmissible. It adds that, in any event, it made nonotification of succession. Furthermore, India points out that

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it clearly stated in its communication of 18 September 1974to the Secretary-General of the United Nations that

"[t]he Government of India never regarded themselvesas bound by the General Act of 1928 since herIndependence in 1947, whether by succession orotherwise. Accordingly, India has never been and is nota party to the General Act of 1928 ever since herIndependence."Pakistan, recalling that up to 1947 British India was

party to the General Act of 1928, argues on the contrarythat, having become independent, India remained party tothe Act, for in its case "there was no succession. There wascontinuity", and that consequently the "views on non-transmission of the so-called political treaties [were] notrelevant here".

Thus the communication of 18 September 1974 was asubjective statement, which had no objective validity.Pakistan, for its part, is said to have acceded to the GeneralAct in 1947 by automatic succession by virtue ofinternational customary law. Further, according to Pakistan,the question was expressly settled in relation to both Statesby Article 4 of the Schedule to the Indian Independence(International Arrangements) Order issued by the Governor-General of India on 14 August 1947. That Article providedfor the devolvement upon the Dominion of India and uponthe Dominion of Pakistan of the rights and obligations underall international agreements to which British India was aparty.

India disputes this interpretation of the IndianIndependence (International Arrangements) Order of 14August 1947 and of the agreement in the Schedule thereto.In support of this argument India relies on a judgmentrendered by the Supreme Court of Pakistan on 6 June 1961,and on the report of Expert Committee No. IX on ForeignRelations, which in 1947 had been instructed, in connectionwith the preparation of the above-mentioned Order, "toexamine and make recommendations on the effect ofpartition". Pakistan could not have, and did not, becomeparty to the General Act of 1928. Each of the Parties furtherrelies in support of its position on the practice since 1947.

On this point, the Court observes in the first place thatthe question whether the General Act of 1928 is to beregarded as a convention in force for the purposes of Article37 of the Statute of the Court has already been raised, butnot settled, in previous proceedings before the Court. In thepresent case, as recalled above, the Parties have madelengthy submissions on this question, as well as on thequestion whether British India was bound in 1947 by theGeneral Act and, if so, whether India and Pakistan becameparties to the Act on their accession to independence.Further, relying on its communication to the United NationsSecretary-General of 18 September 1974 and on the BritishIndia reservations of 1931, India denies that the General Actcan afford a basis of jurisdiction enabling the Court toentertain a dispute between the two Parties. Clearly, if theCourt were to uphold India's position on any one of these

grounds, it would no longer be necessary for it to rule on theothers.

As the Court pointed out in the case concerning CertainNorwegian Loans, when its jurisdiction is challenged ondiverse grounds, "the Court is free to base its decision onthe ground which in its judgment is more direct andconclusive". Thus, in the Aegean Sea Continental Shelfcase, the Court ruled on the effect of a reservation byGreece to the General Act of 1928 without deciding theissue whether that convention was still in force. In thecommunication addressed by India to the United NationsSecretary-General on 18 September 1974, the Minister forExternal Affairs of India declared that India considered thatit had never been party to the General Act of 1928 as anindependent State. The Court considers that India could nottherefore have been expected formally to denounce the Act.Even if, arguendo, the General Act was binding on India,the communication of 18 September 1974 was to beconsidered in the circumstances of the present case ashaving served the same legal ends as the notification ofdenunciation provided for in Article 45 of the Act. Itfollowed that India, in any event, would have ceased to bebound by the General Act of 1928 at the latest on 16 August1979, the date on which a denunciation of the General Actunder Article 45 thereof would have taken effect. Indiacould not be regarded as party to the said Act at the datewhen the Application in the present case was filed byPakistan. It followed that the Court had no jurisdiction toentertain the Application on the basis of the provisions ofArticle 17 of the General Act of 1928 and of Article 37 ofthe Statute.

Declarations of acceptance of the Court's jurisdictionby the Parties

(paras. 29-46)

Pakistan seeks, secondly, to found the jurisdiction of theCourt on the declarations made by the Parties under Article36, paragraph 2, of the Statute. Pakistan's currentdeclaration was filed with the United Nations Secretary-General on 13 September 1960; India's current declarationwas filed on 18 September 1974. India disputes that theCourt has jurisdiction in this case on the basis of thesedeclarations. It invokes, in support of its position, thereservations contained in subparagraphs (2) and (7) of thefirst paragraph of its declaration, with respect to"(2) disputes with the government of any State which is orhas been a Member of the Commonwealth of Nations;" and"(7) disputes concerning the interpretation or application ofa multilateral treaty unless all the parties to the treaty arealso parties to the case before the Court or Government ofIndia specially agree to jurisdiction".

The "Commonwealth reservation "(paras. 30,31 and 34-46)

With respect to the first of these reservations, relating toStates which are or have been members of theCommonwealth (hereinafter called the "Commonwealth

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reservation"), Pakistan contended in its written pleadingsthat it "ha[d] no legal effect", on the grounds that: it was inconflict with the "principle of sovereign equality" and the"universality of rights and obligations of members of theUnited Nations"; it was in breach of "good faith"; and that itwas in breach of various provisions of the United NationsCharter and of the Statute of the Court. In its Memorial,Pakistan claimed in particular that the reservation inquestion "[was] in excess of the conditions permitted underArticle 36 (3) of the Statute", under which, according toPakistan, "the permissible conditions [to which a declarationmay be made subject] have been exhaustively set out [...] as(i) on condition of reciprocity on the part of several orcertain states or (ii) for a certain time".

In its oral pleadings, Pakistan developed its argumentbased on Article 36, paragraph 3, of the Statute, contendingthat reservations which, like the Commonwealthreservation, did not fall within the categories authorized bythat provision, should be considered "extra-statutory". Onthis point it argued that: "an extra-statutory reservationmade by a defendant State may be applied by the Courtagainst a plaintiff State only if there is something in the casewhich allows the Court to conclude [...] that the plaintiff hasaccepted the reservation". Pakistan further claimed at thehearings that the reservation was "in any event inapplicable,not because it [was] extra-statutory and unopposable toPakistan but because it [was] obsolete". Finally, Pakistanclaimed that India's Commonwealth reservation, havingthus lost its raison d'être, could today only be directed atPakistan.

India rejects Pakistan's line of reasoning. In itspleadings, it stressed the particular importance to beattached, in its view, to ascertaining the intention of thedeclarant State. It contended that "there is no evidencewhatsoever that the reservation [in question] is ultra viresArticle 36, paragraph 3" of the Statute and referred to "[t]hefact [...] that it has for long been recognized that within thesystem of the optional clause a State can select its partners".India also queried the correctness of the theory of "extra-statutory" reservations put forward by Pakistan, pointing outthat "[any] State against which the reservation [were]invoked, [could] escape from it by merely stating that it[was] extra-statutory in character". India also rejectsPakistan's alternative arguments based on estoppel inrelation to the Simla Accord and on obsolescence.

The Court first addresses Pakistan's contention that theCommonwealth reservation is an extra-statutory reservationgoing beyond the conditions allowed for under Article 36,paragraph 3, of the Statute. According to Pakistan, thereservation is neither applicable nor opposable to it in thiscase, in the absence of acceptance. The Court observes thatparagraph 3 of Article 36 of its Statute has never beenregarded as laying down in an exhaustive manner theconditions under which declarations might be made.Already in 1928, the Assembly of the League of Nationshad indicated that "reservations conceivable may relate,

either generally to certain aspects of any kind of dispute, orspecifically to certain classes or lists of disputes, and ...•these different kinds of reservation can be legitimatelycombined" (resolution adopted on 26 September 1928).Moreover, when the Statute of the present Court was beingdrafted, the right of a State to attach reservations to itsdeclaration was confirmed, and this right has beenrecognized in the practice of States. The Court thus cannotaccept Pakistan's argument that a reservation such as India'sCommonwealth reservation might be regarded as "extra-statutory", because it contravened Article 36, paragraph 3,of the Statute. It considers that it need not therefore pursuefurther the matter of extra-statutory reservations.

Nor does the Court accept Pakistan's argument thatIndia's reservation was a discriminatory act constituting anabuse of right because the only purpose of this reservationwas to prevent Pakistan from bringing an action againstIndia before the Court. It notes in the first place that thereservation refers generally to States which are or have beenmembers of the Commonwealth. It adds that States are in;iny event free to limit the scope ratione personae whichIhey wish to give to their acceptance of the compulsoryjurisdiction of the Court.

The Court addresses, secondly, Pakistan's contentionthat the Commonwealth reservation was obsolete, becausemembers of the Commonwealth of Nations were no longerunited by a common allegiance to the Crown, and the modesof dispute settlement originally contemplated had nevercome into being. The Court recalls that it "will ... interpretthe relevant words of a declaration including a reservationcontained therein in a natural and reasonable way, havingdue regard to the intention of the State concerned at the timewhen it accepted the compulsory jurisdiction of the Court"(I.C.J. Reports 1998, p. 454, para. 49). While the historicalreasons for the initial appearance of the Commonwealthreservation in the declarations of certain States under theoptional clause might have changed or disappeared, suchconsiderations could not, however, prevail over the intentionof a declarant State, as expressed in the actual text of itsdeclaration. India had in the four declarations whereby,since its independence in 1947, it had accepted thecompulsory jurisdiction of the Court made clear that itwished to limit in this manner the scope ratione personae ofits acceptance of the Court's jurisdiction. Whatever mighthave been the reasons for this limitation, the Court wasbound to apply it.

The Court further regards Article 1 of the Simla Accord,paragraph (ii) of which provides, inter alia, that "the twocountries are resolved to settle their differences by peacefulmeans through bilateral negotiations or by any otherpeaceful means mutually agreed upon between them ..." asan obligation, generally, on the two States to settle theirdifferences by peaceful means, to be mutually agreed bythem. The said provision in no way modifies the specificrules governing recourse to any such means, includingjudicial settlement. The Court cannot therefore acceptPakistan's argument in the present case based on estoppel.

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In the Court's view, it follows from the foregoing thatthe Commonwealth reservation contained in subparagraph(2) of the first paragraph of India's declaration of 18September 1974 may validly be invoked in the present case.Since Pakistan "is ... a member of the Commonwealth ofNations", the Court finds that it has no jurisdiction toentertain the Application under Article 36, paragraph 2, ofthe Statute. Hence the Court considers it unnecessary toexamine India's objection based on the reservationconcerning multilateral treaties contained in subparagraph(7) of the first paragraph of its declaration.

Article 36, paragraph 1, of the Statute(paras. 47-50)

Finally, Pakistan has sought to found the jurisdiction ofthe Court on paragraph 1 of Article 36 of the Statute. TheCourt observes that the United Nations Charter contains nospecific provision of itself conferring compulsoryjurisdiction on the Court. In particular, there is no suchprovision in Articles 1, paragraph 1, 2, paragraphs 3 and 4,33, 36, paragraph 3, and 92 of the Charter, relied on byPakistan. The Court also observes that paragraph (i) ofArticle 1 of the Simla Accord represents an obligationentered into by the two States to respect the principles andpurposes of the Charter in their mutual relations. It does notas such entail any obligation on India and Pakistan to submittheir disputes to the Court. It follows that the Court has nojurisdiction to entertain the Application on the basis ofArticle 36, paragraph 1, of the Statute.

Obligation to settle disputes by peaceful means(paras. 51-55)

Finally, the Court recalls that its lack of jurisdiction doesnot relieve States of their obligation to settle their disputesby peaceful means. The choice of those means admittedlyrests with the parties under Article 33 of the United NationsCharter. They are nonetheless under an obligation to seeksuch a settlement, and to do so in good faith in accordancewith Article 2, paragraph 2, of the Charter. As regards Indiaand Pakistan, that obligation was restated more particularlyin the Simla Accord of 2 July 1972. Moreover, the LahoreDeclaration of 21 February 1999 reiterated "thedetermination of both countries to implementing the SimlaAgreement". Accordingly, the Court reminds the Parties oftheir obligation to settle their disputes by peaceful means,and in particular the dispute arising out of the aerial incidentof 10 August 1999, in conformity with the obligationswhich they have undertaken.


Judge Oda fully supports the decisions reached by theCourt in concluding that the Court has no jurisdiction toentertain the Application filed by Pakistan.

The Court rejects the 1928 General Act which Pakistanasserts as one basis for the Court's jurisdiction. The Court,after having analysed India's accession to the Act, India'sdenunciation of the Act, and the possibility of Pakistan's

succession as a party to the Act, based its rejection on theground that India was not, in any event, a party to the Act onthe date of Pakistan's Application in 1999.

Judge Oda does not disagree with the Court's reasoningon this point. After conducting an analysis of the manner inwhich the 1928 General Act was drafted and of thedevelopment in the 1920s of the issues concerning thecompulsory jurisdiction of the Permanent Court in theLeague of Nations era, he suggests that the Act itself cannotbe considered a document that would confer compulsoryjurisdiction upon the Court independently from or inaddition to the "optional clause" under Article 36, paragraph2, of the Statute of either the Permanent Court or of thepresent Court. He also points out the fact that all Stateswhich acceded to the General Act had already accepted thecompulsory jurisdiction of the Court by making declarationsunder the "optional clause" pursuant to Article 36,paragraph 2, of the Court's Statute and did not intend toassume any new obligation as far as the Court's jurisdictionwas concerned.

Judge Oda asserts that the Court's jurisdiction isconferred only pursuant to Article 36, paragraphs 1 or 2, ofits Statute and therefore could not have been conferred bythe 1928 General Act.


In his separate opinion Judge Koroma stated that,although he entirely agreed with the Court's findings andthe reasoning underlying them, he felt the Judgment shouldhave responded to the issues of justiciability and jurisdictionwhich were raised in the course of the proceedings, giventhe importance of the case.

He acknowledged that the acts complained of byPakistan, and their consequences, raised legal issuesinvolving a conflict of the rights and obligations of theParties. He, however, observed that for a matter to bebrought before the Court, the parties must have given theirconsent either prior to the institution of proceedings or inthe course of such proceedings.

He elaborated on this by pointing out that the questionwhether there is a conflict of legal rights and obligationsbetween parties to a dispute and whether international lawapplies (justiciability) is different from whether the Courthas been vested with the necessary authority by the partiesto a dispute to apply and interpret the law in relation to thatdispute (jurisdiction). He stated that where the parties havenot given their consent the Court is forbidden by its Statuteand jurisprudence from exercising its jurisdiction.

Judge Koroma also stated that the Judgment thusrendered should not be seen as an abdication of the Court'srole but rather a reflection of the system within which theCourt had been called upon to render justice. On the otherhand, the Court, as an integral part of the United Nationssystem entitled to contribute to the peaceful settlement ofdisputes, guided by the Charter and its jurisprudence, actedjudiciously in reminding the Parties of their obligation tosettle their disputes by peaceful means.

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Separate opinion of Judge ad hoc B. P. Jeevan Reddy

Judge ad hoc Jeevan Reddy has voted in favour of allparts of the dispositif of the Judgment. He has, however,emphasized, in his separate concurring opin:ion, theobservation contained in paragraphs 47 to 51 of theJudgment. In particular, he stressed the element of "goodfaith" required of States wishing to settle their disputes bypeaceful means. In this connection, he referred to fie SimlaAgreement and the Lahore Declaration whereunder bothIndia and Pakistan have agreed to settle all their differencesby peaceful means bilaterally. They have also condemned"terrorism in all its forms and manifestations" and reiterated"their determination to combat this menace". The Parties areunder an obligation, Judge Reddy said, "to create anatmosphere" where bilateral negotiations can be conductedmeaningfully. He concluded by expressing the hope thatboth countries would settle all their differences in the abovespirit and devote their energies to developing theireconomies as well as friendly relations between them.

Dissenting opinion of Judge Al-Khasawneh

In his dissenting opinion, Judge Al-Khasawneh,reiterating that lack of jurisdiction did not in itself mean thatthe dispute was not justiciable, joined the call made by theCourt on the two States to settle this, and other disputes,through peaceful means. He felt that such a call was urgentin view of the possibility of dangerous escalation, andpertinent in view of the rejection by India of any othermodes of peaceful settlement before the case was brought tothe Court.

He agreed with the majority that there is nocomprehensive system of jurisdiction deriving from theUnited Nations Charter. He also agreed, but withconsiderable hesitation, with the majority view that the 1928General Act did not provide a basis for jurisdiction in viewof the 1974 Indian communication, which, while not aformal denunciation of the Act, was treated! as a"notification" by the Secretary-General, there being,moreover, no reaction from other parties to the Actincluding Pakistan — assuming that the latter was itself aparty.

He nevertheless thought that, by not addressing pertinentand interrelated issues such as India and Pakistan's status asparties to the General Act, the transmittability of theGeneral Act and the question whether it is still in force, theCourt's decision, though justifiable under the circumstances,did not attain the certainty necessary to fortify it againstrecurring doubts.

Moving on to the next ground of jurisdiction, theoptional clause system, Judge Al-Khasawneh noted that thedeclarations made by India and Pakistan contained a numberof reservations and conditions, two of which concerned thepresent case:

(1) The multilateral treaty reservation;(2) The Commonwealth reservation.The first of these two reservations was irrelevant, since

the actions complained of were also breaches undercustomary international law.

The Commonwealth reservation was alleged to be(a) obsolete and (¿>) discriminatory. Regarding the firstpoint, Judge Al-Khasawneh, while acknowledging thatdoubts in this regard were justifiable considering thefundamental changes in the Commonwealth that had takenplace since 1930, when such a reservation was firstintroduced, thought nevertheless that the case forobsolescence was not conclusively made. Two reasonsaccounted for this. Firstly, a small number ofCommonwealth States had included the reservation — inone form or another — in their declarations and, secondly,India had maintained the reservation with modifications inits successive declarations — a practice from which theexistence of a conscious will, as well as a degree ofimportance for India, could be firmly inferred.

However, the reservation had undergone a change inwording that led to the inescapable conclusion that it wasmeant to operate against one State only, Pakistan. This wasconfirmed also by analysing the circumstances that had ledto this change.

While not all reservations that were extra-statutory wereinvalid, it was nonetheless open to the Court to pronounceon the validity of a reservation allegedly tainted byarbitrariness or discrimination. Judge Al-Khasawneh feltthat the Indian declaration fell outside the purview ofpermissibility because it was directed against one State only,thereby denying that State the benefits of reasonableexpectations of adjudication, and also because, unlike otherreservations ratione personae, the Indian reservation had norationale or reasonably defensible justification. He thereforecame to the conclusion that the Indian reservation wasinvalid.

Dealing with the consequential issue of separability,Judge Al-Khasawneh felt that not much guidance could begained from the precedents, both because of their paucityand because they had not been followed. Agreeing thatconcepts from major systems of law were relevant, he wenton to analyse a case decided by the Indian Supreme Court in1957, which revealed a complex and less severe test forseparability than was suggested to the Court by India. Henoted in this regard that India could not adduce anysupporting evidence that the Commonwealth reservationwas a crucial element of its acceptance of compulsoryjurisdiction; nor could this conclusion be reached from theterms of the reservation, which related to a group of States.Unlike the French reservation on domestic jurisdiction inthe Norwegian Loans case, which defined a general attitudeto the very concept of jurisdiction, India's reservation couldnot be said to define such an attitude.

Other major legal systems also admitted of separability.Thus, under Islamic law, the concept would seem to bereflected in the maxim: that which cannot be attained in itsentirety should not be substantially abandoned. Analogiesfrom the law of treaties were also relevant, and Article 44 ofthe Vienna Conventions of 1969 and 1986 admitted ofseparability arising out of invalidation, albeit in suitably

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guarded terms. Applying the test of Article 44, Judge Al-Khasawneh came to the conclusion that the IndianCommonwealth reservation was both invalid and separablefrom India's declaration.

Dissenting opinion of Judge ad hoc Pirzada

In his dissenting opinion Judge Pirzada regretted that hefound himself obliged to dissent from the reasoning in theJudgment of the Court and its conclusion. However, he is inagreement with paragraphs 51 to 55 thereof.

In his view, the effect of the Indian Independence Actand the Indian Independence (International Arrangements)Order 1947 was that British India was divided into twoindependent States, India and Pakistan. The British PrimeMinister, Mr. Atlee, stated: "With regard to the status of thetwo Dominions, the names were not meant to make anydifference between them. They were two successor States."The list of treaties mentioned in Volume III of the PartitionProceedings was not exhaustive {Right of Passage overIndian Territory, I.C.J. Reports 1960). The case of Yangtze(1961) relied upon by India is distinguishable. In a laterdecision, in the case of Zewar Khan (1969), it was held bythe Supreme Court of Pakistan that apart from the statementof the Secretary of State for Commonwealth Relations, ininternational law too Pakistan was accepted and recognizedas a successor government. The Pacific Settlement ofInternational Disputes and the General Act 1928 devolvedupon and continues to apply to India and Pakistan.

In June 1948, India and Pakistan signed an Air ServicesAgreement, which provided for recourse to the InternationalCourt of Justice if no tribunal was competent to decidedisputes, though both were dominions at that time. Asregards the water dispute, Mr. Liaquat AH Khan, the thenPrime Minister of Pakistan, stated in his letter of 23 August1950:

"Under the optional clause the Government of Indiaagreed to accept the jurisdiction of the InternationalCourt on the Applications of countries which are notmembers of the Commonwealth. The exceptiondoubtless contemplated that there would beCommonwealth machinery equally suited to the judicialsettlement of disputes. While such Commonwealthmachinery is lacking, it would be anomalous to deny to asister member of the British Commonwealth the friendlymeans of judicial settlement that is offered by India tocountries outside the Commonwealth."Pandit Nehru, the then Prime Minister of India, in his

letter of 27 October 1950, stated that India preferred to referthe dispute to a tribunal; if there was deadlock, Indiaproposed to settle those parts of the disputes throughnegotiation, failing that, to submit them to arbitration oreven to the International Court of Justice. In fact, between1947 and 1999 India and Pakistan settled their disputes(i) by negotiations, (ii) through mediation of third parties,(iii) through judicial tribunals and, (iv) had access to theInternational Court of Justice through Appeal orApplications. In the circumstances, India's conduct iscovered by the doctrine of estoppel.

India, in its communication of 18 September 1974,asserted that it never regarded itself as bound by the GeneralAct of 1928. The said communication was sent to counterthe declaration of Pakistan of 30 May 1974 whereby, todispel all doubts, Pakistan notified that it continues to bebound by the General Act. Such pleas had already beenraised by Pakistan before the International Court of Justicein the Trial of Pakistani Prisoners of War case. The Indiancommunication was not sent in good faith and cannot betreated or be deemed to be a denunciation of the GeneralAct and, among others, it did not comply with Article 45 ofthe General Act of 1928. Mere affirmation by India that itwas not bound by the General Act, which is denied byPakistan, is unilateral and its validity cannot be determinedat the preliminary stage in view of the finding of theInternational Court in the appeal by India against Pakistan inthe ICAO case, which is resjudicata.

India's Commonwealth reservation is obsolete, havingregard to the view of Judge Ago in the Nauru case, since theexpectation of the Commonwealth Court could not befulfilled. The Indian Commonwealth reservation is aimed atPakistan only, and is discriminatory and arbitrary. It doesnot fall under the permissible reservations exhaustively setout in Article 39 of the General Act and is invalid.

In any case the Indian Commonwealth reservation isseverable from the Indian declaration, having regard toArticle 44 of the Vienna Convention on the Law of Treaties,the opinions of President Klaestad and Judge Armand-Ugonin the Interhandel case and the opinion of Judge Bedjaoui inthe Fisheries Jurisdiction case. Reference was also made byJudge Pirzada to the rules of interpretation laid down by theIndian Supreme Court in the RMDC (1957) and Harakchad(1970) cases: The International Court of Justice iscompetent to exercise jurisdiction under Articles 17 and 41of the General Act.

Though the International Court, in the Nicaragua case(1984), had held that the declarations of acceptance of thecompulsory jurisdiction of the Court are facultative andunilateral engagements, it further held in that very case:"Just as the very rule of pacta sunt servanda in the law oftreaties is based on good faith, so also is the bindingcharacter of an international obligation assumed byunilateral declaration." These principles will be applicableto the Indian declaration as well.

Judge Pirzada considered that, in view of the allegationsby Pakistan that India, by its incursion into Pakistan'sairspace and by shooting down the Pakistan naval aircraftAtlantique on 10 August 1999 when 16 persons were killed,committed breaches of obligations of customaryinternational law — (i) not to use force against anotherState, (ii) not to violate the sovereignty of another State —therefore the International Court has jurisdiction regardingthe claim of Pakistan. Judge Pirzada relied upon the findingsof the Court in the Nicaragua case (1984). He also referredto the separate and dissenting opinions of JudgeWeeramantry, Judge Vereshchetin and Judge Bedjaoui inthe Fisheries Jurisdiction case (1998). Judge Pirzadaobserved that the Court's task is to ensure respect for

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international law. It is its principal guardian (Judge Lachs inhis separate opinion in the Lockerbie case in 1992).

Judge Pirzada stated that, in view of the consensualnature of its jurisdiction, the Court generally shows judicialcaution and restraint. However, in due course of time,principles of constructive creativity and progressive realismcould be evolved by the Court.

Judge Pirzada, for the reasons set out in his dissentingopinion, concluded that the Court ought to have rejected

India's preliminary objections to the jurisdiction of theCourt and ought to have entertained Pakistan's Application.

Judge Pirzada emphasized that the Parties are under anobligation to settle in good faith their disputes, including thedispute regarding the State of Jammu and Kashmir and inparticular the dispute arising out of the aerial incident of 10August 1999. Let India and Pakistan keep in view the idealsof Quaid-e-Azam Mohamed Ali Jinnah and MahatmaGandhi and take effective measures to secure peace, securityand justice in South Asia.

129. ARMED ACTIVITIES ON THE TERRITORY OF THE CONGO (DEMOCRATICREPUBLIC OF THE CONGO v. UGANDA) (PROVISIONAL MEASURES)

Order of 1 July 2000

In an order issued in the case concerning ArmedActivities on the Territory of the Congo (DemocraticRepublic of the Congo v. Uganda), the Court unanimouslyheld that "both Parties must, forthwith, prevent and refrainfrom any action, and in particular any armed action, whichmight prejudice the rights of the other Party in respect ofwhatever judgment the Court may render in the case, orwhich might aggravate or extend the dispule before theCourt or make it more difficult to resolve".

The Court unanimously added that "both Parties must,forthwith, take all measures necessary to comply with all oftheir obligations under international law, in particular thoseunder the United Nations Charter and the Charter of theOrganization of African Unity, and with United NationsSecurity Council resolution 1304 (2000) of 16 June 2000".

Finally, it unanimously stated that "both Parties must,forthwith, take all measures necessary to ensure full respectwithin the zone of conflict for fundamental human rightsand for the applicable provisions of humanitarian law".

The Court was composed as follows: PresidentGuillaume; Judges Oda, Bedjaoui, Ranjeva, Herczegh,Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh,Buergenthal; Registrar Couvreur.

Both Parties must, forthwith, prevent and refrainfrom any action, and in particular any armed action,which might prejudice the rights of the other Party inrespect of whatever judgment the Court may render inthe case, or which might aggravate or extend the disputebefore the Court or make it more difficult to resolve;

(2) Unanimously,Both Parties must, forthwith, take all measures

necessary to comply with all of their obligations underinternational law, in particular those under the UnitedNations Charter and the Charter of the Organization ofAfrican Unity, and with United Nations SecurityCouncil resolution 1304 (2000) of 16 June 2000;

(3) Unanimously,Both Parties must, forthwith, take all measures

necessary to ensure full respect within the zone ofconflict for fundamental human rights and for theapplicable provisions of humanitarian law."

Judges Oda and Koroma appended declarations to theOrder.

The full text of the operative text of the Order reads asfollows:

"47. For these reasons,THE COURT,Indicates, pending a decision in the proceedings

instituted by the Democratic Republic of the Congoagainst the Republic of Uganda, the followingprovisional measures:

(1) Unanimously,


(paras. 1-17)

On 23 June 1999, the Congo instituted proceedingsagainst Uganda in respect of a dispute concerning "acts ofarmed aggression perpetrated by Uganda on the territory ofthe Democratic Republic of the Congo, in flagrant violationof the United Nations Charter and of the Charter of theOrganization of African Unity";

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In the Application the Congo founds the jurisdiction ofthe Court on the declarations made by the two States underArticle 36, paragraph 2, of the Statute. It requests the Courtto:

"Adjudge and declare that:(a) Uganda is guilty of an act of aggression within

the meaning of Article 1 of resolution 3314 of theGeneral Assembly of the United Nations of 14December 1974 and of the jurisprudence of theInternational Court of Justice, contrary to Article 2,paragraph 4, of the United Nations Charter;

(b) further, Uganda is committing repeated violationsof the Geneva Conventions of 1949 and their AdditionalProtocols of 1977, in flagrant disregard of theelementary rules of international humanitarian law inconflict zones, and is also guilty of massive humanrights violations in defiance of the most basic customarylaw;

(c) more specifically, by taking forcible possessionof the Inga hydroelectric dam, and deliberately andregularly causing massive electrical power cuts, inviolation of the provisions of Article 56 of theAdditional Protocol of 1977, Uganda has rendered itselfresponsible for very heavy losses of life among the 5million inhabitants of the city of Kinshasa and thesurrounding area;

(d) by shooting down, on 9 October 1998 at Kindu, aBoeing 727 the property of Congo Airlines, therebycausing the death of 40 civilians, Uganda has alsoviolated the Convention on International Civil Aviationsigned at Chicago on 7 December 1944, the HagueConvention of 16 December 1970 for the Suppression ofUnlawful Seizure of Aircraft and the MontrealConvention of 23 September 1971 for the Suppressionof Unlawful Acts against the Safety of Civil Aviation.

Consequently, and pursuant to the aforementionedinternational legal obligations, to adjudge and declarethat:

( 1 ) all Ugandan armed forces participating in acts ofaggression shall forthwith vacate the territory of theDemocratic Republic of the Congo;

(2) Uganda shall secure the immediate andunconditional withdrawal from Congolese territory of itsnationals, both natural and legal persons;

(3) the Democratic Republic of the Congo is entitledto compensation from Uganda in respect of all acts oflooting, destruction, removal of property and personsand other unlawful acts attributable to Uganda, inrespect of which the Democratic Republic of the Congoreserves the right to determine at a later date the preciseamount of the damage suffered, in addition to its claimfor the restitution of all property removed".

On 19 June 2000 the Congo submitted to the Court arequest for the indication of provisional measures by whichit asked the Court to indicate as a matter of urgency thefollowing provisional measures:

"( 1 ) the Government of the Republic of Uganda mustorder its army to withdraw immediately and completelyfrom Kisangani;

(2) the Government of the Republic of Uganda mustorder its army to cease forthwith all fighting or militaryactivity on the territory of the Democratic Republic ofthe Congo and to withdraw immediately and completelyfrom that territory, and must forthwith desist fromproviding any direct or indirect support to any State,group, organization, movement or individual engaged orpreparing to engage in military activities on the territoryof the Democratic Republic of the Congo;

(3) the Government of the Republic of Uganda musttake all measures in its power to ensure that units, forcesor agents which are or could be under its authority, orwhich enjoy or could enjoy its support, together withorganizations or persons which could be under itscontrol, authority or influence, desist forthwith fromcommitting or inciting the commission of war crimes orany other oppressive or unlawful act against all personson the territory of the Democratic Republic of theCongo;

(4) the Government of the Republic of Uganda mustforthwith discontinue any act having the aim or effect ofdisrupting, interfering with or hampering actionsintended to give the population of the occupied zones thebenefit of their fundamental human rights, and inparticular their rights to health and education;

(5) the Government of the Republic of Uganda mustcease forthwith all illegal exploitation of the naturalresources of the Democratic Republic of the Congo andall illegal transfer of assets, equipment or persons to itsterritory;

(6) the Government of the Republic of Uganda musthenceforth respect in full the right of the DemocraticRepublic of the Congo to sovereignty, politicalindependence and territorial integrity, and thefundamental rights and freedoms of all persons on theterritory of the Democratic Republic of the Congo.

The Democratic Republic of the Congo would, at allevents, respectfully remind the Court of the powersconferred upon it by Article 41 of its Statute and Article75 of the Rules of Court, which authorize it in thepresent case to indicate all such provisional measures asit may deem necessary in order to bring to an end theintolerable situation which continues to obtain in theDemocratic Republic of the Congo, and in particular inthe Kisangani region".By letters dated 19 June 2000, the President of the Court

addressed the Parties in the following terms."Acting in conformity with Article 74, paragraph 4,

of the Rules of Court, I hereby draw the attention of bothParties to the need to act in such a way as to enable anyOrder the Court will make on the request for provisionalmeasures to have its appropriate effects".Hearings were held on 26 and 28 June 2000.

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Arguments of the Parties(paras. 18-31)

The Court observes that at the hearings the Congoessentially reiterated the line of argument developed in itsApplication and in its request for the indication ofprovisional measures; citing the Court's jurisprudence, itargued more particularly (hat the requirements of urgencyand of the risk of irreparable damage, conditions precedentfor the indication of provisional measures, were satisfied inthe present cases; adding that "[w]hen an armed conflictdevelops and endangers not only the rights and interests ofthe State but also the lives of its inhabitants, the urgency ofprovisional measures and. the irreparable nature of thedamage cannot be in doubt". The Congo further observedthat "the fact that certain Ugandan high authorities haveofficially stated that they agree to withdraw their forcesfrom the Kisangani region and that the beginnings of awithdrawal have in fact taken place can ... in no way callinto question" the need for the indication of measures as amatter of urgency, and that "these statements [did not]concern ... the whole of Congolese territory"; the Congoalso contended that there was "a sufficient connectionbetween the measures requested and the rights protected"; itstated, on the basis of a comparison of the text for therequest of the indication of provisional measures with thatof the Application instituting the proceedings, that the"categories of act referred to are similar" and that the "rulesof law applicable are similar"; the Congo further contendedthat the Court has prima facie jurisdiction "to entertain thedispute which is the subject matter of the Application",having regard to the declarations of acceptance of itscompulsory jurisdiction deposited by the two Parties. TheCongo stated finally that "[t]here is nothing in the politicaland diplomatic context oí" the present case which mightprevent the Court from taking the measures which thecircumstances require"; it pointed out that "the SecurityCouncil has adopted a resolution — resolution 1304 of 16June 2000 — in which it was demanded that Ugandawithdraw its forces not only from Kisangani but from allCongolese territory, without further delay"; and, referring tothe Court's jurisprudence, it argued that "[i]t is not ...possible to derive from [the] parallel powers of the SecurityCouncil and of the Court any bar to the exercise by the latterof its jurisdiction".

Uganda, at the hearings, pointed out that Ugandan forcesentered Eastern Congo in May 1997 at the invitation of Mr.Kabila, to work in collaboration with his forces to arrest theactivities of the anti-Uganda rebels. Ugandan forcesremained in Eastern Congo after Mr. Kabila becamePresident, again at his invitation. This arrangement withPresident Kabila was formalized by written agreement dated27 April 1998; Uganda added that it "has no territorialinterests in the Democratic Republic of the Congo", that"[t]here is a complete political vacuum in Eastern Congo"and that "[t]here is no one else to restrain the anti-Ugandarebels or guarantee the security of Uganda's border";Uganda further explained, that "on its part, [it] hasendeavoured to fulfil all its obligations laid down in the

Lusaka Agreement", concluded between the parties to theconflict and aimed at resolving the conflict and establishinga framework for peace in the region; that "both theApplication and the request for provisional measures arebased on preposterous allegations that are not backed by anyevidence whatsoever before this Court"; and that "in thecircumstances the request of the Democratic Republic of theCongo is inadmissible, this for the reason that as a matter oflaw the Court is prevented from exercising its powers underArticle 41 of the Statute", because "the subject matter of therequest for interim measures is essentially the same as thematters addressed by ... Security Council resolution [1304]of 16 June [2000]". Uganda argued in the alternative that"even if the Court had a prima facie competence by virtue ofArticle 41, there are concerns of propriety and judicialprudence which strongly militate against the exercise of thediscretion which the Court has in the indication of interimmeasures". Uganda further argued that there was an"absence of any clear link between the request and theoriginal claim", and that "the [Congo's] request [fails tosatisfy] the requirement of urgency or the risk of irreparabledamage" and that there cannot "be an element of urgencyafter the Congo has waited for almost a year before makinga complaint".

Uganda finally stated that "the Lusaka Agreement is acomprehensive system of public order", "a bindinginternational agreement that constitutes the governing lawbetween and among the parties to the conflict"; that "[t]heSecurity Council and the Secretary-General have repeatedlydeclared that [this] Agreement is the only viable process forachieving peace within the Democratic Republic of theCongo and for achieving peace between the DemocraticRepublic of the Congo and its neighbours"; and that "thespecific interim measures requested by Congo directlyconflict with the Lusaka Agreement, and with the SecurityCouncil resolutions — including resolution 1304 ... —calling for implementation of the Agreement".

The Court's reasoning(paras. 32-46)

The Court notes that the two Parties have each made adeclaration recognizing the jurisdiction of the Court inaccordance with Article 36, paragraph 2, of the Statute;Uganda on 3 October 1963 and the Congo on 8 February1989; neither of the two declarations includes anyreservation. The Court therefore considers that thosedeclarations constitute a prima facie basis upon which itsjurisdiction in the present case might be founded.

The Court takes note that in its request for the indicationof provisional measures, the Congo refers to resolution 1304(2000), adopted by the Security Council under Chapter VIIof the United Nations Charter on 16 June 2000; the text ofthe said resolution is then quoted in full. The Court furthernotes Uganda's argument that the Congo's request for theindication of provisional measures concerns essentially thesame issues as this resolution; that the said request isaccordingly inadmissible; and that the request is, moreover,moot, since Uganda fully accepts the resolution in question

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and is complying with it. It observes, however, that SecurityCouncil resolution 1304 (2000), and the measures taken inits implementation, do not preclude the Court from acting inaccordance with its Statute and with the Rules of Court,recalling that

"while there is in the Charter"a provision for a clear demarcation of functionsbetween the General Assembly and the SecurityCouncil, in respect of any dispute or situation, that theformer should not make any recommendation withregard to that dispute or situation unless the SecurityCouncil so requires, there is no similar provisionanywhere in the Charter with respect to the SecurityCouncil and the Court. The Council has functions of apolitical nature; assigned to it, whereas the Courtexercises purely judicial functions. Both organs cantherefore perform their separate but complementaryfunctions with respect to the same events".The Court then observes that in the present case the

Security Council has taken no decision which would primafacie preclude the rights claimed by the Congo from"be[ing] regarded as appropriate for protection by theindication of provisional measures"; nor does the LusakaAgreement, to which Security Council resolution 1304(2000) refers and which constitutes an internationalagreement binding upon the Parties, preclude the Court fromacting in accordance with its Statute and with the Rules ofCourt. Neither is the Court precluded from indicatingprovisional measures in a case merely because a State whichhas simultaneously brought a number of similar cases beforethe Court seeks such measures in only one of them; andpursuant to Article 75, paragraph 1, of its Rules, the Courtmay in any event decide to examine proprio motu whetherthe circumstances of the case require the indication ofprovisional measures.

The Court then observes that its power to indicateprovisional measures under Article 41 of the Statute has asits object to preserve the respective rights of the partiespending the decision of the Court, and presupposes thatirreparable prejudice shall not be caused to rights which arethe subject of dispute in judicial proceedings; and that therights which, according to the Congo's Application, are thesubject of the dispute are essentially its rights to sovereigntyand territorial integrity and to the integrity of its assets andnatural resources, and its rights to respect for the rules ofinternational humanitarian law and for the instrumentsrelating to the protection of human rights.

The Court notes that, it is not disputed that Ugandanforces are present on the territory of the Congo, that fightinghas taken place on that territory between those forces andthe forces of a neighbouring State, that the fighting hascaused a large number of civilian casualties in addition tosubstantial material damage, and that the humanitariansituation remains of profound concern; and that it is also notdisputed that grave and repeated violations of human rightsand international humanitarian law, including massacres andother atrocities, have been committed on the territory of theDemocratic Republic of the Congo. In the circumstances,

the Court is of the opinion that persons, assets and resourcespresent on the territory of the Congo, particularly in the areaof conflict, remain extremely vulnerable, and that there is aserious risk that the rights at issue in this case may sufferirreparable prejudice. The Court consequently considers thatprovisional measures must be indicated as a matter ofurgency in order to protect those rights; it observes thatArticle 75, paragraph 2, of the Rules of Court empowers theCourt to indicate measures that are in whole or in part otherthan those requested. Having regard to the information at itsdisposal, and in particular the fact that the Security Councilhas determined, in its resolution 1304 (2000), that thesituation in the Congo "continues to constitute a threat tointernational peace and security in the region", the Court isof the opinion that there exists a serious risk of eventsoccurring which might aggravate or extend the dispute ormake it more difficult to resolve.


Judge Oda voted in favour of the Court's Order onlybecause he could not but agree that, in order to restore peacein the region, the measures indicated by the Court in thisOrder should be taken by the Parties — measures on whichfew would ever disagree. He believes, however, that theCourt is not in a position at this time to grant provisionalmeasures for the reason that the present case, broughtunilaterally against Uganda on 23 June 1999, is — and hasfrom the outset been — inadmissible.

Judge Oda suggests that the mere allegation by theApplicant that there has been "armed aggression"perpetrated by the Respondent in its territory does not meanthat legal disputes exist between these Parties concerning (i)the alleged breach of the Applicant's rights by theRespondent or the alleged failure of the Respondent toobserve its international legal obligations to the Applicant,and (ii) the denial by the Respondent of the Applicant'sallegations. The Applicant in this case did not, in itsApplication, show us that both Parties had attempted toidentify the legal disputes existing between them and toresolve those disputes by negotiation. Without such amutual effort by the Parties, a mere allegation of armedaggression cannot be deemed suitable for judicial settlementby the Court.

Judge Oda points out that the United Nations Charterprovides for the settlement, through the Security Council, ofdisputes raising issues of armed aggression and threats tointernational peace of the type seen in the present case. Infact, the Security Council, as well as the Secretary-Generalacting on its instructions, has made every effort over thepast several years to ease the situation and restore peace inthe region.

Judge Oda contends that the Application in the presentcase is inadmissible and believes that the present case lacks,even prima facie, the element of admissibility. Thejurisprudence of the Court shows that judgments renderedby the Court and provisional measures indicated by it inadvance of the merits phase have not necessarily beencomplied with by the respondent States or by the parties. If

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the Court agrees to be seized of the application or requestfor the indication of provisional measures of one State insuch circumstances, then the repeated disregard of thejudgments or orders of the Court by the parties willinevitably impair the dignity of the Court and raise doubt asto the judicial role to be played by the Court in theinternational community.

Judge Oda recalls that it is a principle that the Court'sjurisdiction is founded on the consent of the States parties tothe dispute and that declarations under the optional clauseaccepting the Court's compulsory jurisdiction may be madeonly if they arise from the bona fide will of the State. If theCourt admits applications or grants requests for provisionalmeasures, he is afraid that States that have accepted thecompulsory jurisdiction of the Court under Article 36,paragraph 2, of the Court's Statute will be inclined towithdraw their declarations, and fewer States will accede tothe compromissory clauses of multilateral treaties.

The fact that a State appearing before the Court in thiscase is not represented by a person holding high office in theGovernment acting as Agent (and such a situation has rarelybeen encountered in the history of the Court) reinforcesJudge Oda's feeling that a question arises here as to whetherthe case is brought to the Court in the interest of the Stateinvolved or for some other reason.

Déclaration of Judge Koroma

In his declaration Judge Koroma stated that the Courthad recognized and taken judicial notice that since the latestoutbreak of conflict in the area between foreign troops,hundreds of Congolese have been killed and thousandswounded and the destruction of national assets had alsotaken place on a massive scale. It was, therefore, consideredthat unless urgent measures were taken the rights of thepopulation might be further imperilled. He further statedthat while the Order acknowledged that Security Councilresolution 1304 (2000) of 16 June 2000 had called on allparties to cease hostilities, the Court, as a court of law, hadto make its own determination of the events to see whetheran order was warranted which should be cast in accordancewith judicial norms. He then stated that the Order must,therefore, be seen in the light of Article 59 of the Statute ofthe Court and Article 94 of the United Nations Charter. Healso considered the Order as part of the process of thejudicial settlement of the dispute and of special significanceto the Parties, who should refrain from any action whichmight aggravate or extend the dispute. He concluded bystating that the Order in no way prejudged the facts ormerits of the case.

130. CASE CONCERNING THE ARREST WARRANT OF 11 APRIL 2000(DEMOCRATIC REPUBLIC OF THE CONGO v. BELGIUM) (PROVISIONALMEASURES)

Order of 8 December 2000

In the case concerning the Arrest Warrant of 11 April2000 (Democratic Republic of the Congo v. Belgium), theCourt unanimously rejected the request of Belgium that thecase be removed from the List, and found by fifteen votes totwo that the circumstances, as they now presentedthemselves to the Court, were not such as to require theexercise of its power to indicate provisional measures, as theDRC had wished.

The merits of the dispute concerned an internationalarrest warrant issued on 11 April 2000 by a Belgianinvestigating judge against Mr. Yerodia AbdoulayeNdombasi — Minister for Foreign Affairs of the DRC at thetime, then Minister of Education — seeking his provisionaldetention pending a request for extradition to Belgium for"serious violations of international humanitarian law". In itsrequest for the indication of provisional measures, the DRChad inter alia asked the Court to make an order for theimmediate discharge of the disputed arrest warrant.

The Court was composed as follows: PresidentGuillaume; Vice-Président Shi; Judges Oda, Bedjaoui,Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin,Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-

Khasawneh, Buergenthal; Judges ad hoc Bula-Bula, Vanden Wyngaert; Registrar Couvreur.

The full text of the operative paragraph of the order readas follows:

"78. For these reasons,THE COURT,( 1 ) Unanimously,Rejects the request of the Kingdom of Belgium that

the case be removed from the List;(2) By fifteen votes to two,Finds that the circumstances, as they now present

themselves to the Court, are not such as to require theexercise of its power under Article 41 of the Statute toindicate provisional measures.

IN FAVOUR: President Guillaume; Vice-PrésidentShi; Judges Oda, Bedjaoui, Ranjeva, Herczegh,Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-

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Aranguren, Kooijmans, Al-Khasawneh, Buergenthal;Judge ad hoc Van den Wyngaert;

AGAINST: Judge Rezek; Judge ad hoc Bula-Bula."

Judges Oda and Ranjeva appended declarations to theOrder. Judges Koroma and Parra-Aranguren appendedseparate opinions to the Order. Judge Rezek and Judge adhoc Bula-Bula appended dissenting opinions to the Order.Judge ad hoc Van den Wyngaert appended a declaration tothe Order.

The Court starts by recalling that, in the course of thehearings, it was informed by Belgium that on 20 November2000 a Cabinet reshuffle had taken place in the Congo, as aresult of which Mr. Yerodia Ndombasi had ceased toexercise the functions of Minister for Foreign Affairs andhad been charged with those of Minister of Education; andthat this information was confirmed by the Congo.

Belgium had maintained that, as a result of the Cabinetreshuffle, the Congo's Application on the merits had beendeprived of its object and should therefore be removed fromthe List. In this regard, the Court observes that, "to date",the arrest warrant issued against Mr. Yerodia Ndombasi"has not been withdrawn and still relates to the sameindividual, notwithstanding the new ministerial duties thathe is performing" and that "at the hearings the Congomaintained its claim on the merits". It accordinglyconcludes that "the Congo's Application has not at thepresent time been deprived of its object" and that "it cannottherefore accede to Belgium's request for the case to beremoved from the List".

As regards the request for the indication of provisionalmeasures, the Court finds that it too still has an object,despite the Cabinet reshuffle, since inter alia the arrestwarrant continues to be in the name of Mr. YerodiaNdombasi and the Congo contends that Mr. YerodiaNdombasi continues to enjoy immunities which render thearrest warrant unlawful.

The Court then turns to the issue of its jurisdiction. Inthe course of the hearings Belgium had contended that theCourt could not at this stage of the proceedings take accountof the declarations of acceptance of its compulsoryjurisdiction made by the Parties because the Congo had notinvoked those declarations until a late stage. The Courtobserves that the said declarations are within the knowledgeboth of itself and of the Parties to the present case and thatBelgium could readily expect that they would be taken intoconsideration as a basis for the jurisdiction of the Court inthe present case. Belgium had also pointed out that itsdeclaration excluded the compulsory jurisdiction of theCourt concerning situations or facts "in regard to which theparties have agreed or may agree to have recourse to anothermethod of pacific settlement", and that negotiations at the

highest level regarding the arrest warrant were in fact inprogress when the Congo seized the Court. The Court statesthat Belgium has not provided the Court with any furtherdetails of those negotiations, or of the consequences whichit considered they would have in regard to the Court'sjurisdiction, in particular its jurisdiction to indicateprovisional measures. The Court concludes that thedeclarations made by the Parties constitute prima facie abasis on which its jurisdiction could be founded in thepresent case.

After having recalled that the power of the Court toindicate provisional measures "has as its object to preservethe respective rights of the parties pending the decision ofthe Court", that it "presupposes, that irreparable prejudiceshould not be caused to rights which are the subject ofdispute" and that "such measure, s are justified solely if thereis urgency", the Court notes that, following the Cabinetreshuffle of 20 November 2000, "Mr. Yerodia Ndombasiceased to exercise the functions of Minister for ForeignAffairs and was charged with those of Minister ofEducation, involving less frequent foreign travel. Itconcludes that "it has accordingly not been established thatirreparable prejudice might be caused in the immediatefuture to the Congo's rights nor that the degree of urgency issuch that those rights need to be protected by the indicationof provisional measures".

The Court adds that, "while the Parties appear to bewilling to consider seeking a friendly settlement of theirdispute, their positions as set out before [it] regarding theirrespective rights are still a long way apart". It points outthat, "while any bilateral negotiations with a view toachieving a direct and friendly settlement will continue to bewelcomed, the outcome of such negotiations cannot beforeseen"; that "it is desirable that the issues before theCourt should be determined as soon as possible" and that "itis therefore appropriate to ensure that a decision on theCongo's Application be reached with all expedition". TheCourt further states that the Order made in the presentproceedings in no way prejudges the question of thejurisdiction of the Court to deal with the merits of the case,or with any questions relating to the admissibility of theApplication or to the merits themselves.


Judge Oda supports the Court's decision (Order of 8December 2000, paragraph 78 (2)) to dismiss Congo'srequest for a provisional measure. However, he differs fromthe Court in that he believes that the request has becomemoot because of the Cabinet reshuffle in the Congo. (He isof the view that the Application itself had been moot fromthe outset, since there was no breach of the Congo'slegitimate rights and interests by the issuance of the arrestwarrant by a Belgian judge.)

Judge Oda regrets that the Court refrained frompronouncing on the argument advanced by Belgium that themeasure relating to the discharge of the arrest warrant,sought by the Congo on a provisional basis, is identical tothat sought by it on the merits, since he believes that that

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reason in itself would be sufficient ground for the Court toreject the request for the indication of a provisionalmeasure.

Judge Oda is unable to share the Court's view that "itis ... appropriate to ensure that the decision on the Congo'sApplication be reached with all expedition" and is critical ofthe Court's position, believing that the Court reached itsconclusion as a compromise to make up for the dismissal ofthe Congo's request for the indication of a provisionalmeasure.

With some reluctance,1 Judge Oda voted in favour ofparagraph 78 (1) and did so only from a sense of judicialsolidarity. It is still his belief that this case should have beenremoved from the Court's General List, since, i:n his view,there is in this instance no legal dispute susceptible to theCourt's jurisdiction. A simple and unfounded apprehensionthat Mr. Yerodia Ndombasi would, as a result of theissuance of the arrest warrant, be held by the authorities ofany third State cannot entitle the Congo to bring a claim ofalleged breach of its rights and interests.

In Judge Oda's view the issue concerning whether or notthere is a justiciable dispute is not the same as a preliminaryobjection raised by a respondent State concerning the issueof whether a State may be compulsorily brought to theCourt in consequence of its voluntary acceptance in advanceof the Court's jurisdiction, in circumstances where, inprinciple, the consent of the parties is essential. That issueis, theoretically, a matter to be dealt with prior to a decisionon whether the Court has jurisdiction over the case withwhich the Court is seized.

Judge Oda accepts that this issue may generally be dealtwith at the jurisdictional phase once the case is registeredwith the Court (see "Preliminary Objections" under SectionD (Incidental Proceedings) of the Rules of Court). Henonetheless believes that, if by chance the Court finds itselfin a position (as has been seen in certain recent cases) toface this question much earlier, namely prior to thejurisdictional phase, it should not hesitate to do so. InterimProtection (Section D (Incidental Proceedings) of the Rulesof Court) presents an ideal opportunity to dea'' with thisquestion as a "pre-preliminary" question. The Court could,in Judge Oda's view, make a decision to remove i\ case fromits General List at that stage or to continue to be seized of it,after examining whether there had existed from the outset a"legal dispute" or a "dispute".

Judge Oda takes the view that, if the Court had to waituntil the jurisdictional phase before dealing with thequestion of whether or not there actually existed ajusticiable dispute, there would be an excessive number ofsimilar cases brought to the Court simply for the reason thata State believed that another State had acted contrary tointernational law. He fears that many States would thenwithdraw their acceptance of the Court's compulsory

jurisdiction in order to avoid such a distortion in thepresentation of cases brought by other States.


[Translation]

I voted in favour of the operative part of the Order onaccount of paragraph 76: a final determination of all theissues before the Court, to be reached with all expeditionand with the Parties' full cooperation to that end in theproceedings, is the most appropriate of provisionalmeasures.


In his separate opinion, Judge Koroma stated that he hadvoted for the Order not without some doubts andmisgivings, because of the legal principles involved, thewider ramifications of the case, as well as the national andwider community interests it involved. Given suchcompeting interests and legal principles, the request forprovisional measures to preserve the rights of the Parties —the Democratic Republic of the Congo in this case —cannot be judged to be without merit, let alone "moot",without object or frivolous. The serious issues involvedwould have to be adjudicated should the matter reach themerits phase.

He agreed that the issuance and execution of theinternational arrest warrant had posed a risk for the thenForeign Minister of the Democratic Republic of the Congo,but that this risk had dissipated following the Cabinetreshuffle in Kinshasa when Mr. Ndombasi ceased to beForeign Minister. In his view the Court was right to takejudicial notice of this change of circumstance, which in turnhad an influence on its decision. He was not at this stage ina position to determine definitively the effect of the arrestwarrant on the rights of the Democratic Republic of theCongo.

In his view the Court should not only haveacknowledged the willingness of the Parties to achieve aresolution of the dispute, if called upon to do so by theCourt, but should have embodied that plea within theconfines of the Order in accordance with its jurisprudence.

Finally, in the light of the circumstances of the case, heconsidered the decision of the Court to deal with the casewith utmost despatch to be both judicious and appropriate.


In spite of his vote for the operative part of the Order,Judge Parra-Aranguren considers that the Court should haveupheld the objection of Belgium not to take into account theDemocratic Republic of the Congo's optional clausedeclaration as a prima facie ground of jurisdiction because ithad been invoked at a very late stage of the proceedings, inthe second round of public argument. In his opinionBelgium's objection should have been upheld as the Courtdid in two previous similar cases (Legality of Use of Force(Yugoslavia v. Belgium), Provisional Measures, Order of 2

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June 1999, l.C.J. Reports 1999, paras. 42-44) and Legalityof Use of Force (Yugoslavia v. Netherlands). ProvisionalMeasures. Order of 2 June 1999. l.C.J. Reports 1999, paras.42-44).

Judge Parra-Aranguren examines and finds inconclusivethe various arguments advanced by the Court to support itsnew position. Moreover, he recalls that the DemocraticRepublic of the Congo indicated its optional clausedeclaration as a ground for the jurisdiction of the Court inthree separate Applications filed by it in the Registry on 23June 1999 (Armed Activities on the Territory of the Congo(Democratic Republic of the Congo v. Uganda),(Democratic Republic of the Congo v. Burundi) and(Democratic Republic of the Congo v. Rwanda)).

Judge Parra-Aranguren also indicated that theDemocratic Republic of the Congo did not proceed in thesame way in the present case and gave no explanation forinvoking its optional clause declaration as a ground for thejurisdiction of the Court in the second round of oralargument. Therefore, in his opinion, it cannot be taken intoaccount by the Court to decide whether it has prima faciejurisdiction to entertain the request for provisional measurespresented by the Democratic Republic of the Congo.

Dissenting opinion of Judge Rezek

Judge Rezek considers that the two requirements of anyprovisional measure are met here. He acknowledges thesoundness, prima facie, of the argument that a violation ofthe principle of the equality of States occurs when adomestic forum seeks to order the arrest of a member of aforeign government on the sole basis of the principle ofuniversal jurisdiction, and without the accused beingphysically present in the territory of the forum State.

He further believes that the continuance of such asituation, which is both restrictive of the full exercise of thepublic function of the Congolese Minister and vexatiouswith respect to the sovereignty of the applicant State,justifies the indication of a provisional measure which,without major prejudice to the other Party, would suspendthe effects of the arrest warrant, or rather the internationalcharacter which the Belgian Government has accorded to it,pending the Court's definitive ruling on the matter.

Dissenting opinion of Judge Bula-Bula

[Translation]

Table of contents

INTRODUCTIONI. POINTS OF CONCURRENCEII. POINTS OF DISSENT

A. URGENCYB. IRREPARABLE PREJUDICEC. PRESERVATION OF RIGHTS

III. CONCLUSION

Introduction

1. It was with regret that I voted against the main clauseof the operative part of the Order of 8 December 2000concerning the indication of provisional measures. Iunderstand that the Court was sharply divided over thequestion. It thus appeared wise to seek a compromise amongthe Members of the Court.

2. Such a reason may be acceptable, particularly sincethe present case is at a purely procedural stage which doesnot prejudge the rights of either Party.

3. It is precisely the interlocutory nature of the Orderwhich prompts me to believe that the compromiseultimately adopted by the Court lacks balance. Thus, I am ofthe opinion that the Court should have clearly indicated aminimal provisional measure which I find justified underthe circumstances. Without necessarily following the termsof the request, the Court could'have prescribed this measureproprio motu, as permitted by its Statute (Art. 41) and Rules(Art. 75).

4. I believe that the Court should give a certain, clearand precise response, whether affirmative or negative, to theCongo's request. In other words, it should either deny it orgrant it. The statement "the circumstances, as they nowpresent themselves to the Court, are not such as to requirethe exercise of its power under Article 41 of the Statute toindicate provisional measures" (paragraph 2 of the operativepart of the Order) does not appear, on first view, to bewithout ambiguity. We have become accustomed to thecircumlocutions of a principal political organ of the UnitedNations when called upon to take difficult decisions. Wemust now get used to similar pronouncements from theprincipal judicial organ of the United Nations. Do theteachings, in the broad sense, of the jurisprudence benefitfrom this?

5. That is one of the main reasons for my dissent [I],but I do agree with the majority of the Court on certainpoints [II]. Finally, I shall describe the solution which I findappropriate [III].

I. Points of concurrence

6. I will briefly raise three points which the Court hasconsidered and with which I am in agreement. Like themajority of the Members of the Court, I believe that theCourt: has prima facie jurisdiction (see paragraph 68 of theOrder) pursuant to the Parties' respective declarationsaccepting its compulsory jurisdiction (see paragraphs 61 and64 of the Order). But the Applicant failed to specify withmathematical precision the basis of the Court's jurisdiction.I also share the conclusion set out in the Order finding that"the request by the Congo for the indication of provisionalmeasures has not been deprived of its object by reason ofMr. Yerodia Ndombasi's appointment as Minister ofEducation on 20 November 2000" (paragraph 60 of theOrder). Finally, I voted with the majority of the Court infavour of the first paragraph of the operative part of theOrder. The Court rightly "Reject[ed] the request of theKingdom of Belgium that the case be removed from the

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List". This request, possibly justified in the 3yes of theRespondent, is in keeping with its extravagant claim touniversal jurisdiction, as the Respondent conceives it. TheCourt intends to consider it on the merits; "with allexpedition" (paragraph 76 of the Order). This is a crucialpoint of the judicial compromise embodied in the decisionand one which limits the inequitable consequences of thepolite denial of the Congo's request.

7. Thus, I shall not address the very important issue, inthis phase of the proceedings, of the legal relationshipbetween universal jurisdiction and State immunities.

II. Points of dissent

8. I shall now justify the minimal provisional measurewhich, in my view, the Court should have prescribed. Forthis purpose, I have to show, that the conditions for theindication of such a measure, as laid down in a generallyconsistent manner in the jurisprudence, i.e., urgency,irreparable prejudice and the preservation of the rights of theparties, have been and remain satisfied (for the doctrine, seein particular P. M. Martin, "Renouveau des mesuresconservatoires : les ordonnances récentes de la Courinternationale de Justice", JDI Vol. 102, 1975, pp. 45-59; J.Peter A. Bernhard, "The Provisional Measures Procedure ofthe International Court of Justice through U.S. Staff inTeheran: Fiat Justitia, Pereat Curia", Virginia Journal ofInternational Law, Vol. 20, No. 3, 1980, pp. 592-602).

A. Urgency

9. I believe that urgency must be assessed in the light ofthe sphere of human endeavour in question. It may beregarded as a circumstance calling for the expeditioushandling of the case. Within that position there may bedegrees of urgency, so that it is possible to establish ahierarchy among urgent situations: extreme urgency, greaturgency, urgency (see the Order of 3 March 1999 in theLaGrand Case, "the greatest urgency" (I.C.J. Reports 1999,p. 12, para. 9)). In all of these various cases, there is alwaysurgency.

10.1 therefore reaffirm that the urgency characterizingthe present case has its own particular features, [t is neitherurgency in the medical sense of the term nor urgency asunderstood directly from the humanitarian standpoint. It isurgency in the general legal sense of the term. It cannot beassessed either in the absolute or in the light of individualprecedents. In the case under consideration, the criterion oftime must be measured in the light of the tragic eventsafflicting the Congo and the quickening rate at whichinternational conferences concerning the country are beingheld. The Court has already taken cognizance of the facts,concerning which it has indicated provisional measures(case concerning Armed Activities on the Territory of theCongo, Order ofl July 2000).

11. If it were true that, as the Congo alleges and Belgiumdoes not dispute, "more than half the members of theCongolese Government might be prosecuted and might benamed on international arrest warrants and requests for

extradition, including the President of the Republic himself"(see the oral argument by Mr. Ntumba Luaba Lumu,verbatim record of the public hearing on 22 November2000, CR 2000/34, p. 16 [English translation]), and that, asthe Congo contends, the "complainants" include "a politicalparty in opposition to the Congolese Government andoperating on Belgian territory", or that "security reasons"prevent counsel for Belgium from revealing the identity ofthe complainants of Congolese nationality who were behindthe warrant of 11 April 2000 (see the oral argument by Mr.Eric David, verbatim record of the public hearing on 21November 2000, CR 2000/33, p. 20 [English translation]),would there not be an urgent need for some form ofprovisional ruling? Does not the need to safeguard theefficacy of the international judicial function require thatsuch a situation be prevented from arising in the casepending before the Court?

12.1 am further led to reflect on this situation when Iconsider a comment by Mr. Ntumba Luaba Lumu, one ofthe Congo's counsel and a member of that country'sGovernment. Belgium did not challenge that comment. Thespeaker asked in the following terms whether the reshufflingof the Congolese Government on 20 November 2000 wasnot in response to Belgium's desire:

"The question may be raised whether this warrantwas not intended as a means to force the lawfulauthorities of the Democratic Republic of the Congo tomake certain political changes which Belgium desiredand which, moreover, have been welcomed." (See theverbatim record of the public hearing of 22 November2000, CR 2000/34, p. 6 [English translation].)13. While I cannot establish a definite causal relationship

between certain facts, I can also reasonably question thecloseness in time of the visit to Kinshasa by a member ofthe Belgian Government on 18 November 2000, thereshuffling of the Congolese Government on 20 November2000 and the opening of the hearings by the Court on 20November 2000. Was it mere chance that these eventscoincided?

14.1 am therefore of the opinion that there is an urgentneed, albeit an attenuated one, to order provisionalmeasures. And I believe so even more strongly because Ihave one fear: that, regardless of the Court's goodintentions, a judicial decision on the merits may be a longtime in coming, and that during that time there is a risk thatthe case could be removed from the List. Barring unforeseendevelopments.

B. Irreparable prejudice

15.1 would be inclined to believe that the Congo hassuffered irreparable prejudice, directly from the standpointof moral damage and indirectly from the standpoints ofmaterial and physical damage and human injury, fromBelgium's unilateral act against the Congolese Minister forForeign Affairs. Such a criterion has been repeatedly upheldin the Court's abundant jurisprudence, notably in the casesconcerning Nuclear Tests (Australia v. France) (I.C.J.Reports 1973, p. 103); United States Diplomatic and

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Consular Staff in Tehran (United States of America v. Iran)(I.C.J. Reports 1979, p. 19); Application of the Conventionon the Prevention and Punishment of the Crime of Genocide(Bosnia and Herzegovina v. Yugoslavia (Serbia andMontenegro)) (I.C.J. Reports 1993, p. 19); and ViennaConvention on Consular Relations (Paraguay v. UnitedStates of America) (I.C.J. Reports 1998, p. 36); theLaGrand Case (I.C.J. Reports 1999, p. 15j; and the caseconcerning Armed Activities on the Territory of the Congo(Democratic Republic of the Congo v. Uganda) (I.C.J.Reports 2000, para. 39). But, as far as the Applicant isconcerned, it remains the case that actori incumbit probatio.Nor do I deny that the magnitude of the prejudice sufferedby the Congo has changed since Mr. Yerodia Ndombasimoved from the Ministry of Foreign Affairs to the Ministryof Education. In other words, that State continues to sufferharm but in lesser proportions than that previously sufferedfrom the standpoint of international relations.

16. Specifically, I believe that the arrest warrant of 11April 2000 caused prejudice to Congolese diplomacy, sincethe head of the diplomatic corps, who did nevertheless takenumerous trips abroad — in the southern hemisphere —was unable for several months to take part in all theinternational meetings held throughout the world where thequestion of foreign armed activities on the territory of theCongo was addressed. Thus, when it found itself beingrepresented by lower-level officials at meetings of ForeignMinisters, the Congolese State suffered the loss of thebenefit of diplomatic precedence. The result was that thesubstance of talks, especially discussions aimed at endingthe armed conflict, was adversely affected. The Congo'sinternational sovereign prerogatives therefore suffered. This,I believe, is a type of irreparable prejudice (see EwaStanislawa Alicja Salkiewicz: Les mesures conservatoiresdans la procédure des deux Cours de La Haye, Geneva,IUHEI, 1984, p. 69, concerning "damage not capable of anyreparation"). Although unfortunately no irrebutableevidence was offered, this situation could have had indirectconsequences on the life of the civilian population victim ofthe armed conflict in progress (according to theInternational Rescue Committee (United States), MortalityStudy Eastern Democratic Republic of Congo, "of the 1.7million excess deaths, 200,000 were attributable to acts ofviolence " (sources: www.theirc.org/mortality.htm).

17.1 would also argue that Belgium's conduct has castdiscredit, and continues to cast discredit, on the Governmentof the Congo, already weakened by the armed conflict inprogress. That conduct is likely, as the result of a summarydecision, to burden one of the Parties to the conflict fromthe outset with accusations that degrade it in the eyes of theinternational community and to characterize the aggressedas the aggressor (see Security Council resolution 1234 of 9April 1999 and resolution 1304 of 16 June 2000). Has notthe fact that Belgium, through Interpol, circulated itswarrant to Interpol member States complicated the searchfor a peaceful resolution to the international armed conflict?I believe that the Congo's rights to international respecthave been prejudiced thereby. These are moral rights to

honour and dignity of the Congolese people, as representedby their State.

18. In sum, Belgium's actions have in the first placecaused injury to the sovereign rights of the Congolesepeople, as organized in an independent State: "deprival ofthe State's sovereignty ... is a sure test of the irreparabilityof the prejudice" (El-Kosheri, dissenting opinion in the caseconcerning Questions of Interpretation and Application ofthe 1971 Montreal Convention arising from the AerialIncident at Lockerbie (Libyan Arab Jamahiriya v. UnitedKingdom), I.C.J. Reports 1992.. p. 215). In the words ofJudge Oda, the object of provisional measures is "topreserve rights of States exposed to an imminent breachwhich is irreparable" (declaration in the LaGrand Case.I.C.J. Reports 1999, p. 19, para, 5). Secondly, Belgium'sactions have violated that people's rights to dignity andhonour within the international community, includingindirect injury in the form of other prejudice, albeitcollateral.

19.1 do not disagree, however, that it is very difficult toplace a precise value on the injury caused to the Congo. Butthat is a problem which may arise in the practicalapplication of the principle. I would point out once againthat the absence over several months of the head of theCongolese diplomatic coips from international meetingsheld in the capitals of countries at the centre of worldevents, as opposed to those playing more peripheral roles,may in all likelihood have resulted in indirect damage toCongolese citizens and assets currently situated onterritories where hostilities are taking place. The presence ofthe Congolese Minister for Foreign Affairs in person atthose meetings might have saved lives. The Minister mighthave succeeded in convincing other parties to the armedconflict to respect international humanitarian law andhuman rights (see Judge Oda's declarations in the Breardand LaGrand cases: "the rights of victims of violent crimes(a point which has often been overlooked) should be takeninto consideration" {Vienna Convention on ConsularRelations (Paraguay v. United States of America),Provisional Measures, Order of 9 April 1998, I.C.J. Reports1998, p. 260, para. 2, and LaGrand Case (Germany v.United States of America), Order of 3 March 1999, I.C.J.Reports 1999, p. 18, para. 2).

20.1 believe it even more difficult to make a preciseestimate of the moral prejudice. But that does not make thatprejudice any less real. When considering the merits of thecase, the Court will be in a position to observe this. Undercurrent international law, the act of issuing an arrest warrantagainst an organ of a foreign State is itself highlyquestionable. Let us imagine the converse situation, inwhich Congolese courts were to issue similar warrantsagainst Belgian organs concerning acts committed in theCongo post-Nuremberg, during which period this new lawcame into being, according to counsel for Belgium. For, asAntonio Cassese states, European colonization caused "thedestruction of entire ethnic groups" (Antonio Cassese, "Lacommunauté internationale et le génocide", Le droitinternational au service de la paix, de la justice et du

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développement, Mélanges Virally, Paris, Pedone, 1991,p. 183).

21. Nevertheless, I am of the view that the irreparableprejudice suffered by the Congo has diminished inmagnitude since Mr. Yerodia Ndombasi was entrusted withthe education portfolio on 20 November 2000, because hehas at present been assigned the duties of Minister ofEducation and most of those activities are carried out on thenational territory. The fact remains that, in a world in whichan increasing number of matters take on an internationaldimension, a minor part of those duties, in the classic,division of labour sense, involves international relations. Isit acceptable that, because that part is small, it should besubject to such restrictions?

22. Moreover, international law recognizes theconstitutional autonomy of States and, pursuant to thatautonomy, States may freely appoint, without impedimentor outside interference, any member of the Government tofulfil missions abroad, without regard to that member'snominal office. This would appear to be a common practiceof the Congo, among other States. This is all the moreimportant because the armed conflict confronting the Congorequires participation, both individual and collective, bymembers of its Government in bilateral and multilateralnegotiations aimed at ending the war. It is therefore possiblethat the Congo is deprived defacto of the full exercise of itssovereign prerogatives internationally if Mr. YerodiaNdombasi is prevented, because of his recent experience inthis area or for any other reason, from freely accomplishinga mission on behalf of his Government in certain foreigncountries.

23. In the final analysis, it appears to me that, as long asthe former Minister for Foreign Affairs of the Congoremains a member of the Congolese Government, hischange in position does not drastically alter thecircumstances which called for the submission of therequest for the indication of provisional measures. I do not,however, deny that there is a substantial difference betweenthe functions of a Minister for Foreign Affairs and those of aMinister of Education, and between the legal bases of theimmunities attaching to one or the other of thosegovernment posts.

C. Preservation of the Parties ' respective rights

24. Much argument was devoted to the Parties'respective rights to be preserved. It was thus alleged that theCongo was making the same claims in the request forprovisional measures as in the Application concerning themerits. Fortunately, the Court did not accept this argument. Icontinue to believe that the Applicant's sovereign rights andits rights to honour and dignity must be safeguarded in abalanced manner with the Respondent's rights pending thejudgment on the merits. Under the present circumstances,these respective rights are not evenly balanced. There is areal risk that one of the States will continue to be subject tothe will of the other.

25. The Respondent justifies its singular conduct asfollows:

"33. Quite the contrary: the issue of the arrestwarrant is a means of helping the Congo to exercise aright which — it should be recalled — is also anobligation for the Congo, namely that of arresting andprosecuting Mr. Yerodia Ndombasi in the Congolesecourts on account of the acts with which he is charged."(See the oral argument by Mr. Eric David, CR 2000/33,p. 28 [English translation].)I interpret this conception as "[r]eliance by a State on a

novel right or an unprecedented exception to the principle"[of non-intervention] which "if shared in principle by otherStates" would "tend towards a modification of customaryinternational law" (case concerning Military andParamilitary Activities in and against Nicaragua(Nicaragua v. United States of America), Merits, Judgment,I.C.J. Reports 1986, p. 109, para. 207). Does a subjectiveright not have the effect of excluding third-party claims andobliging third parties to respect the right of another?

"In other words," continued counsel for Belgium,"the arrest warrant issued by the Belgian judicialauthority, far from violating the Congo's rights, on thecontrary assists that country in exercising them" (ibid.,p. 29 [English translation]). Are these the consequencesof lingering memories of historical legal ties thatenabled the colonizing Power to promulgate legalprovisions with overseas effect?Thus what we find being put forward here is the notion

of "judicial intervention" (see Mario Bettati, Le droitd'ingérence — Mutation de l'ordre international, Paris,éditions Odile Jacob, 1996, contra S. Bula-Bula, "L'idéed'ingérence à la lumière du Nouvel Ordre Mondial", Revueafricaine de droit international et comparé, Vol. IV, No. 1,March 1994, "La doctrine d'ingérence humanitairerevisitée", ibid., Vol. 9, No. 3, September 1997).

And Belgium goes so far as to assert that: "In thesecircumstances, to indicate the provisional measuresrequested by the Congo in this case would be tantamount toviolating the rights which international law itself hasconferred on Belgium." (Oral argument by Mr. Eric David,op cit., p. 32 [English translation].)

26.1 persist in believing that the analysis set out inpoints A and B above shows that there is relative urgency inindicating provisional measures. It also demonstrates theirreparable prejudice already suffered and continuing to besuffered by a decolonized State, caused by an erstwhilecolonial Power convinced — some would say — of its"sacred civilizing mission". The Applicant is not relying ona "'ghost' right" (oral argument by Mr. Eric David, ibid., p.32). It is apparent that the Congo's accusations againstBelgium in this case, which, as shown above, Belgium hasimplicitly admitted, do indeed concern Belgium's violationof the sovereignty and political independence of the Congo.I believe that those rights fall within the scope of the presentlegal dispute.

Those rights demand safeguarding, at the risk otherwisethat one of the Parties will impose its political and legalorder on the other, thereby rendering moot anyconsideration of the case on the merits (see above the

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reference to the Belgian judge's "waiting list" of arrestwarrants for several Congolese ministers and the referenceby counsel for the Congo, a member of the CongoleseGovernment, to Belgium's desire for a Cabinet reshuffle andto the simultaneous occurrence of certain events, etc.).

27. The rights to be preserved also include the sovereignprerogative (see paragraph 40 of the Order of 1 July 2000 inthe case concerning Armed Activities on the Territory of theCongo (Democratic Republic of the Congo v. Uganda): it isupon "[the] rights to sovereignty ... that the Court mustfocus its attention in its consideration of this request for theindication of provisional measures") which each State isrecognized to enjoy in exercising its full powers in thelegislative, executive and judicial spheres without outsideinterference. No State can impose on another State, bymeans of coercive measures, whether administrative,judicial or others, the manner in which domestic affairs areto be conducted on its territory (see Judge Bedjaoui, caseconcerning Questions of Interpretation and Application ofthe 1971 Montreal Convention arising from the AerialIncident at Lockerbie (Libyan Arab Jamahiriya v. UnitedStates of America), I.C.J. Reports 1992, p. 148, and S. A.El-Kosheri, op cit., p. 215). The allegation of any fact whichmight engage the responsibility of a State must becommunicated through appropriate diplomatic channels tothat State, because "international law requires politicalintegrity also to be respected" (case concerning Militaiy andParamilitary Activities in and against Nicaragua(Nicaragua v. United States of America), Merits, Judgment,I.C.J. Reports 1986, p. 106, para. 202).

28. It is to be hoped that the dispute between the twoStates is neither aggravated nor extended, given that theCongo's ambassador to Brussels returned to his post in lateNovember 2000, after having been recalled in response tothe issue of the disputed warrant in April 2000.Nevertheless, relations between Belgium and the Congo,historically characterized by highs and lows ever sincedecolonization, could have benefited had the Court been lesspusillanimous.

III. Conclusion

29. In short, I consider that it would have beenappropriate and legitimate for the Court to indicate aprovisional measure ordering the suspension of the warrantof 11 April 2000 pending the Court's decision on the merits,to be rendered with all expedition in light of the importanceof the case.

30.1 therefore find the Respondent's request that theCourt deny all provisional measures to be altogetherexcessive. Also, I do not agree with the Court's analysis ofthe current circumstances, which, in its view, do not requireit to exercise its power as defined in Article 41 of theStatute.

31. Failing the minimal provisional measure set outabove, the Court could have included my amendment,worded as follows, in the operative part of the draft Order:

"2. (a) Finds that the Kingdom of Belgium, whichhas knowledge of the nature of the claim by theDemocratic Republic of the Congo, should consider theimpact that a judgment upholding that claim could haveon the execution of the warrant of 11 April 2000 andshould decide whether and to what extent it oughttherefore to reconsider its warrant;

(b) Finds that the Democratic Republic of theCongo, which has knowledge of the nature of the claimby the Kingdom of Belgium, should consider the impactthat a judgment upholding that claim could have on theexecution of the arrest warrant of 11 April 2000 andshould decide whether and to what extent it oughttherefore to reconsider its position."As Judge Oda has recalled:"through the Court's jurisprudence it is established that,if the Court appears prima facie to possess jurisdiction, itmay (if it thinks fit) indicate provisional measures, andthis rule has always been interpreted most generously infavour of the applicant, lest a denial be needlesslyprejudicial to the continuation of the case. Thus thepossibility of indicating provisional measures may bedenied in limine only in a case where the lack ofjurisdiction is so obvious as to require no furtherexamination of the existence of jurisdiction in a laterphase." (Declaration of Acting President Oda, appendedto the Order of 14 April 1992 concerning provisionalmeasures in the case concerning Questions ofInterpretation and Application of the 1971 MontrealConvention arising from the Aerial Incident at Lockerbie(Libyan Arab Jamahiriya v. United States of America),I. C.J. Reports 1992, p. Ï 30.)

33. The doctrine is in general agreement inacknowledging that the Court's power to indicateprovisional measures aims to "prevent its decisions frombeing stultified" (G. Fitzmaurice, The Law and Procedure ofthe Internationa! Court of Justice, Vol. II, p. 542, 1986,quoted by Judge Ajibola in his dissenting opinion in thecase concerning Questions of Interpretation and Applicationof the 1971 Montreal Convention arising from the AerialIncident at Lockerbie (Libyan Arab Jamahiriya v. United.States of America), I.C.J. Reports 1992, p. 194).

34. Can I consider that the Court in the present case hasinterpreted the request generously? Can it be asserted thatthere is no reason to fear that the case could be removedfrom the Court's List? Is there any doubt as to the very highimportance of this case on the merits? Yet a very widemajority of the Members of the Court agree that the Courthas prima facie jurisdiction in this case.

35. It is to be hoped that the Court's attitude, apparentlydictated by the institution's own considerations of judicialpolicy, is not seen by certain litigants, first and foremost theApplicant in the present proceedings, as a denial of justice.What is at stake is promotion of the rule of law. For, asLacordaire said, as between the weak and the strong,freedom oppresses and the law protects. Is not the"freedom" found in dealings between a former colonial

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Power, now an industrialized country, and its weakened,former colony an example of this?

36. Admittedly, the Applicant appears not to have madean entirely coherent case before the Court. It is undeniablytrue that a litigant bringing judicial proceedings is under anobligation, pursuant to the rules of procedure, to act in amanner calculated to maximize its chances of prevailing,even within the relatively short time limits ior incidentalproceedings.

37. No one, moreover, can be ignorant of the roleplayed, especially lately, by public opinion. It is howeversometimes important to cast an objective eye on the "hastyjudgments of public opinion or the mass media" (dissentingopinion of Judge Bedjaoui in the case concerning Questionsof Interpretation and Application of the 1971 MontrealConvention arising from the Aerial Incident at Lockerbie(Libyan Arab Jamahiriva v. United States of America),I.C.J. Reports 1992, p. 148).

Déclaration of Judge Van den Wyngaert

In her declaration. Judge Van den Wyngaert emphasizesthe importance of the case for the development of moderninternational criminal law. The international communityundoubtedly agrees in principle with the proposition that the"core crimes" of international criminal law (war crimes,genocide and crimes against humanity) should not remainunpunished. However, how this should be realized inpractice is still the subject of much discussion and debate.

Ideally, such crimes should be prosecuted beforeinternational criminal courts. Not all cases will bejusticiable before such courts. Meanwhile, national criminalprosecution before domestic courts is the only means ofenforcing international criminal law. States have not only amoral, but also a legal obligation under international law toensure that they are able to prosecute international corecrimes domestically.

Judge Van den Wyngaert draws attention to the growingsupport for the idea that traditional limitations on criminalprosecution (territorial jurisdiction, immunities) cannot beapplied to international core crimes. This idea is gainingsupport, not only in legal doctrine but also in nationalcourts' decisions such as the judgment of the House ofLords in the Pinochet case.

The case concerning the Arrest Warrant of 11 April2000 (Democratic Republic of the Congo v. Belgium) is thefirst case in which the ICJ will consider these points. It isindeed the first modern case which confronts two States onthe issues of extraterritorial jurisdiction and immunityarising from the application of a domestic statute tointernational core crimes.

Judge Van den Wyngaert feels that times have changedsince the Permanent Court of International Justice decidedthe "Lotus" case in 1927. For the sake of legal certainty, it isimportant that the International Court of Justice decides onthe merits of the present case with expedition.

131. CASE CONCERNING ARMED ACTIVITIES ON THE TERRITORY OF THECONGO (DEMOCRATIC REPUBLIC OF THE CONGO v. BURUNDI)(DISCONTINUANCE)

Order of 30 January 2001

In an order issued in the case concerning ArmedActivities on the Territory of the Congo (DemocraticRepublic of the Congo v. Burundi) the Court decided toremove the case from the Court's List at the request of theDemocratic Republic of Congo.

The full text of the Order reads as follows:"The President of the International Court of Justice,Having regard to Article 48 of the Statute of the

Court and to Article 89, paragraphs 2 and 3, of the Rulesof Court,

Having regard to the Application filed in theRegistry of the Court on 23 June 1999, whereby theDemocratic Republic of the Congo institutedproceedings against the Republic of Burundi in respectof a dispute concerning "acts of armed aggression

perpetrated by Burundi on the territory of theDemocratic Republic of the Congo, in flagrant violationof the United Nations Charter and of the Charter of theOrganization of African Unity",

Having regard to the Order of 21 October 1999,whereby the Court, taking into account the agreementconcerning the procedure reached between the Parties,and their views regarding the time limits to be fixed,decided that the written proceedings would first beaddressed to the questions of the jurisdiction of theCourt to entertain the Application and of itsadmissibility, and fixed 21 April 2000 and 23 October2000 respectively as the time limits for the filing of theMemorial of the Republic of Burundi and the Counter-Memorial of the Democratic Republic of the Congo onthose questions,

Having regard to the Memorial of the Republic ofBurundi, which was filed within the time limit thusfixed,

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Having regard to the Order of 19 October 2000,whereby the President of the Court extended to 23January 2001 the time limit for the filing of the Counter-Memorial of the Democratic Republic of the Congo;

Whereas, by a letter dated 15 January 2001, receivedin the Registry on the same day by facsimile, the Agentof the Democratic Republic of the Congo, referring toArticle 89, paragraph 2, of the Rules of Court, notifiedthe Court that the Government of the DemocraticRepublic of the Congo wished to discontinue theproceedings and stated that it "reserve[d] the right toinvoke subsequently new grounds of jurisdiction of theCourt";

Whereas a copy of that letter was immediatelycommunicated to the Government of the Republic of

Burundi, which was informed that the President of theCourt, acting pursuant to Article 89, paragraphs 2 and 3,of the Rules of Court, had fixed 23 January 2001 as thetime limit within which Burundi could state whether itopposed the discontinuance;

Whereas, by a letter dated 19 January 2001, receivedin the Registry on the same day by facsimile, the Agentof Burundi informed the Court that his Governmentconcurred in the Democratic Republic of the Congo'sdiscontinuance of the proceedings,

Places on record the discontinuance by theDemocratic Republic of the Congo of the proceedingsinstituted by the Application filed on 23 June 1999; and


132. CASE CONCERNING ARMED ACTIVITIES ON THE TERRITORY OF THECONGO (DEMOCRATIC REPUBLIC OF THE CONGO v. RWANDA)(DISCONTINUANCE)

Order of 30 January 2001

In an order issued in the case concerning ArmedActivities on the Territory of the Congo (DemocraticRepublic of the Congo v. Rwanda) the Court decided toremove the case from the Court's List at the request of theDemocratic Republic of Congo.

The full text of the order reads as follows:"The President of the International Court of Justice,Having regard to Article 48 of the Statute of the

Court and to Article 89, paragraphs 2 and 3, of the Rulesof Court,

Having regard to the Application filed in theRegistry of the Court on 23 June 1999, whereby theDemocratic Republic of the Congo institutedproceedings against the Rwandese Republic in respect ofa dispute concerning "acts of armed aggressionperpetrated by Rwanda on the territory of theDemocratic Republic of the Congo, in flagrant violationof the United Nations Charter and of the Charter of theOrganization of African Unity",

Having regard to the Order of 21 October 1999,whereby the Court, taking into account the agreementconcerning the procedure reached between the Parties,and their views regarding the time limits to be fixed,decided that the written proceedings would first beaddressed to the questions of the jurisdiction of theCourt to entertain the Application and of its

admissibility, and fixed 21 April 2000 and 23 October2000 respectively as the time limits for the filing of theMemorial of the Rwandese Republic and the Counter-Memorial of the Democratic Republic of the Congo onthose questions,

Having regard to the Memorial of the RwandeseRepublic, which was filed within the time limit thusfixed,

Having regard to the Order of 19 October 2000,whereby the President of the Court extended to 23January 2001 the time limit for the filing of the Counter-Memorial of the Democratic Republic of the Congo;

Whereas, by a letter dated 15 January 2001, receivedin the Registry on the same day by facsimile, the Agentof the Democratic Republic of the Congo, referring toArticle 89, paragraph 2, of the Rules of Court, notifiedthe Court that the Government of the DemocraticRepublic of the Congo wished to discontinue theproceedings and stated that it "reserve[d] the right toinvoke subsequently new grounds of jurisdiction of theCourt";

Whereas a copy of that letter was immediatelycommunicated to the Government of the RwandeseRepublic, which was informed that the President of theCourt, acting pursuant to Article 89, paragraphs 2 and 3,of the Rules of Court, had fixed 23 January 2001 as thetime limit within which Rwanda could state whether itopposed the discontinuance;

162

Whereas, by a letter dated 22 January 2001, receivedin the Registry on the same day by facsimile, the Agentof Rwanda informed the Court that his Governmentconcurred in the Democratic Republic of the Congo'sdiscontinuance of the proceedings,

Places on record the discontinuance by theDemocratic Republic of the Congo of the proceedingsinstituted by the Application filed on 23 June 1999; and


133. MARITIME DELIMITATION AND TERRITORIAL QUESTIONS BETWEENQATAR AND BAHRAIN (QATAR v. BAHRAIN) (MERITS)

Judgment of 16 March 2001

In its Judgment on the case concerning MaritimeDelimitation and Territorial Questions between Qatar andBahrain (Qatar v. Bahrain), the Court: unanimously foundthat Qatar has sovereignty over Zubarah; found by twelvevotes to five that Bahrain has sovereignty over the HawarIslands; unanimously recalled that vessels of Qatar enjoy inthe territorial sea of Bahrain separating the Hawar Islandsfrom the other Bahraini islands the right of innocent passageaccorded by customary international law; found by thirteenvotes to four that Qatar has sovereignty over Janan Island,including Hadd Janan; found by twelve votes; to five thatBahrain has sovereignty over the island of Q.it'at Jaradah;unanimously found that the low-tide elevatior. of Fasht adDibal falls under the sovereignty of Qatar; decided bythirteen votes to four that the single maritime boundary thatdivides the various maritime zones of Qatar and Bahrainshall be drawn as indicated in paragraph 250 of theJudgment.

In this latter paragraph, the Court listed the coordinatesof the points that have to be joined, in a specified order, bygeodesic lines in order to form the following singlemaritime boundary:• in the southern part, from the point of intersection of the

respective maritime limits of Saudi Arabia on the onehand and of Bahrain and Qatar on the other, whichcannot be fixed, the boundary follows a north-easterlydirection, then immediately turns in an easterlydirection, after which it passes between Jazirat Hawarand Janan; it subsequently turns to the north and passesbetween the Hawar Islands and the Qatar peninsula andcontinues in a northerly direction, leaving the low-tideelevation of Fasht Bu Thur, and Fasht al Azm, on theBahraini side, and the low-tide elevations of Qita'a elErge et de Qit'at ash Shajarah on the Qatari side; finallyit passes between Qit'at Jaradah and Fasht ad Dibal,leaving Qit'at Jaradah on the Bahraini side and Fasht adDibal on the Qatari side (see paragraph 222 of theJudgment);

• in the northern part, the single maritime boundary isformed by a line which, from a point situated to thenorth-west of Fasht ad Dibal, meets the equidistance lineas adjusted to take account of the absence of effect givento Fasht al Jarim. The boundary then follows thisadjusted equidistance line until it meets the; delimitation

between the respective maritime zones of Iran on the onehand and of Bahrain and Qatar on the other (seeparagraph 249 of the Judgment).The Court was composed as follows: President

Guillaume; Vice-President Shi; Judges Oda, Bedjaoui,Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin,Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal; Judges ad hoc Torres Bernárdez,Portier; Registrar Couvreur.


"252. For these reasons,THE COURT,( 1 ) Unanimously,Finds that the State of Qatar has sovereignty over

Zubarah;(2) (a) By twelve votes to five,Finds that the State of Bahrain has sovereignty over

the Hawar Islands;IN FAVOUR: President Guillaume; Vice-Président

Shi; Judges Oda, Herczegh, Fleischhauer, Higgins,Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh,Buergenthal; Judge ad hoc Fortier;

AGAINST: Judges Bedjaoui, Ranjeva, Koroma,Vereshchetin; Judge ad hoc Torres Bernárdez;

(b) Unanimously,Recalls that vessels of the State of Qatar enjoy in the

territorial sea of Bahrain separating the Hawar Islandsfrom the other Bahraini islands the right of innocentpassage accorded by customary international law;

(3) By thirteen votes to four,Finds that the State of Qatar has sovereignty over

Janan Island, including Hadd Janan;IN FAVOUR: President Guillaume; Vice-President

Shi; Judges Bedjaoui, Ranjeva, Herczegh, Fleischhauer,Koroma, Vereshchetin, Parra-Aranguren, Rezek, Al-Khasawneh, Buergenthal; Judge ad hoc TorresBernárdez;

AGAINST: Judges Oda, Higgins, Kooijmans; Judgead hoc Fortier;

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(4) By twelve votes to five,Finds that the State of Bahrain has sovereignty over

the island of Qit'at Jaradah;IN FAVOUR: President Guillaume; Vice-President

Shi; Judges Oda, Herczegh, Fleischhauer, Higgins,Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh,Buergenthal; Judge ad hoc Fortier;

AGAINST: Judges Bedjaoui, Ranjeva, Koroma,Vereshchetin; Judge ad hoc Torres Bernárdez;

(5) Unanimously,Finds that the low-tide elevation of Fasht ad Dibal

falls under the sovereignty of the State of Qatar;(6) By thirteen votes to four,Decides that the single maritime boundary that

divides the various maritime zones of the State of Qatarand the State of Bahrain shall be drawn as indicated inparagraph 250 of the present Judgment;

IN FAVOUR: President Guillaume; Vice-PrésidentShi; Judges Oda, Herczegh, Fleischhauer, Vereshchetin,Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal; Judge ad hoc Fortier;

AGAINST: Judges Bedjaoui, Ranjeva, Koroma;Judge ad hoc Torres Bernárdez.

Judge Oda appended a separate opinion to the Judgment.Judges Bedjaoui, Ranjeva and Koroma appended a jointdissenting opinion to the Judgment. Judges Herczegh,Vereshchetin and Higgins appended declarations to theJudgment. Judges Parra-Aranguren, Kooijmans and Al-Khasawneh appended separate opinions to the Judgment.Judge ad hoc Torres Bernárdez appended a dissentingopinion to the Judgment. Judge ad hoc Fortier appended aseparate opinion to the Judgment.


(paras. 1-34)

On 8 July 1991 Qatar filed in the Registry of the Courtan Application instituting proceedings against Bahrain inrespect of certain disputes between the two States relating to"sovereignty over the Hawar islands, sovereign rights overthe shoals of Dibal and Qit'at Jaradah, and the delimitationof the maritime areas of the two States". In this Application,Qatar contended that the Court had jurisdiction to entertainthe dispute by virtue of two "agreements" concludedbetween the Parties in December 1987 and December 1990respectively, the subject and scope of the commitment to theCourt's jurisdiction being determined, according to theApplicant, by a formula proposed by Bahrain to Qatar on 26October 1988 and accepted by Qatar in December 1990(hereinafter referred to as the "Bahraini formula"). By

letters of 14 July and 18 August 1991, Bahrain contested thebasis of jurisdiction invoked by Qatar.

By a Judgment of 1 July 1994, the Court found that theexchanges of letters between the King of Saudi Arabia andthe Amir of Qatar of 19 and 21 December 1987, andbetween the King of Saudi Arabia and the Amir of Bahrainof 19 and 26 December 1987, and the document headed"Minutes" and signed at Doha on 25 December 1990 by theMinisters for Foreign Affairs of Bahrain, Qatar and SaudiArabia, were international agreements creating rights andobligations for the Parties; and that, by the terms of thoseagreements, the Parties had undertaken to submit to theCourt the whole of the dispute between them, ascircumscribed by the Bahraini formula. Having noted that ithad before it only an Application from Qatar setting out thatState's specific claims in connection with that formula, theCourt decided to afford the Parties the opportunity to submitto it the whole of the dispute. After each of the Parties hadfiled a document on the question within the time limit fixed,the Court, by a Judgment of 15 February 1995, found that ithad jurisdiction to adjudicate upon the dispute betweenQatar and Bahrain which had been submitted to it; that itwas now seized of the whole of the dispute; and that theApplication of the State of Qatar as formulated on 30November 1994 was admissible.

In the course of the written proceedings on the merits,Bahrain challenged the authenticity of 82 documentsproduced by Qatar as annexed to its pleadings. Each of theParties submitted a number of expert reports on the issue;the Court made several Orders. By its last Order on theissue, of 17 February 1999, the Court, taking into accountthe concordant views of the Parties on the treatment of thedisputed documents and their agreement on the extension oftime limits for the filing of Replies, placed on record thedecision of Qatar to disregard, for the purposes of thepresent case, the 82 documents whose authenticity had beenchallenged by Bahrain, and decided that the Replies wouldnot rely on those documents. Following the filing of thoseReplies, the Court decided to permit the Parties to filesupplemental documents. Public hearings were held from 29May to 29 June 2000.

The final submissions as presented by each of the Partiesat the conclusion of those hearings were as follows:

On behalf of the Government of Qatar,"The State of Qatar respectfully requests the Court,

rejecting all contrary claims and submissions:I. To adjudge and declare in accordance with

international law:A. (1) That the State of Qatar has sovereignty overthe Hawar islands;(2) That Dibal and Qit'at Jaradah shoals are low-tideelevations which are under Qatar's sovereignty;B. (1) That the State of Bahrain has no sovereigntyover the island of Janan;(2) That the State of Bahrain has no sovereignty overZubarah;

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(3) That any claim by Bahrain concerningarchipelagic baselines and areas for fishing for pearlsand swimming fish would be irrelevant for thepurpose of maritime delimitation in the present case;II. To draw a single maritime boundary between the

maritime areas of sea-bed, subsoil and superjacentwaters appertaining respectively to the State of Qatarand the State of Bahrain on the basis that Zubarah, theHawar islands and the island of Janan appertain to theState of Qatar and not to the State of Eiahrain, thatboundary starting from point 2 of the delimitationagreement concluded between Bahrain and Fran in 1971(51°05'54" E and 27°02'47" N), thence proceeding in asoutherly direction up to BLV (50°57'30" E and26°33'35" N), then following the line of the Britishdecision of 23 December 1947 up to NSLB <50°49'48" Eand 26°21'24" N) and up to point L (50°43'00" E and25°47'27" N), thence proceeding to point SI of thedelimitation agreement concluded by Bahrain and SaudiArabia in 1958 (50°31'4S" E and 25°35'38" N)."On behalf of the Government of Bahrain,

''Having regard to the facts and arguments set forthin Bahrain's Memorial, Counter-Memorial, and Reply,and in the present hearings;

May it please the Court, rejecting all contrary claimsand submissions, to adjudge and declare that:

1. Bahrain is sovereign over Zubarah.2. Bahrain is sovereign over the Hawar Islands,including Janan and Hadd Janan.3. In view of Bahrain's sovereignty over all theinsular and other features, including Fasht ad Dibaland Qit'at Jaradah, comprising the Bahrainiarchipelago, the maritime boundary between Bahrainand Qatar is as described in Part Two of Bahrain'sMemorial."

[For the delimitation lines proposed by each of theParties, see sketch-map No. 2 of the Judgment, which isattached.]

Geographical setting(para. 35)

The Court notes that the State of Qatar and the State ofBahrain are both located, in the southern part of theArabian/Persian Gulf (hereinafter referred to as "the Gulf),almost halfway between the mouth of the Shaft al Arab, tothe north-west, and the Strait of Hormuz, at the Gulfseastern end, to the north of Oman. The mainland to the westand south of the main island of Bahrain and to the south ofthe Qatar peninsula is part of the Kingdom of Saudi Arabia.The mainland on the northern shore of the Gulf is part ofIran. The Qatar peninsula projects northward into the Gulf,on the west from the bay called Dawhat Salwah, and on theeast from the region lying to the south of Krior al-Udaid.

The capital of the State of Qatar, Doha, is situated on theeastern coast of the peninsula.

Bahrain is composed of a number of islands, islets andshoals situated off the eastern and western coasts of its mainisland, which is also called al-Awal Island. The capital ofthe State of Bahrain, Manama, is situated in the north-eastern part of al-Awal Island. Zubarah is located on thenorth-west coast of the Qatar peninsula, opposite the mainisland of Bahrain.

The Hawar Islands are located in the immediate vicinityof the central part of the west coast of the Qatar peninsula,to the south-east of the main island of Bahrain and at adistance of approximately 10 nautical miles from the latter.

Janan is located off the south-western tip of HawarIsland proper.

Fasht ad Dibal and Qit'at Jaradah are two maritimefeatures located off the north-western coast of the Qatarpeninsula and to the north-east of the main island ofBahrain.

Historical context(paras. 36-69)

The Court then gives a brief account of the complexhistory which forms the background to the dispute betweenthe Parties (only parts of which are referred to below).

Navigation in the Gulf was traditionally in the hands ofthe inhabitants of the region. From the beginning of thesixteenth century, European powers began to show interestin the area, which lay along one of the trading routes withIndia. Portugal's virtual monopoly of trade was notchallenged until the beginning of the seventeenth century.Great Britain was then anxious to consolidate its presence inthe Gulf to protect the growing commercial interests of theEast India Company.

Between 1797 and 1819 Great Britain despatchednumerous punitive expeditions in response to acts ofplunder and piracy by Arab tribes led by the Qawasimagainst British and local ships. In 1819, Great Britain tookcontrol of Ras al Khaimah, headquarters of the Qawasim,and signed separate agreements with the various sheikhs ofthe region. These sheikhs undertook to enter into a GeneralTreaty of Peace. By this Treaty, signed in January 1820,these sheikhs and chiefs undertook on behalf of themselvesand their subjects inter alia to abstain for the future fromplunder and piracy. It was only towards the end of thenineteenth century that Great Britain would adopt a generalpolicy of protection in the Gulf, concluding "exclusiveagreements" with most sheikhdoms, including those ofBahrain, Abu Dhabi, Sharjah and Dubai. Representation ofBritish interests in the region was entrusted to a BritishPolitical Resident in the Gulf, installed in Bushire (Persia),to whom British Political Agents were subsequentlysubordinated in various sheikhdoms with which GreatBritain had concluded agreements.

165

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On 31 May 1861 the British Government signed a"Perpetual treaty of peace and friendship" with SheikhMahomed bin Khalifah, referred to in the treaty asindependent Ruler of Bahrain. Under this treaty, Bahrainundertook inter alia to refrain from all maritime aggressionof every description, while Great Britain undertook toprovide Bahrain with the necessary support in the

maintenance of security of its possessions againstaggression. There was no provision in this treaty definingthe extent of these possessions.

Following hostilities on the Qatar peninsula in 1867, theBritish Political Resident in the Gulf approached Sheikh AHbin Khalifah, Chief of Bahrain, and Sheikh Mohamed Al-Thani, Chief of Qatar, and, on 6 and 12 September 1868

166

respectively, occasioned each to sign an agreement withGreat Britain. By these agreements, the Chief of Bahrainrecognized inter alia that certain acts of piracy had beencommitted by Mahomed bin Khalifah, his predecessor, and,"[i]n view of preserving the peace at sea, and precluding theoccurrence of further disturbance and in order to keep thePolitical Resident informed of what happens", lie promisedto appoint an agent with the Political Resident; for his part,the Chief of Qatar undertook inter alia to return to andreside peacefully in Doha, not to put to sea with hostileintention, and, in the event of disputes or misunderstandingarising, invariably to refer to the Political Resident.According to Bahrain, the "events of 1867-1868"demonstrate that Qatar was not independent from Bahrain.According to Qatar, on the contrary, the 1868 Agreementsformally recognized for the first time the separate identity ofQatar.

While Great Britain had become the dominEint maritimePower in the Gulf by this time, the Ottoman Empire, for itspart, had re-established its authority over extensive areas ofthe land on the southern side of the Gulf. In the yearsfollowing the arrival of the Ottomans on the Qatarpeninsula, Great Britain further increased its influence overBahrain. On 29 July 1913, an Anglo-Ottoman "Conventionrelating to the Persian Gulf and surrounding territories" wassigned, but it was never ratified. Section II of thisConvention dealt with Qatar. Article 11 described the courseof the line which, according to the agreement between theparties, was to separate the Ottoman Sanjak of Nejd fromthe "peninsula of al-Qatar". Qatar points out that theOttomans and the British had also signed, on 9 March 1914,a treaty concerning the frontiers of Aden, which was ratifiedthat same year and whose Article III provided that the lineseparating Qatar from the Sanjak of Nejd would be "inaccordance with Article 11 of the Anglo-OttomanConvention of 29 July 1913 relating to the Persian Gulf andthe surrounding territories". Under a treaty concluded on 3November 1916 between Great Britain and the Sheikh ofQatar, the Sheikh of Qatar bound himself intei: alia not to"have relations nor correspond with, nor receive the agentof, any other Power without the consent of the High BritishGovernment"; nor, without such consent, to cede to anyother Power or its subjects, land; nor, without such consent,to grant any monopolies or concessions. In return, theBritish Government undertook to protect the: Sheikh ofQatar and to grant its "good offices" should the Sheikh orhis subjects be assailed by land within the territories ofQatar. There was no provision in this treaty defining theextent of those territories.

On 29 April 1936 the representative of PetroleumConcessions Ltd. wrote to the British India Office, whichhad responsibility for relations with the protected States inthe Gulf, drawing its attention to a Qatar oil concession of17 May 1935 and observing that the Ruler of Bahrain, in hisnegotiations with Petroleum Concessions Ltd., had laidclaim to Hawar; he accordingly enquired to which of thetwo Sheikhdoms (Bahrain or Qatar) Hawar belonged. On 14July 1936, Petroleum Concessions Ltd. was informed by theIndia Office that it appeared to the British Government that

Hawar belonged to the Sheikh of Bahrain. The content ofthose communications was not conveyed to the Sheikh ofQatar.

In 1937, Qatar attempted to impose taxation on the Nairntribe inhabiting the Zubarah region; Bahrain opposed this asit claimed rights over this region. Relations between Qatarand Bahrain deteriorated. Negotiations between the twoStates started in spring of 1937 and were broken off in Julyof that year.

Qatar alleges that Bahrain clandestinely and illegallyoccupied the Hawar Islands in 1937. Bahrain maintains thatits Ruler was simply performing legitimate acts ofcontinuing administration in his own territory. By a letterdated 10 May 1938, the Ruler of Qatar protested to theBritish Government against what he called "the irregularaction taken by Bahrain against Qatar", to which he hadalready referred in February 1938 in a conversation in Dohawith the British Political Agent in Bahrain. On 20 May1938, the latter wrote to the Ruler of Qatar, inviting him tostate his case on Hawar at the earliest possible moment. TheRuler of Qatar responded by a letter dated 27 May 1938.Some months later, on 3 January 1939, Bahrain submitted acounter-claim. In a letter of 30 March 1939, the Ruler ofQatar presented his comments on Bahrain's counter-claim tothe British Political Agent in Bahrain. The Rulers of Qatarand Bahrain were informed on 11 July 1939 that the BritishGovernment had decided that the Hawar Islands belonged toBahrain.

In May 1946, the Bahrain Petroleum Company Ltd.sought permission to drill in certain areas of the continentalshelf, some of which the British considered might belong toQatar. The British Government decided that this permissioncould not be granted until there had been a division of thesea-bed between Bahrain and Qatar. It studied the matterand, on 23 December 1947, the British Political Agent inBahrain sent the Rulers of Qatar and Bahrain two letters, inthe same terms, showing the line which, the BritishGovernment considered divided "in accordance withequitable principles the sea-bed aforesaid". The letterindicated further that the Shaik of Bahrain had sovereignrights in the areas of the Dibal and Jaradah shoals (whichshould not be considered to be islands having territorialwaters), as well as over the islands Hawar group whilenoting that Janan Island was not regarded as being includedin the islands of the Hawar group.

In 1971 Qatar and Bahrain ceased to be British protectedStates. On 21 September 1971, they were both admitted tothe United Nations.

Beginning in 1976, mediation, also referred to as "goodoffices", was conducted by the King of Saudi Arabia withthe agreement of the Amirs of Bahrain and Qatar. The goodoffices of King Fahd did not lead to the desired outcome andon 8 July 1991 Qatar instituted proceedings before the Courtagainst Bahrain.

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Sovereignty over Zubarah(paras. 70-97)

The Court notes that both Parties agree that the Al-Khalifah occupied Zubarah in the 1760s and that, someyears later, they settled in Bahrain, but that they disagree asto the legal situation which prevailed thereafter and whichculminated in the events of 1937. In the Court's view, theterms of the 1868 Agreement between Great Britain and theSheikh of Bahrain (see above) show that any attempt byBahrain to pursue its claims to Zubarah through militaryaction at sea would not be tolerated by the British. TheCourt finds that thereafter, the new rulers of Bahrain werenever in a position to engage in direct acts of authority inZubarah. Bahrain maintains, however, that the Al-Khalifahcontinued to exercise control over Zubarah through a Naim-led tribal confederation loyal to them, notwithstanding thatat the end of the eighteenth century they had moved the seatof their government to the islands of Bahrain. The Courtdoes not accept this contention.

The Court considers that, in view of the role played byGreat Britain and the Ottoman Empire in the region, it issignificant to note Article 11 of the Anglo-OttomanConvention signed on 29 July 1913, which states inter alia:"it is agreed between the two Governments that the saidpeninsula will, as in the past, be governed by the SheikhJasim-bin-Sani and his successors". Thus Great Britain andthe Ottoman Empire did not recognize Bahrain'ssovereignty over the peninsula, including Zubarah. In theiropinion the whole Qatar peninsula would continue to begoverned by Sheikh Jassim Al-Thani, who had formerlybeen nominated kaimakam by the Ottomans, and by hissuccessors.

Both Parties agree that the 1913 Anglo-OttomanConvention was never ratified; they differ on the other handas to its value as evidence of Qatar's sovereignty over thepeninsula. The Court observes that signed but unratifiedtreaties may constitute an accurate expression of theunderstanding of the parties at the time of signature. In thecircumstances of this case the Court has come to theconclusion that the Anglo-Ottoman Convention doesrepresent evidence of the views of Great Britain and theOttoman Empire as to the factual extent of the authority ofthe Al-Thani Ruler in Qatar up to 1913. The Court alsoobserves that Article 11 of the 1913 Convention is referredto by Article III of the subsequent Anglo-Ottoman treaty of9 March 1914, duly ratified that same year. The parties tothat treaty therefore did not contemplate any authority overthe peninsula other than that of Qatar.

The Court then examines certain events which tookplace in Zubarah in 1937, after the Sheikh of Qatar hadattempted to impose taxation on the Nairn. It notes, interalia, that on 5 May 1937, the Political Resident reported onthose incidents to the Secretary of State for India, statingthat he was "[personally, therefore, ... of the opinion thatjuridically the Bahrain claim to Zubarah must fail". In atelegram of 15 July 1937 to the Political Resident, theBritish Secretary of State indicated that the Sheikh ofBahrain should be informed that the British Government

regretted that it was "not prepared to intervene betweenSheikh of Qatar and Nairn tribe".

In view of the foregoing, the Court finds that it cannotaccept Bahrain's contention that Great Britain had alwaysregarded Zubarah as belonging to Bahrain. The terms of the1868 agreement between the British Government and theSheikh of Bahrain, of the 1913 and 1914 conventions and ofthe letters in 1937 from the British Political Resident to theSecretary of State for India, and from the Secretary of Stateto the Political Resident, all show otherwise. In effect, in1937 the British Government did not consider that Bahrainhad sovereignty over Zubarah; it is for this reason that itrefused to provide Bahrain with the assistance which itrequested on the basis of the agreements in force betweenthe two countries. In the period after 1868, the authority ofthe Sheikh of Qatar over the territory of Zubarah wasgradually consolidated; it was acknowledged in the 1913Anglo-Ottoman Convention and was definitivelyestablished in 1937. The actions of the Sheikh of Qatar inZubarah that year were an exercise of his authority on histerritory and, contrary to what Bahrain has alleged, were notan unlawful use of force against Bahrain. For all thesereasons, the Court concludes that the first submission madeby Bahrain cannot be upheld and that Qatar has sovereigntyover Zubarah.

Sovereignty over the Hawar Islands(paras. 98-148)

The Court then turns to the question of sovereignty overthe Hawar Islands, leaving aside the question of Janan forthe moment.

The Court observes that the Parties' lengthy argumentson the issue of sovereignty over the Hawar Islands raiseseveral legal issues: the nature and validity of the 1939decision by Great Britain; the existence of an original title;ejfectivités; and the applicability of the principle of utipossidetis juris to the present case. The Court begins byconsidering the nature and validity of the 1939 Britishdecision. Bahrain maintains that the British decision of 1939must be considered primarily as an arbitral award, which isresjudicata.

It claims that the Court does not have jurisdiction toreview the award of another tribunal, basing its propositionon decisions of the Permanent Court of International Justiceand the present Court. Qatar denies the relevance of thejudgments cited by Bahrain. It contends that

"[N]one of them are in the slightest degree relevant tothe issue which the Court has to determine in the presentcase, namely, whether the procedures followed by theBritish Government in 1938 and 1939 amounted to aprocess of arbitration which could result in an arbitralaward binding upon the parties".The Court first considers the question whether the 1939

British decision must be deemed to constitute an arbitralaward. It observes in this respect that the word arbitration,for purposes of public international law, usually refers to"the settlement of differences between States by judges of

168

their own choice, and on the basis of respect for law" andthat this wording was reaffirmed in the work of theInternational Law Commission, which reserved the casewhere the parties might have decided that the requesteddecision should be taken ex œquo et bono. The Courtobserves that in the present case no agreement existedbetween the Parties to submit their case to an arbitraltribunal made up of judges chosen by them, who would ruleeither on the basis of law or ex œquo et bono. The Partieshad only agreed that the issue would be decided by "HisMajesty's Government", but left it to the latter to determinehow that decision would be arrived at, and by whichofficials. It follows that the decision whereby, in 1939, theBritish Government held that the Hawar Islands belonged toBahrain, did not constitute an international arbitral award.The Court finds that it does not therefore need to considerBahrain's argument concerning the Court's jurisdiction toexamine the validity of arbitral awards.

The Court observes, however, that the fact that adecision is not an arbitral award does not mean that thedecision is devoid of legal effect. In order to determine thelegal effect of the 1939 British decision, it then recalls theevents which preceded and immediately followed itsadoption. Having done so, the Court considers Qatar'sargument challenging the validity of the 1939 Britishdecision.

Qatar first contends that it never gave its consent to havethe question of the Hawar Islands decided by the BritishGovernment.

The Court observes, however, that following theExchange of Letters of 10 and 20 May 1938, the Ruler ofQatar consented on 27 May 1938 to entrust decision of theHawar Islands question to the British Government. On thatday he had submitted his complaint to the British PoliticalAgent. Finally, like the Ruler of Bahrain, he had consentedto participate in the proceedings that were to lead to the1939 decision. The jurisdiction of the British Government totake the decision concerning the Hawar Islands derivedfrom these two consents; the Court therefore has. no need toexamine whether, in the absence of such consent, the BritishGovernment would have had the authority to do so underthe treaties making Bahrain and Qatar protected States ofGreat Britain.

Qatar maintains in the second place that the Britishofficials responsible for the Hawar Islands question werebiased and had prejudged the matter. The procedurefollowed is accordingly alleged to have violated "the rulewhich prohibits bias in a decision-maker on the internationalplane". It is also claimed that the parties were not given anequal and fair opportunity to present their arguments andthat the decision was not reasoned.

The Court begins by recalling that the 1939 decision isnot an arbitral award made upon completion of arbitralproceedings. This does not, however, mean i.hat it wasdevoid of all legal effect. Quite to the contrary, thepleadings, and in particular the Exchange of Letters referredto above, shows that Bahrain and Qatar consented to theBritish Government settling their dispute over the Hawar

Islands. The 1939 decision must therefore be regarded as adecision that was binding from the outset on both States andcontinued to be binding on those same States after 1971,when they ceased to be British protected States. The Courtfurther observes that while it is true that the competentBritish officials proceeded on the premise that Bahrainpossessed prima facie title to the islands and that the burdenof proving the opposite lay on the Ruler of Qatar, Qatarcannot maintain that it was contrary to justice to proceed onthe basis of this premise when Qatar had been informedbefore agreeing to the procedure that this would occur andhad consented to the proceedings being conducted on thatbasis. During those proceedings the two Rulers were able topresent their arguments and each of them was afforded anamount of time which the Court considers was sufficient forthis purpose; Qatar's contention that it was subjected tounequal treatment therefore cannot be upheld. The Courtalso notes that, while the reasoning supporting the 1939decision was not communicated to the Rulers of Bahrainand Qatar, this lack of reasons has no influence on thevalidity of the decision taken, because no obligation to statereasons had been imposed on the British Government whenit was entrusted with the settlement of the matter. Therefore,Qatar's contention that the 1939 British decision is invalidfor lack of reasons cannot be upheld. Finally, the fact thatthe Sheikh of Qatar had protested on several occasionsagainst the content of the British decision of 1939 after hehad been informed of it is not such as to render the decisionunopposable to him, contrary to what Qatar maintains. TheCourt accordingly concludes that the decision taken by theBritish Government on 11 July 1939 is binding on theparties. For all of these reasons, the Court concludes thatBahrain has sovereignty over the Hawar Islands, and thatthe submissions of Qatar on this question cannot be upheld.The Court finally observes that the conclusion thus reachedby it on the basis of the British decision of 1939 makes itunnecessary for the Court to rule on the arguments of theParties based on the existence of an original title,effectivités, and the applicability of the principle of utipossidetis juris to the present case.

Sovereignty over Janan Island(paras. 149-165)

The Court then considers the Parties' claims to JananIsland. It begins by observing that Qatar and Bahrain havediffering ideas of what should be understood by theexpression "Janan Island". According to Qatar, "Janan is anisland approximately 700 metres long and 175 metres widesituated off the southwestern tip of the main Hawarisland...". For Bahrain, the tenu covers "two islands,situated between one and two nautical miles off the southerncoast of Jazirat Hawar, which merge into a single island atlow tide ...". After examination of the arguments of theParties, the Court considers itself entitled to treat Janan andHadd Janan as one island.

The Court then, as it has done in regard to the Parties'claims to the Hawar Islands, begins by considering theeffects of the British decision of 1939 on the question of

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sovereignty over Janan Island. As has already been stated, inthat decision the British Government concluded that theHawar Islands "belong[ed] to the State of Bahrain and not tothe State of Qatar". No mention was made of Janan Island.Nor was it specified what was to be understood by theexpression "Hawar Islands". The Parties have accordinglydebated at length over the issue of whether Janan fell to beregarded as part of the Hawar Islands and whether, as aresult, it pertained to Bahrain's sovereignty by virtue of the1939 decision or whether, on the contrary, it was notcovered by that decision.

In support of their respective arguments, Qatar andBahrain have each cited documents both anterior andposterior to the British decision of 1939. Qatar has inparticular relied on a "decision" by the British Governmentin 1947 relating to the seabed delimitation between the twoStates. Bahrain recalled that it had submitted four lists to theBritish Government — in April 1936, August 1937, May1938 and July 1946 — with regard to the composition of theHawar Islands.

The Court notes that the three lists submitted prior to1939 by Bahrain to the British Government with regard tothe composition of the Hawar group are not identical. Inparticular, Janan Island appears by name in only one ofthose three lists. As to the fourth list, which is different fromthe three previous ones, it does make express reference toJanan Island, but it was submitted to the British Governmentonly in 1946, several years after the adoption of the 1939decision. Thus, no definite conclusion may be drawn fromthese various lists.

The Court then considers the letters sent on 23December 1947 by the British Political Agent in Bahrain tothe Rulers of Qatar and Bahrain. By those letters thePolitical Agent acting on behalf of the British Governmentinformed the two States of the delimitation of their seabedseffected by the British Government. This Government,which had been responsible for the 1939 decision on theHawar Islands, sought, in the last sentence of subparagraph4 (ii) of these letters, to make it clear that "Janan Island isnot regarded as being included in the islands of the Hawargroup". The British Government accordingly did not"recognize" the Sheikh of Bahrain as having "sovereignrights" over that island and, in determining the points fixedin paragraph 5 of those letters, as well as in drawing the mapenclosed with those letters, it regarded Janan as belonging toQatar. The Court considers that the British Government, inthus proceeding, provided an authoritative interpretation ofthe 1939 decision and of the situation resulting from it.Having regard to all of the foregoing, the Court does notaccept Bahrain's argument that in 1939 the BritishGovernment recognized "Bahrain's sovereignty over Jananas part of the Hawars". It finds that Qatar has sovereigntyover Janan Island including Hadd Janan, on the basis of thedecision taken by the British Government in 1939, asinterpreted in 1947.

Maritime Delimitation(paras. 166-250)

The Court then turns to the question of the maritimedelimitation.

It begins by taking note that the Parties are in agreementthat the Court should render its decision on the maritimedelimitation in accordance with international law. NeitherBahrain nor Qatar is party to the Geneva Conventions on theLaw of the Sea of 29 April 1958; Bahrain has ratified theUnited Nations Convention on the Law of the Sea of 10December 1982 but Qatar is only a signatory to it. TheCourt indicates that customary international law, therefore,is the applicable law. Both Parties, however, agree that mostof the provisions of the 1982 Convention which are relevantfor the present case reflect customary law.

• A single maritime boundary(paras. 168-173)

The Court notes that, under the terms of the "Bahrainiformula", the Parties requested the Court, in December1990, "to draw a single maritime boundary between theirrespective maritime areas of seabed, subsoil and superjacentwaters".

The Court observes that it should be kept in mind, thatthe concept of "single maritime boundary" may encompassa number of functions. In the present case the singlemaritime boundary will be the result of the delimitation ofvarious jurisdictions. In the southern part of the delimitationarea, which is situated where the coasts of the Parties areopposite to each other, the distance between these coasts isnowhere more than 24 nautical miles. The boundary theCourt is expected to draw will, therefore, delimitexclusively their territorial seas and, consequently, an areaover which they enjoy territorial sovereignty.

More to the north, however, where the coasts of the twoStates are no longer opposite to each other but are rathercomparable to adjacent coasts, the delimitation to be carriedout will be one between the continental shelf and exclusiveeconomic zone belonging to each of the Parties, areas inwhich States have only sovereign rights and functionaljurisdiction. Thus both Parties have differentiated between asouthern and a northern sector.

The Court further observes that the concept of a singlemaritime boundary does not stem from multilateral treatylaw but from State practice, and that it finds its explanationin the wish of States to establish one uninterrupted boundaryline delimiting the various — partially coincident — zonesof maritime jurisdiction appertaining to them. In the case ofcoincident jurisdictional zones, the determination of a singleboundary for the different objects of delimitation

"can only be carried out by the application of a criterion,or combination of criteria, which does not givepreferential treatment to one of these ... objects to thedetriment of the other and at the same time is such as tobe equally suitable to the division of either of them",

as was stated by the Chamber of the Court in the Gulf ofMaine case. In that case, the Chamber was asked to draw a

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single line which would delimit both the continental shelfand the superjacent water column.

• Delimitation of the territorial sea(paras. 174-223)

Delimitation of territorial seas does not presentcomparable problems, since the rights of the coastal State inthe area concerned are not functional but teiritorial, andentail sovereignty over the sea-bed and the superjacentwaters and air column. Therefore, when carrying out thatpart of its task, the Court has to apply in the present casefirst and foremost the principles and rules of internationalcustomary law which refer to the delimitation of theterritorial sea, while taking into account that its ultimate taskis to draw a single maritime boundary that serves otherpurposes as well. The Parties agree that the provisions ofArticle 15 of the 1982 Convention on the Law of the Sea,headed "Delimitation of the territorial sea between Stateswith opposite or adjacent coasts", are part of customary law.This Article provides:

"Where the coasts of two States are opposite oradjacent to each other, neither of the two States isentitled, failing agreement between them to the contrary,to extend its territorial sea beyond the median line everypoint of which is equidistant from the nearest point onthe baselines from which the breadth of the territorialseas of each of the two States is measured. The aboveprovision does not apply, however, where it is necessaryby reason of historic title or other special circumstancesto delimit the territorial seas of the two States in a waywhich is at variance therewith."

The Court notes that Article 15 of the 1982 Conventionis virtually identical to Article 12, paragraph 1, of the 1958Convention on the Territorial Sea and the Contiguous Zone,and is to be regarded as having a customary character. It isoften referred to as the "equidistance/special circumstances"rule. The most logical and widely practised approach is firstto draw provisionally an equidistance line and then toconsider whether that line must be adjusted in the light ofthe existence of special circumstances.

The Court explains that once it has delimited theterritorial seas belonging to the Parties, it will determine therules and principles of customary law to be applied to thedelimitation of the Parties' continental shelves and theirexclusive economic zones or fishery zones. The Court willfurther decide whether the method to be chosen for thisdelimitation differs from or is similar to the approach justoutlined.

• The equidistance line(paras. 177-216)

The Court begins by noting that the equidistance line isthe line every point of which is equidistant from the nearestpoints on the baselines from which the breadth of theterritorial seas of each of the two States is measured. Thisline can only be drawn when the baselines are known.Neither of the Parties has as yet specified the baselines

which are to be used for the determination of the breadth ofthe territorial sea, nor have they produced official maps orcharts which reflect such baselines. Only during the presentproceedings have they provided the Court with approximatebasepoints which in their view could be used by the Courtfor the determination of the maritime boundary.

• The relevant coasts(paras. 178-216)

The Court indicates that it will therefore first determinethe relevant coasts of the Parties, from which will bedetermined the location of the baselines, and the pertinentbasepoints from which enable the equidistance line to bemeasured.

Qatar has argued that, for purposes of this delimitation,it is the mainland-to-mainland method which should beapplied in order to construct the equidistance line. It claimsthat the notion of "mainland" applies both to the Qatarpeninsula, which should be understood as including themain Hawar island, and to Bahrain, of which the islands tobe taken into consideration are al-Awal (also called BahrainIsland), together with al-Muharraq and Sitrah. For Qatar,application of the mainland-to-mainland method has twomain consequences. First, it takes no account of the islands(except for the above-mentioned islands, Hawar on theQatar side and al-Awal, al-Muharraq and Sitrah on theBahrain side), islets, rocks, reefs or low-tide elevations lyingin the relevant area. Second, in Qatar's view, application ofthe mainland-to-mainland method of calculation would alsomean that the equidistance line has to be constructed byreference to the high-water line.

Bahrain contends that it is a de facto archipelago ormultiple-island State, characterized by a variety of maritimefeatures of diverse character and size. All these features areclosely interlinked and together they constitute the State ofBahrain; reducing that State to a limited number of so-called"principal" islands would be a distortion of reality and arefashioning of geography. Since it is the land whichdetermines maritime rights, the relevant basepoints aresituated on all those maritime features over which Bahrainhas sovereignty. Bahrain further contends that, according toconventional and customary international law, it is the low-water line which is determinative for the breadth of theterritorial sea and for the delimitation of overlappingterritorial waters. Finally, Bahrain has stated that, as a defacto archipelagic State, it is entitled to declare itself anarchipelagic State under Part IV of the 1982 Law of the SeaConvention and to draw the permissive baselines of Article47 of that Convention, i.e., "straight archipelagic baselinesjoining the outermost points of the outermost islands anddrying reefs of the archipelago". Qatar has contestedBahrain's claim that it is entitled to declare itself anarchipelagic State under Part IV of the 1982 Convention.

With regard to Bahrain's claim the Court observes thatBahrain has not made this claim one of its formalsubmissions and that the Court is therefore not requested totake a position on this issue. What the Court, however, iscalled upon to do is to draw a single maritime boundary in

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accordance with international law. The Court can carry outthis delimitation only by applying those rules and principlesof customary law which are pertinent under the prevailingcircumstances. It emphasizes that its decision will havebinding force between the Parties, in accordance withArticle 59 of the Statute of the Court, and consequentlycould not be put in issue by the unilateral action of either ofthe Parties, and in particular, by any decision of Bahrain todeclare itself an archipelagic State.

The Court, therefore, turns to the determination of therelevant coasts from which the breadth of the territorial seasof the Parties is measured. In this respect the Court recallsthat under the applicable rules of international law thenormal baseline for measuring this breadth is the low-waterline along the coast (Art. 5, 1982 Convention on the Law ofthe Sea).

In previous cases the Court has made clear that maritimerights derive from the coastal State's sovereignty over theland, a principle which can be summarized as "the landdominates the sea". It is thus the terrestrial territorialsituation that must be taken as starting point for thedetermination of the maritime rights of a coastal State. Inorder to determine what constitutes Bahrain's relevantcoasts and what are the relevant baselines on the Bahrainiside, the Court must first establish which islands comeunder Bahraini sovereignty. The Court recalls that it hasconcluded that the Hawar Islands belong to Bahrain and thatJanan belongs to Qatar. It observes that other islands whichcan be identified in the delimitation area which are relevantfor delimitation purposes in the southern sector are JaziratMashtan and Umm Jalid, islands which are at high tide verysmall in size, but at low tide have a surface which isconsiderably larger. Bahrain claims to have sovereigntyover these islands, a claim which is not contested by Qatar.

• Fasht al Azm(paras. 188-190)

However, the Parties are divided on the issue of whetherFasht al Azm must be deemed to be part of the island ofSitrah or whether it is a low-tide elevation which is notnaturally connected to Sitrah Island. In 1982 Bahrainundertook reclamation works for the construction of apetrochemical plant, during which an artificial channel wasdredged connecting the waters on both sides of Fasht alAzm. After careful analysis of the various reports,documents and charts submitted by the Parties, the Courthas been unable to establish whether a permanent passageseparating Sitrah Island from Fasht al Azm existed beforethe reclamation works of 1982 were undertaken. For thereasons explained below, the Court is nonetheless able toundertake the requested delimitation in this sector withoutdetermining the question whether Fasht al Azm is to beregarded as part of the island of Sitrah or as a low-tideelevation.

• Qit 'at Jaradah(paras. 191-198)

Another issue on which the Parties have totally opposingviews is whether Qit'at Jaradah is an island or a low-tideelevation. The Court recalls that the legal definition of anisland is "a naturally formed area of land, surrounded bywater, which is above water at high tide" (1958 Conventionon the Territorial Sea and Contiguous Zone, Art. 10, para. 1;1982 Convention on the Law of the Sea, Art. 121, para. 1).The Court has carefully analysed the evidence submitted bythe Parties and weighed the conclusions of the expertsreferred to above, in particular the fact that the expertsappointed by Qatar did not themselves maintain that it wasscientifically proven that Qit'at Jaradah is a low-tideelevation. On these bases, the Court concludes that themaritime feature of Qit'at Jaradah satisfies the above-mentioned criteria and that it is an island which should assuch be taken into consideration for the drawing of theequidistance line. In the present case, taking into account thesize of Qit'at Jaradah, the activities carried out by Bahrainon that island must be considered sufficient to supportBahrain's claim that it has sovereignty over it.

• Fasht ad Dibal(paras. 199-209)

Both Parties agree that Fasht ad Dibal is a low-tideelevation. Whereas Qatar maintains — just as it did withregard to Qit'at Jaradah — that Fasht ad Dibal as a low-tideelevation cannot be appropriated, Bahrain contends thatlow-tide elevations by their very nature are territory, andtherefore can be appropriated in accordance with the criteriawhich pertain to the acquisition of territory. "Whatever theirlocation, low-tide elevations are always subject to the lawwhich governs the acquisition and preservation of territorialsovereignty, with its subtle dialectic of title and effectivités."

The Court observes that according to the relevantprovisions of the Conventions on the Law of the Sea, whichreflect customary international law, a low-tide elevation is anaturally formed area of land which is surrounded by andabove water at low tide but submerged at high tide (1958Convention on the Territorial Sea and the Contiguous Zone,Art. 11, para. 1 ; 1982 Convention on the Law of the Sea,Art. 13, para. 1). When a low-tide elevation is situated in theoverlapping area of the territorial sea of two States, whetherwith opposite or with adjacent coasts, both States inprinciple are entitled to use its low-water line for themeasuring of the breadth of their territorial sea. The samelow-tide elevation then forms part of the coastalconfiguration of the two States. That is so even if the low-tide elevation is nearer to the coast of one State than that ofthe other, or nearer to an island belonging to one party thanit is to the mainland coast of the other. For delimitationpurposes the competing rights derived by both coastal Statesfrom the relevant provisions of the law of the sea would bynecessity seem to neutralize each other. In Bahrain's view,however, it depends upon the effectivités presented by thetwo coastal States which of them has a superior title to thelow-tide elevation in question and is therefore entitled to

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exercise the right attributed by the relevant provisions of thelaw of the sea, just as in the case of islands which aresituated within the limits of the breadth of the territorial seaof more than one State. In the view of the Court the decisivequestion for the present case is whether a State can acquiresovereignty by appropriation over a low-tids elevationsituated within the breadth of its territorial sefi when thatsame low-tide elevation lies also within the breadth of theterritorial sea of another State.

International treaty law is silent on the question whetherlow-tide elevations can be considered to be "territory". Noris the Court aware of a uniform and widespread Statepractice which might have given rise to a cus:omary rulewhich unequivocally permits or excludes appropriation oflow-tide elevations. It is only in the context of the law of thesea that a number of permissive rules have been establishedwith regard to low-tide elevations which are situated at arelatively short distance from a coast. The few existing rulesdo not justify a general assumption that low-tide elevationsare territory in the same sense as islands. It has never beendisputed that islands constitute terra firma, and are subjectto the rules and principles of territorial acquisition; thedifference in effects which the law of the sea attributes toislands and low-tide elevations is considerable. It is thus notestablished that in the absence of other rules and legalprinciples, low-tide elevations can, from the viewpoint ofthe acquisition of sovereignty, be fully assimilated withislands or other land territory. In this résped: the Courtrecalls the rule that a low-tide elevation which is situatedbeyond the limits of the territorial sea does not have aterritorial sea of its own. A low-tide elevation, therefore, assuch does not generate the same rights as islands or otherterritory. The Court, consequently, is of the viev/ that in thepresent case there is no ground for recognizing the right ofBahrain to use as a baseline the low-water line of those low-tide elevations which are situated in the zone of overlappingclaims, or for recognizing Qatar as having such a right. TheCourt accordingly concludes that for the purposes ofdrawing the equidistance line, such low-tide elevations mustbe disregarded.

• Method of straight baselines(paras. 2 i 0-216)

The Court further observes that the method of straightbaselines, which Bahrain applied in its reasoning and in themaps provided to the Court, is an exception to the normalrules for the determination of baselines and may only beapplied if a number of conditions are met. This method mustbe applied restrictively. Such conditions are primarily thateither the coastline is deeply indented and cut into, or thatthere is a fringe of islands along the coast in its immediatevicinity. The fact that a State considers itself a multiple-island State or a de facto archipelagic State does not allow itto deviate from the normal rules for the determination ofbaselines unless the relevant conditions are met. The coastsof Bahrain's main islands do not form a deeply indentedcoast, nor does Bahrain claim this. It contends, however,that the maritime features off the coast of the main islands

may be assimilated to a fringe of islands which constitute awhole with the mainland. The Court does not deny that themaritime features east of Bahrain's main islands are part ofthe overall geographical configuration; it would be goingtoo far, however, to qualify them as a fringe of islands alongthe coast. The Court, therefore, concludes that Bahrain isnot entitled to apply the method of straight baselines. Thuseach maritime feature has its own effect for thedetermination of the baselines, on the understanding that, onthe grounds set out before, the low-tide elevations situatedin the overlapping zone of territorial seas will bedisregarded. It is on this basis that the equidistance linemust be drawn. The Court notes, however, that Fasht alAzm requires special mention. If this feature were to beregarded as part of the island of Sitrah, the basepoints forthe purposes of determining the equidistance line would besituated on Fasht al Azm's eastern low-water line. If it werenot to be regarded as part of the island of Sitrah, Fasht alAzm could not provide such basepoints. As the Court hasnot determined whether this feature does form part of theisland of Sitrah, it has drawn two equidistance linesreflecting each of these hypotheses.

• Special circumstances(paras. 217-223)

The Court then turns to the question of whether there arespecial circumstances which make it necessary to adjust theequidistance line as provisionally drawn in order to obtainan equitable result in relation to this part of the singlemaritime boundary to be fixed.

With regard to the question of Fasht al Azm, the Courtconsiders that on either of the above-mentioned hypothesesthere are special circumstances which justify choosing adelimitation line passing between Fasht al Azm and Qit'atash Shajarah. With regard to the question of Qit'at Jaradah,the Court observes that it is a very small island, uninhabitedand without any vegetation. This tiny island, which — asthe Court has determined — comes under Bahrainisovereignty, is situated about midway between the mainisland of Bahrain and the Qatar peninsula. Consequently, ifits low-water line were to be used for determining abasepoint in the construction of the equidistance line, andthis line taken as the delimitation line, a disproportionateeffect would be given to an insignificant maritime feature.The Court thus finds that there is a special circumstance inthis case warranting the choice of a delimitation line passingimmediately to the east of Qit'at Jaradah.

The Court observed earlier that, since it did notdetermine whether Fasht al Azm is part of Sitrah island or aseparate low-tide elevation, it is necessary to drawprovisionally two equidistance lines. If no effect is given toQit'at Jaradah and in the event that Fasht al Azm isconsidered to be part of Sitrah island, the equidistance linethus adjusted cuts through Fasht ad Dibal leaving the greaterpart of it on the Qatari side. If, however, Fasht al Azm isseen as a low-tide elevation, the adjusted equidistance lineruns west of Fasht ad Dibal. In view of the fact that underboth hypotheses, Fasht ad Dibal is largely or totally on the

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Qatari side of the adjusted equidistance line, the Courtconsiders it appropriate to draw the boundary line betweenQit'at Jaradah and Fasht ad Dibal. As Fasht ad Dibal thus issituated in the territorial sea of Qatar, it falls under thesovereignty of that State.

On these considerations the Court finds that it is in aposition to determine the course of that part of the singlemaritime boundary which will delimit the territorial seas ofthe Parties. Before doing so the Court notes, however, that itcannot fix the boundary's southern-most point, since itsdefinitive location is dependent upon the limits of therespective maritime zones of Saudi Arabia and of theParties. The Court also considers it appropriate, inaccordance with common practice, to simplify what wouldotherwise be a very complex delimitation line in the regionof the Hawar Islands.

Taking account of all of the foregoing, the Court decidesthat, from the point of intersection of the respectivemaritime limits of Saudi Arabia on the one hand and ofBahrain and Qatar on the other, which cannot be fixed, theboundary will follow a north-easterly direction, thenimmediately turn in an easterly direction, after which it willpass between Jazirat Hawar and Janan; it will subsequentlyturn to the north and pass between the Hawar Islands andthe Qatar peninsula and continue in a northerly direction,leaving the low-tide elevation of Fasht Bu Thur, and Fashtal Azm, on the Bahraini side, and the low-tide elevations ofQita 'a el Erge and Qit'at ash Shajarah on the Qatari side;finally it will pass between Qit'at Jaradah and Fasht adDibal, leaving Qit'at Jaradah on the Bahraini side and Fashtad Dibal on the Qatari side.

With reference to the question of navigation, the Courtnotes that the channel connecting Qatar's maritime zonessituated to the south of the Hawar Islands and those situatedto the north of those islands, is narrow and shallow, andlittle suited to navigation. It emphasizes that the waterslying between the Hawar Islands and the other Bahrainiislands are not internal waters of Bahrain, but the territorialsea of that State. Consequently, Qatari vessels, like those ofall other States, shall enjoy in these waters the right ofinnocent passage accorded by customary international law.In the same way, Bahraini vessels, like those of all otherStates, enjoy the same right of innocent passage in theterritorial sea of Qatar.

• Delimitation of the continental shelf andexclusive economic zone(paras. 224-249)

The Court then deals with the drawing of the singlemaritime boundary in that part of the delimitation areawhich covers both the continental shelf and the exclusiveeconomic zone. Referring to its earlier case-law on thedrawing of a single maritime boundary the Court observesthat it will follow the same approach in the present case. Forthe delimitation of the maritime zones beyond the 12-milezone it will first provisionally draw an equidistance line andthen consider whether there are circumstances which mustlead to an adjustment of that line. The Court further notes

that the equidistance/special circumstances rule, which isapplicable in particular to the delimitation of the territorialsea, and the equitable principles/relevant circumstances rule,as it has been developed since 1958 in case-law and Statepractice with regard to the delimitation of the continentalshelf and the exclusive economic zone, are closelyinterrelated.

The Court then examines whether there arecircumstances which might make it necessary to adjust theequidistance line in order to achieve an equitable result.With regard to Bahrain's claim concerning the pearlingindustry, the Court first takes note of the fact that thatindustry effectively ceased to exist a considerable time ago.It further observes that, from the evidence submitted to it, itis clear that pearl diving in the Gulf area traditionally wasconsidered as a right which was common to the coastalpopulation. The Court, therefore, does not consider theexistence of pearling banks, though predominantly exploitedin the past by Bahraini fishermen, as forming acircumstance which would justify an eastward shifting ofthe equidistance line as requested by Bahrain. The Courtalso considers that it does not need to determine the legalcharacter of the "decision" contained in the letters of 23December 1947 of the British Political Agent to the Rulersof Bahrain and Qatar with respect to the division of the sea-bed, which Qatar claims as a special circumstance. Itsuffices for it to note that neither of the Parties has acceptedit as a binding decision and that they have invoked onlyparts of it to support their arguments.

Taking into account the fact that it has decided thatBahrain has sovereignty over the Hawar Islands, the Courtfinds that the disparity in length of the coastal fronts of theParties cannot, as Qatar claims, be considered such as tonecessitate an adjustment of the equidistance line.

The Court finally recalls that in the northern sector thecoasts of the Parties are comparable to adjacent coastsabutting on the same maritime areas extending seawardsinto the Gulf. The northern coasts of the territoriesbelonging to the Parties are not markedly different incharacter or extent; both are flat and have a very gentleslope. The only noticeable element is Fasht al Jarim as aremote projection of Bahrain's coastline in the Gulf area,which, if given full effect, would "distort the boundary andhave disproportionate effects". In the view of the Court sucha distortion, due to a maritime feature located well out to seaand of which at most a minute part is above water at hightide, would not lead to an equitable solution which would bein accord with all other relevant factors referred to above. Inthe circumstances of the case considerations of equityrequire that Fasht al Jarim should have no effect indetermining the boundary line in the northern sector.

The Court accordingly decides that the single maritimeboundary in this sector shall be formed in the first place by aline which, from a point situated to the north-west of Fashtad Dibal, shall meet the equidistance line as adjusted to takeaccount of the absence of effect given to Fasht al Jarim. Theboundary shall then follow this adjusted equidistance lineuntil it meets the delimitation line between the respective

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maritime zones of Iran on the one hand and of Eiahrain andQatar on the other.

4142

26°27°

43'2'

58"0"

51°51°

3'7'

16"

The Court concludes from all of the foregoing that thesingle maritime boundary that divides the various maritimezones of the State of Qatar and the State of Bahrain shall beformed by a series of geodesic lines joining, hi the orderspecified, the points with the following coordinates:

(World Geodetic System, 1984)

Point12345678910111213141516171819202122232425262728293031323334353637383940

Latitude North25°25°25°25°25°25°25°25°25°25°25°25°25°25°25°25°25°25°25°25°25°25°25°25°25°25°25°25°25°25°25°25°25°26°26°26°26°26°26°26°

34'35'34'34'34'33'32'32'32'32'32'32'33'33'34'35'37'37'38'38'39'40'41'42'44'44-

45'46'46'48'51'52'53'0'41

11'15'17'20'26'

34"10"53"50"21"29"49"55"43"6"40"55"44"49"33"33"21"45"19"43"31"10"27"27"7"58"35"0"57"43"40"26"42"40"38"2"55"58"2"11"

Longitude50°50°50°50°50°50°50°50°50°50°50°50°50°50°50°50°50°50°50°50°50°50°50°50°50°50°50°50°50°50°50°50°50°50°50°50°50°50°50°50°

34'34'41'41'44'45'46'46'47'48'48'48'49-

48'47'46'47'49'50'50'50'50'51'51'51'52'51'51'51'50'49-49-

48'51'54'55'55'55'57'59'

East3"48"22"35"5"49"11"48"46"36"54"48"4"32"37"49"54"44"22"26"6"30"43"9"58"5"53"40'23'1

32'"53'12"57"00"27"3"22"58"16"12"

Below point 1, the single maritime boundary shallfollow, in a south-westerly direction, a loxodrome having anazimuth of 234°16'53", until it meets the delimitation linebetween the respective maritime zones of Saudi Arabia onthe one hand and of Bahrain and Qatar on the other. Beyondpoint 42, the single maritime boundary shall follow, in anorth-north-easterly direction, a loxodrome having anazimuth of 12°15'12", until it meets the delimitation linebetween the respective maritime zones of Iran on the onehand and of Bahrain and Qatar on the other.

The course of this boundary has been indicated, forillustrative purposes only, on sketch-map No. 7 attached tothe Judgment.


Judge Oda voted in favour of the Court's delimitation ofa maritime boundary between the Parties in the hope thatthey — in the spirit of co-operation between friendly,neighbouring States — will find it mutually acceptable.Judge Oda disagrees, however, with the Court's methods fordetermination of the maritime boundary and, further, withthe Court's decision to demarcate the boundary's precisegeographic coordinates. Accordingly, he sets out his viewsin a separate opinion.

Judge Oda first notes that the region of Zubarahoccupies a procedurally distinct place in the presentproceedings. He expresses his pleasure that the Courtreaches a unanimous decision as to the sovereignty of Qatarover this territory. Further, Judge Oda remarks upon therelevance of the exploitation of oil reserves to many aspectsof the dispute, including the Parties' joint decision (via theirSpecial Agreement) to place certain land masses andmaritime features within the Court's jurisdiction and theexpectations of the Parties with regard to the types ofboundary they expect the Court to delimit.

Judge Oda makes special mention of the Court'streatment of low-tide elevations and islets. He revisits atlength the negotiating history of the law of the sea in orderto demonstrate nuances of the issue not fully dealt with bythe Court. In particular, Judge Oda notes the incongruitybetween the expansion of the territorial sea from 3 to 12miles and the régime under which low-tide elevations andislets are accorded territorial seas of their own; he furtherexpresses the view that such a régime, addressed onlyindirectly by the relevant provisions of the 1982 UnitedNations Convention on the Law of the Sea, might not beconsidered customaiy international law.

Judge Oda disagrees with the Court's use of the phrase"single maritime boundary" and notes the distinctionbetween the régimes governing the exclusive economic zone(EEZ) and the continental shelf on the one hand and theterritorial sea on the other. Accordingly, the Court's use of a"single maritime boundary" is inappropriate. Judge Oda alsoobjects to the Court's decision to delimit the southern sectoras a territorial sea. He states further that, even if the Court's

175

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approach to the southern sector is appropriate, the Courtnonetheless misinterprets and misapplies the rules andprinciples governing the territorial sea. In this regard, JudgeOda notes that the "equidistance/special circumstances" rulemistakenly employed by the Court for puiposes of territorialsea delimitation instead pertains to the continsntal shelfrégime. Judge Oda approves of the Court's attempt todetermine a continental shelf boundary in the northernsector, but he feels that the Court does not adequatelyexplain the methods by which it arrives at its final line ofdemarcation in this sector. He concludes his criticism of theCourt's approach to this case by noting that the Courtshould have indicated principles to guide the drawing of amaritime boundary without actually indicating i;he precisecontours of the boundary itself. Judge Oda recalls in thisregard his separate opinion in the case concerning MaritimeDelimitation in the Area between Greenland and Jan Mayen(1993), wherein he noted that the application of equitableprinciples affords an infinite variety of possible boundaries;the Court should exercise moderation and self-restraint andavoid unjustifiable precision in its decisions on maritimeboundaries. Precise demarcation of the boundary can be leftto a panel of experts to be appointed jointly by the partiesfor such purpose.

Having identified the flaws in the Court's approach,Judge Oda then presents his own views. Noting the region'spolitical history and the importance therein of oilexploitation, Judge Oda opines that this case should concerndemarcation only of continental shelf boundaries and notthose of territorial seas. After an extensive review of thedevelopment of the régime of the continental shelf (byreference to the negotiating history of the relevantprovisions of the 1958 and 1982 treaties on the law of thesea and their attendant United Nations conferences), JudgeOda reiterates his preference for an equitable solution to thedispute. Judge Oda notes that his stance accords withpositions taken consistently throughout his judicial career,as evidenced for example in his argument as counsel for theFederal Republic of Germany before this Court in the NorthSea Continental Shelf cases (1969). He prefers modesty inthe face of a geographically complex situation and suggestsprinciples to guide delimitation based on amacrogeographical approach. In order to make clear thedirection of his thinking, Judge Oda appends two sketchmaps representing "one line from among the many lines thatmay reasonably be proposed".

Joint dissenting opinion of Judges Bedjaoui,Ranjeva and Koroma

In the introduction to their opinion, Judges Bedjaoui,Ranjeva and Koroma, who regret that they had no otherchoice than to distance themselves from the majority, pointout that the dispute is a recurring one of long standing andthat the case involves special difficulties. They call on theParties to draw upon the infinite resources offered by theircommon genius to find the will to transcend theirfrustrations through cooperation.

Judges Bedjaoui, Ranjeva and Koroma hope in thisconnection that the judicial settlement will have met all the

conditions necessary to make the solutions it has arrived atsocially acceptable, and that it will thus be capable ofperforming to the full its calming, peace-making function.

Turning to the question of the respective judicialstrategies adopted by the Parties before the Court, JudgesBedjaoui, Ranjeva and Koroma set out the whole range oflegal grounds put forward by the Parties and regret that theCourt applied itself to considering only one of thosegrounds, the British decision of 1939, which served asvirtually the sole basis of the Court's Judgment. JudgesBedjaoui, Ranjeva and Koroma fear that the Court is thustoday handing down only an infra petita ruling, as it hasignored all of the other grounds relied on by the Parties.Moreover, the Court's analysis of the formal validity of the1939 British decision is incomplete and questionable.However, Judges Bedjaoui, Ranjeva and Koroma do agreewith the Court that that 1939 decision was a politicaldecision and not an arbitral award having the authority ofres judicata. They agree also that the first condition for thevalidity of the 1939 decision is the consent of the Parties.But they are of the opinion that the circumstances of thecase and the historical context clearly demonstrate that theconsent given by one of the Parties, which should have beenexpress, informed and freely given, as in the case of anyterritorial dispute, was tainted here with elements of fraud.Thus, restricting themselves to an examination of the purelyformal validity of the British decision of 1939, JudgesBedjaoui, Ranjeva and Koroma find that that decisioncannot properly serve as a valid legal title for an award ofthe Hawar Islands.

Further, that decision was not binding upon the Parties,for the consent of one of them, which was moreoverfundamentally flawed, was only a consent to theproceedings and in no sense a consent to the decision on themerits.

The co-authors of the opinion regret, moreover, that theCourt failed to examine the substantive validity of theBritish decision of 1939, which, in their view, prevented theCourt from taking its consideration of the case to its logicalconclusion and reaching a compromise, or "« minima"solution, consisting in sharing the Hawar Islands on thebasis of Bahrain's effectivités. The true signification andconstruction of the Bahraini fonnula need to be determined,so that its internal coherence may be restored. In passing,the co-authors note that there is a manifest incompatibilitybetween the application of the Bahraini formula to the caseand the application of the principle of uti possidetis juris,which the Court correctly did not apply in this case. But thequestion of effectivités, which the Court sought to avoidexamining, was inevitably bound to come up again byreason of the very fact that the Court chose to base itself ona legal ground deriving from the 1939 decision. Thus anyexamination of the substantive validity of that decisionwould have impelled the Court to undertake an examinationof the effectivités, for the Weightman Report — whichunderlay the British decision — justifies the award of themain Hawar Island ("Jazirat Hawar") on the basis ofeffectivités, while the award of the remaining Hawar Islands

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is based on a simple presumption of effectivités. In thisregard, the co-authors of the dissenting opinion note aninternal contradiction in the Weightman Report and theapplication of a double standard as regards the principle ofproximity. In sum, the Court's Judgment is notable for thefact that it rules "ultra petitd", on the basis of effectivitéslimited to "Jazirat Hawar" and totally absent in the otherislands and islets of the Hawar archipelago.

The co-authors note that, subsequently to its 1939decision, the United Kingdom showed some hesitation andexpressed doubts as to the correctness of that decision,going so far as to agree in the 1960s that the decision be re-examined by some "neutral" authority, no doubt in the formof an arbitration. Added to this were the persistent protestsby Qatar and its refusal to acquiesce either in the saidBritish decision of 1939 or in the successive acts ofoccupation of Jazirat Hawar by Bahrain. This permanentattitude of non-renunciation by Qatar, combined with theweakness of the effectivités on the islands other than JaziratHawar, are, in the co-authors' view, such as to prevent thecreation of a title in favour of Bahrain over the Hawars. TheJudgment should also have taken account of the failure toobserve the territorial status quo, both during the period1936-1939 when the final British decision was beingprepared, and in the course of the Saudi mediation from1983, and since 1991 when the case has been sub judicebefore the International Court of Justice.

According to the co-authors, there is no choice but toreturn to the crucial ground which the two Parties argued atlength and which the Court unfortunately disregarded:identifying the historical title to the Hawars. Given themajor importance taken on by historical facts in thedynamics of legal disputes over territory, the adjudicatingforum bears a compelling duty: to meet the challenge withwhich history confronts it, even though it is not experiencedin that discipline. Contemporary international law providesstandards for the legal assessment of historical facts. Yet theCourt's Judgment offers a purely descriptive, factualnarrative of the historical context of the case, withoutapplying the legal rules and principles which provide aframework for historical facts. The only occasion on whichthe Court sought to identify the historical title was, in theco-authors' view, in connection with the attribution ofZubarah, and this makes it even more unjustified that thesame was not done with respect to the issue of the Hawars,where such historical research was more imperative.

A legal consequence of the British presence in the Gulfin the nineteenth and twentieth centuries was the creation oftwo separate entities, Bahrain and Qatar, beginning in thelast third of the nineteenth century. The historical title of theAl-Thanis to the peninsula of Qatar and its adjacent naturalfeatures was thus gradually formed and consolidated.

Thereafter, the Ottoman presence in Qatar, from 1871 to1914, had legal consequences which definitively establishedthe historical title of the Al-Thani dynasty to Qatar. TheUnited Kingdom's conduct constituted explicit recognitionof Bahrain's loss of any title to any part of Qatar, includingthe Hawar Islands. This conduct on the part of the British

was combined with that of Bahrain, whose long tacitacquiescence marked the loss of its title, and with thediametrically opposite conduct of the successive Sheikhs ofQatar, who extended their authority throughout thepeninsula of Qatar. This was all reflected in treaties. TheAnglo-Ottoman Conventions of 1913 and 1914, the Anglo-Saudi Treaties of 1915 and 1927 and, most importantly, the1916 Agreement between Great Britain and Qatar showmost clearly that Qatar had since 1868 gradually establisheda historical title to the entire peninsula, including itsadjacent features, which was definitively consolidatedthrough the Anglo-Qatari Agreement.

According to the co-authors, the convergence of historyand law, as interpreted in accordance with law, is alsomatched in this case by the convergence of geography andlaw, which serves as a countercheck to confirm theexistence of a valid, certain title held by Qatar to theHawars. The question of geographical proximity has givenbirth to a legal concept which we ignore at our peril. Thenotion of "distance" has been given legal expression invarious ways in the modern international law of the sea.These include the establishment of a strong legalpresumption that all islands lying in a coastal State'sterritorial sea belong to that State. The co-authors believethat the issue of the territorial integrity of a coastal Statedeserved closer attention from the Court. From thisperspective, the solution for a legally unassailable award ofthe Hawar Islands was obvious, and the law would havebeen in perfect harmony with both history and geography.

Judges Bedjaoui, Ranjeva and Koroma also regret thesilence of the Judgment on the subject of the map evidence.Though it is true that the evidentiary importance ofcartographic material is only relative, it neverthelessremains the case that maps are the expression or reflectionof general public opinion and of repute. In this respect thevoluminous map file submitted by Qatar, buttressed by thefact that those maps were produced in a wide variety ofcountries and at widely varying dates, together with theBritish War Office maps, which are particularly credible,confirms Qatar's historical title to the Hawars, as do themany historical documents establishing the respectiveterritorial extent of each Party.

As far as the maritime delimitation is concerned, the co-authors have focused their critical remarks on four points.First, the Judgment rules infra petita, in the view of JudgesBedjaoui, Ranjeva and Koroma, having regard to theBahraini formula as applied to the course of the singlemaritime boundary, which the Judgment describes as asingle multifunctional line. Recourse to the technique ofenumerating the areas to be delimited has a dual aim: tospecify individually the areas for delimitation and toemphasize the distinct nature of each area in relation to theothers, since each possesses its own coherent character inlaw; it was therefore incumbent upon the Court to ensurethat the result it achieved was coherent over the entiremaritime area delimited.

This test of coherence was necessary, given the impactof the award of the Hawar Islands to Bahrain: confirmation

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in the operative part of the Judgment of the right of innocentpassage through Bahrain's territorial waters is not enough.The co-authors of this dissenting opinion consider that itwould be wrong to underestimate the risk of conflictsarising in connection with the implementation of the right ofinnocent passage. Although it had not been specificallyseized of this issue, the Court, as it did in the caseconcerning Kasikili/Sedudu Island (Botswana/Namibia),should also have regarded as part and parcel of thesettlement of the merits of the dispute the conclusion of anagreement between the two Parties providing for the legalenclavement of the Hawar Islands under a regime ofinternational easement".

Secondly, the method adopted to draw the provisionalmedian, line was also criticized by the three judges ascontrary to the basic principles of delimitation. Under theadage "'the land dominates the sea", it is essentially terrafirma that has to be taken into account, and specialcircumstances must not be allowed to influence prematurelythe course of the theoretical provisional median line. Thelaw does not require that the baselines and points used fordelimitation have to be the same as those used to fix theexternal seaward boundaries of maritime areas. It is thisinterpretation of the law that prevailed in the work of theconferences on the law of the sea, contrary to the ¡position ofthe International Law Commission. Case-law has failed toespouse the trend towards an interpretation favouring aduality of function. The Court, contrary to the presentdecision, has always favoured the choice of equitable points,so that both the method for drawing the line and its resultshould be fair. "The equitableness of an equidis;tance linedepends on whether the precaution is taken of eliminatingthe disproportionate effect of certain islets, rocks and minorcoastal projections." (I.CJ. Reports 1985, p. 48, para. 64)This is a general rule which applies equally to thecalculation of the equidistance line in a delimitaiion of theterritorial sea. It is thus surprising to find the sea 'dominatednot by terra firma but by quite insignificant maritimefeatures (such as Umm Jalid, for example), precisely lackingin any solid base.

Thirdly, the legal characterization of Qit'at Jaradah isnot supported by the co-authors, because of its geophysicalcharacteristics. The issue of islands hinges uponconsiderations of hydrography (high tide) andgeomorphology (natural area of land). According to an olddecision, the Anna case, the origin of the land is immaterialfor purposes of characterization of a feature as an island.However, since the inclusion in the 1958 GenevaConvention of the adjective "natural", the approach haschanged: a feature appearing above the waterline must be anarea composed otherwise than of rocks or atolls, theunstable land composing such features being specificallymentioned in the Montego Bay Convention in the provisionon deltas. Thus Qit'at Jaradah does not meet therequirements of Article 121 of the 1982 Convention on theLaw of the Sea. Moreover, the authors dispute the award toBahrain of this island, which is closer to the coast of Qatarthan of Bahrain, according to the calculations of the Court-appointed hydrographer.

This anomaly is aggravated by the fact that Qit'atJaradah is accorded an effect of 500 metres, even though theCourt had decided not to give it any effect at all and to drawthe delimitation line at a strict tangent to Qit'at Jaradah.This has distorting consequences for the northern part of theline.

The position is further aggravated by the fact that theCourt has established a single maritime boundary on thebasis of two contradictory maps, an American one for thesouthern sector and a British one for the northern sector.This duality in the Court's approach is somewhat puzzling,since it would have been more normal for it to rely on asingle map for the entire course of the line and to choose themost recent one, providing the most up-to-date data. Thiswas the British map, prepared in 1994 by the Admiralty ofthe country that had for many years been the protectingpower in the region and was thus quite well informed of thetrue situation. This British bathymétrie chart clearlydemonstrates the geographical continuity between theHawars and Qatar, which form a single entity and togetherconstitute the Qatari peninsula. But in choosing to relyrather on the American map for this southern sector of thesingle boundary, the Court could represent the low-waterline in that southern sector in an arbitrary manner only, thusraising fears as to the legibility of the decision and above allcreating a real risk of amputation of the territory of Qatarproper. Thus the choice of the less suitable map for thesouthern sector leaves serious doubts, not only as to thefairness, but also as to the simple accuracy, of the lineobtained. Having failed to choose the British map, it wouldhave been better if the Judgment had not assumedresponsibility for errors in the course of the line and hadinstead invited the Parties to negotiate that course on thebasis of indications from the Court.

For all of the reasons set out above, Judges Bedjaoui,Ranjeva and Koroma regret that they cannot acceptresponsibility for any amputation of Qatar's territory.

Finally, Judges Bedjaoui, Ranjeva and Koroma regretthat the vote by Members of the Court was not made on thebasis of a division of the final single maritime line into twoparts, given the Parties' positions and the award of theHawar Islands to Bahrain, which the authors could notaccept. The northern part, on the other hand, appearedoverall to be acceptable to them, even if its course couldhave been improved by being shifted slightly to the west.

In conclusion, Judges Bedjaoui, Ranjeva and Koromashare the Court's analyses of the inapplicability of theprinciple of uti possidetis juris, to which they are committedas representatives of the various legal systems of thecontinent of Africa. But they note that it cannot be said thatthere was State succession in the present case, given that nonew subject of international law was created. Also, simplereasons of legal ethics required them to deny application ofthat principle owing to the real motives for the 1939decision: it would seem to them that "oil dominates the landand the sea" was the watchword of that decision. Any legaledifice founded on that notion was therefore bound to havebeen coloured by artifice and deception, to the detriment of

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the rights of the peoples. Finally, the principle of utipossidetis juris applies to two States' boundaries taken "as awhole", while here the Court's examination focused on asingle text. Thus, Judges Bedjaoui, Ranjeva and Koromawere led to conduct a critical examination of the validity ofthe 1939 decision, as measured by the yardstick ofcontemporary international norms and modern methods ofinterpretation.


In his declaration, Judge Herczegh stressed theimportance of paragraph 2 {b) of the operative part of theJudgment, in which the Court stated that vessels of the Stateof Qatar enjoy in the territorial sea of Bahrain separating theHawar Islands from the other Bahraini islands the right ofinnocent passage. This statement in paragraph 2 (b) hasenabled him to vote in favour of paragraph 6 of theoperative part of the Judgment, which defines the singlemaritime boundary that divides the maritime areas of thetwo States party to the dispute.


In his declaration Judge Vereshchetin briefly expoundsthe reasons which prevented him from concurring in theCourt's findings on the legal position of the Hawar Islandsand the maritime feature Qit'at Jaradah. The Court's findingon the Hawar Islands rests exclusively on the 1939 decisionby the former "protecting Power". This implies that the1939 British decision is viewed by the Court as a sort oflegally binding third-party settlement of a territorial disputebetween two sovereign States. It also implies that the twoStates under British protection at the relevant time could —and actually did — freely express their sovereign will to belegally bound by the British decision. In rum, the deciding"third party" must be presumed neutral and impartial. In theopinion of Judge Vereshchetin, none of the aboveprerequisites necessary for the affirmation by the Court ofthe formal validity of the 1939 decision existed in thecontext of the "special relationship" between the "protected"and "protecting" States obtaining at the relevant time.

The inevitable uncertainty as to the formal validity of the1939 decision, especially in an absolutely new political andlegal setting, required the Court to revert to the legalgrounds lying at the basis of the 1939 decision. Byabstaining from analysing whether the 1939 decision waswell founded in law and rectifying it if appropriate, theCourt failed in its duty to take into account all the elementsnecessary for determining the legal position of the HawarIslands.

As to the legal position of Qit'at Jaradah, JudgeVereshchetin takes the view that this tiny maritime feature,constantly changing its physical condition, cannot beconsidered an island within the meaning of the 1982Convention on the Law of the Sea. Rather, it is a low-tideelevation whose appurtenance depends on its location in theterritorial sea of one State or the other. Therefore, theattribution of Qit'at Jaradah should have been effected after

the delimitation of the territorial seas of the Parties and notvice versa.

Declaration of Judge Rosalyn Higgins

Judge Higgins considers that sovereignty over Janan lieswith Bahrain, for reasons that have been elaborated byJudges Kooijmans and Fortier. She therefore voted in thenegative on paragraph 3 of the dispositif. But as the Courtfound that sovereignty over Janan lies with Qatar, and as sheagrees generally with the delimitation line drawn in theJudgment, she voted in favour of paragraph 6.

Had it so chosen, the Court could also have groundedBahraini title in the Hawars on the law of territorialacquisition. Among acts occurring in the Hawars were somethat did have relevance for legal title. These effectivités wereno sparser than those on which title has been founded inother cases.

Even if Qatar had, by the time of these early effectivités,extended its own sovereignty to the coast of the peninsulafacing the Hawars, it performed no comparable effectivitésin the Hawars of its own.

These elements are sufficient to displace anypresumption of title by the coastal State.


Even though voting in favour of the operative part of theJudgment, Judge Parra-Aranguren states that his favourablevote does not mean that he shares all and every part of thereasoning followed by the Court in reaching its conclusion.In particular he considers paragraph 2 (b) of the operativepart to be unnecessary and makes it clear, to avoidmisunderstandings, that in his opinion Qatar enjoys the rightof innocent passage accorded by customary internationallaw in all the territorial sea under the sovereignty ofBahrain. Furthermore, Judge Parra-Aranguren explains thathis vote for paragraph 4 of the operative part is theconsequence of his agreement with the maritimedelimitation line between Qatar and Bahrain drawn in itsparagraph 6. In his opinion, the drilling of an artesian well,advanced by Bahrain to demonstrate its sovereignty overQit'at Jaradah, cannot be characterized as an act ofsovereignty. Nor can the acts of sovereignty alleged inrespect of the low-tide elevation of Fasht ad Dibal, i.e., theconstruction of navigational aids and the drilling of anartesian well, be characterized as such. Therefore, in hisopinion, it is not necessary to take a stand, as the Judgmentdoes, on the question whether, from the point of view ofestablishing sovereignty, low-tide elevations can be fullyassimilated with islands or other land territory.


In his separate opinion Judge Kooijmans takes issuewith the Court with regard to that part of the Judgmentwhich deals with the territorial issues which divided theParties (Zubarah, the Hawar Islands, Janan), although hevoted in favour of the Court's findings on sovereignty over

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Zubarah and the Hawars, dissenting only with regard toJanan.

He disassociates himself, however, from the Court'sreasoning on all three issues, since in his view ths Court hastaken an unduly formalistic approach by basing itself mainlyon the position taken by the former Protecting Power (GreatBritain) and not on substantive rules and principles ofinternational law, in particular those on the acquisition ofterri tory.

Judge Kooijmans starts by giving a picture of thepolitical and legal situation in the Gulf region in thenineteenth and early twentieth century. At that time theformation of States as territorially based sovereign entitieshad not yet taken place. It was only the discovery of oil inthe 1920s which led to the need for clearly definedboundaries and to the notion of exclusive spatialjurisdiction.

It is noteworthy that the legal character of the relationsbetween the main Western Power in the region, GreatBritain, and the local rulers, which was laid down in anumber of treaties concluded in that early period, did notchange after the exploitability of natural resources hadbecome a dominant factor. The local sheikhdoms were notcolonized but kept their character as independent legalentities, even if political control by the Protecting Powermay have tightened.

Judge Kooijmans thus is of the view that the principle orrule of uti possidetis juris, invoked by Bahrain, is notapplicable. Crucial in this respect is whether there is (a) atransfer of sovereignty from one State to another State as aresult of which (b) administrative boundaries aretransformed into international boundaries.

In the present case neither of these criteria is met. Whenthe Protecting Power settled territorial issues it did so bydetermining international boundaries between two entitieswith which it had treaty relations.

Under those treaties the Protecting Power had no right todetermine unilaterally the boundaries of the sheikhdoms orto decide upon matters of territorial sovereignty. It could doso only with the consent of the local rulers.

Judge Kooijmans fundamentally disagrees with theCourt that, when in 1939 the British Government attributedthe Hawar Islands to Bahrain, this decision was the result ofa dispute settlement procedure to which the Ruler of Qatarhad freely agreed at the appropriate time. There was noconsent from his part, nor was there subsequent acceptanceor acquiescence. The British decision consequently has nolegal validity in se. All territorial issues, and not only that ofZubarah, where the Protecting Power did not take a formaldecision, must be resolved in the light of the generalprinciples of international lav/.

As for Zubarah, this part of the dispute dates back to thenineteenth century when tribal loyalties played a moreimportant role than territorial claims. Bahrain bases its claimmainly on historic rights and ties of allegiance with (abranch of) the Nairn tribe.

Such ties of allegiance as may have existed between theRuler of Bahrain and certain tribes in the area wereinsufficient to establish any tie of territorial sovereignty(Western Sahara case). On the other hand it can be observedthat Qatar gradually succeeded in consolidating its authorityover the area.

Moreover, there is evidence of acquiescence by conducton the part of Bahrain in the period before it revitalized thedispute in the second half of the twentieth century. JudgeKooijmans therefore agrees with the finding of the Courtthat Zubarah appertains to Qatar, although in his view theCourt relied too much on the position taken by Great Britainand the Ottoman Empire.

With regard to the Hawar Islands Qatar bases its claimon original title as recognized by Great Britain (and theOttomans) in conjunction with the principle of proximity orcontiguity, since the islands are situated close to the coast ofthe peninsula and geographically are part of it. According toJudge Kooijmans it would be an anachronism to construethe 1868 Agreement concluded by Great Britain with thechief in Doha as providing him with title to the whole of theQatar peninsula; as to the principle of contiguity, this is ininternational law no more than a rebuttable presumptionwhich must yield to a better claim.

Bahrain invokes long-standing ties of allegiance with theDowasir of Hawar, a tribe which has its principal domicileon Bahrain's main island, and a number of effectivités whichallegedly evidence a genuine display of authority.

Although it is plausible that links have existed betweenthe inhabitants of the Hawar Islands and Bahrain, it is lesscertain that these links translated themselves into ties of"allegiance" with the Ruler of Bahrain. Nor can theeffectivités, presented by Bahrain, be interpreted as evidenceof continuous display of authority. In view of the fact,however, that Qatar has not presented any effectivités at all,the observation of the Permanent Court of InternationalJustice in the Eastern Greenland case that tribunals oftenhad to be satisfied with very little in the way of the actualexercise of sovereign rights, provided that the other Statecould not make out a superior claim, holds true for thepresent case also.

The Hawars must therefore be considered to appertain toBahrain, and the 1939 British decision as being intrinsicallycorrect.

Sovereignty over Janan is a separate issue only becauseit was excluded from the Hawar group by the BritishGovernment in its decision of 1947 on the division of thesea-bed between the Parties. It is clear from the factshowever that, when the dispute about the Hawars arose,Janan was considered part of the Hawar group by bothParties as well as by the Protecting Power. Nor was it givenseparate mention in the 1939 decision. Since the 1947decision is ambiguous as to its legal character and cannot beseen as attributing sovereign rights, Janan must beconsidered part of the Hawars over which Bahrain alreadyhad sovereignty at the time of the 1947 decision. For thisreason, Judge Kooijmans voted against the operativeprovision in which the Court found that Qatar has

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sovereignty over Janan. The single maritime boundaryshould consequently run between Janan and the Qatarpeninsula and not between Hawar Island and Janan.

Separate opinion of Judge Al-Khasawneh

While Judge Al-Khasawneh concurred with the majoritydecision regarding the territorial issues, i.e., Zubarah andHawars, with regard to the latter he criticized the Court'sexclusive reliance on the 1939 British decision "as a validpolitical decision that binds the Parties". He felt thatapproach was too restrictive and unduly formalistic.Moreover, he believed that reasonable doubts lingerregarding the reality of Qatari consent when set contextuallywithin the facts of almost total British control over Bahrainand Qatar. Moreover, he thought that accusations by Qatarthat there was "bias and prejudgment" by some Britishofficials were not adequately answered in the Judgment. Theabsence of any reference to substantive law in the part of theJudgment dealing with Hawars was also unwarranted.

Instead, alternative lines of reasoning should have beenexplored by the Court if the decision is to stand on firmerground. These are uti possidetis, historic or original title,effectivités, and the concept of geographic proximity.

With respect to uti possidetis juris he concluded that itwas inapplicable because the British Government, unlike theSpanish Crown in Latin America, had not acquired title.Moreover, he thought that the doctrine of intertemporal lawargued against it. In general he felt that too ready a relianceon the principle is inimical to other legal principles, e.g., theright of self-determination, and can detract from the properfunction of international courts, which is to correctillegalities where they occur and not simply to declare pre-existing territorial situations legal — in the interest ofaverting conflicts — without regard to title and other legallyrelevant criteria.

Acknowledging the difficulty of determining originaltitles, which stems partly from the inherent limitation ofhistorical enquiries and partly from the paucity ofinformation on the crucial question of Qatar's territorialextent, he thought that nevertheless some historical factsemerge with relative clarity. Among these is that Bahrainisheikhs exercised considerable control over the affairs of theQatar peninsula until 1868. Notions of Qatari independenceas of that date (when Mohammad Al-Khalifah was punishedby the British) are however greatly exaggerated, for the factthat the British dealt directly with the Sheikhs of Qatar doesnot in itself create title. Moreover Qatar was an Ottomanterritory. The real date for Qatari independence was 1913,when the Ottomans concluded a treaty with Great Britain.However, even then the territorial expanse of Al-Thani ruleremained unclear. Bahrain has claimed a number ofeffectivités on the Hawars; some are modest and do notcarry much probative value. However the effectivités carriedout from 1872 to 1913 are important, for no one could doubtthe authority of the Ottoman rule over the whole peninsula.The fact that the Ottomans acquiesced to such effectivitésshows that the Ottomans, while they did not recognize anyBahraini territorial sovereignty on the Qatari mainland,

nevertheless considered the Ruler of Bahrain to haveownership rights on the islands on the western coast ofQatar. Additional effectivités were demonstrated by Bahrainuntil 1936. When the spatial expanse of title is not clear,such effectivités play an essential role in interpreting thatexpanse. Notwithstanding their small number, Qatar couldshow no comparable effectivités, indeed none at all over theislands. On this basis Judge Al-Khasawneh joins themajority view.

Dissenting opinion of Judge ad hoc-Torres Bernárdez

1. Judge Torres Bernárdez voted in favour ofsubparagraphs ( 1 ), (2) (b), (3) and (5) of the operative partof the Judgment. In these subparagraphs, the Court findsthat the State of Qatar has sovereignty over Zubarah andJanan Island, including Hadd Janan, and that the low-tideelevation of Fasht ad Dibal also falls under the sovereigntyof the State of Qatar. Moreover, the adopted course of thesingle maritime boundary: (i) likewise places under thesovereignty of the State of Qatar the low-tide elevations ofQit'at ash Shajarah and Qita'a el Erge; and (ii) leaves to theState of Qatar most of the continental shelf and superjacentwaters of the Parties' northern sector of the maritimedelimitation area in dispute with its living and non-livingresources. Lastly, the operative part of the Judgment recallsus that the vessels of the State of Qatar enjoy in theterritorial sea of the State of Bahrain separating the HawarIslands from other Bahraini islands the right of innocentpassage accorded by customary international law, thusplacing this right of the State of Qatar within the resjudicata of the present Judgment.

2. However, Judge Torres Bernárdez regrets beingunable to support the findings of the majority with regard tosovereignty over the Hawar Islands and Qit'at Jaradah,namely subparagraphs 2 (a) and (4) of the operative part, forreasons set out in his opinion. The conclusions of JudgeTorres Bernárdez on these two territorial questions areexactly the opposite of those of the majority.

3. Judge Torres Bernárdez also voted against the wholeof subparagraph (6) of the operative part of the Judgmentconcerning the single maritime boundary, but for proceduralreasons because a vote by division was not allowed. This ishis second regret. His position on the matter had nothing todo with the findings in the Judgment on territorial questions.In fact, Judge Torres Bernárdez accepts as falling within theparameters of an equitable solution the course of the singlemaritime dividing line as from Qita'a el Erge up to the veiylast point of the line in the Parties' northern sector, preciselybecause the findings in the Judgment on territorialquestions. But, he cannot accept that the delimitation in theHawar Islands maritime area — those islands becomingforeign coastal islands by virtue of the Judgment — beeffected through the application of the "semi-enclavemethod" in favour of the distant sovereign and not by mostequitable methods applied in such kind of situations, namelyby the application of the "enclave method" in favour of thecoastal sovereign or other alternative means capable of

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achieving an equitable maritime delimitation in the areaconcerned.

4. In the view of Judge Torres Bernárdez, theconclusions of the majority on the issues referred to inparagraphs 2 and 3 above: (1) fail to acknowledge the scopeof the original title of the State of Qatar to the entirepeninsula and its adjoining islands fully established by1913-1915 through a process of historical consolidation andgeneral recognition; (2) make of the 1939 British; "decision"on the Hawar Islands the source of a Bahrain i derivativetitle prevailing over the original title of Qatar,notwithstanding the formal and essential invalidity of that"decision" in international law and the fact that the HawarIslands — geographically part of the western coast of thepeninsula of Qatar — fall within the scope of :he originaltitle of the State of Qatar and are located in the territorial seagenerated by the west coast of Qatar; (3) characterize amaritime feature as Qit'at Jaradah as an island and acceptthat such a maritime feature may be the object ofappropriation as land territory {terra firma) through allegedBahraini "activities" not amounting to acts perfomied by theState of Bahrain à titre de souverain; and (4) disregard inthe maritime delimitation the resultinggeographical/political situation arising from the attributionof the Hawar Islands to the State of Bahrain; thissupen'iniens "special circumstance" should have been takeninto account to achieve an equitable solution in thedelimitation of the Hawar Islands area by applying a balanceof equities approach through the said enclave method, bydefining an area of common territorial sea or by othermeasures territorial in character.

5. As to the territorial aspect of the case, Judge TorresBernárdez recalls in his opinion that political and physicalgeography do not necessarily coincide. The opinion thengoes on to review the respective merits of the Parties'claims to be the holder of an original title in the disputedterritorial questions. In this connection, the opinion firstanalyses the original title to territory of each of the Partiesas a whole and then the scope of such a title with respect tothe particular disputed territorial questions, namely Zubarah,the Hawar Islands and Janan Island. As the two Statesparties are the result of an historical evolution, Judge TorresBernárdez underlines historical consolidation and generalrecognition as a mode of acquiring original title to a givenland territory.

6. The opinion recalls the origins of the ruling familiesof Qatar and of Bahrain, the settlement of the Al-Khalifahon Bahrain Island in 1783 and the legal effects on title toterritory consequential on that settlement after 17 years atZubarah, namely the absence of corpus possesionis by theAl-Khalifah in the Qatar peninsula and its adjoining islands,as well as the consequential effects of Al-Thani settlementin the Doha area on the establishment and consolidation oftheir original title to the entire Qatar peninsula and itsadjoining islands.

7. The opinion points out that the Al-Thani and Al-Khalifah families were not the only protagonists in theshaping of their respective original title to territory. Therewere also other protagonists in the political scene of theGulf from the last decades of the eighteenth centuryonwards such as Persia, Muscat, Oman and, in particular,the Wahhabis. But the most important historically relatedevents occurred during the nineteenth century. First, GreatBritain's presence in the Gulf in connection with its role inmaintaining peace at sea became paramount and, secondly,the establishment of the former Ottoman Empire on themainland of the Arabian peninsula, including in Qatar from1871 to 1915. For Judge Torres Bernárdez the terminationof the historical connection between Bahrain and Qataroccurred in about 1868-1871. In any case, Qatari tribesceased paying the common tribute (zakat) due fromBahrainis and Qataris to the Wahhabi Amir in 1872.

8. The opinion also underlines Great Britain'sprotection of Bahrain in the Bahrain islands and theimportance in this respect of, inter alia, the 1861 Agreementbetween Great Britain and Bahrain; and also the 1867 actsof war across the sea by the Ruler of Bahrain against theQataris (Doha was destroyed) and British intervention tostop the subsequent Bahraini/Qatari hostilities described insome contemporary British documents as a "war". Theoutcome of those events was the agreements concluded in1868 by Great Britain with the new Al-Khalifah Ruler ofBahrain and with the Al-Thani Chief of Gutter. The arrivalof the Ottomans in Qatar three years later, in 1871, is thesecond historical event which together with the 1868Agreements would, according to the opinion, determine, thefuture scope of the original title to the territory of Qatar andof Bahrain.

9. In fact, for Judge Torres Bernárdez, the process ofconsolidation and recognition of the Al-Thani Rulers'original title to the territory of the entire peninsula of Qatarand its adjoining islands began precisely some years before1868. The respective conduct of Great Britain and Bahrainconcerning the arrival of the Ottomans in Qatar is veiyrevealing in this respect. The Ottomans organized Qatar as akaza or administrative unit of the Ottoman Empire andappointed the Al-Thani Chief of Qatar as kaimakam. Thus,during the Ottoman period, the Chiefs of Qatarprogressively developed their effective authority over Qataritribes and territory taking advantage of their dual capacity asChiefs of Qatar and kaimakams of the Ottoman kaza ofQatar. The conduct of Great Britain vis-à-vis the Al-ThaniChief of Qatar during the Ottoman period enhanced thedevelopment of that effective authority. Great Britain didnot challenge the presence of the Ottoman Empire in theQatar peninsula and continued to deal with the Al-ThaniChief of Qatar particularly in matters relating to themaintenance of peace at sea. On the other hand, theterritorial scope of the effective authority of the Al-KhalifahRulers of Bahrain was limited by treaty obligations assumedby them with Great Britain to the Bahrain islands proper. Inany case, the Al-Khalifah did not exercise any kind ofeffective authority, directly or indirectly, over the peninsulaof Qatar and its adjoining islands during the whole Ottoman

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period of Qatar which lasted until 1915, namely about 44years.

10. In 1873, Bahrain submitted its first claim toZubarah to the British alleging ill-defined rights in the areaand invoking ties of allegiance between the Al-Khalifah andthe Nairn tribe. The British rejected this claim as unfoundedand continued to reject subsequent Bahraini claims onZubarah, including in 1937. In fact, Zubarah was part of thekaza of Qatar where the Chief of Qatar and the Ottomansexercised effective authority as shown by the documentaryevidence in the case file. Britain recognized that situationwhich was also acknowledged on certain occasions by theRulers of Bahrain themselves. The preoccupation of theBritish with the maintenance of peace at sea and ensuringthe security of the Bahraini islands explains that the seabetween Qatar and Bahrain peninsula was seen by theBritish as a buffer zone between the two countries from the1868 Agreements onwards.

11. Somewhat at odds with Bahrain's above-mentionedclaims on Zubarah, the Al-Khalifah Rulers waited until1936 to submit their first written claim over the HawarIslands and Janan Island to the British. This first claim isdated April 1936. Bahrain's prolonged silence on the HawarIslands and Janan Island including at the veiy moment whenthe original title of the Al-Thani Chief of Qatar had beenhistorically consolidated and generally recognized cannot bewithout legal effects in international law. Bahrain hadoccasion to claim the islands referred to. For example, at thetime of Major Prideaux's visit to Zakhnuniyah and JaziratHawar in 1909, Bahrain claimed Zakhnuniyah but notJazirat Hawar (qui taceret consentiré videtur). This meansthat for Judge Torres Bernárdez the 1936 Bahraini claim onthe islands concerned is a somewhat belated one byinternational law standards and, in any case, could not haveretroactive effect against the historical consolidation andgeneral recognition of the original title of Qatar alreadyfirmly established before 1936.

12. Bent's 1889 definition as well as other Britishdescriptions of "Bahrain" and the 1908 authoritativetestimony of Lorimer approved by the British PoliticalResident Prideaux, merely reflect the territorial realities inthe area, namely Qatar's original title over the entirepeninsula and adjoining Hawar Islands and Janan Island.This results also from the presumption of international lawconcerning islands in the territorial sea of a given State (seethe first Award of the Eritrea/Yemen Arbitration Tribunal),and from the role of proximity or contiguity in theestablishment of title to coastal islands, including the"portico doctrine" formulated by Lord Stowell in 1805. Thejurisprudence of the Permanent Court in the EasternGreenland case and the Island of Palmas Arbitration.Articles 11, 12 and 13 of the 1913 Anglo/OttomanConvention and annexed maps — the 1914 Anglo/OttomanConvention — the 1915 Anglo/Saudi Treaty, and the 1916Anglo/Qatari Treaty are conventional instruments whichreflect the scope of the respective original titles of Qatar and

of Bahrain recognized by the Powers at the beginning of thetwentieth century. The original title to territory of the Stateof Qatar is confirmed furthermore by general opinion orrepute as expressed in the copious collection of official andunofficial map evidence before the Court, including the mapin Annex V of the 1913 Anglo-Ottoman Convention andBritish official maps such as the one of 1920 relating to thenegotiation of the Peace Treaty of Lausanne. There is alsothe 1923 map signed by Holmes acting on behalf ofBAPCO, etc.

Î3. Moreover, between 1916 and 1936, Britishrepresentatives acted as though and indeed proclaimed thatthe Al-Thani Ruler was the Chief of the whole of Qatar forexample, during the negotiations leading to the first 1935Qatari oil concession. Furthermore, during that period theRuler of Qatar continued the normal exercise of his effectiveauthority over the whole territory of Qatar including theHawar Islands, as proved by the consent requested by theBritish and granted by the Ruler of Qatar to an RAF aerialsurvey of Qatar's territory. All the relevant British officialreports, documents and cartographic evidence concerningthe period 1916-1936 confirm the conclusion that the HawarIslands and Janan Island were part of the territory of Qatarand were therefore islands under the sovereignty of the Stateof Qatar.

14. Great Britain's conduct during the Ottoman periodvis-à-vis the presence of the Ottoman Empire in the Qatarpeninsula, as well as the conduct of the Al-Khalifah Rulersof Bahrain themselves during the same period, helped toconsolidate the original title of the Al-Thani Chief of Qatarto the whole of the peninsula. At that time Bahrain'sterritory was defined by all the main Powers in the area(Great Britain, Ottoman Empire, Persia) as exclusivelycomposed by the Bahrain islands archipelago proper,namely without any Bahraini dependency in the Qatarpeninsula and adjoining islands. The fact that, in sharpcontrast to the Zubarah case, Bahrain's first claim to HawarIslands dates from 1936 speaks for itself. In internationallaw this can only mean acquiescence by the Rulers ofBahrain to the existing territorial situation in the area.Territorial sovereignty also signifies obligations and, in thefirst place, the obligation to observe vigilant conducttowards possible inroads by other States in the holder's ownterritory or in what it considered or claimed to be its ownterritory. Ottoman and Qatari authority over the entirepeninsula is, in any case, recognized by the contemporarydocumentary records before the Court and confirmed by thecartographic evidence referred to above.

15. Until 1937 Bahrain was not present in the HawarIslands and until 1936 did not even claim those islands aspart of its territory. As islands adjoining the peninsula ofQatar, the Hawar Islands fell within the scope of the Chiefof Qatar's title to the whole peninsula. Lorimer's 1907-1908articles on the principality of Bahrain and on Qatar, revisedand endorsed by Prideaux, British Political Resident in theGulf, are clear evidence that, at the beginning of the

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twentieth century, the Hawar Islands were considered by allthose most directly concerned to be a part of the; territory ofthe Chief of Qatar, in other words Qatari territory. The casefile contains no protest or claim by the Ruler of Bahrainagainst the territorial situation existing in the Hawar Islandsuntil 1936-1939.

16. Furthermore, the 1913 and 1914 Anglo-OttomanConventions expressed in treaty form the understanding ofGreat Britain and the Ottoman Empire that the extent of theterritorial title of the Chief of Qatar encompassed the"peninsula of Qatar" as a whole. The Chief of Qatar was togovern the whole of the said peninsula as in the past andGreat Britain said it should be understood that it will notallow the interference of the Sheikh of Bahrain in theinternal affairs of Qatar, his endangering of the autonomyof that area or his annexing it. It is difficult to express moreclearly that Bahrain did not have title to territory over thepeninsula of Qatar and, therefore, over its adjoining islandsand territorial waters. Moreover, the 1913 Anglo-OttomanConvention did not recognize any right in favour ofBahraini subjects in the Hawar Islands, as it did in the caseof Zakhnuniyah Island. The 1916 Anglo-Qatari Treatycontains nothing which could be construed as ¡i change inGreat Britain's position on the extent of the title to territoryof the Al-Thani Chief of Ruler of Qatar. Conventionalevidence therefore confirms the pre-existing territorial stateof affairs and also counters Bahrain's thesis of being theholder of an original title to the Hawar Islands.

17. The general opinion or repute reflected in thevoluminous map evidence before the Court corroboratesQatar's original title to the Hawar Islands beyond anyreasonable doubt. Qatar's conduct after the 1016 Anglo-Qatari Treaty also confirms the effective authority exercisedby the Chief of Qatar over the entire peninsula and itsadjoining islands, the Hawars and Janan included. The sameapplies to the conduct of Great Britain and Bahrain until1936-1939. There were no Bahraini State effectMtës of anykind in the Hawar Islands before the clandestine occupationof the main Hawar Island in 1937. By then, however,Qatar's original title to the Hawar Islands was a'ready fullyconsolidated and generally recognized according to thestandards applied by international courts and tribunalsrelating to disputes on the attribution of sovereignty.

18. Furthermore, beyond the conduct of the Parties andGreat Britain, international law naturally also has to beconsidered. In the case of islands, international law has ageneral rule formulated in terms of a presumption accordingto which sovereignty over the islands wholly or piartly in theterritorial sea of a given State belongs to that State unless afull case to the contrary is established by another State.This rule has recently been applied by an arbitral tribunal togroups of islands in the Red Sea (Eritrea/Yemen) case. Mostof the Hawar Islands were in the 1930s wholly or partlywithin the 3-mile territorial sea of Qatar and today all arewholly within the 12-mile territorial sea of Qatar. As apresumption juris tantum, the norm is also an element ofinterpretation of the text of certain relevant treatyundertakings, such as the 1868 Pelly Agreements, the 1913

and 1914 Anglo-Ottoman Conventions and the 1916 Treatybetween Britain and Qatar.

19. In the circumstances of the present case, thiscontributes to a more precise definition of the territorialscope of Qatar's original title, as established by historicalconsolidation and general recognition. The nonn based uponcriteria such as proximity and security was in force longbefore the 1930s and has continued to be in force since.Moreover, as a presumption which creates a right, the normis subject to the intertemporal law principle, according towhich the continued manifestation of the right concernedfollows the conditions required by the evolution of the law.Thus, authorization by international law for an extension ofthe territorial sea up to a 12-mile coastal belt extends thescope of the presumption to the islands lying off the 12-mileterritorial sea of the coastal State concerned. This was howthe 1998 Arbitral Award in the Eritrea/Yemen caseunderstood and applied the said presumption.

20. This presumption is a logical and reasonable normintended, like others, to facilitate the application in practiceof the principle of effective possession (in the form ofpresumed possession) to particular concrete situations byreference to an objective geographical criterion, whilepreserving a fully established case to the contrary thatanother State may have. In other words, and with referenceto the present case, the norm presumes that the HawarIslands and Janan Island are in the possession of Qatar,unless Bahrain is able to prove a fully established case to thecontrary. This is precisely what Bahrain failed to prove inthe current proceedings with respect to the Hawar Islandsand Janan Island.

21. The opinion ends its consideration of the originaltitle matter by concluding that Qatar is the holder of theoriginal title to the territorial questions in dispute, namelyZubarah, the Hawar Islands and Janan Island, and that,consequently, in the absence of a better or prevailingderivative title of Bahrain, Qatar has sovereignty overZubarah, the Hawar Islands and Janan Island. The findingsof the present Judgment on Zubarah and Janan Islandcoincide with the conclusions of Judge Torres Bernárdez.However, they do not coincide with respect to the HawarIslands, the finding of the majority being that Bahrain hassovereignty over the Hawar Islands. The opinion thereforewonders whether it may be said that Bahrain has a better orprevailing derivative title to the Hawar Islands, and beginsby considering the 1939 British "decision " on the HawarIslands invoked by Bahrain because such a "decision" isindeed the basis of the finding relevant of the majority.While agreeing with the Judgment that the British"decision" is not an international arbitral award with theforce of res judicata, Judge Torres Bernárdez dissents fromthe conclusion of the majority that the 1939 British"decision" is nevertheless a decision which had in 1939 andstill has binding legal effects in the relations between theParties to the present case.

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22. For Judge Torres Bernárdez the conclusion of themajority is wholly erroneous in law, difficult to explain inthe light of the evidence submitted by the'Parties and ratherflimsy in its motivating reasons. As the legal question atissue is consent to the 1938-1939 British procedure on theHawai- Islands, the opinion begins by underlining thatconsent to a given procedure is not consent which might or,should be ascertained in abstracto. It must be considered inthe specific context where the alleged consent was given. Inthis respect, Judge Torres Bernárdez notes that, indetermining the alleged legal effects of the 1939 British"decision", the corresponding reasoning in the Judgmentfails to take into account some closely related events prior to1938, particularly the 1936 British "provisional decision"and the clandestine and unlawful occupation by Bahrain in1937 of the northern part of Jazirat Hawar made under theumbrella of that "provisional decision".

23. The reasoning also fails — according to theopinion — to explain the scope of the authority or power ofthe British Government to make a "decision" on the HawarIslands with legally binding effects in international law forQatar and Bahrain on the basis of consent allegedly given tothe 1938-1939 British procedure. The Judgment likewisefails to analyse the question whether the determined consentof the Ruler of Qatar to the 1938-1939 British procedureimplied acceptance by him of the outcome of the procedureas a decision with legally binding effects in internationallaw on the questions of title or sovereignty over the HawarIslands. For Judge Torres Bernárdez all these matters wouldhave deserved full treatment in the Judgment because whatis at the stake here is the principle of consensuality which ininternational law governs consent to any kind of peacefulsettlement with binding or non-binding outcome.

24. The two main reasons why Judge Torres Bernárdezcannot accept the conclusion of the majority on the 1939British "decision" are even more fundamental. They relateto both the validity of the consent which has beendetermined of the Ruler of Qatar to the 1938-1939 Britishprocedure and the validity in international law of the actual1939 British "decision" itself. On the first question, theconsent of the Ruler of Qatar which has been determinedwas not an informed consent to a meaningful procedurefreely given. Judge Torres Bernárdez considers it proven bythe evidence before the Court that such consent was vitiatedby induced error, fraudulent conduct and coercion. The badfaith of the British Political Agent, Weightman, involved inthe negotiations with the Ruler of Qatar is quite obvious andhis promise that the decision would be given by the BritishGovernment "Hn the light of truth and justice" was notintended to be fulfilled and was not fulfilled. As to thesecond question, namely the validity of the 1939 Britishdecision itself, Judge Torres Bernárdez finds that, forreasons explained in his opinion, the "decision" is an invaliddecision in international law from the standpoint of bothformal validity and essential validity. It follows that theopinion considers it wholly unjustified, in the circumstancesof the case, that the 1939 British "decision" could be thesource of a derivative title of Bahrain to the Hawar Islands.

25. Having concluded as to the invalidity of the 1938consent by the Ruler of Qatar and of the 1939 British"decision", the opinion considers the two other derivativetitles invoked by Bahrain, namely ejfectivités and utipossidetis juris. As regards uti possidetis juris, Judge TorresBernárdez concludes that, qua norm of general internationallaw, this principle is inapplicable to the present case. As. tothe effectivités in the Hawar Islands alleged by Bahrain, theyare voluminous in quantity but sparse in useful content.Most of them are not admissible because they aresubsequent to the clandestine and unlawful occupation ofJazirat Hawar by Bahrain in 1937. Others are in clearcontradiction with the status quo accepted by the Parties inthe context of the Saudi Arabian mediation. Furthermore,the admissible effectivités do not constitute an internationaldisplay of power and authority over territory, by theexercise of jurisdiction and State functions, on a continuousand peaceful basis. The Dowasir activities are not actsperformed by Bahrain à titre de souverain. Thus, JudgeTorres Bernárdez cannot uphold the Bahraini effectivitésplea either. Moreover, in the past as today the effectivitésalleged by Bahrain relate to Jazirat Hawar island alone. NoBahraini effectivités of any kind existed or exist in the otherislands of the Hawars group.

26. It follows from the above that since Bahrain's threepleas based upon alleged derivative titles to the HawarIslands are rejected by Judge Torres Bernárdez, sovereigntyover the Hawar Islands belongs for him to the State ofQatar by virtue of its original title to those islands. Theoriginal title of Qatar over the Hawar Islands has not beendisplaced by any better derivative title of Bahrain.

27. Regarding the maritime delimitation aspect of thecase, the opinion rejects the "archipelagic State", the"historic title or rights" and the 'We facto archipelago ormultiple-island State" arguments of Bahrain. The Judgmentalso rejects the "archipelagic State" and "historic title orrights" arguments of Bahrain, but according to Judge TorresBernárdez is not immune to the "de facto archipelago ormultiple-island State" argument.

28. This explains in the view of Judge TorresBernárdez the peculiar way in which the Judgmentinterprets the relevant principles and rules of generalinternational law applicable to the maritime delimitation inthe present case. The Court's task was to draw a singlemaritime boundary between the relevant coasts of the Statesparties and this means, inter alia, that the result of thedelimitation should be "equitable" all along the course ofthe line, independently of the maritime jurisdiction dividedby the line in a given sector. In this respect, Judge TorresBernárdez considers that the majority gave excessive andunjustified weight to the fact that in part of its course theline divides territorial seas of the Parties.

29. Judge Torres Bernárdez emphasizes that theJudgment avoids defining the "area of delimitation" and

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artificially identifies the "Bahraini relevant coasts" which itdefines by reference to "basepoints" located in tiny islandsand low-tide elevations. The result is that while the relevantcoast of Qatar is a geographical and continuous coast orcoastal front (namely the relevant western coast of the Qatarpeninsula), the "Bahraini relevant coasts" is composed of aseries of "basepoints" on the said minor maritime featuresdistant from each other as well as from the Bahrainimainland coast or coastal front. It follows that the "Bahrainirelevant coasts" of the Judgment are formed ultimately bysome isolated "basepoints" on minor maritime features andby water in between*. It is certainly a peculiar andextraordinary conclusion of the majority on the definition ofthe relevant coasts in order to effect a maritime delimitation.

30. The "equidistance line"" constructed by theJudgment is therefore not a line between two coastal linesbut something else. Judge Torres Bernárdez rejects that"equidistance line" as artificial and without legaljustification. In fact la mer domine ¡a terre in the reasoningof the Judgment. The non-application by the Judgment ofthe mainland-to-mainland method means that the"equidistance line" of the Judgment is not an "equidistanceline" as normally understood in maritime delimitations. Forall practical purposes it represents the outer limit of theclaims of Bahrain and sometimes even more than that. It istrue that the "equidistance line" constructed by theJudgment is subsequently corrected in favour of Qatar insome segments of the line. Nevertheless, the "equidistanceline" of the Judgment gives an unjustified initial plus toBahrain and, in fact, Bahrain obtains at the end of thedelimitation operation more maritime spaces than throughprevious sea-bed dividing lines external to the Parties (the1947 British line and the Boggs-Kennedy line), particularlyin the central and southern sectors of the maritimedelimitation area.

31. With respect to the "special circumstances"justifying adjustment of the "equidistance line" of theJudgment, the latter does not take account of the length ofthe relevant coasts of the Parties either. Moreover, themajority considers that Qit'at Jaradah is an island(supposedly without territorial sea effects in the definitionof the single maritime boundary) and attributes sovereigntyover that particular maritime feature to Bahrain byoccupation! This finding is quite unfounded in law.However, Fasht ad Dibal falls under the sovereignty ofQatar. In effect, this low-tide elevation which lies in theterritorial sea of the State of Qatar is on the Qatari side ofthe single maritime boundary. For Judge Torres Bernárdezthe same conclusions should have been applied to the low-tide elevation of Qit'at Jaradah. Regarding the questionwhether Fasht al Azm is part of Sitrah Island as alleged byBahrain, the Judgment decides not to determine thequestion. For Judge Torres Bernárdez it is clear, in the lightof unsuspected technical evidence before the Court, thatFasht al Azm was separated from Sitrah Island by a naturalchannel used in the past by fishermen and, consequently,Fasht al Azm is a low-tide elevation and not part of SitrahIsland.

32. For Judge Torres Bernárdez the most legallyunjustified decision of the majority concerning the "specialcircumstances" relates to the Hawar Islands maritime area.The Hawar Islands should have been enclaved because theyform part of the western coast of the Qatar peninsula andare, therefore, located in the territorial sea of the State ofQatar. By applying the semi-enclave method to foreigncoastal islands in favour of Bahrain, the result cannot bemore inequitable because the western coast of Qatar isdivided into two separate parts by the Hawar Islandsthemselves and by Bahraini territorial waters. The precedentof the British Channel Islands (Iles Anglo-Normandes) casewas disregarded, although subparagraph (2) (b) of theoperative part of the Judgment recalls the right of innocentpassage of Qatari vessels in the territorial sea of Bahrainseparating the Hawar Islands from the other Bahraini islandsas accorded by customary international law.

33. In the light of the above considerations, JudgeTorres Bernárdez is of the opinion that the single maritimeboundary is not "equitable" in the Hawar Islands maritimearea and rejects it in that area. On the other hand, JudgeTorres Bernárdez finds that, as from Quita'a el Erge to itslast point in the northern sector of the delimitation area, thecourse of the single maritime boundary is acceptable,although Bu Thur and Qit'at Jaradah should have beenplaced on the Qatari side of the single maritime boundary.

34. In conclusion, the dissent of Judge TorresBernárdez relates essentially to the finding of the majorityof the Court on the Hawar Islands dispute, the legal basis ofthat finding, and the consequences it entails for the maritimedelimitation. In effect, this finding fails, according to theopinion, to acknowledge (1) the original title andcorresponding sovereignty of the State of Qatar over theHawar Islands, a title established through a process ofhistorical consolidation and general recognition; and (2) theabsence of any superior derivative title of the State ofBahrain over the Hawar Islands. To this it should be addedthat the resulting superviniens maritime "specialcircumstance" is not treated as such in the definition of thecourse of the single maritime boundary in the Hawar Islandsmaritime area.

35. The opinion considers the conclusion of themajority on the Hawar Islands dispute quite erroneous ininternational law and states, with regret, that as a result ofthat conclusion the State of Qatar — which came to theCourt in order inter alia to remedy a breach of its territorialintegrity in the Hawar Islands through the peaceful means ofjudicial settlement — did not in that respect obtain from theCourt the judicial answer which the merits of its case on theHawar Islands dispute deserved. This example makes JudgeTorres Bernárdez wonder whether judicial settlement is infact a means of redressing notorious territorial usurpationsby effecting the peaceful change that the re-establishment ofinternational law may require in a given situation. In anycase, quieta non moveré does not provide an explanation inthe present case because the Judgment non moveré in the

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Hawar Islands dispute does not apply to the definition of thesingle maritime boundary. In the maritime delimitationaspect of the case, the Judgment is movère. But, the nonmoveré like the moveré of the majority always seems to bein one direction, in a manner which, in the view of JudgeTorres Bernárdez, does not coincide with the normativerequirements of the applicable general international lawand/or the relative weight of the arguments and evidencesubmitted by the Parties. Last but not least, theconsiderations in the reasoning of the Judgment concerningthe finding on the Hawar Islands dispute are quiteinadequate. The reasoning is unable, according to theopinion, to duly justify the finding of the majority on theHawar Islands dispute.

36. How is it possible to explain a finding on the basisof a vitiated consent to a 1938-1939 British procedure andwhose outcome, the 1939 British "decision", was clearlyand obviously an invalid decision in international law, bothformally and essentially, at the time of its adoption andremains so? The resurrection in the year 2001 of an invalidcolonially minded decision linked to oil interests to resolvea territorial question in dispute between two States is morethan amazing and for Judge Torres Bernárdez a quiteunacceptable legal proposition. The Judgment's reasoningon consent is to all practical purposes exclusively focusedon Qatar. But the 1938-1939 British procedure was aprocedure with three participants. Where in the reasoning isthe analysis of consent and its conditions with respect to theother two participants? It seems it has also been forgottenthat the British representatives in the Gulf involved indealing with Qatar and Bahrain, Fowle, Weightman andothers, and the British officials in London, such as those ofthe India Office, were agents of the British Governmentacting in that capacity. Thus, their acts, to the extent thatthey are proven as vitiated, are vitiated acts of the BritishGovernment or imputable to the British Government ininternational law, namely to the very Government whichmade the 1939 "decision". Moreover, the reasoning of theJudgment does not even explicitly consider the question ofwhether the 1939 British "decision" was valid at that timefrom the standpoint of the essential validity requirements ofthe law.

37. Furthermore, intertemporal validity is quite alien tothe reasoning of the Judgment. How may it be affirmed thatthe 1939 British "decision" has legally binding effects todaybetween the Parties without analysing whether the so-called"consent" to the 1938-1939 British procedure may beconsidered a valid consent in the international law in forceat the time of the adoption of the present Judgment? Toconclude that this is so, it would have been necessary tobring into the picture such as, for example, the possibleexistence of jus cogens superviniens rules or of erga omnesimperative obligations, as well as the fundamental principlesof the Charter of the United Nations and of the presentinternational legal order.

38. It follows that Judge Torres Bernárdez is unable toaccept the conclusion that the State of Bahrain is the holderof a derivative title to the Hawar Islands on the basis of

consent to the British procedure as determined by theJudgment. The reality and validity of that consent — as wellas the permanency of its affirming legally binding effectsfor the Parties — is not adequately and convincinglyexplained in the reasoning of the Judgment. At the sametime, as he has found no other relevant derivative title ortitles of Bahrain, the original title of Qatar to the HawarIslands cannot for Judge Torres Bernárdez but prevail asbetween the Parties in the Hawar Islands dispute of thepresent case.

Separate opinion of Judge ad hoc Portier

In his separate opinion Judge Fortier makes thefollowing observations :

Preliminary issue

The only reference in the Judgment to the Qataridocuments whose authenticity was challenged by Bahrain isa narrative found in the section setting out the history of theproceedings before the Court. These documents played anessential role in Qatar's Memorial, serving as almost theonly basis for Qatar's claim to the Hawar Islands. Once theauthenticity of these documents was challenged by Bahrain,Qatar did not abandon its claim to the Hawar Islands. Itadduced a new argument which was not even developed inits original Memorial as an alternative argument. Qatar'scase cannot be considered without having in mind thedamage that would have been done to the administration ofinternational justice, indeed to the very position of thisCourt, if the challenge by Bahrain of the authenticity ofthese documents, had not led Qatar, eventually, to informthe Court that it had decided to disregard all the challengeddocuments.

Zubarah

The documents originating between 1869 and 1916 onwhich Qatar relies in support of its claim to Zubarah, andwhich the Court found dispositive, does no such thing. By1916., Bahrain had not lost its title to Zubarah on the Qatarpeninsula. The allegiance of the Nairn tribes that inhabitedthe north-west of the Qatar peninsula and who remainedloyal to Bahrain and the Al-Khalifah until 1937 confirmBahrain's title over the Zubarah region. International lawrecognizes that, in certain territories that are possessed ofexceptional circumstances such as low habitability, a rulercan establish and maintain title to his territory bymanifestation of dominion or control through tribes whogave him their allegiance and looked to him for assistance.

In 1937, the Nairn tribesmen who lived in Zubarah wereattacked by the Al-Thani and forcibly evicted from theregion. The events of July 1937 must be characterized asacts of conquest by Qatar. If the seizure of Zubarah, in1937, by an act of force were to occur today it would beunlawful and ineffective to deprive Bahrain of its title.However, forcible taking of territories in the pre-UnitedNations Charter days cannot be protested today. Theprinciple of stability is a significant factor in questions

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concerning territorial sovereignty. The Court is notcompetent to judge and declare today, more than 60 yearsafter the forcible taking, that Bahrain at all material timeshas remained sovereign over Zubarah.

Janan Island

The critical issue in relation to Janan is whether, by thenormal canons of interprétai ion, the 1939 British decision isto be understood as having, at the time, included Janan. TheCourt's sole task is to interpret the 1939 decision. The 1939British decision can only be understood as including Janan.

The Court has attached a great deal of importance to theletters sent on 23 December 1947 by the BritishGovernment to the Rulers of Qatar and Bahrain. These

letters purported only to express the policy of the UnitedKingdom and had no legal significance whatsoeverregarding ownership of Janan Island. Janan, including HaddJanan, must be considered to be part of the Hawars overwhich Bahrain has sovereignty.

Maritime delimitation

Judge Fortier has serious reservations with the Court'sreasoning in respect of certain aspects of the maritimedelimitation. He does not agree with that part of the singlemaritime boundary that runs westward between JaziratHawar and Janan. He does not, however, express hisreservations or disagreement by casting a negative vote.

134. LAGRAND CASE (GERMANY v. UNITED STATES OF AMERICA) (MERITS)


In its Judgment in the LaGrand Case (Germany v.United States of America), the Court:• found by fourteen votes to one that, by not informing

Karl and Walter LaGrand without delay following theirarrest of their rights under Article 36, paragraph 1 (b), ofthe Vienna Convention on Consular Relations, and bythereby depriving Germany of the possibility, in a timelyfashion, to render the assistance provided for by theConvention to the individuals concerned, the UnitedStates breached its obligations to Germany and to theLaGrand brothers under Article 36, paragraph 1, of theConvention;

• found by fourteen votes to one that, by not permittingthe review and reconsideration, in the light of the rightsset forth in the Convention, of the convictions andsentences of the LaGrand brothers after the violationsreferred to in paragraph (3) above had been established,the United States breached its obligation to Germanyand to the LaGrand brothers under Article 36, paragraph2, of the Convention;

• found by thirteen votes to two that, by failing to take allmeasures at its disposal to ensure that Walter LaGrandwas not executed pending the final decision of theInternational Court of Justice in the case, the UnitedStates breached the obligation incumbent upon it underthe Order indicating provisional measures issued by theCourt on 3 March 1999;

• took note unanimously of the commitment undertakenby the United States to ensure implementation of thespecific measures adopted in performance of itsobligations under Article 36, paragraph 1 (b), of theConvention; and finds that this commitment must beregarded as meeting Germany's request for a generalassurance of non-repetition;

• found by fourteen votes to one that should nationals ofGermany nonetheless be sentenced to severe penalties,without their rights under Article 36, paragraph 1 (b), ofthe Convention having been respected, the United States,by means of its own choosing, shall allow the reviewand reconsideration of the conviction and sentence bytaking account of the violation of the rights set forth inthat Convention.

The Court was composed as follows: PresidentGuillaume; Vice-Président Shi; Judges Oda, Bedjaoui,Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin,Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal; Registrar Couvreur.

President Guillaume appended a declaration to theJudgment of the Court; Vice-President Shi appends aseparate opinion to the Judgment of the Court; Judge Odaappended a dissenting opinion to the Judgment of the Court;Judges Koroma and Parra-Aranguren appended separateopinions to the Judgment of the Court; Judge Buergenthalappended a dissenting opinion to the Judgment of the Court.


"128. For these reasons,THE COURT,(1) By fourteen votes to one,Finds that it has jurisdiction, on the basis of Article T

of the Optional Protocol concerning the Compulsory

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Settlement of Disputes to the Vienna Convention onConsular Relations of 24 April 1963, to entertain theApplication filed by the Federal Republic of Germanyon 2 March 1999;

IN FAVOUR: President Guillaume; Vice-PrésidentShi; Judges Oda, Bedjaoui, Ranjeva, Herczegh,Fleischhauer, Koroma, Vereshchetin, Higgins,Kooijmans, Rezek, Al-Khasawneh, Buergenthal;

AGAINST: Judge Parra-Aranguren;(2) (a) By thirteen votes to two.Finds that the first submission of the Federal

Republic of Germany is admissible;IN FAVOUR: President Guillaume; Vice-Président

Shi; Judges Bedjaoui, Ranjeva, Herczegh, Fleischhauer,Koroma, Vereshchetin, Higgins, Kooijmans, Rezek, Al-Khasawneh, Buergenthal;

AGAINST: Judges Oda, Parra-Aranguren;(b) By fourteen votes to one,Finds that the second submission of the Federal


Shi; Judges Bedjaoui, Ranjeva, Herczegh, Fleischhauer,Koroma, Vereshchetin, Higgins, Parra-Aranguren,Kooijmans, Rezek, Al-Khasawneh, Buergenthal;

AGAINST: Judge Oda;(c) By twelve votes to three,Finds that the third submission of the Federal


Shi; Judges Bedjaoui, Ranjeva, Herczegh, Fleischhauer,Koroma, Vereshchetin, Higgins, Kooijmans, Rezek, Al-Khasawneh;

AGAINST: Judges Oda, Parra-Aranguren,Buergenthal;

(d) By fourteen votes to one,Finds that the fourth submission of the Federal


Shi; Judges Bedjaoui, Ranjeva, Herczegh, Fleischhauer,Koroma, Vereshchetin, Higgins, Parra-Aranguren,Kooijmans, Rezek, Al-Khasawneh, Buergenthal;

AGAINST: Judge Oda;(3) By fourteen votes to one,Finds that, by not informing Karl and Walter

LaGrand without delay following their arrest of theirrights under Article 36, paragraph 1 (b), of theConvention, and by thereby depriving the FederalRepublic of Germany of the possibility, in a timelyfashion, to render the assistance provided for by theConvention to the individuals concerned, the UnitedStates of America breached its obligations to the FederalRepublic of Germany and to the LaGrand brothers underArticle 36, paragraph 1 ;

IN FAVOUR: President Guillaume; Vice-PrésidentShi; Judges Bedjaoui, Ranjeva, Herczegh, Fleischhauer,

Koroma, Vereshchetin, Higgins, Parra-Aranguren,Kooijmans, Rezek, Al-Khasawneh, Buergenthal;

AGAINST: Judge Oda;(4) By fourteen votes to one,Finds that, by not permitting the review and

reconsideration, in the light of the rights set forth in theConvention, of the convictions and sentences of theLaGrand brothers after the violations referred to inparagraph (3) above had been established, the UnitedStates of America breached its obligation to the FederalRepublic of Germany and to the LaGrand brothers underArticle 36, paragraph 2, of the Convention;

IN FAVOUR: President Guillaume; Vice-presidentShi; Judges Bedjaoui, Ranjeva, Herczegh, Fleischhauer,Koroma, Vereshchetin, Higgins, Parra-Aranguren,Kooijmans, Rezek, Al-Khasawneh, Buergenthal;

AGAINST: Judge Oda;(5) By thirteen votes to two,Finds that, by failing to take all measures at its

disposal to ensure that Walter LaGrand was not executedpending the final decision of the International Court ofJustice in the case, the United States of Americabreached the obligation incumbent upon it under theOrder indicating provisional measures issued by theCourt on 3 March 1999;

IN FAVOUR: President'Guillaume; Vice-PrésidentShi; Judges Bedjaoui, Ranjeva, Herczegh, Fleischhauer,Koroma, Vereshchetin, Higgins, Kooijmans, Rezek, Al-Khasawneh, Buergenthal;

AGAINST: Judges Oda, Parra-Aranguren;(6) Unanimously,Takes note of the commitment undertaken by the

United States of America to ensure implementation ofthe specific measures adopted in performance of itsobligations under Article 36, paragraph 1 (b), of theConvention; and finds that this commitment must beregarded as meeting the Federal Republic of Germany'srequest for a general assurance of non-repetition;

(7) By fourteen votes to one,Finds that should nationals of the Federal Republic

of Germany nonetheless be sentenced to severepenalties, without their rights under Article 36,paragraph 1 (b), of the Convention having beenrespected, the United States of America, by means of itsown choosing, shall allow the review andreconsideration of the conviction and sentence by takingaccount of the violation of the rights set forth in thatConvention;

IN FAVOUR: President Guillaume; Vice-PrésidentShi; Judges Bedjaoui, Ranjeva, Herczegh, Fleischhauer,Koroma, Vereshchetin, Higgins, Parra-Aranguren,Kooijmans, Rezek, Al-Khasawneh, Buergenthal;


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(paras. 1-12)

The Court recalls that on 2 March 1999 Germany filedin the Registry of the Court an Application institutingproceedings against the United States of America for"violations of the Vienna Convention on Consular Relations[of 24 April 1963] (hereinafter referred to as the "ViennaConvention"); and that, in its Application, Gei.tnany basedthe jurisdiction of the Court on Article 36, paragraph 1, ofthe Statute of the Court and on Article I of the OptionalProtocol concerning the . Compulsory Settlement ofDisputes, which accompanies the Vienna Convention(hereinafter referred to as the "Optional Protocol"). Itfurther recalls that on the same day the German Governmentalso filed a request for the indication of provisionalmeasures, and that, by an Order of 3 March 1999, the Courtindicated certain provisional measures. After pleadings andcertain documents had been duly filed, public haarings wereheld from 13 to 17 November 2000.

At the oral proceedings, the following final submissionswere presented by the Parties:

On behalf of the Government of Germany,"The Federal Republic of Germany respectfully

requests the Court to adjudge and declare(1) that the United States, by not informing Karl and

Walter LaGrand without delay following their arrest oftheir rights under Article 36, subparagraph 1 (b), of theVienna Convention on Consular Relations, and bydepriving Germany of the possibility of renderingconsular assistance, which ultimately resulted in theexecution of Karl and Walter LaGrand, violated itsinternational legal obligations to Germany,, in its ownright and in its right of diplomatic protection of itsnationals, under Articles 5 and 36, paragraph 1, of thesaid Convention;

(2) that the United States, by applying rules of itsdomestic law, in particular the doctrine of proceduraldefault, which barred Karl and Walter LaGrand fromraising their claims under the Vienna Convention onConsular Relations, and by ultimately executing them,violated its international legal obligation :o Germanyunder Article 36, paragraph 2, of the Vienna Conventionto give full effect to the purposes for which the rightsaccorded under Article 36 of the said Convention areintended;

(3) that the United States, by failing to take allmeasures at its disposal to ensure that Waker LaGrandwas not executed pending the final decision of theInternational Court of Justice on the matter, violated itsinternational legal obligation to comply with the Orderon Provisional Measures issued by the Court on 3 March1999, and to refrain from any action which mightinterfere with the subject matter of a dispute whilejudicial proceedings are pending;and, pursuant to the foregoing internal ional legalobligations.

(4) that the United States shall provide Germany anassurance that it will not repeat its unlawful acts andthat, in any future cases of detention of or criminalproceedings against German nationals, the United Stateswill ensure in law and practice the effective exercise ofthe rights under Article 36 of the Vienna Convention onConsular Relations. In particular in cases involving thedeath penalty, this requires the United States to provideeffective review of and remedies for criminalconvictions impaired by a violation of the rights underArticle 36."On behalf of the Government of the United States,

"The United States of America respectfully requeststhe Court to adjudge and declare that:

(1) There was a breach of the United Statesobligation to Germany under Article 36, paragraph 1 (6),of the Vienna Convention on Consular Relations, in thatthe competent authorities of the United States did notpromptly give to Karl and Walter LaGrand thenotification required by that Article, and that the UnitedStates has apologized to Germany for this breach, and istaking substantial measures aimed at preventing anyrecurrence; and

(2) All other claims and submissions of the FederalRepublic of Germany are dismissed."

History of the dispute(paras. 13-34)

In its Judgment, the Court begins by outlining thehistory of the dispute. It recalls that the brothers Karl andWalter LaGrand — German nationals who had beenpermanently residing in the United States sincechildhood—were arrested in 1982 in Arizona for theirinvolvement in an attempted bank robbery, in the course ofwhich the bank manager was murdered and another bankemployee seriously injured. In 1984, an Arizona courtconvicted both of murder in the first degree and othercrimes, and sentenced them to death. The LaGrands beingGerman nationals, the Vienna Convention on ConsularRelations required the competent authorities of the UnitedStates to inform them without delay of their right tocommunicate with the consulate of Germany. The UnitedStates acknowledged that this did not occur. In fact, theconsulate was only made aware of the case in 1992 by theLaGrands themselves, who had learnt of their rights fromother sources. By that stage, the LaGrands were precludedbecause of the doctrine of "procedural default" in UnitedStates law from challenging their convictions and sentencesby claiming that their rights under the Vienna Conventionhad been violated.

Karl LaGrand was executed on 24 February 1999. On 2March 1999, the day before the scheduled date of executionof Walter LaGrand, Germany brought the case to theInternational Court of Justice. On 3 March 1999, the Courtmade an Order indicating provisional measures (a kind ofinterim injunction), stating inter alia that the United Statesshould take all measures at its disposal to ensure that Walter

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LaGrand was not executed pending a final decision of theCourt. On that same day, Walter LaGrand was executed.


The Court observes that the United States, withouthaving raised preliminary objections under Article 79 of theRules of Court, nevertheless presented certain objections tothe jurisdiction of the Court. Germany based the jurisdictionof the Court on Article I of the Optional Protocol to theVienna Convention on Consular Relations concerning theCompulsory Settlement of Disputes of 24 April 1963, whichreads as follows:

"Disputes arising out of the interpretation orapplication of the Convention shall lie within thecompulsory jurisdiction of the International Court ofJustice and may accordingly be brought before the Courtby an application made by any party to the dispute beinga Party to the present Protocol."

With regard to Germany's first submission(paras. 37-42)

The Court first examines the question of its jurisdictionwith respect to the first submission of Germany. Germanyrelies on paragraph 1 of Article 36 of the ViennaConvention, which provides:

"With a view to facilitating the exercise of consularfunctions relating to nationals of the sending State:

(a) consular officers shall be free to communicatewith nationals of the sending State and to have access tothem. Nationals of the sending State shall have the samefreedom with respect to communication with and accessto consular officers of the sending State;

(b) if he so requests, the competent authorities of thereceiving State shall, without delay, inform the consularpost of the sending State if, within its consular district, anational of that State is arrested or committed to prisonor to custody pending trial or is detained in any othermanner. Any communication addressed to the consularpost by the person arrested, in prison, custody ordetention shall be forwarded by the said authoritieswithout delay. The said authorities shall inform theperson concerned without delay of his rights under thissubparagraph;

(c) consular officers shall have the right to visit anational of the sending State who is in prison, custody ordetention, to converse and correspond with him and toarrange for his legal representation. They shall also havethe right to visit any national of the sending State who isin prison, custody or detention in their district inpursuance of a judgement. Nevertheless, consularofficers shall refrain from taking action on behalf of anational who is in prison, custody or detention if heexpressly opposes such action."Germany alleges that the failure of the United States to

inform the LaGrand brothers of their right to contact the

German authorities "prevented Germany from exercising itsrights under Art. 36 (1) {a) and (c) of the Convention" andviolated "the various rights conferred upon the sending Statevis-à-vis its nationals in prison, custody or detention asprovided for in Art. 36 (1) (b) of the Convention". Germanyfurther alleges that by breaching its obligations to inform,the United States also violated individual rights conferredon the detainees by Article 36, paragraph 1 (¿r), secondsentence, and by Article 36, paragraph 1 (b). Germanyaccordingly claims that it "was injured in the person of itstwo nationals", a claim which Germany raises "as a matterof diplomatic protection on behalf of Walter and KarlLaGrand". The United States acknowledges that violation ofArticle 36, paragraph 1 (6), has given rise to a disputebetween the two States and recognizes that the Court hasjurisdiction under the Optional Protocol to hear this disputeinsofar as it concerns Germany's own rights. ConcerningGermany's claims of violation of Article 36, paragraph 1 (a)and (c), the United States however calls these claims"particularly misplaced" on the grounds that the "underlyingconduct complained of is the same" as the claim of theviolation of Article 36, paragraph 1 (b). It contends,moreover, that "to the extent that this claim by Germany isbased on the general law of diplomatic protection, it is notwithin the Court's jurisdiction" under the Optional Protocolbecause it "does not concern the interpretation orapplication of the Vienna Convention".

The Court does not accept the United States objections.The dispute between the Parties as to whether Article 36,paragraph 1 (a) and (c), of the Vienna Convention havebeen violated in this case in consequence of the breach ofparagraph 1 (b) does relate to the interpretation andapplication of the Convention. This is also true of thedispute as to whether paragraph 1 (b) creates individualrights and whether Germany has standing to assert thoserights on behalf of its nationals. These are consequentlydisputes within the meaning of Article I of the OptionalProtocol. Moreover, the Court cannot accept the contentionof the United States that Germany's claim based on theindividual rights of the LaGrand brothers is beyond theCourt's jurisdiction because diplomatic protection is aconcept of customary international law. This fact does notprevent a State party to a treaty, which creates individualrights, from taking up the case of one of its nationals andinstituting international judicial proceedings on behalf ofthat national, on the basis of a general jurisdictional clausein such a treaty. Therefore the Court concludes that it hasjurisdiction with respect to the whole of Germany's firstsubmission.

With regard to Germany's second and third submissions(paras. 43-45)

Although the United States does not challenge theCourt's jurisdiction in regard to Germany's second and thirdsubmissions, the Court observes that the third submission ofGermany concerns issues that arise directly out of thedispule between the Parties before the Court over which theCourt has already held that it has jurisdiction, and which are

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thus covered by Article I of the Optional Protocol. TheCourt reaffirms, in this connection, what il said in itsJudgment in the Fisheries Jurisdiction casie, where itdeclared that in order to consider the dispvite in all itsaspects, it may also deal with a submission that "is onebased on facts subsequent to the filing of the Application,but arising directly out of the question which \s the subjectmatter of that Application. As such it falls within the scopeof the Court's jurisdiction ..." (Fisheries Jurisdiction(Federal Republic of Germany v. Iceland), Merits,Judgment, I.C.J. Reports 1974, p. 203, para. 72). Where theCourt has jurisdiction to decide a case, it also hasjurisdiction to deal with submissions requesting it todetermine that an order indicating measures which seeks topreserve the rights of the Parties to this dispute has not beencomplied with.

With regard to Germany's fourth submission(paras. 46-48)

The United States objects to the jurisdiction of the Courtover the fourth submission insofar as it concerns a requestfor assurances and guarantees of non-repetition. It contendsthat Germany's fourth submission "goes beyond anyremedy that the Court can or should grant, and should berejected. The Court's power to decide cases ... does notextend to the power to order a State to provide any'guarantee' intended to confer additional legal rights on theApplicant State ... The United States does not believe that itcan be the role of the Court ... to impose any obligations thatare additional to or that differ in character from those towhich the United States consented when it ratified theVienna Convention". The Court considers that a disputeregarding the appropriate remedies for the violation of theConvention alleged by Germany is a dispute that arises outof the interpretation or application of the Convention andthus is within the Court's jurisdiction. Where jurisdictionexists over a dispute on a particular matter, no separate basisfor jurisdiction is required by the Court to consider theremedies a party has requested for the breach of theobligation (Factory at Chorzów, P.C.I.J., Series A, No. 9,p. 22). Consequently, the Court has jurisdiction in thepresent case with respect to the fourth submission ofGermany.

Admissibility of Germany's submissions(paras. 49-63)

The United States objects to the admissibility ofGermany's submissions on various grounds. First, theUnited States argues that Germany's second, third andfourth submissions are inadmissible because Germany seeksto have the Court "play the role of ultimate court of appealin national criminal proceedings", a role which it is notempowered to perform. The United States maintains thatmany of Germany's arguments, in particular those regardingthe rule of "procedural default", ask the Court "to addressand correct ... asserted violations of U.S. law and errors ofjudgment by U.S. judges" in criminal proceedings innational courts.

The Court does not agree with this argument. It observesthat, in the second submission, Germany asks the Court tointerpret the scope of Article 36, paragraph 2, of the ViennaConvention; the third submission seeks a finding that theUnited States violated an Order issued by this Courtpursuant to Article 41 of its Statute; and in Germany'sfourth submission, the Court is asked to determine theapplicable remedies for the alleged violations of theConvention. Although Germany deals extensively with thepractice of American courts as it bears on the application ofthe Convention, all three submissions seek to require theCourt to do no more than apply the relevant rules ofinternational law to the issues in dispute between the Partiesto this case. The exercise of this function, expresslymandated by Article 38 of its Statute, does not convert theCourt into a court of appeal of national criminalproceedings.

The United States also argues that Germany's thirdsubmission is inadmissible because of the manner in whichthese proceedings were brought before the Court byGermany. It notes that German consular officials becameaware of the LaGrands' case in 1992, but that the issue ofthe absence of consular notification was not raised byGermany until 22 February 1999, two days before the datescheduled for Karl LaGrand's execution. Germany thenfiled the Application instituting these proceedings, togetherwith a request for provisional measures, after normalbusiness hours in the Registry in the evening of 2 March1999, some 27 hours before the execution of WalterLaGrand. Germany acknowledges that delay on the part of aclaimant State may render an application inadmissible, butmaintains that international law does not lay down anyspecific time limit in that regard. It contends that it was onlyseven days before it filed its Application that it becameaware of all the relevant facts underlying its claim, inparticular, the fact that the authorities of Arizona knew ofthe German nationality of the LaGrands since 1982.

The Court recognizes that Germany may be criticizedfor the manner in which these proceedings were filed andfor their timing. The Court recalls, however, thatnotwithstanding its awareness of the consequences ofGermany's filing at such a late date, it neverthelessconsidered it appropriate to enter the Order of 3 March1999, given that an irreparable prejudice appeared to beimminent. In view of these considerations, the Courtconsiders that Germany is now entitled to challenge thealleged failure of the United States to comply with theOrder. Accordingly, the Court finds that Germany's thirdsubmission is admissible.

The United States argues further that Germany's firstsubmission, as far as it concerns its right to exercisediplomatic protection with respect to its nationals, isinadmissible on the ground that the LaGrands did notexhaust local remedies. The United States maintains that thealleged breach concerned the duty to inform the LaGrandsof their right to consular access, and that such a breachcould have been remedied at the trial stage, provided it wasraised in a timely fashion.

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The Court notes that it is not disputed that the LaGrandssought to plead the Vienna Convention in United Statescourts after they learned in 1992 of their rights under theConvention; it is also not disputed that by that date theprocedural default rule barred the LaGrands from obtainingany remedy in respect of the violation of those rights.Counsel assigned to the LaGrands failed to raise this pointearlier in a timely fashion. However, the Court finds that theUnited States may not now rely on this fact in order topreclude the admissibility of Germany's first submission, asit was the United States itself which had failed to cany outits obligation under the Convention to inform the LaGrandbrothers.

The United States also contends that Germany'ssubmissions are inadmissible on the ground that Germanyseeks to have a standard applied to the United States that isdifferent from its own practice.

The Court considers that it does not need to decidewhether this argument of the United States, if true, wouldresult in the inadmissibility of Germany's submissions. Itfinds that the evidence adduced by the United States doesnot justify the conclusion that Germany's own practice failsto conform to the standards it demands from the UnitedStates in this litigation. The cases referred to entailedrelatively light criminal penalties and are not evidence as toGerman practice where an arrested person, who has notbeen informed without delay of his or her rights, is facing asevere penalty as in the present case. The Court considersthat the remedies for a violation of Article 36 of the ViennaConvention are not necessarily identical in all situations.While an apology may be an appropriate remedy in somecases, it may in others be insufficient. The Courtaccordingly finds that this claim of inadmissibility must berejected.

Merits of Germany's submissions(paras. 64-127)

Having determined that it has jurisdiction, and that thesubmissions of Germany are admissible, the Court thenturns to the merits of each of these four submissions.

Germany's first submission(paras. 65-78)

The Court begins by quoting Germany's first submissionand observes that the United States acknowledges, and doesnot contest Germany's basic claim, that there was a breachof its obligation under Article 36, paragraph 1 (6), of theConvention "promptly to inform the LaGrand brothers thatthey could ask that a German consular post be notified oftheir arrest and detention".

Germany also claims that the violation by the UnitedStates of Article 36, paragraph 1 (b), led to consequentialviolations of Article 36, paragraph 1 (a) and (c). It pointsout that, when the obligation to inform the arrested personwithout delay of his or her right to contact the consulate isdisregarded, "the other rights contained in Article 36,paragraph 1, become in practice irrelevant, indeed

meaningless". The United States argues that the underlyingconduct complained of by Germany is one and the same,namely, the failure to inform the LaGrand brothers asrequired by Article 36, paragraph I (b). Therefore, itdisputes any other basis for Germany's claims that otherprovisions, such as subparagraphs (a) and (c) of Article 36,paragraph 1, of the Convention, were also violated. TheUnited States asserts that Germany's claims regardingArticle 36, paragraph 1 (a) and (c), are "particularlymisplaced" in that the LaGrands were able to and didcommunicate freely with consular officials after 1992. Inresponse, Germany asserts that it is "commonplace that oneand the same conduct may result in several violations ofdistinct obligations". Germany further contends that there isa causal relationship between the breach of Article 36 andthe ultimate execution of the LaGrand brothers. It is claimedthat, had Germany been properly afforded its rights underthe Vienna Convention, it would have been able to intervenein time and present a "persuasive mitigation case" which"likely would have saved" the lives of the brothers.

Moreover, Germany argues that, due to the doctrine ofprocedural default and the high post-conviction thresholdfor proving ineffective counsel under United States law,Germany's intervention at a stage later than the trial phasecould not "remedy the extreme prejudice created by thecounsel appointed to represent the LaGrands". According tothe United States, these German arguments "rest onspeculation" and do not withstand analysis.

The Court observes that the violation of paragraph 1 (b)of Article 36 will not necessarily always result in the breachof the other provisions of this Article, but that thecircumstances of this case compel the opposite conclusion,for the reasons indicated below. Article 36, paragraph 1, theCourt notes, establishes an interrelated regime designed tofacilitate the implementation of the system of consularprotection. It begins with the basic principle governingconsular protection: the right of communication and access(Art. 36, para. 1 (a)). This clause is followed by theprovision which spells out the modalities of consularnotification (Art. 36, para. 1 (b)). Finally Article 36,paragraph 1 (c), sets out the measures consular officers maytake in rendering consular assistance to their nationals in thecustody of the receiving State. It follows that when thesending State is unaware of the detention of its nationals dueto the failure of the receiving State to provide the requisiteconsular notification without delay, which was true in thepresent case during the period between 1982 and 1992, thesending State has been prevented for all practical purposesfrom exercising its rights under Article 36, paragraph 1.

Germany further contends that "the breach of Article 36by the United States did not only infringe upon the rights ofGermany as a State party to the [Vienna] Convention butalso entailed a violation of the individual rights of theLaGrand brothers". Invoking its right of diplomaticprotection, Germany also seeks relief against the UnitedStates on this ground. The United States questions what thisadditional claim of diplomatic protection contributes to thecase and argues that there are no parallels between the

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present case and cases of diplomatic protection involvingthe espousal by a State of economic claims of its nationals.The United States contends, furthermore, that rights ofconsular notification and access under the ViennaConvention are rights of States, and not of individuals, eventhough these rights may benefit individuals by permittingStates to offer them consular assistance. It maintains that thetreatment due to individuals under the Convention isinextricably linked to and derived from the right of theState, acting through its consular officer, to communicatewith its nationals, and does not constitute a fundamentalright or a human right.

On the basis of the text of the provisions of Article 36,paragraph I, the Court concludes that Article 36, paragraph1, creates individual rights, which, by virtue of Article I ofthe Optional Protocol, may be invoked in the Court by thenational State of the detained person. These; rights wereviolated in the present case.

Germany s second submission(paras. 79-91)

The Court then quotes the second of Germany'ssubmissions.

Germany argues that, under Article 36, paragraph 2, ofthe Vienna Convention "the United States is under anobligation to ensure that its municipal 'laws andregulations ... enable full effect to be given to the purposesfor which the rights accorded under this article are intended1

[and. that it] is in breach of this obligation by upholdingrules of domestic law which make it impossible tosuccessfully raise a violation of the right to consularnotification in proceedings subsequent to a conviction of adefendant by a jury". Germany emphasizes that it is not the"procedural default" rule as such that is at issue in thepresent proceedings, but the manner in which it was appliedin that it "deprived the brothers of the possibility to raise theviolations of their right to consular notification in U.S.criminal proceedings". In the view of the United States:"[t]he Vienna Convention docs not require Slates Party tocreate a national law remedy permitting individuals to assertclaims involving the Convention in criminal proceedings";and "[i]f there is no obligation under the Convention tocreate such individual remedies in criminal proceedings, therule of procedural default — requiring that claims seekingsuch remedies be asserted at an appropriately early stage —cannot violate the Convention".

The Court quotes Article 36, paragraph 2, of the ViennaConvention which reads as follows: "The rights referred toin paragraph I of this article shall be exercised inconformity with the laws and regulations of the receivingState, subject to the proviso, however, that the said laws andregulations must enable full effect to be given to thepurposes for which the rights accorded to under this articleare intended." It finds that it cannot accept the argument ofthe United States which proceeds, in part, on the assumptionthat paragraph 2 of Article 36 applies only to the rights ofthe sending State and not also to those of the detainedindividual. The Court determines that Article 36,

paragraph I, creates individual rights for the detained personin addition to the rights accorded to the sending State, andconsequently the reference to "rights" in paragraph 2 mustbe read as applying not only to the rights of the sendingState, but also to the rights of the detained individual. TheCourt emphasizes that, in itself, the "procedural default"rule does not violate Article 36 of the Vienna Convention.The problem arises when the procedural default rule doesnot allow the detained individual to challenge a convictionand sentence by claiming, in reliance on Article 36,paragraph I, of the Convention, that the competent nationalauthorities failed to comply with their obligation to providethe requisite consular information "without delay", thuspreventing the person from seeking and obtaining consularassistance from the sending State. The Court finds thatunder the circumstances of the present case the proceduraldefault rule had the effect of preventing "full effect [frombeing] given to the purposes for which the rights accordedunder this article are intended", and thus violatedparagraph 2 of Article 36.

Germany's third submission(paras. 92-116)

The Court then quotes the third of Germany'ssubmissions, and observes that, in its Memorial, Germanycontended that "[provisional [mjeasures indicated by theInternational Court of Justice [were] binding by virtue of thelaw of the United Nations Charter and the Statute of theCourt". It observes that in support of its position, Germanydeveloped a number of arguments in which it referred to the"principle of effectiveness", to the "proceduralprerequisites" for the adoption of provisional measures, tothe binding nature of provisional measures as a "necessaryconsequence of the bindingness of the final decision", to"Article 94 (1), of the United Nations Charter", to"Article 41 (1), of the Statute of the Court" and to the"practice of the Court". The United States argues that it "didwhat was called for by the Court's 3 March Order, given theextraordinary and unprecedented circumstances in which itwas forced to act". It further states that "[t]wo centralfactors constrained the United States ability to act. The firstwas the extraordinarily short time between issuance of theCourt's Order and the time set for the execution of WalterLaGrand ... The second constraining factor was thecharacter of the United States of America as a federalrepublic of divided powers." The United States also allegesthat the "terms of the Court's 3 March Order did not createlegal obligations binding on [it]". It argues in this respectthat "[t]he language used by the Court in the key portions ofits Order is not the language used to create binding legalobligations" and that "the Court does not need here todecide the difficult and controversial legal question ofwhether its orders indicating provisional measures would becapable of creating international legal obligations if wordedin mandatory ... terms". It nevertheless maintains that thoseorders cannot have such effects and, in support of that view,develops arguments concerning "the language and history ofArticle 41 (1) of the Court's Statute and Article 94 of the

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Charter of the United Nations", the "Court's and Statepractice under these provisions", and the "weight ofpublicists' commentary". Lastly, the United States statesthat in any case, "[b]ecause of the press of time stemmingfrom Germany's last-minute filing of the case, basicprinciples fundamental to the judicial process were notobserved in connection with the Court's 3 March Order"and that "[t]hus, whatever one might conclude regarding ageneral rule for provisional measures, it would beanomalous — to say the least — for the Court to construethis Order as a source of binding legal obligations".

The Court observes that the dispute which existsbetween the Parties with regard to this point essentiallyconcerns the interpretation of Article 41, which has been thesubject of extensive controversy in the literature. It thereforeproceeds to the interpretation of that Article. It does so inaccordance with customary international law, reflected inArticle 31 of the 1969 Vienna Convention on the Law ofTreaties. According to paragraph 1 of Article 31, a treatymust be interpreted in good faith in accordance with theordinary meaning to be given to its terms in their contextand in the light of the treaty's object and purpose.

The French text of Article 41 reads as follows:" 1 . La Cour a le pouvoir d'indiquer, si elle estime

que les circonstances l'exigent, quelles mesuresconservatoires du droit de chacun doivent être prises àtitre provisoire.

2. En attendant l'arrêt définitif, l'indication de cesmesures est immédiatement notifiée aux parties et auConseil de sécurité." (Emphasis added.)The Court notes that in this text, the terms "indiquer"

and "l'indication" may be deemed to be neutral as to themandatory character of the measure concerned; by contrastthe words "doivent être prises" have an imperativecharacter.

For its part, the English version of Article 41 reads asfollows:

" 1 . The Court shall have the power to indicate, if itconsiders that circumstances so require, any provisionalmeasures which ought to be taken to preserve therespective rights of either party.

2. Pending the final decision, notice of the measuressuggested shall forthwith be given to the parties and tothe Security Council." (Emphasis added.)According to the United States, the use in the English

version of "indicate" instead of "order", of "ought" insteadof "must" or "shall", and of "suggested" instead of"ordered", is to be understood as implying that decisionsunder Article 41 lack mandatory effect. It might however beargued, having regard to the fact that in 1920 the French textwas the original version, that such terms as "indicate" and"ought" have a meaning equivalent to "order" and "must" or"shall".

Finding itself faced with two texts which are not in totalharmony, the Court first of all notes that according toArticle 92 of the Charter, the Statute "forms an integral partof the present Charter". Under Article 111 of the Charter,

the French and English texts of the latter are "equallyauthentic". The same is equally true of the Statute.

In cases of divergence between the equally authenticversions of the Statute, neither it nor the Charter indicateshow to proceed. In the absence of agreement between theparties in this respect, it is appropriate to refer to paragraph4 of Article 33 of the Vienna Convention on the Law ofTreaties, which in the view of the Court again reflectscustomary international law. This provision reads "when acomparison of the authentic texts discloses a difference ofmeaning which the application of Articles 31 and 32 doesnot remove the meaning which best reconciles the texts,having regard to the object and purpose of the treaty, shallbe adopted". The Court therefore goes on to consider theobject and purpose of the Statute together with the contextof Article 41.

The object and purpose of the Statute is to enable theCourt to fulfil the functions provided for therein, and inparticular, the basic function of judicial settlement ofinternational disputes by binding decisions in accordancewith Article 59 of the Statute. It follows from that objectand purpose, as well as from the terms of Article 41 whenread in their context, that the power to indicate provisionalmeasures entails that such measures should be binding,inasmuch as the power in question is based on the necessity,when the circumstances call for it, to safeguard, and toavoid prejudice to, the rights of the parties as determined bythe final judgment of the Court. The contention thatprovisional measures indicated under Article 41 might notbe binding would be contrary to the object and purpose ofthat Article. A related reason which points to the bindingcharacter of orders made under Article 41 and to which theCourt attaches importance, is the existence of a principlewhich has already been recognized by the Permanent Courtof International Justice when it spoke of "the principleuniversally accepted by international tribunals and likewiselaid down in many conventions ... to the effect that theparties to a case must abstain from any measure capable ofexercising a prejudicial effect in regard to the execution ofthe decision to be given, and, in general, not allow any stepof any kind to be taken which might aggravate or extend thedispute" {Electricity Company of Sofia and Bulgaria, Orderof 5 December 1939, P.C.Ij., Series A/B, No. 79, p. 199).The Court does not consider it necessary to resort to thepreparatory work of the Statute which, as it neverthelesspoints out, does not preclude the conclusion that ordersunder Article 41 have binding force.

The Court finally considers whether Article 94 of theUnited Nations Charter precludes attributing binding effectto orders indicating provisional measures. That Article readsas follows:

" 1 . Each Member of the United Nations undertakesto comply with the decision of the International Court ofJustice in any case to which it is a party.

2. If any party to a case fails to perform theobligations incumbent upon it under a judgmentrendered by the Court, the other party may have recourseto the Security Council, which may, if it deems

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necessary, make recommendations or decide uponmeasures to be taken to give effect to the judgment."The Court notes that the question arises as to the

meaning to be attributed to the words "the decision of theInternational Court of Justice" in paragraph 1 of this Article;it observes that this wording could be understood asreferring not merely to the Court's judgments but to anydecision rendered by it, thus including orders indicatingprovisional measures. It could also be interpreted to meanonly judgments rendered by the Court as provided inparagraph 2 of Article 94. In this regard, the fact that inArticles 56 to 60 of the Court's Statute, both the word"decision" and the word "judgment" are used does little toclarify the matter. Under the first interpretation of paragraph1 of Article 94, the text of the paragraph would, confirm thebinding nature of provisional measures; whereas the secondinterpretation would in no way preclude their beingaccorded binding force under Article 41 of the Statute. TheCourt accordingly concludes that Article 94 of the Charterdoes not prevent orders made under Article 41 from havinga binding character. In short, it is clear that none of thesources of interpretation referred to in the relevant Articlesof the Vienna Convention on the Law of Treaties, includingthe preparatory work, contradict the conclusions; drawn fromthe terms of Article 41 read in their context and in the lightof the object and purpose of the Statute. Thus, the Courtreaches the conclusion that orders on provisional measuresunder Article 41 have binding effect.

The Court then considers the question whether theUnited States has complied with the obligation incumbentupon it as a result of the Order of 3 March 1999.

After reviewing the steps taken by the authorities of theUnites States (the State Department, the United StatesSolicitor General, the Governor of Arizona, and the UnitedStates Supreme Court) with regard to the Order of 3 March1999, the Court concludes that the various competent UnitedStates authorities failed to take all the steps they could havetaken to give effect to the Order.

The Court observes finally that in the third submissionGermany requests the Court to adjudge and declare only thatthe United States violated its international legal obligationto comply with the Order of 3 March 1999; it contains noother request regarding that violation. Moreover, the Courtpoints out that the United States was under great timepressure in this case, due to the circumstances in whichGermany had instituted the proceedings. The Court notesmoreover that at the time when the United States authoritiestook their decision the question of the binding character oforders indicating provisional measures had been extensivelydiscussed in the literature, but had not been settled by itsjurisprudence. The Court would have taken these factorsinto consideration had Germany's submission included aclaim for indemnification.

Germany's fourth submission(paras. 117-127)

Finally, the Court considers the fourth o:~ Germany'ssubmissions and observes that Germany points out that its

fourth submission has been so worded "as to ... leave thechoice of means by which to implement the remedy [itseeks] to the United States".

In reply, the United States argues as follows:"Germany's fourth submission is clearly of a whollydifferent nature than its first three submissions. Each of thefirst three submissions seeks a judgment and declaration bythe Court that a violation of a stated international legalobligation has occurred. Such judgments are at the core ofthe Court's function, as an aspect of reparation. In contrast,however, to the character of the relief sought in the firstthree submissions, the requirement of assurances of non-repetition sought in the fourth submission has no precedentin the jurisprudence of this Court and would exceed theCourt's jurisdiction and authority in this case. It isexceptional even as a non-legal undertaking in Statepractice, and it would be entirely inappropriate for the Courtto require such assurances with respect to the duty to informundertaken in the Consular Convention in the circumstancesof this case." It points out that "U.S. authorities are workingenergetically to strengthen the regime of consularnotification at the state and local level throughout the UnitedStates, in order to reduce the chances of cases such as thisrecurring". The United States further observes that: "[e]venif this Court were to agree that, as a result of the applicationof procedural default with respect to the claims of theLaGrands, the United States committed a secondinternationally wrongful act, it should limit that judgment tothe application of that law in the particular case of theLaGrands. It should resist the invitation to require anabsolute assurance as to the application of US domestic lawin all such future cases. The imposition of such an additionalobligation on the United States would ... be unprecedentedin international jurisprudence and would exceed the Court'sauthority and jurisdiction."

The Court observes that in its fourth submissionGermany seeks several assurances. First it seeks astraightforward assurance that the United States will notrepeat its unlawful acts. This request does not specify themeans by which non-repetition is to be assured.Additionally, Germany seeks from the United States that "inany future cases of detention of or criminal proceedingsagainst German nationals, the United States will ensure inlaw and practice the effective exercise of the rights underArticle 36 of the Vienna Convention on ConsularRelations". The Court notes that this request goes further,for, by referring to the law of the United States, it appears torequire specific measures as a means of preventingrecurrence. Germany finally requests that "[i]n particular incases involving the death penalty, this requires the UnitedStates to provide effective review of and remedies forcriminal convictions impaired by a violation of the rightsunder Article 36". The Court observes that this request goeseven further, since it is directed entirely towards securingspecific measures in cases involving the death penalty.

In relation to the general demand for an assurance ofnon-repetition, the Court observes that it has been informedby the United States of the "substantial measures [which it

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is taking] aimed at preventing any recurrence" of the breachof Article 36, paragraph 1 (b).

The Court notes that the United States hasacknowledged that, in the case of the LaGrand brothers, itdid not comply with its obligations to give consularnotification. The United States has presented an apology toGermany for this breach. The Court considers however thatan apology is not sufficient in this case, as it would not be inother cases where foreign nationals have not been advisedwithout delay of their rights under Article 36, paragraph 1,of the Vienna Convention and have been subjected toprolonged detention or sentenced to severe penalties. In thisrespect, the Court has taken note of the fact that the UnitedStates repeated in all phases of these proceedings that it iscarrying out a vast and detailed programme in order toensure compliance by its competent authorities at the federalas well as at the state and local levels with its obligationunder Article 36 of the Vienna Convention. The UnitedStates has provided the Court with information, which itconsiders important, on its programme. If a State, inproceedings before this Court, repeatedly refers as did theUnited States to substantial activities which it is carryingout in order to achieve compliance with certain obligationsunder a treaty, then this expresses a commitment to followthrough with the efforts in this regard. The programme inquestion certainly cannot provide an assurance that therewill never again be a failure by the United States to observethe obligation of notification under Article 36 of the ViennaConvention. But no State could give such a guarantee andGermany does not seek it. The Court considers that thecommitment expressed by the United States to ensureimplementation of the specific measures adopted inperformance of its obligations under Article 36, paragraph1 (b), must be regarded as meeting Germany's request for ageneral assurance of non-repetition.

The Court then examines the other assurances sought byGermany in its fourth submission. The Court observes inthis regard that it can determine the existence of a violationof an international obligation. If necessary, it can also holdthat a domestic law has been the cause of this violation. Inthe present case the Court has made its findings ofviolations of the obligations under Article 36 of the ViennaConvention when it dealt with the first and the secondsubmission of Germany. But it has not found that a UnitedStates law, whether substantive or procedural in character, isinherently inconsistent with the obligations undertaken bythe United States in the Vienna Convention. In the presentcase the violation of Article 36, paragraph 2, was caused bythe circumstances in which the procedural default rule wasapplied, and not by the rule as such. However, the Courtconsiders in this respect that if the United States,notwithstanding its commitment referred to above, shouldfail in its obligation of consular notification to the detrimentof German nationals, an apology would not suffice in caseswhere the individuals concerned have been subjected toprolonged detention or convicted and sentenced to severepenalties. In the case of such a conviction and sentence, itwould be incumbent upon the United States to allow thereview and reconsideration of the conviction and sentence

by taking account of the violation of the rights set forth inthe Convention. This obligation can be carried out invarious ways. The choice of means must be left to theUnited States.

Declaration of President Guillaume

In a short declaration, the President recalls thatsubparagraph (7) of the operative part of the Judgmentresponds to certain submissions by Germany and hencerules only on the obligations of the United States in cases ofsevere penalties imposed upon German nationals. Thus,subparagraph (7) does not address the position of nationalsof other countries or that of individuals sentenced topenalties that are not of a severe nature. However, in orderto avoid any ambiguity, it should be made clear that therecan be no question of applying an a contrario interpretationto this paragraph.

Separate opinion of Vice-President Shi

Vice-President Shi states that he voted with reluctance infavour of paragraphs (3) and (4) of the operative part of theJudgment (dealing with the merits of Germany's first andsecond submissions respectively), as he believes that theCourt's findings in these two paragraphs were based on adebatable interpretation of Article 36 of the ViennaConvention. While he agrees with the Court that the UnitedStates violated its obligations to Germany under Article 36,paragraph 1, of the Convention, he has doubts as to theCourt's finding in these paragraphs that the United Statesalso violated its obligations to the LaGrand brothers.

The Court's conclusion that Article 36, paragraph 1 (b),of the Vienna Convention creates individual rights relies onthe rale that if the relevant words in their natural andordinary meaning make sense in their context, that is the endof the matter and there is no need to resort to other methodsof interpretation. However, the Court has previously statedthat this rule is not an absolute one, and that where such amethod of interpretation results in a meaning incompatiblewith the spirit, purpose and context of the clause orinstrument in which the words are contained, no reliancecan be validly placed on it. One author has also stated that"It is not clarity in the abstract which is to be ascertained,but clarity in relation to particular circumstances and thereare few treaty provisions for which circumstances cannot beenvisaged in which their clarity could be put in question".

The Vice-President questions whether it is proper for theCourt to place so much emphasis on the purported clarity oflanguage of Article 36, paragraph 1 (b). He considers theeffect of wording in the title to the Vienna Convention, andin the Preamble, the chapeau to Article 36, and Article 5.He then refers in some detail to the travaux préparatoiresrelating to Article 36 of the Convention, and finds that it isnot possible to conclude from the negotiating history thatArticle 36, paragraph 1 (b), was intended by the negotiatorsto create individual rights. He considers that if one keeps inmind that the general tone and thrust of the debate of theentire Conference concentrated on the consular functions

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and their practicability, the better view would be that nocreation of any individual rights independent of rights ofStates was envisaged by the Conference.

The Vice-President adds that the final operativeparagraph of the Judgment is of particular significance in acase where a sentence of death is imposed, which is apunishment of a severe and irreversible nature. He statesthat every possible measure should therefore be taken toprevent injustice or an error in conviction or sentencing, andthat out of this consideration, he voted in favour of thisparagraph.


Judge Oda voted against all but two of thesubparagraphs of the operative part of the Couri 's Judgmentin this case, as he objects to the case as a whole. He thinksthat the Court is making an ultimate error on top of anaccumulation of earlier errors: first by Germany, asApplicant; second by the United States, as Respondent; andthird by the Court itself.

Judge Oda states that Germany, in its Applicationinstituting proceedings, based its claims on allegedviolations by the United States of the Vienna Convention onConsular Relations. In his opinion, that approach is differentfrom the one later adopted by Germany, based on claims ofa dispute between it and the United States arising out of theinterpretation or application of the said Convention, overwhich claims the Court would have jurisdiction under theOptional Protocol accompanying the Convention. He thinksthat this is, in fact, a case of unilateral application made inreliance upon subsequent consent to the Court's jurisdictionby the respondent State.

Judge Oda submits that at no time in the almost twodecades between the arrest and conviction of the LaGrandbrothers and the submission of an Application 1:0 this Courtdid Germany or the United States consider there to be adispute in existence between them concerning theinterpretation or application of the Vienna Convention.Judge Oda finds it surprising that, after such a lengthyperiod of time, Germany would file its Applicationunilaterally, as it did. As a consequence, it was only afterGermany instituted the proceedings that the United Stateslearned that a dispute existed between the two countries.Judge Oda expresses the fear that the Court's acceptance ofthe Application in this case will in future lead States thathave accepted the compulsory jurisdiction of the Court,either under the Court's Statute or the optional protocolsattached to multilateral treaties, to withdraw theiracceptance.

Judge Oda further states that the United States erred byfailing to respond appropriately to Germany's Application.In his view the United States prior to the submission of itsCounter-Memorial should have lodged objections to theCourt's jurisdiction in the present case on grounds akin tothose expressed above.

Judge Oda also notes that the Court erred ir. acceding toGermany's request for provisional measures, submitted on 2

March 1999 together with the Application institutingproceedings. Notwithstanding the delicate position theCourt was in (as Walter LaGrand's execution in the UnitedStates was imminent), the Court should have adhered to theprinciple that provisional measures are ordered to preserverights of States, and not individuals, exposed to an imminentbreach which is irreparable. The Court thus erred in grantingthe Order indicating provisional measures.

Having identified the accumulated errors and theirimpact on the present case, Judge Oda then mentions fiveissues that inform his view of the case and notes the errorsin the Court's Judgment. First, he observes that the UnitedStates has already admitted its violation of the ViennaConvention's requirement of prompt consular notification.Second, he sees no link between this admitted violation ofthe Convention and the imposition of the death penalty inthe case of the LaGrands. Third, he considers that the non-compliance, if any, with the Order of 3 March 1999 bears norelation to the alleged violation of the Convention. Fourth,he notes that individuals of the sending and receiving Statesshould be accorded equal rights and equal treatment underthe Convention. Finally, he believes that the Court hasconfused the right, if any, accorded under the Convention toarrested foreign nationals with the rights of foreign nationalsto protection under general international law or othertreaties or conventions, and, possibly, even with humanrights.

Judge Oda notes his objection to five of the sevensubparagraphs of the operative part of the Judgment. First,Judge Oda states that he voted in favour of the Court'sdetermination that it has jurisdiction to entertain Germany'sApplication, only because the United States did not raisepreliminary objections to the Application. He emphasizes,however, that the Court's jurisdiction does not extend toGermany's submissions subsequent to the filing of itsApplication.

With regard to the second subparagraph, Judge Odareiterates his view that, while the Court might entertainGermany's Application, the question of admissibility ofeach submission presented subsequently to the Applicationshould not have been raised, even though the United Statesdid not raise preliminary objections in connection withadmissibility.

Third, Judge Oda disagrees with the Court's finding thatcertain sections of Article 36 of the Vienna Conventionconfer rights on individuals as well as States. In this context,he points the reader to the separate opinion of Vice-President Shi, with whose views he fully agrees.

Fourth, Judge Oda asserts that the Vienna Conventiondoes not afford greater protection or broader rights tonationals of the sending State than to those of the receivingState and, accordingly, he disagrees with the Court'sholding that the exercise of the procedural default rule byAmerican courts was implicated in any violation of theVienna Convention.

Fifth, Judge Oda expresses the view that the Courtshould not need to voice an opinion as to whether ordersindicating provisional measures are binding, as the issue is

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far removed from the violation of the Vienna Convention,the main issue of the present case. He further disagrees withthe Court's finding that such orders do have binding effectand also that the United States did not comply with theCourt's Order of 3 March 1999.

Sixth, while Judge Oda believes the Court should saynothing in its Judgment pertaining to assurances andguarantees of non-repetition of violations of the ViennaConvention, he explains that he voted in favour of thissubparagraph as it "cannot cause any harm".

Finally, Judge Oda notes his total disagreement with thefinal subparagraph of the operative part of the Judgment,which goes far beyond the question of the alleged violationof the Vienna Convention by the United States.


1. In his separate opinion, Judge Koroma stated thatalthough he supported the findings of the Judgment, he hasmisgivings with regard to certain issues, particularly sincethey also form part of the dispositif.

2. With respect to the procedural default rule, which,according to Germany, by its Application violated theinternational legal obligation to Germany borne by theUnited States, Judge Koroma finds it inconsistent anduntenable for the Court to hold that "it has not found that aUnited States law, whether substantive or procedural incharacter, is inherently inconsistent with the obligationsundertaken by the United States in the Vienna Convention",but that "[I]n the present case the violation of Article 36,paragraph 2, was caused by the circumstances in which theprocedural default rule was applied, and not by the rule assuch".

3. In Judge Koroma's view, the rights referred to inArticle 36, paragraph 1, of the Convention are the duties ofthe receiving State to inform promptly the relevant consularpost of a detention or arrest, the duty to forwardcommunication by a detained foreign national promptly, andthe duty of prompt consular assistance for a detained person.In his view, none of these rights were violated by theprocedural default rule or by its application. It thereforeseems odd to hold that a violation of Article 36, paragraph2, was caused by the application of the rule and not by therule as such.

4. In his view, the real issue which the Court shouldhave determined was not whether the procedural default rulewas the cause of the breach of the obligations, but ratherwhether the obligations owed to Germany were breached asa result of the non-performance of the relevant obligationsunder the Convention, irrespective of a law, which, in anycase, the Court had found not to be inconsistent with theobligations.

5. This position notwithstanding, he emphasized that hestrongly subscribes to the notion that everyone is entitled tobenefit from judicial guarantees, including the right toappeal a conviction and sentence.

6. On the issue of the binding nature of provisionalmeasures, Judge Koroma reasoned that the finding of theCourt on this should have been mainly limited to the Ordermade on 3 March 1999 as that was the issue in dispute. Forhim, the binding nature of such Orders in general cannot bein doubt, given their purpose and object to protect andpreserve the rights and interests of the parties in a disputebefore the Court, pending the Court's final decision. In otherwords, an order does not prejudge the issue raised in therequest. Nor, in his view, should the Court's jurisprudenceon this issue be considered in doubt. As far as he isconcerned, there should not be any linguistic ambiguity inthe provision, nor any fundamental misunderstanding as toits purpose and meaning. Doubts should therefore not becast on the legal value of previous orders, albeit unwittingly.

7. Finally, Judge Koroma pointed out that with respectto operative paragraph 128 (7) of the Judgment, everyone,irrespective of nationality, is entitled to the benefit offundamental judicial guarantees including the right to appealagainst or obtain review of a conviction and sentence.


Judge Parra-Aranguren voted against paragraph 128 (1),(2) (a) of the Judgment because there is no dispute betweenthe Parties as to the breach by the United States of Article36, paragraph 1 (b), of the Vienna Convention on ConsularRelations. Since the existence of a dispute is an "essentiallypreliminary" question, in his opinion the Court does nothave jurisdiction on this point under Article I of theOptional Protocol of the said Vienna Convention.Furthermore Judge Parra-Aranguren considers that the claimmade by Germany in its third submission does not arise outof the interpretation of the Vienna Convention but of Article41 of the Statute of the Court. For this reason he concludesthat the Court does not have jurisdiction to decide thismatter on the basis of the Optional Protocol. ConsequentlyJudge Parra-Aranguren voted against paragraph 128 (1), (2)(a), (2) (c) and (5) of the Judgment.

Dissenting opinion of Judge Buergenthal

Judge Buergenthal dissents with regard to theadmissibility of Germany's third submission relating to theOrder of 3 March 1999. He considers that the Court shouldhave ruled that submission inadmissible.

In Judge Buergenthal's view, Germany's justification forits last-minute request seeking provisional measures, whichprompted the Court to issue the 3 March Order without

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giving the United States an opportunity to be heard, wasbased on factual allegations by Germany that do notwithstand scrutiny in light of the information now before theCourt.

Although the Court had no way of knowing this to be soat the time it issued the Order, this information justifiesholding the third submission to be inadmissible. Such adecision would ensure that Germany not benefit from a

litigation strategy amounting to procedural misconducthighly prejudicial to the rights of the United States as aparty to this case. Germany's strategy deprived the UnitedStates of procedural fairness and is incompatible with thesound administration of justice. See case concerningLegality of Use of Force {Yugoslavia v. Belgium)Provisional Measures, Order of 2 June 1999,1.C.J. Reports1999, para. 44.

135. SOVEREIGNTY OVER PULAU LIGITAN AND PULAU SIPADAN (INDONESIA v.MALAYSIA) (Permission to intervene by the Philippines)

Judgment of 23 October 2001

In its Judgment on the Application of the Philippines forpermission to intervene in the case concerning Sovereigntyover Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia),the Court found that the Application of the Republic of thePhilippines, filed in the Registry of the Court on 13 March2001, for permission to intervene in the proceedings underArticle 62 of the Statute of the Court, could not be granted.

The Court was composed as follows: Presideni Guillaume;Vice-President Shi; Judges Oda, Ranjeva, Fleischhauer,Koroma, Vereshchetin, Higgins, Parra-Aranguren,Kooijmans, Rezek, Al-Khasawneh, Buergenthal; Judges adhoc Weeramantry, Franck; Registrar Couvreur.

Judge Oda appended a dissenting opinion to theJudgment of the Court; Judge Koroma appended a separateopinion to the Judgment of the Court; Judges Parra-Aranguren and Kooijmans appended declarations to theJudgment of the Court; Judges ad hoc Weeramantry andFranck appended separate opinions to the Judgment of theCourt.


"95. For these reasons,THE COURT,(1) By fourteen votes to one,Finds that the Application of the Republic of the

Philippines, filed in the Registry of the Court on 13March 2001, for permission to intervene in theproceedings under Article 62 of the Statute c i the Court,cannot be granted.

IN FAVOUR: President Guillaume; Vice-PrésidentShi; Judges Ranjeva, Fleischhauer, Koroma,Vereshchetin, Higgins, Parra-Aranguren, Kooijmans,

Rezek, Al-Khasawneh, Buergenthal; Judges ad hocWeeramantry, Franck;


** *

History of the proceedings(paras. 1-17)

The Court recalls that by joint letter dated 30 September1998, Indonesia and Malaysia filed at the Registry of theCourt a Special Agreement between the two States, whichwas signed in Kuala Lumpur on 31 May 1997 and enteredinto force on 14 May 1998. In accordance with theaforementioned Special Agreement, the Parties request theCourt to "determine on the basis of the treaties, agreementsand any other evidence furnished by the Parties, whethersovereignty over Pulau Ligitan and Pulau Sipadan belongsto the Republic of Indonesia or to Malaysia".

The Parties agreed that the written pleadings shouldconsist of a Memorial, a Counter-Memorial and a Reply, tobe submitted by each of the Parties simultaneously withincertain fixed time limits as well as of "a Rejoinder, if theParties so agree or if the Court decides ex officio or at therequest of one of the Parties that this part of the proceedingsis necessary and the Court authorizes or prescribes thepresentation of a Rejoinder".

The Memorials, Counter-Memorials and Replies werefiled within the prescribed time limit. In view of the fact thatthe Special Agreement provided for the possible filing of afourth pleading by each of the Parties, the latter informedthe Court by joint letter of 28 March 2001 that they did notwish to produce any further pleadings. Nor did the Courtitself ask for such pleadings.

By letter of 22 February 2001, the Philippines, invokingArticle 53, paragraph 1, of the Rules of Court, asked theCourt to furnish it with copies of the pleadings anddocuments annexed which had been filed by the Parties.Pursuant to that provision, the Court, having ascertained the

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views of the Parties, decided that it was not appropriate, inthe circumstances, to grant the Philippine request.

On 13 March 2001, the Philippines filed an Applicationfor permission to intervene in the case, invoking Article 62of the Statute of the Court. According to the Application,the Philippine interest of a legal nature which may beaffected by a decision in the present case "is solely andexclusively addressed to the treaties, agreements and otherevidence furnished by Parties and appreciated by the Courtwhich have a direct or indirect bearing on the matter of thelegal status of North Borneo". The Philippines alsoindicated that the object of the intervention requested was:

"(a) First, to preserve and safeguard the historicaland legal rights of the Government of the Republic ofthe Philippines arising from its claim to dominion andsovereignty over the territory of North Borneo, to theextent that these rights are affected, or may be affected,by a determination of the Court of the question ofsovereignty over Pulau Ligitan and Pulau Sipadan.

(b) Second, to intervene in the proceedings in orderto inform the Honourable Court of the nature and extentof the historical and legal rights of the Republic of thePhilippines which may be affected by the Court'sdecision.

(c) Third, to appreciate more fully the indispensablerole of the Honourable Court in comprehensive conflictprevention and not merely for the resolution of legaldisputes."The Philippines further stated in its Application that it

did not seek to become a party to the dispute before theCourt concerning sovereignty over Pulau Ligitan and PulauSipadan, and that the Application "is based solely on Article62 of the Statute, which does not require a separate title ofjurisdiction as a requirement for this Application toprosper".

As both Indonesia and Malaysia, in their writtenobservations, objected to the Application for permission tointervene submitted by the Philippines, the Court, in June2001, held public sittings pursuant to Article 84, paragraph2, of the Rules of Court to hear the views of the Philippines,the State seeking to intervene, and those of the Parties in thecase.

At the oral proceedings, it was stated by way ofconclusion that:

On behalf of the Government of the Philippines,at the hearing of 28 June 2001:

"The Government of the Republic of the Philippinesseeks the remedies provided for in Article 85 of theRules of Court, namely,• paragraph 1 : 'the intervening State shall be supplied

with copies of the pleadings and documents annexedand shall be entitled to submit a written statementwithin a time limit to be fixed by the Court'; and

• paragraph 3: 'the intervening State shall be entitled,in the course of the oral proceedings, to submit itsobservations with respect to the subject matter of theintervention'."

On behalf of the Government of Indonesia,at the hearing of 29 June 2001 :

"The Republic of Indonesia respectfully submits thatthe Republic of the Philippines should not be granted theright to intervene in the case concerning Sovereigntyover Pulau Ligitan and Pulan Sipadan (Indonesia/Malaysia)."On behalf of the Government of Malaysia,at the hearing of 29 June 2001: "[Malaysia requests] that

the Court should reject the Philippines Application."

Timeliness of the Application for permission tointervene

(paras. 18-26)

The Court first addresses the argument of both Indonesiaand Malaysia that the Philippine Application should not begranted because of its "untimely nature".

The Court refers to Article 81, paragraph 1, of the Rulesof Court, which stipulates that:

"[a]n application for permission to intervene under theterms of Article 62 of the Statute ... shall be filed as soonas possible, and not later than the closure of the writtenproceedings. In exceptional circumstances, anapplication submitted at a later stage may however beadmitted."

The Court indicates that the Philippines had been awarethat the Court had been seized of the dispute betweenIndonesia and Malaysia for more than two years before itfiled its Application to intervene in the proceedings underArticle 62 of the Statute. By the time of the filing of theApplication, 13 March 2001, the Parties had alreadycompleted three rounds of written pleadings as provided foras mandatory in the Special Agreement — Memorials,Counter-Memorials and Replies — , their time limits beinga matter of public knowledge. Moreover, the Agent for thePhilippines stated during the hearings that his Government"was conscious of the fact that after 2 March 2001,Indonesia and Malaysia might no longer consider the needto submit a final round of pleadings as contemplated in theirSpecial Agreement". Given these circumstances, the timechosen for the filing of the Application by the Philippinescan hardly be seen as meeting the requirement that it befiled "as soon as possible" as contemplated in Article 81,paragraph 1, of the Rules of Court.

The Court notes, however, that despite the filing of theApplication at a late stage in the proceedings, which doesnot accord with the stipulation of a general charactercontained in Article 81, paragraph 1, of the Rules, thePhilippines cannot be held to be in violation of therequirement of the same Article, which establishes a specificdeadline for an application for permission to intervene,namely "not later than the closure of the writtenproceedings". The Court recalls that the Special Agreementprovided for the possibility of one more round of writtenpleadings — the exchange of Rejoinders — "if the Partiesso agree or if the Court decides so ex officio or at therequest of one of the Parties". It was only on 28 March 2001

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that the Parties notified the Court by joint letter "that [their]Governments ... ha[d] agreed that it is not necessary toexchange Rejoinders". Thus, although the third round ofwritten pleadings terminated on 2 March 2001, neither theCourt nor third States could know on the date of the filing ofthe Philippine Application whether the written proceedingshad indeed come to an end. In any case, the Court could nothave "closed" them before it had been notified of the viewsof the Parties concerning a fourth round of pleadings,contemplated by Article 3, paragraph 2 (d), of the SpecialAgreement. Even after 28 March 2001, in conformity withthe same provision of the Special Agreement, the Courtitself could ex officio authorize or prescribe the presentationof a Rejoinder, which the Court did not do. The Courttherefore concludes that it cannot uphold the objectionraised by Indonesia and Malaysia based on the allegeduntimely filing of the Philippine Application.

Failure to annex documentary or other evidence insupport of the Application

(paras. 27-30)

The Court notes further that Article 81, paragraph 3, ofthe Rules of Court provides that an application forpermission to intervene "shall contain a list of documents insupport, which documents shall be attached". After referringto the observations of Indonesia and the Philippines on thispoint, the Court confines itself to observing that there is norequirement that the State seeking to intervene necessarilyattach any documents to its application in support of itsclaims. It is only where such documents have in fact beenattached to the said application that a list thereof must beincluded. It follows that the Philippine Application forpermission to intervene cannot be rejected on the basis ofArticle 81, paragraph 3, of the Rules of Court.

The Court therefore concludes that the PhilippineApplication was not filed out of time and contains no formaldefect which would prevent it from being granted.

Alleged absence of a jurisdictional link(paras. 31-36)

The Court recalls that, under the terms of Article 62 ofthe Statute:

"1. Should a State consider that it has an interest of alegal nature which may be affected by the decision in thecase, it may submit a request to the Court to bepermitted to intervene.

2. It shall be for the Court to decide upon thisrequest."As a Chamber of the Court has already had occasion to

observe:"Intervention under Article 62 of the Statute is for thepurpose of protecting a State's 'interest of a legal nature'that might be affected by a decision in an existing casealready established between other States, namely theparties to the case. It is not intended to enable a thirdState to tack on a new case ... An incidental proceedingcannot be one which transforms [a] case into a different

case with different parties." (Land, Island and MaritimeFrontier Dispute (El Salvador/Honduras), Applicationto Intervene, Judgment, I.C.J. Reports 1990, pp. 133-134, paras. 97-98)Moreover, as that same Chamber pointed out, and as the

Court itself has recalled:"It ... follows ... from the juridical nature and from thepurposes of intervention that the existence of a valid linkof jurisdiction between the would-be intervener and theparties is not a requirement for the success of theapplication. On the contrary, the procedure ofintervention is to ensure that a State with possiblyaffected interests may be permitted to intervene eventhough there is no jurisdictional link and it thereforecannot become a party." (Ibid., p. 135, para. 100; Landand Maritime Boundary between Cameroon and Nigeria(Cameroon v. Nigeria), Application to Intervetie. Orderof 21 October 1999,1.C.J. Reports 1999, pp. 1034-1035,para. 15)Thus, such a jurisdictional link between the intervening

State and the parties to the case is required only if the Stateseeking to intervene is desirous of "itself becoming a partyto the case". The Court finds that that is not the situationhere. The Philippines is seeking to intervene in the case as anon-party.

Existence of an "interest of a legal nature"(paras. 37-83)

In relation to the existence of an "interest of a legalnature" justifying the intervention, the Court refers to thePhilippines contention that:

"Under Article 2 of the Special Agreement betweenIndonesia and the Government of Malaysia, the Courthas been requested to determine the issue of sovereigntyover Pulau Ligitan and Pulau Sipadan 'on the basis oftreaties, agreements and any other evidence' to befurnished by the Parties. The interest of the Republic ofthe Philippines is solely and exclusively addressed to thetreaties, agreements and other evidence furnished byParties and appreciated by the Court which have a director indirect bearing on the matter of the legal status ofNorth Borneo. The legal status of North Borneo is amatter that the Government of the Republic of thePhilippines considers as its legitimate concern."The Court also recalls that the Philippines refers to the

fact that access to the pleadings and to the annexeddocuments filed by the Parties was denied to it by the Court.It contends that it therefore could not "say with anycertainty whether and which treaties, agreements and factsare in issue". The Philippines asserts that as long as it doesnot have access to the documents filed by the Parties anddoes not know their content, it will not be able to explainreally what its interest is.

The Philippines emphasizes that "Article 62 does not saythat the intervening State must have a 'legal interest' or'lawful interest' or 'substantial interest'", and that the"threshold for the invocation of Article 62 is, as a result, a

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subjective standard: the State requesting permission tointervene must 'consider' that it has an interest". ThePhilippines asserts that "[t]he criteria are not to prove a legalor lawful interest, but to 'identify the interest of a legalnature' and 'to show in what way [it] may be affected'".The Philippines further indicates that the statements madeby Indonesia and Malaysia during the public hearing"provide evidence that the Court will be presented withmany of the treaties and agreements upon which thePhilippines claim is based and will be pressed to adoptinterpretations that will certainly affect the Philippineinterest". It submits that, on the basis of that part of therecord to which it has been allowed access, "the probabilityof consequences for the interests of the Philippines meetsthe 'may' requirements of Article 62 and justifies Philippineintervention".

The Philippines points out that it "has a direct legalinterest in the interpretation of the 1930 United States-United Kingdom boundary, being the successor-in-interestof one party to that agreement, the United States", that "the1930 Agreement cannot be construed in any way as aninstrument of cession", and that "Britain could not haveacquired sovereignty over Pulau Sipadan and Pulau Ligitanby virtue of the interpretation placed by Malaysia on the1930 United States-United Kingdom Agreement"; it followsfrom this that "the two islands in question were acquired bythe United Kingdom in 1930 for and on behalf of the Sultanof Sulu". The Philippines further states that "the territoryceded by the Sultan to the Philippines in 1962 covered onlythose territories which were included and described in the1878 Sulu-Overbeck lease agreement", and that its"Application for permission to intervene is based solely onthe rights of the Government of the Republic of thePhilippines transferred by and acquired from the SuluSultanate".

The Philippines concludes that:"Any claim or title to territory in or islands near NorthBorneo that assumes or posits or purports to rest acritical link on the legitimate sovereign title of GreatBritain from 1878 up to the present is unfounded.Similarly, the interpretation of any treaty, agreement ordocument concerning the legal status of North Borneo aswell as islands off the coast of North Borneo whichwould presume or take for granted the existence ofBritish sovereignty and dominion over these territorieshas no basis at all in history as well as in law and, ifupheld by the Court, it would adversely affect an interestof a legal nature on the part of the Republic of thePhilippines."For its part, Indonesia denies that the Philippines has an

"interest of a legal nature". It states that "the subject matterof the dispute currently pending before the Court is limitedto the question whether sovereignty over the islands ofLigitan and Sipadan belongs to Indonesia or Malaysia". Itrecalls that on 5 April 2001, the Philippines sent adiplomatic Note to Indonesia in which, referring to theongoing case between Indonesia and Malaysia, it wished toreassure the Government of Indonesia that the Philippines

does not have "any territorial interest on Sipadan andLigitan islands". Indonesia contends that "It is evident fromthis [note] that the Philippines raises no claim with respectto Pulau Ligitan and Pulau Sipadan" and maintains that

"The legal status of North Borneo is not a matter onwhich the Court has been asked to rule. Moreover, thedesire of the Philippines to submit its view on variousunspecified 'treaties, agreements and other evidencefurnished by the Parties' is abstract and vague."With reference to the question of the Philippine interest

of a legal nature which may be affected by the decision inthe case, Malaysia argues that

"[t]hat legal interest must be precisely identified, thencompared with the basis of [the Court's] jurisdiction as itappears from the document of seisin, in the presentinstance the Special Agreement"

and contends that:"the Philippines does not indicate how the decision ...that the Court is asked to take on the issue of sovereigntyover Ligitan and Sipadan might affect any specific legalinterest. It is content to refer vaguely to the 'treaties,agreements and other evidence' on which the Courtmight 'lay down an appreciation'. But... the interest of alegal nature must, if affected, be so affected by thedecision of the Court and not just by its reasoning. Suchappreciation as the Court may be led to make of theeffect of a particular legal instrument, or of theconsequences of particular facts, as grounds for itsdecision cannot, in itself, serve to establish an interest ofa legal nature in its decision in the case."Malaysia further contends that "the issue of sovereignty

over Ligitan and Sipadan is completely independent of thatof the status of North Borneo", and that "[t]he territorialtitles are different in the two cases".

The Court sets out by considering whether a third Statemay intervene under Article 62 of the Statute in a disputebrought to the Court under a special agreement, when theState seeking to intervene has no interest in the subjectmatter of that dispute as such, but rather asserts an interestof a legal nature in such findings and reasonings that theCourt might make on certain specific treaties that the Stateseeking to intervene claims to be in issue in a differentdispute between itself and one of the two Parties to thepending case before the Court.

The Court first considers whether the terms of Article 62preclude, in any event, an "interest of a legal nature" of theState seeking to intervene in anything other than theoperative decision of the Court in the existing case in whichthe intervention is sought. From an examination of theEnglish and French texts of that Article, the Court concludesthat the interest of a legal nature to be shown by a Stateseeking to intervene is not limited to the dispositif alone of ajudgment. It may also relate to the reasons which constitutethe necessary steps to the dispositif.

Having reached this conclusion, the Court then considersthe nature of the interest capable of justifying anintervention. In particular, it considers whether the interest

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of the State seeking to intervene must be in the subjectmatter of the existing case itself, whether it may be differentand, if so, within what limits.

The Court observes that the question of whether a statedinterest in the reasoning of the Court and any interpretationsit might give as an interest of a legal nature for purposes ofArticle 62 of the Statute, can only be examined by testingwhether the legal claims which the State seeking tointervene has outlined might be affected. Whatever thenature of the claimed "interest of a legal nature" that a Stateseeking to intervene considers itself to have (and providedthat it is not simply general in nature) the Court can onlyjudge it "//; concreto and in relation to all the circumstancesof a particular case". Thus, the Court proceeds to examinewhether the Philippine claim of sovereignty in NorthBorneo could or could not be affected by the Court'sreasoning or interpretation of treaties in the case concerningPulau Ligitan and Pulau Sipadan. The Court adds that aState which, as in this case., relies on an interest of a legalnature other than in the subject matter of the case itselfnecessarily bears the burden of showing with a particularclarity the existence of the interest of a legal nature which itclaims to have.

The Court recalls that the Philippines has stronglyprotested that it is severely and unfairly hampered in"identifying" and "showing" its legal interest in the absenceof access to the documents in the case between Indonesiaand Malaysia and that it was not until the oral phase of thepresent proceedings that the two Parties publicly statedwhich treaties they considered to be in issue in theirrespective claims to Pulau Ligitan and Pulau Sipadan. TheCourt observes, however, that the Philippines must have fullknowledge of the documentary sources relevant to its claimof sovereignty in North Borneo. While the Courtacknowledges that the Philippines did not have access to thedetailed arguments of the Parties as contained in theirwritten pleadings, this did not prevent the Philippines fromexplaining its own claim, and from explaining in whatrespect any interpretation of particular instruments mightadversely affect that claim.

Jn outlining that claim the Philippines has emphasizedthe importance of the instrument entitled "Grant by Sultanof Sulu of territories and lands on the mainland of the islandof Borneo" (hereinafter "the Sulu-Overbeck grant of 1878").This instrument is said by the Philippines to be its "primalsource" of title in North Borneo. The Philippines interpretsthe instrument as a lease and not as a cession of sovereigntitle. It also acknowledges that the territorial scope of theinstrument described in its first paragraph ("together with allthe islands which lie within nine miles from the coast") didnot include Pulau Ligitan and Pulau Sipadan.

The Court observes, however, that the Philippine claimsas shown on the British map submitted to the Court by thePhilippines during the oral proceedings, do not coincidewith the territorial limits of the grant by the Sultan of Suluin 1878. Moreover, the grant of 1878 is not in issue asbetween Indonesia and Malaysia in the case, both agreeingthat Pulau Ligitan and Pulau Sipadan were not included in

its reach. Also, the question whether the 1878 grant is to becharacterized as a lease or a cession does not form part ofthe claim to title of either Party to the islands in issue.Neither Indonesia nor Malaysia relies on the 1878 grant as asource of title, each basing its claimed title upon otherinstruments and events. The burden which the Philippinescarries under Article 62, to show the Court that an interestof a legal nature may be affected by any interpretation itmight give or reasoning it might adduce as to its "primalsource" of title, is thus not discharged.

The Philippines supplements its contention thatsovereignty of North Borneo was retained by the Sultanateof Sulu by means of cited extracts from British State papersof the late nineteenth century and the first part of thetwentieth century. The Court observes however that neitherof these agreements is regarded by the Parties to the mainproceedings as founding title to Pulau Ligitan and PulauSipadan.

Certain other instruments to which the Court wasreferred by the Philippines do appear to have a certainrelevance not only to the Philippine claims of sovereignty inNorth Borneo, but also to the question of title to PulauLigitan and Pulau Sipadan. The Philippine interest in the 20June 1891 Convention, concluded between Great Britainand the Netherlands for the purpose of defining boundariesin Borneo, lies in noting that while the Convention setboundaries defining "Netherlands possessions" and "BritishProtected States", the "State of North Borneo" was indeedone of the British Protected States. However, in resolvingthe interpretation of Article 4 of that Convention, the Courthas no need to pronounce upon the precise nature of theBritish interests lying to the north of latitude 4° 10',mentioned in this article. Notwithstanding that the 1891Convention may be said to have a certain relevance forIndonesia, Malaysia and the Philippines, the Philippines hasdemonstrated no legal interest that could be affected by theoutcome or reasoning in the case between Indonesia andMalaysia.

The precise status of the legal ties in 1907 as addressedin the Exchange of Notes on 3 July and 10 July 1907between Great Britain and the United States, relating to theadministration of certain islands on the east cost of Borneoby the BNBC, is not central to Malaysia's claims.Accordingly, no interest of a legal nature that requires anintervention under Article 62, to present their interpretationof the 1907 Exchange of Notes, has been shown by thePhilippines.

The Court also notes that the 1930 Convention betweenGreat Britain and the United States, regarding the boundarybetween the Philippine Archipelago and North Borneo, hasas its particular object the determination of which of theislands in the region "belong" to the United States on theone hand and to the State of North Borneo on the other. ThisConvention does not appear to the Court at this stage of theproceedings to concern the legal status of the principalterritory of North Borneo.

The Court further finds that any interest that thePhilippines claims to have as to references that the Court

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might make in the case between Indonesia and Malaysia tothe 1946 North Borneo Cession Order in Council is tooremote for purposes of intervention under Article 62.

The Court considers that the Philippines needs to showto the Court not only "a certain interest in ... legalconsiderations" {Continental Shelf (Libyan ArabJamahiriya/Malta), Application to Intervene, Judgment,I.C.J. Reports 1981, p. 19, para. 33) relevant to the disputebetween Indonesia and Malaysia, but to specify an interestof a legal nature which may be affected by reasoning orinterpretations of the Court. The Court has stated that a Stateseeking to intervene should be able to do this on the basis ofits documentary evidence upon which it relies to explain itsown claim.

Some of the instruments which the Philippines hasinvoked, and the submissions it has made as to them, mayindeed have shown a certain interest in legal considerationsbefore the Court in the dispute between Indonesia andMalaysia; but as regards none of them has the Philippinesbeen able to discharge its burden of demonstrating that ithas an interest of a legal nature that may be affected, withinthe sense of Article 62. The Philippines has shown in theseinstruments no legal interest that might be affected byreasoning or interpretations of the Court in the mainproceedings, either because they form no part of thearguments of Indonesia and Malaysia or because theirrespective reliance on them does not bear on the issue ofretention of sovereignty by the Sultanate of Sulu asdescribed by the Philippines in respect of its claim in NorthBorneo.

The precise object of the intervention(paras. 84-93)

In respect of "the precise object of the intervention"which the Philippines states, the Court first quotes the threeobjects cited above.

As regards the first of the three objects stated in theApplication of the Philippines, the Court notes that similarformulations have been employed in other applications forpermission to intervene, and have not been found by theCourt to present a legal obstacle to intervention.

So far as the second listed object of the Philippines isconcerned, the Court, in its Order of 21 October 1999 in thecase concerning the Land and Maritime Boundary betweenCameroon and Nigeria (Cameroon v. Nigeria), Applicationto Intervene, recently reaffirmed a statement of a Chamberthat:

"[s]o far as the object of [a State's] intervention is 'toinform the Court of the nature of the legal rights [of thatState] which are in issue in the dispute', it cannot be saidthat this object is not a proper one: it seems indeed toaccord with the function of intervention" (I.C.J. Reports1999, p. 1034, para. 14).

As to the third object listed in its Application, the Courtobserves that every occasional mention was made of itduring the oral pleadings. But the Philippines did notdevelop it nor did it contend that it could suffice alone as an

"object" within the meaning of Article 81 of the Rules. TheCourt therefore rejects the relevance under the Statute andRules of the third listed object.

The Court concludes that notwithstanding that the firsttwo of the objects indicated by the Philippines for itsintervention are appropriate, the Philippines has notdischarged its obligation to convince the Court thatspecified legal interests may be affected in the particularcircumstances of this case.


Judge Oda voted against the operative part of theJudgment, as he firmly believed that the Philippine requestfor permission to intervene in the case between Indonesiaand Malaysia should have been granted.

He recalled the four previous rulings given onapplications for permission to intervene under Article 62 ofthe Statute, in 1981, 1984, 1990 and 1999. He stated that hisposition had remained unchanged throughout these fourcases. In his view, Article 62 of the Court's Statute shouldbe interpreted liberally so as to entitle a State, even one nothaving a jurisdictional link with the parties, which shows"an interest of a legal nature which may be affected by thedecision in the case" to participate in the case as a non-party. He recalled that he had also enunciated that view in alecture given to the Hague Academy of International Law in1993.

Judge Oda was further of the view that whereparticipation as a non-party is permitted, it is not for theintervening State to prove in advance that its interest will beaffected by the decision in the case. He considered thatwithout participating in the merits phase of the case, theintervening State has no way of knowing the issuesinvolved, particularly when it is refused access to thewritten pleadings. Thus, if a request for permission tointervene is to be rejected, he considered that the burdenshould be placed on the parties to the principal case to showthat the interest of the third State will not be affected by thedecision in the case.

In Judge Oda's view, the question of whether, in fact, anintervening State does or does not have an interest of a legalnature can only be considered in the merits phase. He saidthat after having heard the views of the intervening State inthe main case, the Court might, after all, find in some casesthat the third State's interest will not be affected by thedecision in the case.

Judge Oda then went on to say that present proceedingshad been dealt with in a way widely at variance with theforegoing. The Philippines had learned of the subject matterof the dispute between Indonesia and Malaysia specified inArticle 2 of the Special Agreement of 31 May 1997, but stilldid not know how the two Parties would present theirposition concerning sovereignty over the two islands. Atbest, the Philippines could speculate that its interests inNorth Borneo might be affected depending on whatIndonesia and Malaysia would say in the principal caseabout the two islands. As a result of the objections by

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Indonesia and Malaysia, the Philippines had been refusedaccess to the Parties' written pleadings and thus was still notin a position to know whether or not its interests may, infact, be affected by the decision of the Court in the principalcase. In seeking permission to intervene, all the Philippinescould do, as it did in its Application, was to mak<; known itsclaim to sovereignty in North Borneo, which may beaffected by the decision in the case.

Judge Oda considered that the burden was not on thePhilippines but on Indonesia and Malaysia to assure thePhilippines that its interests would not be affected by theJudgment to be rendered by the Court in the principal case.He questioned whether it was really reasonable — or evenacceptable — for Indonesia and Malaysia to require thePhilippines to explain how its interest may be affected bythe decision in the case, while they concealed from it thereasoning supporting their claims in the principal case. Hesaid that at the time it filed its Application for permission tointervene, and at least until the second round of oralpleadings, the Philippines could not have known how therespective claims of Indonesia and Malaysia 1o the twoislands in question would relate to its own claim tosovereignty over North Borneo. He stated that the wholeprocedure in this case struck him as being rather unfair tothe intervening State. He believed that the argumentconcerning "treaties, agreement and any other evidence"could not, and should not, have been made until thePhilippines had been afforded an opportunity to participatein the principal case.


In his separate opinion. Judge Koroma stated that,although he had supported the Judgment, he could notexpress unqualified adherence to some of the positionsreached in the Judgment.

From his perspective, the wider meaning given by theCourt to "decision" in Article 62 as including not only thedispositif but the reasoning of the Judgment, though it maynot be wrong, is not free from creating doubts anddifficulties and could restrain the Court from declaring thelaw or giving full interpretation to the legal instrument orissues before it in a particular case, for fear that a previousinterpretation of a legal instrument may come to haunt it in afuture claim yet to be submitted to it.

In Judge Koroma's view, it is the role of the Court, inperforming its judicial function to declare the law and everycase should be decided on its merits, taking intoconsideration all the issues of law and fact before it. Forhim, the Court's decision resides in the dispositif, as it is thedispositif which embodies the findings of the Court inresponse to the submissions made by parties in a particularcase. He also observed that whether an application tointervene in a particular case is successful or not, thedecision of the Court in that particular case cannot beconsidered resjudicata for a State not a party to the disputebefore the Court and in the light of Article 59 of the Statuteof the Court that "[t]he decision of the Court has no binding

force except between the parties and in respect of thatparticular case".

If the decision is considered non-binding for a State nota party to the dispute, it follows that the Court's reasoningcannot be considered of a binding nature either.

Judge Koroma concluded that Article 62 shouldtherefore not have been interpreted in such a way that it mayprevent the Court from properly performing its judicialfunction or require a State to exercise undue vigilanceregarding the reasoning of the Court in reaching its decisionin a case in which that State is not a party.

Declaration of Judge Parra-Aranguren

Notwithstanding his vote for the operative part of theJudgment, Judge Parra-Aranguren considers it necessary tostate that, in his opinion. Article 62 of the Statute refers onlyto the dispositif part of the Judgment in the main case. Thefindings or reasoning supporting the future Judgment of theCourt in the main case are not known at this stage of theproceedings. Therefore, it is impossible to take them intoconsideration, as the majority maintains (para. 47), in orderto determine whether they may affect the legal interest ofthe State seeking for permission to intervene. Consequently,Judge Parra-Aranguren cannot agree with other paragraphsof the Judgment which, after examining certain documents,conclude that the Philippines' legal interest may not beaffected by their interpretation.

Declaration of Judge Kooijmans

Judge Kooijmans fully concurs with the Court's findingthat the Philippines has not demonstrated that its legalinterest may be affected by the Court's decision in the casebetween Indonesia and Malaysia on sovereignty over PulauLigitan and Pulau Sipadan and that consequently itsApplication for permission to intervene cannot be granted.

He is, however, of the opinion that the Court could andshould have given more attention to the requirement itformulated itself, when it said that the Philippines "mustexplainwith sufficient clarity its own claim to North Borneoand the legal instruments on which it is said to rest"(paragraph 60 of the Judgment). He feels that thePhilippines, by not addressing highly relevant issues whichwere raised during the oral proceedings, failed to providethe Court with sufficient clarity regarding its claim and thatthe Court should have said so explicitly.

This point is not only of importance from a legal point ofview, it also has practical implications.

It is sometimes said that third-party interventionbasically is at odds with the system of consensualjurisdiction; in order to allay fears that States might be lessinclined to submit disputes to the Court if they run the riskof a third State being granted too easily permission tointervene, the Court should for reasons of judicial policygive special attention to the specificity of the legal interestmentioned in Article 62, paragraph 1, of the Statute and tothe plausibility of the claim which is at its origin.

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Separate opinion of Judge ad hoc Weeramantry

Judge Weeramantry agreed with the decision of theCourt but considered this an appropriate occasion toexamine the question of intervention in international lawbecause of the dearth of judicial authority on the questionand the increasing importance of intervention procedureswill acquire in the more closely interrelated world of thefuture. The opinion examines the wide discretion of theCourt under Article 62 and the principles to be extractedfrom comparisons and contrasts between domestic andinternational law relating to intervention. It notes value ofsuch principles to the Court in the exercise of its discretionunder Article 62. The opinion concludes with observationson the problem of a jurisdictional link, an interest of a legalnature, the precise object of intervention, the lateness of theintervention and the confidentiality of pleadings.

Separate opinion of Judge ad hoc Franck

Judge Franck agrees with the Judgment of the Court andwith its reasoning. He adds, however, that the PhilippineApplication is also barred by a supervening legal principle:the right of non-self-governing people to exercise their right

of self-determination. This right has been confirmed bytreaties, judgments of this Court and resolutions of theGeneral Assembly. It is, quite simply, pre-eminent inmodern international law.

In the instance of North Borneo's decolonization, JudgeFranck believes, this right was implemented in 1963through elections observed by the representative of theUnited Nations Secretary-General, who certified the fairnessand conclusiveness of the popular choice made by the votersin favour of federation with Malaysia. This was acted uponby the United Nations General Assembly's Committee onNon-Self-Governing Territories.

In Judge Franck's view, the Court is bound to takejudicial notice of the momentous international legaldevelopment brought about by the adoption andimplementation of the right of self-determination.Accordingly, whatever interest the Philippines might haveinherited from the Sultan of Sulu — even were it to be fullydemonstrable — cannot now be held to prevail over avalidated exercise of so fundamental a right. Since the claimis barred by law, the Philippines cannot possibly be said tohave a legal interest in further ventilating it in this forum.

136. ARREST WARRANT OF 11 APRIL 2000 (DEMOCRATIC REPUBLIC OF THECONGO v. BELGIUM) (MERITS)


In its Judgment in the case concerning the ArrestWarrant of 11 April 2000 (Democratic Republic of theCongo v. Belgium), the Court found, by thirteen votes tothree, that the issue against Mr. Abdulaye YerodiaNdombasi of the arrest warrant of 11 April 2000, and itsinternational circulation, constituted violations of a legalobligation of the Kingdom of Belgium towards theDemocratic Republic of the Congo, in that they failed torespect the immunity from criminal jurisdiction and theinviolability which the incumbent Minister for ForeignAffairs of the Democratic Republic of the Congo enjoyedunder international law.

It also found, by ten votes to six, that the Kingdom ofBelgium must, by means of its own choosing, cancel thearrest warrant of 11 April 2000 and so inform the authoritiesto whom that warrant was circulated. The Court reachedthese findings after having found, by 15 votes to 1, that ithad jurisdiction, that the Application of the DemocraticRepublic of the Congo ("the Congo") was not withoutobject (and the case accordingly not moot) and that theApplication was admissible, thus rejecting the objectionswhich the Kingdom of Belgium ("Belgium") had raised onthose questions.

The Court was composed as follows: PresidentGuillaume; Vice-President Shi; Judges Oda, Ranjeva,Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins,

Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh,Buergenthal; Judges ad hoc Bula-Bula, Van den Wyngaert;Registrar Couvreur.

President Guillaume appended a separate opinion to theJudgment of the Court; Judge Oda appended a dissentingopinion to the Judgment of the Court; Judge Ranjevaappended a declaration to the Judgment of the Court; JudgeKoroma appended a separate opinion to the Judgment of theCourt; Judges Higgins, Kooijmans and Buergenthalappended a joint separate opinion to the Judgment of theCourt; Judge Rezek appended a separate opinion to theJudgment of the Court; Judge Al-Khasawneh appended adissenting opinion to the Judgment of the Court; Judge adhoc Bula-Bula appended a separate opinion to the Judgmentof the Court; Judge ad hoc Van den Wyngaert appended adissenting opinion to the Judgment of the Court.


"78. For these reasons,THE COURT,

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(1 ) (A) By fifteen votes to one,Rejects the objections of the Kingdom of Belgium

relating to jurisdiction, mootness and admissibility;FOR: President Guillaume; Vice-President Shi;

Judges Ranjeva, Herczegh, Fleischhauer, Koroma,Vereshchetin, Higgins, Parra-Aranguren, Kooijmans,Rezek, Al-Khasawneh, Buergenthal; Judges ad hocBula-Bula, Van den Wyngaert;

AGAINST: Judge Oda;(B)By fifteen votes to one,Finds that it has jurisdiction to entertain the

Application filed by the Democratic Republic of theCongo on 17 October 2000;

FOR: President Guillaume; Vice-Président Shi;Judges Ranjeva, Herczegh, Fleischhauer, Koroma,Vereshchetin, Higgins, Parra-Aranguren, Kooijmans,Rezek, Al-Khasawneh, Buergenthal; Judges ad hocBula-Bula, Van den Wyngaert;

AGAINST: Judge Oda;(C)By fifteen votes to one,Finds that the Application of the Democratic

Republic of the Congo is not without object and thataccordingly the case is not moot;

FOR: President Guillaume; Vice-Président Shi;Judges Ranjeva, Herczegh, Fleischhauer, Koroma,Vereshchetin, Higgins, Parra-Aranguren, Kooijmans,Rezek, Al-Khasawneh, Buergenthal; Judges ad hocBula-Bula, Van den Wyngaert;

AGAINST: Judge Oda;(D)By fifteen votes to one,Finds that the Application of the Democratic

Republic of the Congo is admissible;FOR: President Guillaume; Vice-Président Shi;

Judges Ranjeva, Herczegh, Fleischhauer, Koroma,Vereshchetin, Higgins, Parra-Aranguren, Kooijmans,Rezek, Al-Khasawneh, Buergenthal; Judges ad hocBula-Bula, Van den Wyngaert;

AGAINST: Judge Oda;(2) By thirteen votes to three,Finds that the issue against Mr. Abdulaye Yerodia

Ndombasi of the arrest warrant of 11 April 2000, and itsinternational circulation, constituted violation:? of a legalobligation of the Kingdom of Belgium towards theDemocratic Republic of the Congo, in that they failed torespect the immunity from criminal jurisdiction and theinviolability which the incumbent Minister for ForeignAffairs of the Democratic Republic of the Congoenjoyed under international law;

FOR: President Guillaume; Vice-Président Shi;Judges Ranjeva, Herczegh, Fleischhauer, Koroma,Vereshchetin, Higgins, Parra-Aranguren, Kooijmans,Rezek, Buergenthal; Judge ad hoc Bula-Bula;

AGAINST: Judges Oda, Al-Khasawneh; Judge adhoc Van den Wyngaert;

(3) By ten votes to six,

Finds that the Kingdom of Belgium must, by meansof its own choosing, cancel the arrest warrant of 11 April2000 and so inform the authorities to whom that warrantwas circulated;

FOR: President Guillaume; Vice-Président Shi;Judges Ranjeva, Herczegh, Fleischhauer, Koroma,Vereshchetin, Parra-Aranguren, Rezek; Judge ad hocBula-Bula;

AGAINST: Judges Oda, Higgins, Kooijmans, Al-Khasawneh, Buergenthal; Judge ad hoc Van denWyngaert."


(paras. 1-12)

The Court recalls that on 17 October 2000 theDemocratic Republic of the Congo (hereinafter "theCongo") filed in the Registry of the Court an Applicationinstituting proceedings against the Kingdom of Belgium(hereinafter "Belgium") in respect of a dispute concerningan "international arrest warrant issued on 11 April 2000 by aBelgian investigating judge ... against the Minister forForeign Affairs in office of the Democratic Republic of theCongo, Mr. Abdulaye Yerodia Ndombasi".

In that Application the Congo contended that Belgiumhad violated the "principle that a State may not exercise itsauthority on the territory of another State", the "principle ofsovereign equality among all Members of the UnitedNations, as laid down in Article 2, paragraph 1, of theCharter of the United Nations", as well as "the diplomaticimmunity of the Minister for Foreign Affairs of a sovereignState, as recognized by the jurisprudence of the Court andfollowing from Article 41, paragraph 2, of the ViennaConvention of 18 April 1961 on Diplomatic Relations". Inorder to found the Court's jurisdiction the Congo invoked inthe aforementioned Application the fact that "Belgium ha[d]accepted the jurisdiction of the Court and, insofar as may berequired, the [aforementioned] Application signifie[d]acceptance of that jurisdiction by the Democratic Republicof the Congo".

The Court further recalls that on the same day, theCongo also filed a request for the indication of a provisionalmeasure; and that by an Order of 8 December 2000 theCourt, on the one hand, rejected Belgium's request that thecase be removed from the List and, on the other, held thatthe circumstances, as they then presented themselves to theCourt, were not such as to require the exercise of its powerunder Article 41 of the Statute to indicate provisionalmeasures. In the same Order, the Court also held that "it[was] desirable that the issues before the Court should bedetermined as soon as possible" and that "it [was] thereforeappropriate to ensure that a decision on the Congo'sApplication be reached with all expedition".

By Order of 13 December 2000, the President of theCourt, taking account of the agreement of the Parties as

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expressed at a meeting held with their Agents on 8December 2000, fixed time limits for the filing of aMemorial by the Congo and of a Counter-Memorial byBelgium, addressing both issues of jurisdiction andadmissibility and the merits. After the pleadings had beenfiled within the time limits as subsequently extended, publichearings were held from 15 to 19 October 2001.

At the oral proceedings, the following final submissionswere presented by the Parties:

On behalf of the Government of the Congo,"In light of the facts and arguments set out during the

written and oral proceedings, the Government of theDemocratic Republic of the Congo requests the Court toadjudge and declare that:

1. by issuing and internationally circulating thearrest warrant of 11 April 2000 against Mr. AbdulayeYerodia Ndombasi, Belgium committed a violation inregard to the Democratic Republic of the Congo of therule of customary international law concerning theabsolute inviolability and immunity from criminalprocess of incumbent foreign ministers; in so doing, itviolated the principle of sovereign equality amongStates;

2. a formal finding by the Court of the unlawfulnessof that act constitutes an appropriate form of satisfaction,providing reparation for the consequent moral injury tothe Democratic Republic of the Congo;

3. the violations of international law underlying theissue and international circulation of the arrest warrantof 11 April 2000 preclude any State, including Belgium,from executing it;

4. Belgium shall be required to recall and cancel thearrest warrant of 11 April 2000 and to inform the foreignauthorities to whom the warrant was circulated thatBelgium renounces its request for their cooperation inexecuting the unlawful warrant."On behalf of the Government of Belgium,

"For the reasons stated in the Counter-Memorial ofBelgium and in its oral submissions, Belgium requeststhe Court, as a preliminary matter, to adjudge anddeclare that the Court lacks jurisdiction in this caseand/or that the Application by the Democratic Republicof the Congo against Belgium is inadmissible.

If, contrary to the submissions of Belgium withregard to the Court's jurisdiction and the admissibility ofthe Application, the Court concludes that it does havejurisdiction in this case and that the Application by theDemocratic Republic of the Congo is admissible,Belgium requests the Court to reject the submissions ofthe Democratic Republic of the Congo on the merits ofthe case and to dismiss the Application."


On 11 April 2000 an investigating judge of the Brusselstribunal de première instance issued "an international arrestwarrant in absentia" against Mr. Abdulaye Yerodia

Ndombasi, charging him, as perpetrator or co-perpetrator,with offences constituting grave breaches of the GenevaConventions of 1949 and of the Additional Protocolsthereto, and with crimes against humanity. The arrestwarrant was circulated internationally through Interpol.

At the time when the arrest warrant was issued Mr.Yerodia was the Minister for Foreign Affairs of the Congo.

The crimes with which Mr. Yerodia was charged werepunishable in Belgium under the Law of 16 June 1993"concerning the Punishment of Grave Breaches of theInternational Geneva Conventions of 12 August 1949 and ofProtocols I and II of 8 June 1977 Additional Thereto", asamended by the Law of 19 February 1999 "concerning thePunishment of Serious Violations of InternationalHumanitarian Law" (hereinafter referred to as the "BelgianLaw')-

On 17 October 2000, the Congo instituted proceedingsbefore the International Court of Justice, requesting theCourt "to declare that the Kingdom of Belgium shall annulthe international arrest warrant issued on 11 April 2000".After the proceedings were instituted, Mr. Yerodia ceased tohold office as Minister for Foreign Affairs, andsubsequently ceased to hold any ministerial office.

In its Application instituting proceedings, the Congorelied on two separate legal grounds. First, it claimed that"[t]he universal jurisdiction that the Belgian State attributesto itself under Article 7 of the Law in question" constituteda "[violation of the principle that a State may not exerciseits authority on the territory of another State and of theprinciple of sovereign equality among all Members of theUnited Nations". Secondly, it claimed that "[t]he non-recognition, on the basis of Article 5 ... of the Belgian Law,of the immunity of a Minister for Foreign Affairs in office"constituted a "[violation of the diplomatic immunity of theMinister for Foreign Affairs of a sovereign State". However,the Congo's Memorial and its final submissions refer onlyto a violation "in regard to the ... Congo of the rule ofcustomary international law concerning the absoluteinviolability and immunity from criminal process ofincumbent foreign ministers".

Objections of Belgium relating to jurisdiction, mootnessand admissibility

(paras. 22-44)

Belgium's first objection(paras. 23-28)

The Court begins by considering the first objectionpresented by Belgium, which reads as follows:

"That, in the light of the fact that Mr. Yerodia Ndombasiis no longer either Minister for Foreign Affairs of the[Congo] or a minister occupying any other position inthe ... Government [of the Congo], there is no longer a' legal dispute' between the Parties within the meaning ofthis term in the Optional Clause Declarations of theParties and that the Court accordingly lacks jurisdictionin this case."

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The Court recalls that, according to its settledjurisprudence, its jurisdiction must be determined at the timethat the act instituting proceedings was filed. Thus, if theCourt has jurisdiction on the date the case is referred to it, itcontinues to do so regardless of subsequent events. Suchevents might lead to a finding that an application hassubsequently become moot and to a decision not to proceedto judgment on the merits, but they cannot deprive the Courtof jurisdiction.

The Court then finds that, on the date that the Congo'sApplication instituting these proceedings was filed, each ofthe Parties was bound by a declaration of acceptance ofcompulsory jurisdiction, filed in accordance with Article 36,paragraph 2, of the Statute of the Court: Belgium by adeclaration of 17 June 1958 and the Congo by a declarationof 8 February 1989. Those declarations contained noreservation applicable to the present case. The Ccurt furtherobserves that it is, moreover, not contested by the Partiesthat at the material time there was a legal dispute betweenthem concerning the international lawfulness of the arrestwarrant of 11 April 2000 and the consequences to be drawnif the warrant was unlawful. The Court accordinglyconcludes that at the time that it was seized of the case ithad jurisdiction to deal with it, and that it still has suchjurisdiction, and that Belgium's first objection musttherefore be rejected.

Belgium's second objection(paras. 29-32)

The second objection presented by Belgium is thefollowing:

"That in the light of the fact that Mr. Yerodia Ndombasiis no longer either Minister for Foreign Affairs of the[Congo] or a minister occupying any other position inthe ... Government [of the Congo], the case is nowwithout object and the Court should accordingly declineto proceed to judgment on the merits of the case."

The Court notes that it has already affirmed on a numberof occasions that events occurring subsequent to the filing ofan application may render the application without objectsuch that the Court is not called upon to give a decisionthereon. However, the Court considers that this is not such acase. It finds that the change which has occurred in thesituation of Mr. Yerodia has not in fact put an end to thedispute between the Parties and has not deprived theApplication of its object. The Congo argues that the arrestwarrant issued by the Belgian judicial authorities againstMr. Yerodia was and remains unlawful. It asks the Court tohold that the warrant is unlawful, thus providing redress forthe moral injury which the warrant allegedly caused to it.The Congo also continues to seek the cancellation of thewarrant. For its part, Belgium contends that it did not act inviolation of international law and it disputes the Congo'ssubmissions. In the view of the Court, it follows from theforegoing that the Application of the Congo is not nowwithout object and that accordingly the case is not moot.Belgium's second objection is accordingly rejected.

Belgium's third objection(paras. 33-36)

The third Belgian objection is put as follows:"That the case as it now stands is materially different tothat set out in the [Congo]'s Application institutingproceedings and that the Court accordingly lacksjurisdiction in the case and/or that the application isinadmissible."

The Court notes that, in accordance with settledjurisprudence, it "cannot, in principle, allow a disputebrought before it by application to be transformed byamendments in the submissions into another dispute whichis different in character". However, the Court considers thatin the present case the facts underlying the Application havenot changed in a way that produced such a transformation inthe dispute brought before it. The question submitted to theCourt for decision remains whether the issue and circulationof the arrest warrant by the Belgian judicial authoritiesagainst a person who was at that time the Minister forForeign Affairs of the Congo were contrary to internationallaw.

The Congo's final submissions arise "directly out of thequestion which is the subject matter of that Application". Inthese circumstances, the Court considers that Belgiumcannot validly maintain that the dispute brought before theCourt was transformed in a way that affected its ability toprepare its defence, or that the requirements of the soundadministration of justice were infringed. Belgium's thirdobjection is accordingly rejected.

Belgium's fourth objection(paras. 37-40)

The fourth Belgian objection reads as follows:"That, in the light of the new circumstances concerningMr. Yerodia Ndombasi, the case has assumed thecharacter of an action of diplomatic protection but one inwhich the individual being protected has failed toexhaust local remedies, and that the Court accordinglylacks jurisdiction in the case and/or that the applicationis inadmissible."

The Court notes that the Congo has never sought toinvoke before it Mr. Yerodia's personal rights. It considersthat, despite the change in professional situation of Mr.Yerodia, the character of the dispute submitted to the Courtby means of the Application has not changed: the disputestill concerns the lawfulness of the arrest warrant issued on11 April 2000 against a person who was at the time Ministerfor Foreign Affairs of the Congo, and the question whetherthe rights of the Congo have or have not been violated bythat warrant. The Court finds that, as the Congo is not actingin the context of protection of one of its nationals, Belgiumcannot rely upon the rules relating to the exhaustion of localremedies.

In any event, the Court recalls that an objection based onnon-exhaustion of local remedies relates to the admissibilityof the application. Under settled jurisprudence, the criticaldate for determining the admissibility of an application is

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the date on which it is filed. Belgium accepts that, on thedate on which the Congo filed the Application institutingproceedings, the Congo had a direct legal interest in thematter, and was asserting a claim in its own name.Belgium's fourth objection is accordingly rejected.

Belgium s subsidiary argument concerning thenon ultra petita rule

(paras. 41-43)

As a subsidiary argument, Belgium further contends that"[i]n the event that the Court decides that it does havejurisdiction in this case and that the application isadmissible, ... the non ultra petita rule operates to limit thejurisdiction of the Court to those issues that are the subjectof the [Congoj's final submissions".

Belgium points out that the Congo initially advanced atwofold argument, based, on the one hand, on the Belgianjudge's lack of jurisdiction and, on the other, on theimmunity from jurisdiction enjoyed by its Minister forForeign Affairs. According to Belgium, the Congo nowconfines itself to arguing the latter point, and the Courtconsequently cannot rule on the issue of universaljurisdiction in any decision it renders on the merits of thecase.

The Court recalls the well-established principle that "itis the duty of the Court not only to reply to the questions asstated in the final submissions of the parties, but also toabstain from deciding points not included in thosesubmissions". The Court observes that, while it is thus notentitled to decide upon questions not asked of it, the nonultra petita rule nonetheless cannot preclude the Court fromaddressing certain legal points in its reasoning. Thus in thepresent case the Court may not rule, in the operative part ofits Judgment, on the question whether the disputed arrestwarrant, issued by the Belgian investigating judge inexercise of his purported universal jurisdiction, complied inthat regard with the rules and principles of international lawgoverning the jurisdiction of national courts. This does notmean, however, that the Court may not deal with certainaspects of that question in the reasoning of its Judgment,should it deem this necessary or desirable.

Merits of the case(paras. 45-71)

As indicated above, in its Application instituting theseproceedings, the Congo originally challenged the legality ofthe arrest warrant of 11 April 2000 on two separate grounds:on the one hand, Belgium's claim to exercise a universaljurisdiction and, on the other, the alleged violation of theimmunities of the Minister for Foreign Affairs of the Congothen in office. However, in its submissions in its Memorial,and in its final submissions at the close of the oralproceedings, the Congo invokes only the latter ground.

The Court observes that, as a matter of logic, the secondground should be addressed only once there has been adetermination in respect of the first, since it is only where aState has jurisdiction under international law in relation to a

particular matter that there can be any question ofimmunities in regard to the exercise of that jurisdiction.However, in the present case, and in view of the final formof the Congo's submissions, the Court first addresses thequestion whether, assuming that it had jurisdiction underinternational law to issue and circulate the arrest warrant of11 April 2000, Belgium in so doing violated the immunitiesof the then Minister for Foreign Affairs of the Congo.

Immunity and inviolability of an incumbent ForeignMinister in general

(paras. 47-55)

The Court observes at the outset that in international lawit is firmly established that, as also diplomatic and consularagents, certain holders of high-ranking office in a State,such as the Head of State, Head of Government andMinister for Foreign Affairs, enjoy immunities fromjurisdiction in other States, both civil and criminal. For thepurposes of the present case, it is only the immunity fromcriminal jurisdiction and the inviolability of an incumbentMinister for Foreign Affairs that fall for the Court toconsider.

The Court notes that a certain number of treatyinstruments were cited by the Parties in this regard,including the Vienna Convention on Diplomatic Relationsof 18 April 1961 and the New York Convention on SpecialMissions of 8 December 1969. The Court finds that theseConventions provide useful guidance on certain aspects ofthe question of immunities, but that they do not contain anyprovision specifically defining the immunities enjoyed byMinisters for Foreign Affairs. It is consequently on the basisof customary international law that the Court must decidethe questions relating to the immunities of such Ministersraised in the present case.

In customary international law, the immunities accordedto Ministers for Foreign Affairs are not granted for theirpersonal benefit, but to ensure the effective performance oftheir functions on behalf of their respective States. In orderto determine the extent of these immunities, the Court musttherefore first consider the nature of the functions exercisedby a Minister for Foreign Affairs. After an examination ofthose functions, the Court concludes that they are such that,throughout the duration of his or her office, a Minister forForeign Affairs when abroad enjoys full immunity fromcriminal jurisdiction and inviolability. That immunity andthat inviolability protect the individual concerned againstany act of authority of another State which would hinderhim or her in the performance of his or her duties.

The Court finds that in this respect no distinction can bedrawn between acts performed by a Minister for ForeignAffairs in an "official" capacity and those claimed to havebeen performed in a "private capacity", or, for that matter,between acts performed before the person concernedassumed office as Minister for Foreign Affairs and actscommitted during the period of office. Thus, if a Ministerfor Foreign Affairs is arrested in another State on a criminalcharge, he or she is clearly thereby prevented fromexercising the functions of his or her office. Furthermore,

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even the mere risk that, by (ravelling to or transiting anotherState, a Minister for Foreign Affairs might be exposinghimself or herself to legal proceedings coulc. deter theMinister from travelling internationally when required to doso for the puiposes of the performance of his or her officialfunctions.

The Court then addresses Belgium's argument thatimmunities accorded to incumbent Ministers for ForeignAffairs can in no case protect them where they an suspectedof having committed war crimes or crimes againsthumanity.

The Court states that it has carefully examined Statepractice, including national legislation and those fewdecisions of national higher courts, such as the House ofLords in the United Kingdom or the French Court ofCassation, and that it has been unable to deduce from thispractice that there exists under customary international lawany form of exception to the rule according immunity fromcriminal jurisdiction and inviolability to incumbentMinisters for Foreign Affairs, where they are suspected ofhaving committed war crimes or crimes against humanity.The Court adds that it has also examined the rulesconcerning the immunity or criminal responsibility ofpersons having an official capacity contained in the legalinstruments creating international criminal tribunals, andwhich are specifically applicable to the latter (see Charter ofthe International Military Tribunal of Nuremberg, Art. 7;Charter of the International Military Tribunal of Tokyo, Art.6; Statute of the International Criminal Tribunal for theformer Yugoslavia, Art. 7, para. 2; Statute of theInternational Criminal Tribunal for Rwanda, Art. 6, para. 2;Statute of the International Criminal Court, Art. 27), andthat it finds that these rules likewise do not enable it toconclude that any such exception exists in customaryinternational law in regard to national courts. Finally, theCourt observes that none of the decisions of the Nurembergand Tokyo international military tribunals, or of theInternational Criminal Tribunal for the former Yugoslavia,cited by Belgium deal with the question of the immunitiesof incumbent Ministers for Foreign Affairs before nationalcourts where they are accused of having committed warcrimes or crimes against humanity. The Court accordinglynotes that those decisions are in no way at variance with thefindings it has reached above. The Court accordingly doesnot accept Belgium's argument in this regard.

It further notes that the rules governing the jurisdictionof national courts must be carefully distinguished fromthose governing jurisdictional immunities: jurisdiction doesnot imply absence of immunity, while absence of immunitydoes not imply jurisdiction.

Thus, although various international conventions on theprevention and punishment of certain serious crimes imposeon States obligations of prosecution or extradition, therebyrequiring them to extend their criminal jurisdiction, suchextension of jurisdiction in no way affects immuritics undercustomary international law, including those of Ministersfor Foreign Affairs. The Court emphasizes, however, thatthe immunity from jurisdiction enjoyed by incumbent

Ministers for Foreign Affairs does not mean that they enjoyimpunity in respect of any crimes they might havecommitted, irrespective of their gravity. Jurisdictionalimmunity may well bar prosecution for a certain period orfor certain offences; it cannot exonerate the person to whomit applies from all criminal responsibility. Accordingly, theimmunities enjoyed under international law by anincumbent or former Minister for Foreign Affairs do notrepresent a bar to criminal prosecution in certaincircumstances. The Court refers to circumstances wheresuch persons are tried in their own countries, where theState which they represent or have represented decides towaive that immunity, where such persons no longer enjoyall of the immunities accorded by international law in otherStates after ceasing to hold the office of Minister forForeign Affairs, and where such persons are subject tocriminal proceedings before certain international criminalcourts, where they have jurisdiction.

The issue and circulation of the arrest warrant of11 April 2000

(paras. 62-71)

Given the conclusions it has reached above concerningthe nature and scope of the rules governing the immunityfrom criminal jurisdiction enjoyed by incumbent Ministersfor Foreign Affairs, the Court then considers whether in thepresent case the issue of the arrest warrant of 11 April 2000and its international circulation violated those rules. TheCourt recalls in this regard that the Congo requests it, in itsfirst final submission, to adjudge and declare that:

"[B]y issuing and internationally circulating the arrestwarrant of 11 April 2000 against Mr. Abdulaye YerodiaNdombasi, Belgium committed a violation in regard tothe Democratic Republic of the Congo of the rule ofcustomary international law concerning the absoluteinviolability and immunity from criminal process ofincumbent foreign ministers; in so doing, it violated theprinciple of sovereign equality among States."After examining the terms of the arrest warrant, the

Court notes that its issuance, as such, represents an act bythe Belgian judicial authorities intended to enable the arreston Belgian territory of an incumbent Minister for ForeignAffairs on charges of war crimes and crimes againsthumanity. The fact that the warrant is enforceable is clearlyapparent from the order given in it to "all bailiffs and agentsof public authority ... to execute this arrest warrant" andfrom the assertion in the warrant that "the position ofMinister for Foreign Affairs currently held by the accuseddoes not entail immunity from jurisdiction andenforcement". The Court notes that the warrant didadmittedly make an exception for the case of an official visitby Mr. Yerodia to Belgium, and that Mr. Yerodia neversuffered arrest in Belgium. The Court considers itselfbound, however, to find that, given the nature and purposeof the warrant, its mere issue violated the immunity whichMr. Yerodia enjoyed as the Congo's incumbent Minister forForeign Affairs. The Court accordingly concludes that theissue of the warrant constituted a violation of an obligation

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of Belgium towards the Congo, in that it failed to respect theimmunity of that Minister and, more particularly, infringedthe immunity from criminal jurisdiction and the inviolabilitythen enjoyed by him under international law.

The Court also notes that Belgium admits that thepurpose of the international circulation of the disputedarrest warrant was "to establish a legal basis for the arrest ofMr. Yerodia ... abroad and his subsequent extradition toBelgium". The Court finds that, as in the case of thewarrant's issue, its international circulation from June 2000by the Belgian authorities, given its nature and purpose,effectively infringed Mr. Yerodia's immunity as theCongo's incumbent Minister for Foreign Affairs and wasfurthermore liable to affect the Congo's conduct of itsinternational relations. The Court concludes that thecirculation of the warrant, whether or not it significantlyinterfered with Mr. Yerodia's diplomatic activity,constituted a violation of an obligation of Belgium towardsthe Congo, in that it failed to respect the immunity of theincumbent Minister for Foreign Affairs of the Congo and,more particularly, infringed the immunity from criminaljurisdiction and inviolability then enjoyed by him underinternational law.

Remedies(paras. 72-77)

The Court then addresses the issue of the remediessought by the Congo on account of Belgium's violation ofthe above-mentioned rules of international law. (Cf. thesecond, third and fourth submissions of the Congoreproduced above.)

The Court observes that it has already concluded that theissue and circulation of the arrest warrant of 11 April 2000by the Belgian authorities failed to respect the immunity ofthe incumbent Minister for Foreign Affairs of the Congoand, more particularly, infringed the immunity fromcriminal jurisdiction and the inviolability then enjoyed byMr. Yerodia under international law. Those acts engagedBelgium's international responsibility. The Court considersthat the findings so reached by it constitute a form ofsatisfaction which will make good the moral injurycomplained of by the Congo.

However, the Court goes on to observe that, as thePermanent Court of International Justice stated in itsJudgment of 13 September 1928 in the case concerning theFactory at Chorzów:

"[t]he essential principle contained in the actual notionof an illegal act — a principle which seems to beestablished by international practice and in particular bythe decisions of arbitral tribunals — is that reparationmust, as far as possible, wipe out all the consequences ofthe illegal act and re-establish the situation which would,in all probability, have existed if that act had not beencommitted" (P.C.IJ., Series A, No. 17, p. 47).The Court finds that, in the present case, "the situation

which would, in all probability, have existed if [the illegalact] had not been committed" cannot be re-established

merely by a finding by the Court that the arrest warrant wasunlawful under international law. The warrant is still extant,and remains unlawful, notwithstanding the fact that Mr.Yerodia has ceased to be Minister for Foreign Affairs. TheCourt accordingly considers that Belgium must, by meansof its own choosing, cancel the warrant in question and soinform the authorities to whom it was circulated.

The Court sees no need for any further remedy: inparticular, the Court points out that it cannot, in a judgmentruling on a dispute between the Congo and Belgium,indicate what that judgment's implications might be forthird States, and the Court finds that it cannot thereforeaccept the Congo's submissions on this point.

Separate opinion of Judge Guillaume, President

In his separate opinion, President Guillaume subscribesto the Judgment of the Court and sets out his position on onequestion which the Judgment had not addressed: whetherthe Belgian judge has jurisdiction to issue an internationalarrest warrant against Mr. Yerodia Ndombasi.

He recalls that the primary aim of the criminal law is toenable punishment in each country of offences committed inthe national territory. He adds that classic international lawdoes not exclude a State's power in some cases to exerciseits judicial jurisdiction over offences committed abroad, buthe emphasizes that the exercise of that jurisdiction is notwithout its limits, as the Permanent Court stated in the"Lotus" case as long ago as 1927.

He continues by making it clear that, under the law asclassically formulated, a State normally has jurisdiction overan offence committed abroad only if the offender, or at thevery least the victim, has the nationality of that State, or ifthe crime threatens its internal or external security.

Additionally, States may exercise jurisdiction in cases ofpiracy and in the situation of subsidiary universaljurisdiction provided for by various conventions if theoffender is present on their territory. However, apart fromthese cases, international law does not accept universaljurisdiction; still less does it accept universal jurisdiction inabsentia.

Thus, President Guillaume concludes that, if the Courthad addressed these questions, it ought to have found thatthe Belgian judge was wrong in holding himself competentto prosecute Mr. Yerodia Ndombasi by relying on auniversal jurisdiction incompatible with international law.


Judge Oda voted against all of the provisions of theoperative part of the Court's Judgment in this case. In hisdissenting opinion, Judge Oda stresses that the Court shouldhave declared ex officio that it lacked jurisdiction toentertain the Congo's Application of 17 October 2000because there was at the time no legal dispute between theParties of the kind required under Article 36, paragraph 2, ofthe Court's Statute. In his dissenting opinion, Judge Odareiterates the arguments he made in his declarationappended to the Court's Order of 8 December 2000

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concerning the request for indication of preliminarymeasures, and he addresses four main points.

First, Judge Oda stresses that a belief by the Congo thatthe 1993 Belgian Law violated international law is notenough to create a legal dispute between the Parties. In itsApplication, the Congo asserted that Belgium's 1993 Law,as amended in 1999, concerning the Punishment of SeriousViolations of International Humanitarian Law ("the 1993Belgian Law"), contravenes international law. The Congoalso argued that Belgium's prosecution of Mr. Yerodia,Foreign Minister of the Congo, violated the diplomaticimmunity granted under international law to Ministers forForeign Affairs. This argument was not supported by proofthat Mr. Yerodia himself had suffered or would sufferanything more than some moral injury. Because of this, thecase did not concern a legal dispute, but instead amountedto a request from the Congo for the Court to render a legalopinion on the lawfulness of the 1993 Belgian Law andactions taken under it. Judge Oda expresses grave concernthat the Court's finding that there was a legal dispute couldlead to an excessive number of cases being referred to theCourt without any real injury being evidenced, a state ofaffairs which could cause States to withdraw theiracceptance of the Court's compulsory jurisdiction.

Second, Judge Oda believes that the Congo changed thesubject matter of the proceedings between the time it filedits Application of 17 October 2000 and submitted itsMemorial on 15 May 2001. The questions the Congooriginally raised — whether a State has extraterritorialjurisdiction over crimes amounting to serious violations ofhumanitarian law regardless of where they were committedand by whom, and whether a Foreign Minister is exemptfrom such jurisdiction — were transformed into questionsconcerning the issuance and international circulation of anarrest warrant against a Foreign Minister and the immunitiesof incumbent Foreign Ministers. This transformation of thebasic issues of the case, Judge Oda believes, did not comewithin the scope of the right the Congo reserved in itsApplication "to argue further the grounds of itsApplication". Judge Oda agrees with the Court'sdetermination that the alleged dispute (which he does notagree was a legal dispute), was the one existing in October2000, and he believes, therefore, that the Court was correctto reject Belgium's objections relating to "jurisdiction,mootness and admissibility".

Third, Judge Oda turns to the question of whether thepresent case involves any legal issues on which the Congoand Belgium hold conflicting views. In response, he notesthat the Congo appears to have abandoned its assertion,made in its Application, that the 1993 Belgian Law wasitself contrary to the principle of sovereign equality underinternational law. In this regard, Judge Oda finds thatextraterritorial criminal jurisdiction has been expanded inrecent decades, and that universal jurisdiction is beingincreasingly recognized. Judge Oda believes that the Courtwisely refrained from finding on this issue, since the law isnot sufficiently developed in this area, and because theCourt was not requested to take a decision on this point.

Judge Oda also stresses his belief that the issuance andcirculation of an arrest warrant, without any actionconcerning the warrant by third States, does not have anylegal impact. Regarding diplomatic immunity, Judge Odadivides the question presented by this case into two mainissues: first, whether in principle a Foreign Minister isentitled to the same immunity as diplomatic agents; andsecond, whether diplomatic immunity can be claimed inrespect of serious breaches of humanitarian law. The Court,he indicates, has not sufficiently answered these questions,and should not have made the broad finding it appears tomake, according Ministers for Foreign Affairs absoluteimmunity.

Finally, Judge Oda believes that there is no practicalsignificance to the Court's order that Belgium cancel thearrest warrant of April 2000, since Belgium can presumablyissue a new arrest warrant against Mr. Yerodia as & formerMinister for Foreign Affairs. If the Court believes that thesovereign dignity of the Congo was violated in 2000, theharm done cannot be remedied by the cancellation of thearrest warrant; the only remedy would be an apology byBelgium. For his part, Judge Oda does not believe that theCongo suffered any injury, since no action was ever takenagainst Mr. Yerodia pursuant to the warrant. In closing,Judge Oda states that he finds the case "not only unripe foradjudication at this time but also fundamentallyinappropriate for the Court's consideration".


In his declaration, Judge Ranjeva expresses agreementwith both the operative part and the Court's approach inrefraining from consideration of the issue of the merit of theextremely broad interpretation given to universaljurisdiction in absentia by the organs of the Belgian State.The withdrawal of the Congo's original first submissionfrom its final submissions resulted in excluding universaljurisdiction from the scope of the claims.

This change in the Applicant's litigation strategyobscured the heart of the problem underlying the presentcase as seen in the light of evolving opinion andinternational law concerning the suppression of the mostheinous international crimes. The author points out thatcustomary international law, as codified by the law of thesea conventions, recognizes one situation in which universaljurisdiction may be exercised: maritime piracy. Thedevelopment of conventional law is marked by the gradualestablishment of national courts' jurisdiction to punish,progressing as it has from the affirmation of the obligationto prevent and punish, without however establishingjurisdiction to punish, towards the enshrinement in treaty-made law of the principle autjudicare aut dedere.

Judge Ranjeva finds Belgium's interpretation of the"Lotus" case, which in its view lays down the principle thatjurisdiction exists in the absence of an explicit prohibition,to be unreasonable given the facts and circumstances of thecase on which the Permanent Court of International Justicewas called to adjudicate. Judge Ranjeva is of the opinionthat, leaving aside the compelling obligation to give effect

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to the punishment and prevention called for by internationallaw and without it being necessary to condemn the BelgianLaw, it would have been difficult under current positive lawnot to uphold the Congo's original first submission.


In his separate opinion, Judge Koroma stated that thechoice of technique or method of responding to the finalsubmissions put to the Court by the Parties is theprerogative of the Court so long as the Judgment provides acomplete answer to the submissions. On the other hand, inthe context of the present case, the Court decided not toengage in a legal discourse or exegesis to reach itsconclusion, since it did not consider it necessary, interestingthough it may have been. The Judgment cannot therefore bejuridically queried on this ground.

Judge Koroma maintained that the Court was entitled, inresponding to submissions, to take as its point of departurethe determination of whether international law permits anexemption of immunity from the jurisdiction of anincumbent Minister for Foreign Affairs without delving intothe issue of universal jurisdiction, particularly as bothParties had relinquished the issue and had asked the Court topronounce on it only insofar as it relates to the question ofthe immunity of a Foreign Minister in office. Thus, in hisview, and despite appearances to the contrary, what theCourt is called upon to decide is not which of the principlesof either immunity or universal jurisdiction is pre-eminent,but rather whether the issue and circulation of the warrantviolated the immunity of a Foreign Minister in office. JudgeKoroma pointed out that jurisdiction and immunity aredifferent concepts.

According to him, the method chosen by the Court isalso justified on practical grounds; in that the arrest warranthad been issued in Belgium on the basis of Belgian law, itwas therefore appropriate for the Court to determine theimpact of that law on an incumbent Foreign Minister. TheCourt has ruled that while Belgium is entitled to initiatecriminal proceedings against anyone in its jurisdiction, thisdid not extend to an incumbent Foreign Minister of aforeign State who is immune from such jurisdiction. In theJudge's opinion, the Judgment should be seen as respondingto that issue, the paramount legal justification for which isthat a Foreign Minister's immunity is not only of functionalnecessity but increasingly nowadays he or she represents theState, even though this position is not assimilable to that ofHead of State. However, in the Judge's view, the Judgmentshould not be considered either as a validation or a rejectionof the principle of universal jurisdiction, particularly whenno such submission was before the Court.

On the other hand, the Judge stated that, by issuing andcirculating the warrant, Belgium had demonstrated howseriously it took its international obligation to combatinternational crimes, yet it is unfortunate that the wrong casewould appear to have been chosen to do this. It is hisopinion that today, together with piracy, universaljurisdiction is available for certain crimes such as war

crimes, crimes against humanity including the slave tradeand genocide.

Finally, on the issue of remedies, Judge Koromaconsidered that the Court's instruction to Belgium to cancelthe arrest warrant should repair the moral injury suffered bythe Congo and restore the situation status quo ante beforethe warrant was issued and circulated. This should restorelegal peace between the Parties.

Joint separate opinion of Judges Higgins,Kooijmans and Buergenthal

In their joint separate opinion, Judges Higgins,Kooijmans and Buergenthal agree with the Court's holdingon jurisdiction and admissibility, and with much of what theCourt has to say regarding immunities of incumbent ForeignMinisters. They consider, however, that the Court shouldalso have addressed the issue of universal jurisdiction sincethe issue of immunities depends, conceptually, upon a pre-existing jurisdiction. The ultra petita rule bars only a rulingon universal jurisdiction in the dispositif, not its elucidation.Such elucidation was necessary because immunities anduniversal jurisdiction are closely interrelated in this case andbear on the maintenance of stability in internationalrelations without perpetuating impunity for internationalcrimes.

Turning to universal jurisdiction, Judges Higgins,Kooijmans and Buergenthal ask whether States are entitledto exercise such jurisdiction over persons accused of seriousinternational crimes who have no connection with the forumState and are not present in the State's territory. Althoughthey find no established practice indicating the exercise ofsuch jurisdiction, neither do they find evidence of an opiniojuris that deems it illegal.

Moreover, the growing number of multilateral treatiesfor the punishment of serious international crimes tend to bedrafted with great care so as not to preclude the exercise ofuniversal jurisdiction by national courts in these type ofcases. Thus, while there may be no general rule specificallyauthorizing the right to exercise universal jurisdiction, theabsence of a prohibitive rule and the growing internationalconsensus on the need to punish crimes regarded as mostheinous by the international community, indicate that thewarrant for the arrest of Mr. Yerodia did not as such violateinternational law.

Judges Higgins, Kooijmans and Buergenthal agree ingeneral with the Court's finding regarding Mr. Yerodia'simmunity. They share the Court's view that the immunity ofa Foreign Minister must not be equated with impunity andthat procedural immunity cannot shield the Minister frompersonal responsibility once the Minister is no longer inoffice.

However, they consider as too expansive the scope ofthe immunities the Court attributes to Foreign Ministers andtoo restrictive the limits it appears to impose on the scope ofthe personal responsibility of such officials and where theymay be tried. In their view, serious crimes underinternational law engage the personal responsibility of high

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State officials. For puiposes of immunities, the concept ofofficial acts must be narrowly defined.

Judges Higgins, Kooijmans and Buergenthal votedagainst the Court's finding in paragraph (3) of the dispositifthat Belgium must cancel the arrest warrant. They considerthat the Court's reliance on the dictum in the Factory atChorzów case is misplaced because the restoration of thestatus quo ante is not possible as Mr. Yerodia is no longerForeign Minister. Moreover, since Mr. Yerodia no longerholds this office, the illegality attaching to the warrantceased and with it the continuing illegality that wouldjustify an order for its withdrawal.


Judge Rezek voted in favour of all paragraphs of theoperative part of the Judgment. He nonetheless regrets thatthe Court did not rule on the issue of the jurisdiction of theBelgian courts. The fact that the Congo confined itself toinviting the Court to render a decision based on immunitydoes not justify, in Judge Rezek's view, tie Court'sdropping of what represents an inevitable logical premise tothe examination of the issue of immunity.

Judge Rezek considers that an examination ofinternational law demonstrates that, as it currently stands,that law does not permit the exercise of criminal jurisdictionby domestic courts in the absence of some connectingcircumstance with the forum State. A fortiori, it follows thatBelgium cannot be considered as having been "obliged" toinstitute criminal proceedings in this case. Judge Rezeknotes in particular that the Geneva Conventions do notenshrine any notion of universal jurisdiction in absentia,and that such jurisdiction has never been claimed by theSpanish courts in the Pinochet case.

Judge Rezek concludes by noting the importance ofrestraint in the exercise of criminal jurisdiction by domesticcourts; a restraint in line with the notion of a decentralizedinternaitional community, founded on the principle of theequality of its members and necessarily requiring mutualcoordination.

Dissenting opinion of Judge Al-Khasawneh

Judge Al-Khasawneh dissented because, in his opinion,incumbent Ministers for Foreign Affairs enjoy only limitedimmunity, i.e., immunity from enforcement when on anofficial mission. He arrived at this conclusion on the basesthat: immunity is an exception to the rule that man is legallyand morally responsible for his actions and should thereforebe construed narrowly; that unlike diplomats, theimmunities of Foreign Ministers are not clear in terms oftheir basis or extent and unlike Heads of State, ForeignMinisters do not personify the State and are therefore notentitled to immunities and privileges attaching to theirperson. While the Belgian warrant went beyond jurisdiction,it contained express language regarding unenforceability ifthe Minister was on Belgian soil on official mission,similarly the circulation of the warrant was not

accompanied — while Mr. Yerodia was still in office — bya Red Notice asking other States to take enforcement steps.

Judge Al-Khasawneh also dealt with the question ofexceptions in the case of high-ranking State officialsaccused of grave crimes from the protection afforded byimmunities. In this regard he felt that the morallyembarrassing problem of impunity was not adequately dealtwith in the Judgment which tried to circumvent the problemby an artificial distinction between "procedural immunity"on the one hand and "substantive immunity" on the other,and by postulating four situations where immunity andimpunity would not be synonymous, i.e., (a) prosecution inthe home State, (b) waiver and (c) prosecution after leavingoffice, except for official acts and (d) before internationalcourts. Having considered these four situations henevertheless felt that a lacuna still existed. Lastly, he arguedthat the need for effective combating of grave crimes —recognized as such by the international community —represents a higher norm than the rules on immunity and incase of conflict should prevail, even if one is to speak ofreconciliation of opposing norms and not of the triumph ofone over the other, this would suggest a more restrictiveapproach to immunity — which would incidentally bringimmunity from criminal process into consonance with thenow firmly established régime of restrictive immunities ofStates — than the Judgment portrays.

Separate opinion of Judge Bula-Bula

By conducting itself unlawfully, the Kingdom ofBelgium, a sovereign State, committed an internationallywrongful act to the detriment of the Democratic Republic ofthe Congo, likewise a sovereign State.

Judge Bula-Bula fully supports the decision of the Court,which upholds the rule of law against the law of the jungle.In this regard, he has also indicated other grounds of factand law which will render further substance to a Judgmentof interest to the entire international community.

Dissenting opinion of Judge Van den Wyngaerl

Judge Van den Wyngaert has voted against the Court'sdecision on the merits. She disagrees with the Court'sconclusion that there is a rule of customary international lawgranting immunity to incumbent Foreign Ministers. Shebelieves that Belgium has not violated a legal obligation itowed in this respect to the Congo. Even assuming,arguendo, that there was such a rule, there was no violationin the present case as the warrant could not be and was notexecuted, neither in the country where it was issued(Belgium) nor in the countries to which it was circulated.The warrant was not an "international arrest warrant" in alegal sense: it could and did not have this effect, neither inBelgium nor in third countries. Judge Van den Wyngaertbelieves that these are the only objective elements the Courtshould have looked at. The subjective elements, i.e., whetherthe warrant had a psychological effect on Mr. Yerodia orwhether it was perceived as offensive by the Congo (cf. the

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terms iniuria and capitis diminutio used by counsel for theCongo) was irrelevant for the dispute.

On the subject of immunities, Judge Van den Wyngaertfinds no legal basis under international law for grantingimmunity to an incumbent Minister for Foreign Affairs.There is no conventional international law on the subject.There is no customary international law on the subjecteither. Before reaching the conclusion that Ministers forForeign Affairs enjoy a full immunity from foreignjurisdiction under customary international law, theInternational Court of Justice should have satisfied itself ofthe existence of State practice (usus) and opinio jurisestablishing an international custom to this effect. A"negative" practice, consisting in their abstaining frominstituting criminal proceedings, cannot, in itself, be seen asevidence for an opinio juris ('''Lotus", Judgment No. 9,1927, P.C.U., Series A, No. 10, p. 28), and abstinence canbe attributed to many other factors, including practical andpolitical considerations. Legal opinion does not support theCourt's proposition that Ministers for Foreign Affairs areimmune from the jurisdiction of other States undercustomary international law. Moreover, the Court reachesthis conclusion without regard to the general tendencytoward the restriction of immunity of the State officials(including even Heads of State), not only in the field ofprivate and commercial law but also in the field of criminallaw, when there are allegations of war crimes and crimesagainst humanity. Belgium may have acted contrary tointernational comity, but it has not infringed internationallaw. Judge Van den Wyngaert therefore believes that thewhole Judgment is based on flawed reasoning.

On the subject of (universal) jurisdiction, on which theCourt did not pronounce itself in the present Judgment,Judge Van den Wyngaert believes that Belgium wasperfectly entitled to apply its legislation to the war crimesand crimes against humanity allegedly committed by Mr.Yerodia in the Congo. Belgium's War Crimes Act, givingeffect to the principle of universal jurisdiction regarding warcrimes and crimes against humanity, is not contrary tointernational law. On the contrary, international law permitsand even encourages States to assert this form of jurisdictionin order to ensure that suspects of war crimes and crimesagainst humanity do not find safe havens. Universaljurisdiction is not contrary to the principle ofcomplementarity in the Rome Statute for an InternationalCriminal Court. The International Criminal Court will onlybe able to act if States that have jurisdiction are unwilling orunable genuinely to carry out investigation or prosecution(Art. 17). And even where such willingness exists, theInternational Criminal Court, like the ad hoc internationaltribunals, will not be able to deal with all crimes that comeunder its jurisdiction. The International Criminal Court willnot have the capacity for that, and there will always be aneed for States to investigate and prosecute core crimes.These States include, but are not limited to, national andterritorial States. Especially in the case of sham trials, therewill still be a need for third States to investigate andprosecute.

This case was to be a test case, probably the firstopportunity for the International Court of Justice to addressa number of questions that have not been considered sincethe famous "Lotus" case of the Permanent Court ofInternational Justice in 1927. In technical terms, the disputewas about an arrest warrant against an incumbent ForeignMinister.

The warrant was, however, based on charges of warcrimes and crimes against humanity, which the Court evenfails to mention in the dispositif In a more principled way,the case was about how far States can or must go whenimplementing modern international criminal law. It wasabout the question what international law requires or allowsStates to do as "agents" of the international communitywhen they are confronted with complaints of victims of suchcrimes, given the fact that international criminal courts willnot be able to judge all international crimes. It was aboutbalancing two divergent interests in modern international(criminal) law: the need of international accountability forsuch crimes as torture, terrorism, war crimes and crimesagainst humanity and the principle of sovereign equality ofStates, which presupposes a system of immunities.

Judge Van den Wyngaert regrets that the Court has notaddressed the dispute from this perspective and has insteadfocused on the very narrow technical question ofimmunities for incumbent Foreign Ministers. In failing toaddress the dispute from a more principled perspective, theInternational Court of Justice has missed an excellentopportunity to contribute to the development of moderninternational criminal law. In legal doctrine, there is aplethora of recent scholarly writings on the subject. Majorscholarly organizations and non-governmental organizationshave taken clear positions on the subject of internationalaccountability. The latter may be seen as the opinion of civilsociety, an opinion that cannot be completely discounted inthe formation of customary international law today. Shehighly regrets that the Court fails to acknowledge thisdevelopment, and instead adopts a formalistic reasoning,examining whether there is, under customary internationallaw, an international crimes exception to the — wronglypostulated — rale of immunity for incumbent Ministersunder customary international law.

By adopting this approach, the Court implicitlyestablishes a hierarchy between the rules on immunity(protecting incumbent former Ministers) and the rules oninternational accountability (calling for the investigation ofcharges against incumbent Foreign Ministers suspected ofwar crimes and crimes against humanity). By elevating theformer rales to the level of customary international law inthe first part of its reasoning, and finding that the latter havefailed to reach the same status in the second part of itsreasoning, the Court does not need to give furtherconsideration to the legal status of the principle ofinternational accountability under international law. Othercourts, for example, the House of Lords in the Pinochet caseand the European Court of Human Rights in the Al-Adsanicase have given more thought and consideration to the

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balancing of the relative normative status of internationalius cogens crimes and immunities.

Judge Van den Wyngaert disagrees with the Court'sproposition that immunity does not lead to impunity ofincumbent Foreign Ministers. This may be true in theory,but not in practice. It is, in theory, true that an incumbent orformer Foreign Minister can always be prosecuted in hisown country or in other States if the State whom herepresents waves immunity, as the Court asserts. However,this is precisely the core of the problem of impunity: wherenational authorities are not willing or able to investigate orprosecute, the crime goes unpunished. And this is whathappened in the present case. The Congo accused Belgiumof exercising universal jurisdiction in absentia against anincumbent Foreign Minister, but it had itself omitted toexercise its jurisdiction in presentía in the case of Mr.Yerodia, thus infringing the Geneva Conventions and notcomplying with a host of United Nations resolutions to thiseffect. The Congo did not come to the Court with cleanhands: it blamed Belgium for investigating and prosecutingallegations of international crimes that it was obliged toinvestigate and prosecute itself.

In addition, Judge Van den Wyngaert finds the Judgmenthighly unsatisfactory where it states that immunity does notlead to impunity of former Foreign Ministers: according tothe Court, the lifting of full immunity, in this case, is onlyfor acts committed prior or subsequent to his or her periodof office and for acts committed during that period of officein a private capacity. Whether war crimes and crimesagainst humanity fall into this category the Court does notsay. Judge Van den Wyngaert finds it extremely regrettablethat the International Court of Justice has not, like the Houseof Lords in the Pinochet case, qualified this statement. Itcould and indeed should have added that war crimes andcrimes against humanity can never fall into this category.Some crimes under international law (e.g., certain acts ofgenocide and of aggression) can, for practical purposes,only be committed with the means and mechanisms of aState and as part of a State policy. They cannot, from thatperspective, be anything other than "official" acts. Immunityshould never apply to crimes under international law,neither before international courts nor national courts.

Victims of such violations bringing legal action againstsuch persons in third States would face the obstacle ofimmunity from jurisdiction. Today, they may, by virtue ofthe application of the 1969 Special Missions Convention,face the obstacle of immunity from execution while theMinister is on an official visit, but they would not be barredfrom bringing an action altogether. Judge Van denWyngaert feels that taking immunities further than this mayeven lead to conflict with international human rights rules,particularly the right of access to court, as appears from therecent Al-Adsani case of the European Court of HumanRights.

According to Judge Van den Wyngaert, an implicitconsideration behind this Judgment may have been aconcern for abuse and chaos, arising from the risk of Statesasserting unbridled universal jurisdiction and engaging inabusive prosecutions against incumbent Foreign Ministersof other States and thus paralysing the functioning of theseStates. In the present dispute, however, there was noallegation of abuse of process on the part of Belgium.Criminal proceedings against Mr. Yerodia were notfrivolous or abusive. The warrant was issued after two yearsof criminal investigations and there were no allegations thatthe investigating judge who issued it acted on false factualevidence. The accusation that Belgium applied its WarCrimes Statute in an offensive and discriminatory manneragainst a Congolese Foreign Minister was manifestly ill-founded. Belgium, rightly or wrongly, wishes to act as anagent of the world community by allowing complaintsbrought by foreign victims of serious human rights abusescommitted abroad. Since the infamous Dutroux case (a caseof child molestation attracting great media attention in thelate 1990s), Belgium has amended its laws in order toimprove victims' procedural rights, without discriminatingbetween Belgian and foreign victims. In doing so, Belgiumhas also opened its courts to victims bringing charges basedon war crimes and crimes against humanity committedabroad. This new legislation has been applied, not only inthe case against Mr. Yerodia but also in cases against Mr.Pinochet, Mr. Sharon, Mr. Rafzanjani, Mr. Hissen Habré,Mr. Fidel Castro, etc. It would therefore be wrong to saythat the War Crimes Statute has been applied against aCongolese national in a discriminatory way.

In the abstract, the chaos argument may be pertinent.This risk may exist, and the Court could have legitimatelywarned against it in its Judgment without necessarilyreaching the conclusion that a rule of customaryinternational law exists to the effect of granting immunity toForeign Ministers. Judge Van den Wyngaert observes thatgranting immunities to incumbent Foreign Ministers mayopen the door to other sorts of abuse. It dramaticallyincreases the number of persons that enjoy internationalimmunity from jurisdiction. Recognizing immunities forother members of government is just one step further: inpresent-day society, all cabinet members represent theircountries in various meetings. If Foreign Ministers needimmunities to perform their functions, why not grantimmunities to other cabinet members as well? TheInternational Court of Justice does not state this, but doesn'tthis flow from its reasoning leading to the conclusion thatForeign Ministers are immune? The rationale forassimilating Foreign Ministers with diplomatic agents andHeads of State, which is at the centre of the Court'sreasoning, also exists for other Ministers who represent theState officially, for example, Ministers of Education whohave to attend UNESCO conferences in New York or otherMinisters receiving honorary doctorates abroad. Male fide

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governments may appoint persons to cabinet posts in orderto shelter them from prosecutions on charges ofinternational crimes.

Judge Van den Wyngaert concludes by saying that the

International Court of Justice, in its effort to close one boxof Pandora for fear of chaos and abuse, may have openedanother one: that of granting immunity and thus de factoimpunity to an increasing number of government officials.

137. ARMED ACTIVITIES ON THE TERRITORY OF THE CONGO (NEWAPPLICATION: 2002) (DEMOCRATIC REPUBLIC OF THE CONGO v. RWANDA)(PROVISIONAL MEASURES)

Order of 10 July 2002

In an Order in the case concerning Armed Activities onthe Territory of the Congo (New Application: 2002)(Democratic Republic of the Congo v. Rwanda), the Courtrejected the request for the indication of provisionalmeasures submitted by the Democratic Republic of theCongo (hereinafter "the Congo").

In its Order, the Court concludes that "[it] does not inthe present case have the prima facie jurisdiction necessaryto indicate those provisional measures requested by theCongo". The decision was taken by fourteen votes to two.

The Court also found, by fifteen votes to one, "that itcannot grant Rwanda's request that the case be removedfrom the List".

The Court was composed as follows: PresidentGuillaume; Vice-President Shi; Judges Ranjeva, Herczegh,Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal,Elaraby; Judges ad hoc Dugard, Mavungu; RegistrarCouvreur.


"94. For these reasons,THE COURT,(1) By fourteen votes to two,Rejects the request for the indication of provisional

measures submitted by the Democratic Republic of theCongo on 28 May 2002;

IN FAVOUR: President Guillaume; Vice-PrésidentShi; Judges Ranjeva, Herczegh, Fleischhauer, Koroma,Vereshchetin, Higgins, Parra-Aranguren, Kooijmans,Rezek, Al-Khasawneh, Buergenthal; Judge ad hocDugard;

AGAINST: Judge Elaraby; Judge ad hoc Mavungu;(2) By fifteen votes to one,Rejects the submissions by the Rwandese republic

seeking the removal of the case from the Court's List;IN FAVOUR: President Guillaume; Vice-Président

Shi; Judges Ranjeva, Herczegh, Fleischhauer, Koroma,Vereshchetin, Higgins, Parra-Aranguren, Kooijmans,

Rezek, Al-Khasawneh, Buergenthal, Elaraby; Judge adhoc Mavungu;

AGAINST: Judge ad hoc Dugard."

Judges Koroma, Higgins, Buergenthal and Elarabyappended declarations to the Order of the Court; Judges adhoc Dugard and Mavungu appended separate opinions to theOrder of the Court.


In its Order, the Court recalls that, on 28 May 2002, theCongo had instituted proceedings against Rwanda in respectof a dispute concerning "massive, serious and flagrantviolations of human rights and of international humanitarianlaw" alleged to have been committed "in breach of the'International Bill of Human Rights', other relevantinternational instruments and mandatory resolutions of theUnited Nations Security Council". The Court recalls that, inthe Application the Congo stated that "[the] flagrant andserious violations [of human rights and of internationalhumanitarian law]" of which it complains "result from actsof armed aggression perpetrated by Rwanda on the territoryof the Democratic Republic of the Congo in flagrant breachof the sovereignty and territorial integrity [of the latter], asguaranteed by the United Nations and OAU Charters".

The Court stresses that the Congo has recalled that itmade a declaration recognizing the compulsory jurisdictionof the Court in accordance with Article 36, paragraph 2, ofthe Statute of the Court; and that it stated that the RwandanGovernment "has made no such declaration of any sort".

The Court adds that referring to Article 36, paragraph 1,of the Statute, the Congo has relied, in order to found thejurisdiction of the Court, on Article 22 of the InternationalConvention on the Elimination of All Forms of RacialDiscrimination of 7 March 1966 (hereinafter the"Convention on Racial Discrimination"), Article 29,paragraph 1, of the Convention on the Elimination of AllForms of Discrimination against Women of 18 December

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1979 (hereinafter the "Convention on Discriminationagainst Women"), Article IX of the Convention on thePrevention and Punishment of the Crime of Genocide of 9December 1948 (hereinafter the "Genocide Convention"),Article 75 of the Constitution of the World HealthOrganization of 22 July 1946 (hereinafter the "WHOConstitution"), Article XIV, paragraph 2, of the Constitutionof the United Nations Educational, Scientific and CulturalOrganization of 16 November 1945 (hereinafter the"UNESCO Constitution") (as well as Article 9 of theConvention on the Privileges and Immunities of theSpecialized Agencies of 21 November 1947, which is "alsoapplicable to UNESCO"), Article 30, paragraph 1. of theConvention against Torture and Other Cruel, Inhuman orDegrading Treatment or Punishment of 10 December 1984(hereinafter the "Convention against Torture"), and Article14, paragraph 1, of the Montreal Convention for theSuppression of Unlawful Acts against the Safety of CivilAviation of 23 September 1971 (hereinafter the "MontrealConvention"). The Congo furthermore maintains that the1969 Vienna Convention on the Law of Treaties gives theCourt jurisdiction to settle disputes arising from theviolation of peremptory norms {jus cogens) in the area ofhuman rights, as those norms are reflected in & number ofinternational instruments.

The Court recalls that on the same day the Congo hadsubmitted a request for the indication of provisionalmeasures.


In its Order, the Court first emphasizes that it "is deeplyconcerned by the deplorable human tragedy, loss of life, andenormous suffering in the east of the Democratic Republicof the Congo resulting from the continued fighting there".Mindful of the purposes and principles of the UnitedNations Charter and of its own responsibilities in themaintenance of peace and security under the Charter and itsStatute, the Court "finds it necessary to emphasize that allparties to proceedings before it must act in conformity withtheir obligations pursuant to the United Nations Charter andother rules of international law, including humanitarianlaw". The Court considers that it "cannot in the present caseover-emphasize the obligation borne by the Congo andRwanda to respect the provisions of the GenevaConventions of 12 August 1949 and of the first Protocoladditional to those Conventions, of 8 June 1977, relating tothe protection of victims of international armed conflicts, towhich instruments both of them are parties".

The Court then points out that it "does not automaticallyhave jurisdiction over legal disputes between States" andthat "one of the fundamental principles of its Statute is thatit cannot decide a dispute between States without theconsent of those States to its jurisdiction". Moreover itcannot indicate provisional measures without its jurisdictionin the case being established prima facie (at first sight).

Jurisdiction of the Court

With regard to its jurisdiction, the Court observes that, inaccordance with Article 36, paragraph 2, of the Statute, theCongo (then Zaire), by means of a declaration dated 8February 1989, recognized the compulsory jurisdiction ofthe Court in relation to any State accepting the sameobligation; that Rwanda on the other hand has not madesuch a declaration; that the Court accordingly will considerits prima facie jurisdiction solely on the basis of the treatiesand conventions relied upon by the Congo pursuant toArticle 36, paragraph 1, of the Statute, providing: "Thejurisdiction of the Court comprises all cases which theparties refer to it and all matters specially provided for in theCharter of the United Nations or in treaties and conventionsin force."

• The Convention against Torture

The Court notes that the Congo has been a party to thatConvention since 1996, but that Rwanda stated that it is not,and has never been, party to the 1984 Convention againstTorture. The Court finds that such is indeed the case.

• The Convention on Racial Discrimination

The Court first notes that both the Congo and Rwandaare parties to the Convention on Racial Discrimination; thathowever Rwanda's instrument of accession to theConvention includes a reservation reading as follows: "TheRwandese Republic does not consider itself as bound byarticle 22 [the dispute settlement clause] of the Convention."It also notes that in the present proceedings the Congo haschallenged the validity of that reservation. The Courtobserves that the Convention on Racial Discriminationprohibits reservations incompatible with its object andpurpose; that under Article 20, paragraph 2, of theConvention, "[a] reservation shall be consideredincompatible ... if at least two-thirds of the States Parties tothis Convention object to it"; that such has not been the casein respect of Rwanda's reservation concerning thejurisdiction of the Court; that that reservation does notappear incompatible with the object and purpose of theConvention; and that the Congo did not object to thatreservation when it acceded to the Convention. The Courtconcludes that Rwanda's reservation is prima facieapplicable.

• The Genocide Convention

The Court first notes that both the Congo and Rwandaare parties to the Genocide Convention; that howeverRwanda's instrument of accession to the Convention,includes a reservation worded as follows: "The RwandeseRepublic does not consider itself as bound by article IX [thedispute settlement clause] of the Convention." It also notesthat in the present proceedings the Congo has challenged thevalidity of that reservation. The Court observes "that therights and obligations enshrined by the Convention arerights and obligations erga omnes" and that, as it already

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had occasion to point out, "the erga omnes character of anorm and the rule of consent to jurisdiction are two differentthings" and that it does not follow from the mere fact thatrights and obligations erga omnes are at issue in a disputethat the Court has jurisdiction to adjudicate upon thatdispute. The Court then takes note of the fact that theGenocide Convention does not prohibit reservations; thatthe Congo did not object to Rwanda's reservation when itwas made; and that that reservation does not bear on thesubstance of the law, but only on the Court's jurisdiction.The Court finds that that reservation therefore does notappear contrary to the object and purpose of the Convention.

• The Vienna Convention on the Law of Treaties

The Court considers that Article 66 of the ViennaConvention on the Law of Treaties must be read inconjunction with Article 65, entitled "Procedure to befollowed with respect to invalidity, termination, withdrawalfrom or suspension of the operation of a treaty". It observesthat the Congo does not maintain at the present time thatthere is a dispute, which could not be resolved under theprocedure prescribed in Article 65 of the ViennaConvention, between it and Rwanda concerning a conflictbetween a treaty and a peremptory norm of internationallaw; and that the object of Article 66 is not to allow for thesubstitution of the judicial settlement, arbitration andconciliation procedures under the Vienna Convention on theLaw of Treaties for the settlement machinery for disputesrelating to the interpretation or application of specifictreaties, notably when a violation of those treaties has beenalleged.

• The Convention on Discrimination againstWomen

The Court first notes that both the Congo and Rwandaare parties to the Convention on Discrimination againstWomen. It then considers that at this stage in theproceedings the Congo has not shown that its attempts toenter into negotiations or undertake arbitration proceedingswith Rwanda concerned the application of Article 29 of theConvention on Discrimination against Women; and thatneither has the Congo specified which rights protected bythat Convention have allegedly been violated by Rwandaand should be the object of provisional measures. The Courtconcludes that the preconditions on the seisin of the Courtset by Article 29 of the Convention therefore do not appearprima facie to have been satisfied.

• The WHO Constitution

The Court first notes that both the Congo and Rwandaare parties to the WHO Constitution and that both are thusmembers of that Organization. The Court considers howeverthat at this stage in the proceedings the Congo has also notshown that the preconditions on the seisin of the Court setby Article 75 of the WHO Constitution have been satisfied;and that moreover an initial examination of that Constitution

shows that Article 2 thereof, relied on by the Congo, placesobligations on the Organization, not on the member States.

• The UNESCO Constitution

The Court notes that in its Application the Congoinvokes Article I of the Constitution and maintains that"[o]wing to the war, the Democratic Republic of the Congotoday is unable to fulfil its missions within UNESCO ...". Ittakes note of the fact that both the Congo and Rwanda areparties to the UNESCO Constitution.

The Court observes however that Article XIV, paragraph2, provides for the referral, under the conditions establishedin that provision, of disputes concerning the UNESCOConstitution only in respect of the interpretation of thatConstitution; that that does not appear to be the object of theCongo's Application; and that the Application does nottherefore appear to fall within the scope of that Article.

• The Montreal Convention

The Court first notes that both the Congo and Rwandaare parties to the Montreal Convention. It considers that theCongo has not however asked the Court to indicate anyprovisional measure relating to the preservation of rightswhich it believes it holds under the Montreal Convention;and that accordingly the Court is not required, at this stagein the proceedings, to rule, even on a prima facie basis, onits jurisdiction under that Convention nor on the conditionsprecedent to the Court's jurisdiction contained therein.

Conclusions

The Court concludes that it follows from the precedingconsiderations taken together that the Court does not in thepresent case have the prima facie jurisdiction necessary toindicate those provisional measures requested by the Congo.

However, the findings reached by the Court in thepresent proceedings in no way prejudge the question of thejurisdiction of the Court to deal with the merits of the caseor any questions relating to the admissibility of theApplication, or relating to the merits themselves; and theyleave unaffected the right of the Governments of the Congoand of Rwanda to submit their arguments in respect of thosequestions; in the absence of a manifest lack of jurisdiction,the Court finds that it cannot grant Rwanda's request thatthe case be removed from the List.

The Court finally recalls that "there is a fundamentaldistinction between the question of the acceptance by a Stateof the Court's jurisdiction and the compatibility of particularacts with international law; the former requires consent; thelatter question can only be reached when the Court dealswith the merits after having established its jurisdiction andhaving heard full legal arguments by both parties".

It underlines that whether or not States accept thejurisdiction of the Court, they remain in any eventresponsible for acts attributable to them that violate

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international law; that in particular they are required to fulfiltheir obligations under the United Nations Charter; that theCourt cannot but note in this respect that the SecurityCouncil has adopted a great number of resolutionsconcerning the situation in the region, in particularresolutions 1234 (1999), 1291 (2000), 1304 (2000), 1316(2000), 1323 (2000), 1332 (2000), 1341 (2001), 1355(2001), 1376 (2001), 1399 (2002) and 1417 (2002); that theSecurity Council has demanded on many occasions that "allthe parties to the conflict put an ... end to violations ofhuman rights and international humanitarian law"; and thatit has inter alia reminded "all parties of their obligationswith respect to the security of civilian populations under theFourth Geneva Convention relative to the Protection ofCivilian Persons in Time of War of 12 August 1949", andadded that "all forces present on the territory of theDemocratic Republic of the Congo are responsible forpreventing violations of international humanitarian law inthe territory under their control". The Court stresses thenecessity for the Parties to these proceedings to use theirinfluence to prevent the repeated grave violations of humanrights and international humanitarian law whic'ii have beenobserved even recently.


Judge Koroma voted in favour of the Order because, inhis view, it has attempted to address some of the concerns atthe heart of the request.

Referring to the allegations and contentions of each ofthe Parties, he observes that from the information submittedto the Court it is apparent that real, serious threats do existto the population of the region concerned, including thethreat to life.

Judge Koroma is aware that the Court has set out certaincriteria to be satisfied before granting a request for theindication of provisional measures. Among these are thatthere must be prima facie or potential jurisdiction, urgency,and the risk of irreparable harm if an order is not granted.But these criteria, in his view, have to be considered in thecontext of Article 41, which authorizes the Court to"indicate", if it considers that the circumstances so require,any provisional measure which ought to be taken to preservethe respective rights of either party, and of the Court's rolein maintaining international peace and security, includinghuman security and the right to life.

In Judge Koroma's view, the Court, although it has beenunable to grant the request for want of prima faciejurisdiction, has, in paragraphs 54, 55, 56 and 93 of theOrder, rightly and judiciously expressed its deep concernover the deplorable human tragedy, loss of life andenormous suffering in the east of the Democratic Republicof the Congo resulting from the fighting there. It has alsorightly emphasized that whether or not States accept thejurisdiction of the Court, they remain, in any event,responsible for acts attributable to them that violateinternational law and that they are required to fulfil theirobligations under the United Nations Charter and in respectof the relevant Security Council resolutions.

Judge Koroma concludes by stating that, if ever adispute warranted the indication of interim measures ofprotection, this is it. But he is of the opinion that, while itwas not possible for the Court to grant the request owing tocertain missing elements, the Court has, in accordance withits obiter dicta in the cited paragraphs, neverthelessdischarged its responsibilities in maintaining internationalpeace and security and preventing the aggravation of thedispute. The position taken by the Court can only be viewedas constructive, without however prejudging the merits ofthe case. It is a judicial position and it is in the interest of allconcerned to hearken to the call of the Court.

Declaration of Judge Higgins

I do not agree with one of the limbs relied on by theCourt in paragraph 79 of its Order. It is well established ininternational human rights case law that it is not necessaiy,for the purpose of establishing jurisdiction over the merits,for an applicant to identify which specific provisions of thetreaty said to found jurisdiction are alleged to be breached.See, for example, the findings of the Human RightsCommittee on Stephens v. Jamaica (United Nations,Official Records of the General Assembly, Fifty-firstSession, Supplement No. 40 (A/51/40)); B.d.B. et al. v. TlieNetherlands (ibid., Forty-fourth Session, Supplement No. 40(A/45/40)); and many other cases. A fortiori is there noreason for the International Court of Justice, in establishingwhether it has prima facie jurisdiction for purposes of theindication of provisional measures, to suggest a morestringent test. It should rather be for the Court itself, inaccordance with the usual practice, to see whether theclaims made by the Congo and the facts alleged could primafacie constitute violations of any particular clause in theConvention on the Elimination of All Forms ofDiscrimination against Women, the instrument relied on bythe Congo as providing the Court with jurisdiction over themerits.

However, as I agree with the other elements inparagraph 79, and with the legal consequence that flowsfrom them, I have voted in favour of the Order.

Declaration of Judge Buergenthal

While agreeing with the Court's decision, JudgeBuergenthal disagrees with the inclusion in the Court'sOrder of the language found in its paragraphs 54-56 and 93.He does not object to the high-minded propositions theyexpress, but considers that they deal with matters the Courthas no jurisdiction to address once it has ruled that it lacksprima facie jurisdiction to issue the requested provisionalmeasures.

In his view, the Court's function is to pronounce itselfon matters within its jurisdiction and not to voice personalsentiments or to make comments, general or specific, which,despite their admittedly "feel-good" qualities, have nolegitimate place in this Order.

Judge Buergenthal emphasizes that the Court's own"responsibilities in the maintenance of peace and security

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under the Charter", which it invokes in paragraph 55, arenot general. They are strictly limited to the exercise of itsjudicial functions in cases over which it has jurisdiction.Hence, when the Court, without having the requisitejurisdiction, makes pronouncements such as those found inparagraph 55, for example, which read like preambles toresolutions of the United Nations General Assembly orSecurity Council, it is not acting like a judicial body.

As for paragraph 56, Judge Buergenthal believes that thefact that this statement is even-handed in that it addressesboth Parties to the case, does not make it any moreappropriate than it would be if it had been addressed to onlyone of them. It is inappropriate, first, because the Court hasno jurisdiction in this case to call on the States parties torespect the Geneva Conventions or the other legalinstruments and principles mentioned in the paragraph.Second, since the request for preliminary measures by theDemocratic Republic of the Congo sought a cessation byRwanda of activities that might be considered to beviolations of the Geneva Conventions, the Court'spronouncement in paragraph 56 can be deemed to lend somecredence to this claim. The latter conclusion is strengthenedby the language of paragraph 93, which bears closeresemblance to some of the language the Court would mostlikely employ if it had granted the provisional measuresrequest. The fact that the paragraph is addressed to bothParties is irrelevant, for in comparable circumstances theCourt has issued provisional measures formulated in similarlanguage addressed to both Parties although they wererequested by only one of them.

Judge Buergenthal considers that, whether intended ornot, the Court's pronouncements, particularly those inparagraphs 56 and 93, might be deemed to lend credence tothe factual allegations submitted by the party seeking theprovisional measures. In the future, they might alsoencourage States to file provisional measures requests,knowing that, even though they would be unable to sustainthe burden of demonstrating the requisite prima faciejurisdiction, they would obtain from the Court somepronouncements that could be interpreted as supporting theirclaim against the other party.

Declaration of Judge Elaraby

1. He voted against the rejection of the request for theindication of provisional measures submitted by theDemocratic Republic of the Congo, principally because, inaccordance with its Statute and its present jurisprudence, theCourt should, in principle grant a request for provisionalmeasures once the requirements of urgency on the one handand likelihood of irreparable damage to the rights of one orboth parties to a dispute, on the other, have been established.He is of the opinion that the Court has, under Article 41 ofthe Statute, a wide-ranging power of discretion to indicateprovisional measures.

The jurisprudence of the Court has progressively, albeitgradually, advanced from its earlier strict insistence onestablished jurisdiction to acceptance of prima faciejurisdiction as the threshold for the exercise of the Court's

powers under Article 41 of the Statute. This progressiveshift has not, in his view, been reflected in the Order.

2. His reading of the two subparagraphs togetherconvinces him that the Court is vested with a wide scope ofdiscretion to decide on the circumstances warranting theindication of provisional measures. The reference to theSecurity Council underlines the prominence of the linkbetween the Court and the Council in matters related to themaintenance of international peace and security. The Statutemoreover does not attach additional conditions to theauthority of the Court to grant provisional measures. Inpoint of fact, the jurisdiction of the Court need not beestablished at this early stage of the proceedings.

3. In his view, the Montreal Convention should havebeen regarded as a suitable instrumental basis to provide aprima facie jurisdiction for the indication of provisionalmeasures.

4. He is of the opinion that the circumstances of thecase reflect an urgent need to protect the rights and interestsof the Democratic Republic of the Congo.

Separate opinion of Judge Dugard

In his separate opinion Judge Dugard endorses theCourt's Order that the Congo has failed to show, primafacie, a basis on which the jurisdiction of the Court might beestablished and that, as a consequence, its request forprovisional measures should be rejected. He disagrees,however, with the Court's Order that the case should not beremoved from its List.

Judge Dugard maintains that a case should be removedfrom the Court's List where there is no reasonablepossibility that the applicant might in future be able toestablish the jurisdiction of the Court in the disputesubmitted to it on the basis of the treaties invoked forjurisdiction, on the ground that in such a case there is amanifest lack of jurisdiction — the test employed by theCourt in previous decisions for moving a case from its List.

An examination of the treaties invoked by the Congo tofound jurisdiction in this case leads him to conclude thatthey manifestly cannot provide a basis for jurisdiction.Consequently, he maintains that the case should have beenremoved from the List.

Judge Dugard warns that, as a result of the finding of theCourt in the LaGrand case in 2001 that an Order forprovisional measures is legally binding, there is a likelihoodthat the Court will be inundated with requests forprovisional measures. In order to guard against an abuse ofthis procedure the Court should adopt a strict approach toapplications in which the basis for jurisdiction is manifestlyunfounded by removing such cases from the List.

Judge Dugard expresses his support for the generalcomments made by the Court on the tragic situation in theeastern Congo. He stresses that these comments deploringthe suffering of people in the eastern Congo resulting fromthe conflict in that region and calling upon States to act inconformity with international law are addressed to both

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Rwanda and the Congo, and in no way prejudge the issuesin this case.

Separate opinion of Judge Mavungu

Judge Mavungu approves of the general terms of theOrder of the Court. However, owing to the nature of thedispute, the Court, in his view, could have prescribedprovisional measures notwithstanding the narrowness of thebases of the Court's jurisdiction.

His opinion addresses two main questions: the basis ofthe Court's jurisdiction and the requirements governing theindication of provisional measures. In respeci; of the firstquestion, he notes that the Democratic Republic of theCongo advanced several legal grounds to establish theCourt's jurisdiction: the Congo's February 1989 declarationrecognizing the compulsory jurisdiction of the Court, certaincompromissory clauses and norms of jus cogens. Several ofthe grounds asserted by the Applicant could not found thejurisdiction of the Court: the Congo's 1989 declaration, theUNESCO Constitution of 1946 and the 1984 Convention

against Torture. In accordance with the Court's settledjurisprudence, its jurisdiction can be established only on thebasis of States' consent.

On the other hand, he considers that the Court'sjurisdiction could be founded prima facie under thecompromissory clauses appearing in the WHO Constitution,the Montreal Convention of 1971 and the 1979 Conventionon Discrimination against Women. The RwandeseRepublic's reservation in respect of the jurisdictional clausein Article IX of the 1948 Genocide Convention is, in hisview, contrary to the object and purpose of that Convention.

In accordance with Article 41 of the Statute and Article73 of the Rules of Court, as well as the Court's well-settledjurisprudence, the granting of provisional measures isdependent on various factors: urgency, preservation of therights of the parties, non-aggravation of the dispute andprima facie jurisdiction. He believes that those conditionshave been satisfied in the present case and that this shouldhave led the Court to indicate several provisional measures.

138. LAND AND MARITIME BOUNDARY BETWEEN CAMEROON AND NIGERIA(CAMEROON v. NIGERIA: EQUATORIAL GUINEA INTERVENING) (MERITS)

Judgment of 10 October 2002

In its Judgment on the case concerning Land andMaritime Boundary between Cameroon and Nigeria, theCourt fixed the course of the land and maritime boundariesbetween Cameroon and Nigeria.

The Court requested Nigeria expeditiously and withoutcondition to withdraw its administration and its military orpolice forces from the area of Lake Chad falling withinCameroonian sovereignty and from the Bakassi Peninsula. Italso requested Cameroon expeditiously and withoutcondition to withdraw any administration or military orpolice forces which may be present along the la:id boundaryfrom Lake Chad to the Bakassi Peninsula on territorieswhich pursuant to the judgment fall within the sovereigntyof Nigeria. The latter has the same obligation in regard toterritories in that area which fall within the sovereignty ofCameroon.

The Court took note of Cameroon's undertaking, giventhe hearings, to "continue to afford protection i:o Nigeriansliving in the [Bakassi] Peninsula and in the Lake Chadarea".

Finally, the Court rejected Cameroon's submissionsregarding the State responsibility of Nigeria. It likewiserejected Nigeria's counterclaims.

The Court was composed as follows: PresidentGuillaume; Vice-Président Shi; Judges Oda, Ranjeva,Herczegh, Fleischhauer, Koroma, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal,Elaraby; Judges ad hoc Mbaye, Ajibola; Registrar Couvreur.


"325. For these reasons,THE COURT,I. (A) By fourteen votes to two,Decides that the boundary between the Republic of

Cameroon and the Federal Republic of Nigeria in theLake Chad area is delimited by the Thomson-MarchandDeclaration of 1929-1930, as incorporated in theHenderson-Fleuriau Exchange of Notes of 1931 ;

IN FAVOUR: President Guillaume; Vice-PrésidentShi; Judges Oda, Ranjeva, Herczegh, Fleischhauer,Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby; Judge ad hoc Mbaye;

AGAINST: Judge Koroma; Judge ad hoc Ajibola;(B) By fourteen votes to two,Decides that the line of the boundary between the

Republic of Cameroon and the Federal Republic ofNigeria in the Lake Chad area is as follows:From a tripoint in Lake Chad lying at 14°04'59"9999longitude east and 13°05' latitude north, in a straight lineto the mouth of the River Ebeji, lying at 14°12'12"longitude east and 12°32'17" latitude north; and fromthere in a straight line to the point where the River Ebeji

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bifurcates, located at 14°12'03" longitude east and12°30'14" latitude north;


AGAINST: Judge Koroma; Judge ad hoc Ajibola;II. (A) By fifteen votes to one,Decides that the land boundary between the Republic

of Cameroon and the Federal Republic of Nigeria isdelimited, from Lake Chad to the Bakassi Peninsula, bythe following instruments:

(i) from the point where the River Ebeji bifurcatesas far as Tamnyar Peak, by paragraphs 2 to 60of the Thomson-Marchand Declaration of 1929-1930, as incorporated in the Henderson-FleuriauExchange of Notes of 1931;

(ii) from Tamnyar Peak to pillar 64 referred to inArticle XII of the Anglo-German Agreement of12 April 1913, by the British Order in Councilof 2 August 1946;

(iii) from pillar 64 to the Bakassi Peninsula, by theAnglo-German Agreements of 11 March and 12April 1913;

IN FAVOUR: President Guillaume; Vice-PrésidentShi; Judges Oda, Ranjeva, Herczegh, Fleischhauer,Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby; Judges ad hocMbaye, Ajibola;

AGAINST: Judge Koroma;(B) Unanimously,

Decides that the aforesaid instruments are to beinterpreted in the manner set out in paragraphs 91, 96,102, 114, 119, 124, 129, 134, 139, 146, 152, 155, 160,168,179, 184 and 189 of the present Judgment;

III. (A) By thirteen votes to three,Decides that the boundary between the Republic of

Cameroon and the Federal Republic of Nigeria inBakassi is delimited by Articles XVIII to XX of theAnglo-German Agreement of 11 March 1913;

IN FAVOUR: President Guillaume; Vice-PrésidentShi; Judges Oda, Ranjeva, Herczegh, Fleischhauer,Higgins, Parra-Aranguren, Kooijmans, Al-Khasawneh,Buergenthal, Elaraby; Judge ad hoc Mbaye;

AGAINST: Judges Koroma, Rezek; Judge ad hocAjibola;

(B) By thirteen votes to three,Decides that sovereignty over the Bakassi Peninsula

lies with the Republic of Cameroon;IN FAVOUR: President Guillaume; Vice-Président

Shi; Judges Oda, Ranjeva, Herczegh, Fleischhauer,Higgins, Parra-Aranguren, Kooijmans, Al-Khasawneh,Buergenthal, Elaraby; Judge ad hoc Mbaye;


(C) By thirteen votes to three,

Decides that the boundary between the Republic ofCameroon and the Federal Republic of Nigeria inBakassi follows the thalweg of the Akpakorum(Akwayafe) River, dividing the Mangrove Islands nearIkang in the way shown on map TSGS 2240, as far asthe straight line joining Bakassi Point and King Point;

IN FAVOUR: President Guillaume; Vice-PrésidentShi; Judges Oda, Ranjeva, Herczegh, Fleischhauer,Higgins, Parra-Aranguren, Kooijmans, Al-Khasawneh,Buergenthal, Elaraby; Judge ad hoc Mbaye;


IV. (A) By thirteen votes to three,Finds, having addressed Nigeria's eighth preliminary

objection, which it declared in its Judgment of 11 June1998 not to have an exclusively preliminary character inthe circumstances of the case, that it has jurisdictionover the claims submitted to it by the Republic ofCameroon regarding the delimitation of the maritimeareas appertaining respectively to the Republic ofCameroon and to the Federal Republic of Nigeria, andthat those claims are admissible;

IN FAVOUR: President Guillaume; Vice-PrésidentShi; Judges Ranjeva, Herczegh, Fleischhauer, Higgins,Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh,Buergenthal, Elaraby; Judge ad hoc Mbaye;

AGAINST: Judges Oda, Koroma; Judge ad hocAjibola;

(B) By thirteen votes to three,Decides that, up to point G below, the boundary of

the maritime areas appertaining respectively to theRepublic of Cameroon and to the Federal Republic ofNigeria takes the following course:starting from the point of intersection of the centre of thenavigable channel of the Akwayafe River with thestraight line joining Bakassi Point and King Point asreferred to in point III (C) above, the boundary followsthe "compromise line" drawn jointly at Yaounde on 4April 1971 by the Heads of State of Cameroon andNigeria on British Admiralty Chart 3433 (Yaounde IIDeclaration) and passing through 12 numbered points,whose coordinates are as follows:

Longitude Latitudepoint 1: 8° 30' 44" E, 4° 40' 28" Npoint 2: 8° 30' 00" E, 4° 40' 00" Npoint 3: 8° 28' 50" E, 4° 39' 00" Npoint 4: 8° 27' 52" E, 4° 38' 00" Npoint 5: 8° 27' 09" E, 4° 37' 00" Npoint 6: 8° 26' 36" E, 4° 36' 00" Npoint 7: 8° 26' 03" E, 4° 35' 00" Npoint 8: 8° 25' 42" E, 4° 34' 18" Npoint 9: 8° 25' 35" E, 4° 34' 00" Npoint 10: 8° 25'08" E, 4° 33'00" Npoint 11: 8° 24'47" E, 4° 32'00" Npoint 12: 8° 24'38" E, 4° 31'26" N;

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from point 12, the boundary follows the line adopted inthe Declaration signed by the Heads of State ofCameroon and Nigeria at Maroua on 1 June 1975(Maroua Declaration), as corrected by the exchange ofletters between the said Heads of State of 12 June and 17July 1975; that line passes through points A to G, whosecoordinates are as follows:

Longitude

point A: 8° 24' 24" E,point Al: 8° 24'24" E,point B: 8° 24'10" E,point C: 8° 23' 42" E,point D: 8° 22' 41" E,point E: 8° 22'17" E,point F: 8° 22'19" E,point G: 8° 22'19" E,

Latitude

4° 31'30" N4° 31'20" N4° 26' 32" N4° 23' 28" N4° 20' 00" N4° 19'32"N4° 18'46"N4° 17' 00" N;

IN FAVOUR: President Guillaume; Vice-PresidentShi; Judges Oda, Ranjeva, Herczegh, Fleischhauer,Higgins, Parra-Aranguren, Kooijmans, Al-Khasawneh,Buergenthal, Elaraby; Judge ad hoc Mbaye;


(C) Unanimously,Decides that, from point G, the boundary line

between the maritime areas appertaining respectively tothe Republic of Cameroon and to the Federal Republicof Nigeria follows a loxodrome having an azimuth of270° as far as the equidistance line passing through themidpoint of the line joining West Point and East Point;the boundary meets this equidistance line at a point X,with coordinates 8°21'20" longitude east and 4°17'00"latitude north;

(D) Unanimously,Decides that, from point X, the boundary between

the maritime areas appertaining respectively to theRepublic of Cameroon and to the Federal Republic ofNigeria follows a loxodrome having an azimuth of187°52'27";

V. (A) By fourteen votes to two,Decides that the Federal Republic of Nigeria is under

an obligation expeditiously and without condition towithdraw its administration and its military and policeforces from the territories which fall within thesovereignty of the Republic of Cameroon pursuant topoints I and III of this operative paragraph;


AGAINST: Judge Koroma; Judge ad hoc Ajibola;(B) Unanimously,Decides that the Republic of Cameroon is under an

obligation expeditiously and without condition towithdraw any administration or military or police forces

which may be present in the territories which fall withinthe sovereignty of the Federal Republic of Nigeriapursuant to point II of this operative paragraph. TheFederal Republic of Nigeria has the same obligation inrespect of the territories which fall within thesovereignty of the Republic of Cameroon pursuant topoint II of this operative paragraph;

(C) By fifteen votes to one,Takes note of the commitment undertaken by the

Republic of Cameroon at the hearings that, "faithful toits traditional policy of hospitality and tolerance", it"will continue to afford protection to Nigerians living inthe [Bakassi] Peninsula and in the Lake Chad area";

IN FAVOUR: President Guillaume; Vice-PrésidentShi; Judges Oda, Ranjeva, Herczegh, Fleischhauer,Koroma, Higgins, Kooijmans, Rezek, Al-Khasawneh,Buergenthal, Elaraby; Judges ad hoc Mbaye, Ajibola;

AGAINST: Judge Parra-Aranguren;(D) Unanimously,Rejects all other submissions of the Republic of

Cameroon regarding the State responsibility of theFederal Republic of Nigeria;

(E) Unanimously,Rejects the counter-claims of the Federal Republic of

Nigeria."

Judge Oda appended a declaration to the Judgment ofthe Court; Judge Ranjeva appended a separate opinion to theJudgment of the Court; Judge Herczegh appends adeclaration to the Judgment of the Court; Judge Koromaappended a dissenting opinion to the Judgment of the Court;Judge Parra-Aranguren appended a separate opinion to theJudgment of the Court; Judge Rezek appended a declarationto the Judgment of the Court; Judge Al-Khasawneh andJudge ad hoc Mbaye append separate opinions to theJudgment of the Court; Judge ad hoc Ajibola appends adissenting opinion to the Judgment of the Court.

I. History of the proceedings and submissions ofthe Parties(paras. 1-29)

On 29 March 1994 Cameroon filed an Applicationinstituting proceedings against Nigeria concerning a disputedescribed as "relat[ing] essentially to the question ofsovereignty over the Bakassi Peninsula". Cameroon furtherstated in its Application that the "delimitation [of themaritime boundary between the two States] has remained apartial one and [that], despite many attempts to complete it,the two parties have been unable to do so". Consequently, itrequested the Court, "[i]n order to avoid further incidentsbetween the two countries,... to determine the course of the

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maritime boundary between the two States beyond the linefixed in 1975".

In order to found the jurisdiction of the Court, theApplication relied on the declarations made by the twoParties accepting the jurisdiction of the Court under Article36, paragraph 2, of the Statute of the Court.

On 6 June 1994 Cameroon filed an AdditionalApplication "for the purpose of extending the subject of thedispute" to a further dispute described as "relating]essentially to the question of sovereignty over a part of theterritory of Cameroon in the area of Lake Chad". Cameroonalso requested the Court, "to specify definitively" thefrontier between the two States from Lake Chad to the sea,and asked it to join the two Applications and "to examinethe whole in a single case".

After at a meeting held by the President of the Courtwith the representatives of the Parties, the Agent of Nigeriahad declared that his Government did not object to theAdditional Application being treated as an amendment tothe initial Application so that the Court might examine thewhole in a single case, the Court, by an Order of 16 June1994, indicated that it had no objection to such a procedureand fixed the time limits for the filing of writtenproceedings.

Within the time limit fixed for the filing of its Counter-Memorial, Nigeria filed preliminary objections to thejurisdiction of the Court and the admissibility of theApplication.

In its Judgment of 11 June 1998 on the preliminaryobjections raised by Nigeria the Court found that it hadjurisdiction to adjudicate upon the merits of the dispute andthat Cameroon's requests were admissible. The Courtrejected seven of the preliminary objections raised byNigeria and declared that the eighth did not have anexclusively preliminary character, and that it would rule onit in the Judgment to be rendered on the merits.

On 28 October 1998 Nigeria submitted a request forinterpretation of the Judgment delivered by the Court on 11June 1998 on the preliminary objections; that requestbecame a new case, separate from the present proceedings.By Judgment dated 25 March 1999 the Court decided thatNigeria's request for interpretation was inadmissible.

Nigeria's Counter-Memorial, filed within the extendedtime limit of 31 May 1999, included counterclaims.

By an Order of 30 June 1999 the Court declaredNigeria's counterclaims admissible, and fixed time limitsfor the subsequent procedure.

On 30 June 1999 the Republic of Equatorial Guinea filedin the Registry an Application for permission to intervene inthe case pursuant to Article 62 of the Statute. According tothat Application, the object of the intervention sought was to"protect the legal rights of the Republic of EquatorialGuinea in the Gulf of Guinea by all legal means available"and to "inform the Court of the nature of the legal rights andinterests of Equatorial Guinea that could be affected by theCourt's decision in the light of the maritime boundaryclaims advanced by the parties to the case before the Court".

Equatorial Guinea further indicated that it "d[id] not seek tobecome a party to the case".

By an Order of 21 October 1999 the Court, consideringthat Equatorial Guinea had sufficiently established that ithad an interest of a legal nature which could be affected byany judgment which the Court might hand down for thepurpose of determining the maritime boundary betweenCameroon and Nigeria, authorized it to intervene in the caseto the extent, in the manner and for the purposes set out inits Application and fixed time limits for the subsequentintervention proceedings (Art. 85, para. 1, of the Rules ofCourt).

Public hearings were held from 18 February to 21 March2002.

At the oral proceedings, the following submissions werepresented by the Parties:

On behalf of the Government of Cameroon,"Pursuant to the provisions of Article 60, paragraph 2, ofthe Rules of Court the Republic of Cameroon has thehonour to request that the International Court of Justicebe pleased to adjudge and declare:

(a) That the land boundary between Cameroon andNigeria takes the following course:• from the point designated by the coordinates 13°05'

north and 14°05' east, the boundary follows a straightline as far as the mouth of the Ebeji, situated at thepoint located at the coordinates 12°32'17" north and14°12'12" east, as defined within the framework ofthe LCBC and constituting an authoritativeinterpretation of the Milner-Simon Declaration of 10July 1919 and the Thomson-Marchand Declarationsof 29 December 1929 and 31 January 1930, asconfirmed by the Exchange of Letters of 9 January1931; in the alternative, the mouth of the Ebeji issituated at the point located at the coordinates12°31'12" north and 14°11'48" east;

• from that point it follows the course fixed by thoseinstruments as far as the 'very prominent peak'described in paragraph 60 of the Thomson-MarchandDeclaration and called by the usual name of 'MountKombon';

• from 'Mount Kombon' the boundary then runs to'Pillar 64' mentioned in paragraph 12 of the Anglo-German Agreement of Obokum of 12 April 1913 andfollows, in that sector, the course described inSection 6 (1) of the British Nigeria (Protectorate andCameroons) Order in Council of 2 August 1946;

• from Pillar 64 it follows the course described inparagraphs 13 to 21 of the Obokum Agreement of 12April 1913 as far as Pillar 114 on the Cross River;

• thence, as far as the intersection of the straight linefrom Bakassi Point to King Point with the centre ofthe navigable channel of the Akwayafe, the boundaryis determined by paragraphs XVI to XXI of theAnglo-German Agreement of 11 March 1913.

(b) That in consequence, inter alia, sovereignty overthe peninsula of Bakassi and over the disputed parcel

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occupied by Nigeria in the area of Lake Chad, inparticular over Darak and its region, is Cameroonian.

(c) That the boundary of the maritime areasappertaining respectively to the Republic oí" Cameroonand to the Federal Republic of Nigeria takes thefollowing course:

• from the intersection of the straight line fromBakassi Point to King Point with the centre of thenavigable channel of the Akwayafe to point '12', thatboundary is confirmed by the 'compromise line'entered on British Admiralty Chart No. 3433 by theHeads of State of the two countries on 4 April 1971(Yaounde II Declaration) and, from that point 12 topoint 'G', by the Declaration signed at Maroua on 1June 1975;

• from point G the equitable line follows the directionindicated by points G, H (coordinates 8°21'16" eastand 4° 17' north), I (7°55'40" east and 3°46' north), J(7°12'08" east and 3°12'35" north), K (6C45'22" eastand 3°01"05" north), and continues from K up to theouter limit of the maritime zones which internationallaw places under the respective jurisdiction of thetwo Parties.(d) That in attempting to modify unilaterally and by

force the courses of the boundary defined above under(a) and (c), the Federal ELepublic of Nigeria has violatedand is violating the fundamental principle of respect forfrontiers inherited from colonization (uti possidetisjuris), as well as its legal obligations concerning the landand maritime delimitation.

(e) That by using force against the Republic ofCameroon and, in particular, by militarily occupyingparcels of Cameroonian territory in the area of LakeChad and the Cameroonian peninsula of Bakassi, and bymaking repeated incursions throughout the length of theboundary between the two countries, the FederalRepublic of Nigeria has violated and is violating itsobligations under international treaty law and. customarylaw.

(/) That the Federal Republic of Nigeria has theexpress duty of putting an end to its administrative andmilitary presence in Cameroonian territoiy and, inparticular, of effecting an immediate and unconditionalevacuation of its troops from the occupied area of LakeChad and from the Cameroonian peninsula of Bakassiand of refraining from such acts in the future.

(g) That in failing to comply with the Order for theindication of provisional measures rendered by the Courton 15 March 1996 the Federal Republic of Nigeria hasbeen in breach of its international obligations.

(h) That the internationally wrongful acts referred toabove and described in detail in the written pleadingsand oral argument of the Republic of Cameroon engagethe responsibility of the Federal Republic of Nigeria.

(?) That, consequently, on account of the materialand moral injury suffered by the Republic of Cameroonreparation in a form to be determined by the Court is due

from the Federal Republic of Nigeria to the Republic ofCameroon.

The Republic of Cameroon further has the honour torequest the Court to permit it, at a subsequent stage ofthe proceedings, to present an assessment of the amountof compensation due to it as reparation for the injurysuffered by it as a result of the internationally wrongfulacts attributable to the Federal Republic of Nigeria.

The Republic of Cameroon also asks the Court todeclare that the counter-claims of the Federal Republicof Nigeria are unfounded both in fact and in law, and toreject them."On behalf of the Government of Nigeria,

"The Federal Republic of Nigeria respectfullyrequests that the Court should

1. as to the Bakassi Peninsula, adjudge and declare:(a) that sovereignty over the Peninsula is vested in

the Federal Republic of Nigeria;(b) that Nigeria's sovereignty over Bakassi extends

up to the boundary with Cameroon described in Chapter11 of Nigeria's Counter-Memorial;

2. as to Lake Chad, adjudge and declare:(a) that the proposed delimitation and demarcation

under the auspices of the Lake Chad Basin Commission,not having been accepted by Nigeria, is not bindingupon it;

(b) that sovereignty over the areas in Lake Chaddefined in paragraph 5.9 of Nigeria's Rejoinder anddepicted in Figs. 5.2 and 5.3 facing page 242 (andincluding the Nigerian settlements identified inparagraph 4.1 of Nigeria's Rejoinder) is vested in theFederal Republic of Nigeria;

(c) that in any event the process which has takenplace within the framework of the Lake Chad BasinCommission, and which was intended to lead to anoverall delimitation and demarcation of boundaries onLake Chad, is legally without prejudice to the title toparticular areas of the Lake Chad region inhering inNigeria as a consequence of the historical consolidationof title and the acquiescence of Cameroon;

3. as to the central sectors of the land boundary,adjudge and declare:

(a) that the Court's jurisdiction extends to thedefinitive specification of the land boundary betweenLake Chad and the sea;

(b) that the mouth of the Ebeji, marking thebeginning of the land boundary, is located at the pointwhere the north-east channel of the Ebeji flows into thefeature marked 'Pond' on the map shown as Fig. 7.1 ofNigeria's Rejoinder, which location is at latitude12°31'45" N, longitude 14°13'00" E (Adindan Datum);

(c) that subject to the interpretations proposed inChapter 7 of Nigeria's Rejoinder, the land boundarybetween the mouth of the Ebeji and the point on thethalweg of the Akpa Yafe which is opposite themidpoint of the mouth of Archibong Creek is delimited

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by the terms of the relevant boundary instruments,namely:

(i) paragraphs 2-61 of the Thomson-MarchandDeclaration, confirmed by the Exchange ofLetters of 9 January 1931;

(ii) the Nigeria (Protectorate and Cameroons)Order in Council of 2 August 1946 (Section 6(1) and the Second Schedule thereto);

(iii) paragraphs 13-21 of the Anglo-GermanDemarcation Agreement of 12 April 1913; and

(iv) Articles XV to XVII of the Anglo-GermanTreaty of 11 March 1913; and

(d) that the interpretations proposed in Chapter 7 ofNigeria's Rejoinder, and the associated action thereidentified in respect of each of the locations where thedelimitation in the relevant boundary instruments isdefective or uncertain, are confirmed;

4. as to the maritime boundary, adjudge anddeclare:

(a) that the Court lacks jurisdiction over Cameroon'smaritime claim from the point at which its claim lineenters waters claimed against Cameroon by EquatorialGuinea, or alternatively that Cameroon's claim isinadmissible to that extent;

(6) that Cameroon's claim to a maritime boundarybased on the global division of maritime zones in theGulf of Guinea is inadmissible, and that the parties areunder an obligation, pursuant to Articles 74 and 83 ofthe United Nations Law of the Sea Convention, tonegotiate in good faith with a view to agreeing on anequitable delimitation of their respective maritime zones,such delimitation to take into account, in particular, theneed to respect existing rights to explore and exploit themineral resources of the continental shelf, granted byeither party prior to 29 March 1994 without writtenprotest from the other, and the need to respect thereasonable maritime claims of third States;

(c) in the alternative, that Cameroon's claim to amaritime boundary based on the global division ofmaritime zones in the Gulf of Guinea is unfounded inlaw and is rejected;

(d) that, to the extent that Cameroon's claim to amaritime boundary may be held admissible in thepresent proceedings, Cameroon's claim to a maritimeboundary to the west and south of the area ofoverlapping licenses, as shown in Fig. 10.2 of Nigeria'sRejoinder, is rejected;

(e) that the respective territorial waters of the twoStates are divided by a median line boundary within theRio del Rey;

(/) that, beyond the Rio del Rey, the respectivemaritime zones of the parties are to be delimited by aline drawn in accordance with the principle ofequidistance, until the approximate point where that linemeets the median line boundary with Equatorial Guinea,i.e. at approximately 4°6' N, 8°30' E;

5. as to Cameroon's claims of State responsibility,adjudge and declare:that, to the extent to which any such claims are stillmaintained by Cameroon, and are admissible, thoseclaims are unfounded in fact and law; and,

6. as to Nigeria's counterclaims as specified in partVI of Nigeria's Counter-Memorial and in Chapter 18 ofNigeria's Rejoinder, adjudge and declare:that Cameroon bears responsibility to Nigeria in respectof each of those claims, the amount of reparation duetherefor, if not agreed between the parties within sixmonths of the date of judgment, to be determined by theCourt in a further judgment."

At. the end of the oral observations submitted by it withrespect to the subject matter of the intervention inaccordance with Article 85, paragraph 3, of the Rules ofCourt, Equatorial Guinea stated inter alia:

"[W]e ask the Court not to delimit a maritime boundarybetween Cameroon and Nigeria in areas lying closer toEquatorial Guinea than to the coasts of the two Parties orto express any opinion which could prejudice ourinterests in the context of our maritime boundarynegotiations with our neighbours... Safeguarding theinterests of the third State in these proceedings meansthat the delimitation between Nigeria and Cameroondecided by the Court must necessarily remain to thenorth of the median line between Equatorial Guinea'sBioko Island and the mainland."

Geographical context(para.. 30)

The Court subsequently describes the geographicalcontext of the dispute as follows:

Cameroon and Nigeria are States situated on the westcoast of Africa. Their land boundary extends from LakeChad in the north to the Bakassi Peninsula in the south.Their coastlines are adjacent and are washed by thewaters of the Gulf of Guinea.Four States border Lake Chad: Cameroon, Chad, Niger

and Nigeria. The waters of the lake have varied greatly overtime.

In its northern part, the land boundary betweenCameroon and Nigeria passes through hot dry plains aroundLake Chad, at an altitude of about 300 m. It then passesthrough mountains, cultivated high ground or pastures,watered by various rivers and streams. It then descends instages to areas of savannah and forest until it reaches thesea.

The coastal region where the southern part of the landboundary ends is the area of the Bakassi Peninsula. Thispeninsula, situated in the hollow of the Gulf of Guinea, isbounded by the River Akwayafe to the west and by the Riodel Rey to the east. It is an amphibious environment,characterized by an abundance of water, fish stocks andmangrove vegetation. The Gulf of Guinea, which is concavein character at the level of the Cameroonian and Nigeriancoastlines, is bounded by other States, in particular by

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Equatorial Guinea, whose Bioko Island lies opposite theParties' coastlines.

Historical background(paras. 31-38)

The Court then observes that the dispute between theParties as regards their land boundary falls! within anhistorical framework marked initially, in the nineteenth andearly twentieth centuries, by the actions of the EuropeanPowers with a view to the partitioning of Africa, followedby changes in the status of the relevant territories under theLeague of Nations mandate system, then the United Nationstrusteeships, and finally by the territories' accession toindependence. This history is reflected in a number ofconventions and treaties, diplomatic exchanges, certainadministrative acts, maps of the period and variousdocuments, which have been supplied to the Court by theParties.

The delimitation of the Parties' maritime boundary is anissue of more recent origin, the history of which likewiseinvolves various international instruments.

The Court then gives some particulars of the principalinstruments which are relevant for purposes of determiningthe course of the land and maritime boundary between theParties.

Having described the geographical and historicalbackground to the dispute, the Court addresses thedelimitation of the different sectors of the boundary betweenCameroon and Nigeria. It begins by defining the boundaryline in the Lake Chad area. It then determines the line fromLake Chad to the Bakassi Peninsula, before examining thequestion of the boundary in Bakassi and of sovereignty overthe peninsula. It then addresses the question of thedelimitation between the two States' respective maritimeareas. The last part of the Judgment is devoted :o the issuesof State responsibility raised by the Parties.

Delimitation of the boundary line in the LakeChad area

(paras. 40-70)

Since Cameroon and Nigeria disagree on the existenceof a definitive delimitation in the Lake Chad area, the Courtfirst examines whether the 1919 Milner-Simon Declarationand the subsequent instruments which bear on delimitationin this area have established a frontier that is binding on theParties. The Court subsequently addresses the argument ofNigeria based on the historical consolidation of its claimedtitle.

Whether a frontier binding on the Parties hasbeen established

(paras. 41-55)

The Court recalls that Cameroon contends that theboundary in the Lake Chad area runs from the point

designated by the coordinates 13°05' N and 14°05' E in astraight line to the mouth of the Ebeji. Cameroon regards thegoverning instruments as the Milner-Simon Declaration of1919, and the Thomson-Marchand Declaration of 1929-1930, as incorporated in the 1931 Henderson-FleuriauExchange of Notes. Nigeria, on the other hand, argues thatthere is not a fully delimited boundary in the Lake Chadarea and that, through historical consolidation of title andthe acquiescence of Cameroon, Nigeria has title over theareas, including 33 named settlements, depicted in itsRejoinder.

The Court recalls that in the late nineteenth and earlytwentieth centuries the colonial boundaries in the Lake Chadarea had been the subject of a series of bilateral agreementsentered into between Germany, France and Great Britain.After the First World War a strip of territory to the east ofthe western frontier of the former German Cameroonbecame the British Mandate over the Cameroons. It wasthus necessary to re-establish a boundary, commencing inthe lake itself, between the newly created British and Frenchmandates. This was achieved through the Milner-SimonDeclaration of 1919, which has the status of an internationalagreement. By this Declaration, France and Great Britainagreed:

"to determine the frontier, separating the territories ofthe Cameroons placed respectively under the authorityof their Governments, as it is traced on the map Moisel1:300,000, annexed to the present declaration anddefined in the description in three articles also annexedhereto".No definite tripoint in Lake Chad could be determined

from previous instruments, on the basis of which it might belocated either at 13°00' or at 13°05' north, whilst themeridian of longitude was described simply as situated "35'east of the centre of Kukawa". These aspects were clarifiedand rendered more precise by the Milner-SimonDeclaration, which provided:

"The frontier will start from the meeting-point of thethree old British, French and German frontiers situatedin Lake Chad in latitude 13°05' N and in approximatelylongitude 14°05' E of Greenwich.

Thence the frontier would be determined as follows:1. A straight line to the mouth of the Ebeji;..."

The Moisel 1:300,000 map was stated to be the map "towhich reference is made in the description of the frontier"and was annexed to the Declaration; a further map of theCameroons, scale 1:2,000,000, was attached "to illustratethe description of the ... frontier".

The Court observes that Article 1 of the Mandateconferred on Great Britain by the League of Nationsconfirmed the line specified in the Milner-SimonDeclaration; the entitlement provided for in the mandate, tomake by mutual agreement, modest alterations to the line,either by reason of any shown inaccuracies of the Moiselmap or of the interests of the inhabitants, was alreadyprovided for in the Milner-Simon Declaration. This,together with the line itself, was approved by the Council ofthe League of Nations. In the Court's view, these provisions

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in no way suggest a frontier line that is not fully delimited.The Court further considers that "delimitation on the spot ofthis line ... in accordance with the provisions of the saidDeclaration" is a clear reference to demarcationnotwithstanding the terminology chosen. Also carriedforward from the Milner-Simon Declaration was the idea ofa boundary commission. The anticipated detaileddemarcation by this Commission equally presupposes afrontier already regarded as essentially delimited.

Although the two Mandatory Powers did not in fact"delimit on the spot" in Lake Chad or the vicinity, they didcontinue in various sectors of the frontier to make theagreement as detailed as possible. Thus the Thomson-Marchand Declaration of 1929-1930, later approved andincorporated in the Henderson-Fleuriau Exchange of Notesof 1931, described the frontier separating the two mandatedterritories in considerably more detail than hitherto. TheCourt considers that the fact that this Declaration andExchange of Notes were preliminary to the future task ofdemarcation by a boundary commission does not mean, asNigeria claims, that the 1931 Agreement was merely"programmatic" in nature. The Court further points out thatthe Thomson-Marchand Declaration, as approved andincorporated in the Henderson-Fleuriau Exchange of Notes,has the status of an international agreement. Itacknowledges that the Declaration does have some technicalimperfections and that certain details remained to bespecified. However, it finds that the Declaration providedfor a delimitation that was sufficient in general fordemarcation.

Despite the uncertainties in regard to the longitudinalreading of the tripoint in Lake Chad and the location of themouth of the Ebeji, and while no demarcation had takenplace in Lake Chad before the independence of Nigeria andof Cameroon, the Court is of the view that the governinginstruments show that, certainly by 1931, the frontier in theLake Chad area was indeed delimited and agreed by GreatBritain and France. It, moreover, cannot fail to observe thatNigeria was consulted during the negotiations for itsindependence, and again during the plebiscites that were todetermine the future of the populations of the Northern andSouthern Cameroons. At no time did Nigeria suggest, eitherso far as the Lake Chad area was concerned, or elsewhere,that the frontiers there remained to be delimited.

The Court is further of the view that the work of theLake Chad Basin Commission (LCBC), from 1983 to 1991,affirms such an interpretation. It is unable to acceptNigeria's contention that the LCBC was from 1983 to 1991engaged in both delimitation and demarcation. The recordsshow that, although the term "delimitation" was used fromtime to time, in introducing clauses or in agenda headings, itwas the term "demarcation" that was most frequently used.Moreover, the nature of the work was that of demarcation.The Court observes in this respect that the LCBC hadengaged for seven years in a technical exercise ofdemarcation, on the basis of instruments that were agreed tobe the instruments delimiting the frontier in Lake Chad. Theissues of the location of the mouth of the Ebeji, and the

designation of the tripoint longitude in terms other than"approximate", were assigned to the LCBC. There is noindication that Nigeria regarded these issues as so grave thatthe frontier was to be viewed as "not delimited" by thedesignated instruments. The Court notes that as regards theland boundary southwards from the mouth of the Ebeji,Nigeria accepts that the designated instruments defined theboundary, but that certain uncertainties and defects shouldbe confirmed and cured. In the view of the Court Nigeriafollowed this same approach in participating in thedemarcation work of the LCBC from 1984 to 1990.

The Court agrees with the Parties that Nigeria is notbound by the Marking Out Report. Nonetheless, this findingof law implies neither that the governing legal instrumentson delimitation were put in question, nor that Nigeria didnot continue to be bound by them. In sum, the Court findsthat the Milner-Simon Declaration of 1919, as well as the1929-1930 Thomson-Marchand Declaration as incorporatedin the Henderson-Fleuriau Exchange of Notes of 1931,delimit the boundary between Cameroon and Nigeria in theLake Chad area. The map attached by the parties to theExchange of Notes is to be regarded as an agreedclarification of the Moisel map. The Lake Chad border areais thus delimited, notwithstanding that there are twoquestions that remain to be examined by the Court, namelythe precise location of the longitudinal coordinate of theCameroon-Nigeria-Chad tripoint in Lake Chad and thequestion of the mouth of the Ebeji.

Coordinates of Cameroon-Nigeria-Chad tripointand Ebeji mouth

(paras. 56-61)

Cameroon, while accepting that the Report of theMarking Out of the International Boundaries in Lake Chadis not binding on Nigeria, nonetheless asks the Court to findthat the proposals of the LCBC as regards the tripoint andthe mouth of the Ebeji "constitut[e] an authoritativeinterpretation of the Milner-Simon Declaration and theThomson-Marchand Declaration, as confirmed by theExchange of Letters of 9 January 1931".

The Court finds that it cannot accept this request. At notime was the LCBC asked to act by the successors to thoseinstruments as their agent in reaching an authoritativeinterpretation of them. Moreover, the very fact that theoutcome of the technical demarcation work was agreed inMarch 1994 to require adoption under national lawsindicates that it was in no position to engage in"authoritative interpretation" sua sponte.

However, having examined the Moisel map annexed tothe Milner-Simon Declaration of 1919 and the map attachedto the Henderson-Fleuriau Exchange of Notes of 1931, theCourt reaches the same conclusions as the LCBC andconsiders that the longitudinal coordinate of the tripoint issituated at 14°04'59"9999 longitude east, rather than at"approximately" 14°05'. In the Court's view, the minimaldifference between these two specifications confirms,moreover, that this never presented an issue so significant asto leave the frontier in this area undetermined.

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The Court then takes note of the fact that the text of theThomson-Marchand Declaration of 1929-1930, incorporatedin 1931 in the Henderson-Fleuriau Exchange of Notes,refers to "the mouth of the Ebeji". The Court considers thatthe text of the above instruments as well as the Moisel mapannexed to the Milner-Simon Declaration and the mapattached to the Henderson-Fleuriau Exchange of Notes showthat the parties only envisaged one mouth. The Court furthernotes that the coordinates for the mouth of the Hbeji in thearea just north of the site indicated as that of Wulgo, ascalculated on the two maps, are strikingly similar. Moreoverthese coordinates are identical with those used by the LCBCwhen, in reliance on those same maps, it sought to locate themouth of the Ebeji as it was understood by the parties in1931. The point there identified is north both of the "mouth"suggested by Cameroon for the western channel in itsalternative argument and of the "mouth" proposed byNigeria for the eastern channel. On the basis of the abovefactors, the Court concludes that the mouth of the Ebeji, asreferred to in the instruments confirmed in the Henderson-Fleuriau Exchange of Notes of 1931, lies at 14°12'12"longitude east and 12°32'17" latitude north. From this pointthe frontier must run in a straight line to the point where theRiver Ebeji bifurcates into two branches, the Parties beingin agreement that that point lies on the boundary. Thegeographical coordinates of that point are 14°12'03"longitude east and 12°30'14" latitude north.

Historical consolidation of title claimed by Nigeria(paras. 62-70)

The Court then turns to Nigeria's claim based on itspresence in certain areas of Lake Chad. It recalls thatNigeria claims sovereignty over areas in Lake Chad whichinclude certain named villages. Nigeria explains that thesevillages have been established either on what is now thedried up lake bed, or on islands which are surrounded bywater perennially or on locations which are islands in thewet season only. Nigeria contends that its claim rests onthree bases, which each apply both individually and jointlyand one of which would be sufficient on its own:

"(1) long occupation by Nigeria and by Nigeriannationals constituting an historical consolidation of title;

(2) effective administration by Nigeria, acting assovereign and an absence of protest; and

(3) manifestations of sovereignty by Nigeria togetherwith the acquiescence by Cameroon in Nigeriansovereignty over Darak and the associated ¡Lake Chadvillages".For its part, Cameroon contends that, as the holder of a

conventional territorial title to the disputed areas, it does nothave to demonstrate the effective exercise of its s overeigntyover those areas, since a valid conventional title prevailsover any effectivités to the contrary.

The Court first observes that the work of the LCBC wasintended to lead to an overall demarcation of a frontieralready delimited. Although the result of the demarcationprocess is not binding on Nigeria, that fact has no legal

implication for the pre-existing frontier delimitation. Itnecessarily follows that Nigeria's claim based on the theoryof historical consolidation of title and on the acquiescenceof Cameroon must be assessed by reference to this initialdetermination of the Court. During the oral pleadingsCameroon's assertion that Nigerian effectivités were contralegem was dismissed by Nigeria as "completely question-begging and circular". The Court notes, however, that nowthat it has made its findings that the frontier in Lake Chadwas delimited long before the work of the LCBC began, itnecessarily follows that any Nigerian effectivités are indeedto be evaluated for their legal consequences as acts contralegem.

The Court then points out that the theory of historicalconsolidation is highly controversial and cannot replace theestablished modes of acquisition of title under internationallaw, which take into account many other important variablesof fact and law. Moreover, the facts and circumstances putforward by Nigeria concern a period of some 20 years,which is in any event far too short, even according to thetheory relied on by it. The Court concludes that Nigeria'sarguments on this point cannot therefore be upheld.

The Court observes that some of Nigeria's activities —the organization of public health and education facilities,policing, the administration of justice — could, as argued byit, normally be considered to be acts à titre de souverain.The Court notes, however, that, as there was a pre-existingtitle held by Cameroon in this area of the lake, the pertinentlegal test is whether there was thus evidenced acquiescenceby Cameroon in the passing of title from itself to Nigeria.

The Court observes that it has already ruled on a numberof occasions on the legal relationship between "effectivités"and titles. In the Frontier Dispute (Burkina Faso/Republicof Mali), it pointed out that in this regard "a distinction mustbe drawn among several eventualities", stating inter aliathat:

"Where the act does not correspond to the law, wherethe territory which is the subject of the dispute iseffectively administered by a State other than die onepossessing the legal title, preference should be given tothe holder of the title. In the event that the ejfectivitédoes not coexist with any legal title, it must invariablybe taken into consideration." (I.C.J. Reports 1986, p.587, para. 63.) (See also Territorial Dispute (LibyanArab Jamahiriya/Chad), I.C.J. Reports 1994, pp. 75-76,para. 38.)

The Court points out that it is this first eventuality hereenvisaged, and not the second, which corresponds to thesituation obtaining in the present case. Thus Cameroon heldthe legal title to territory lying to the east of the boundary asfixed by the applicable instruments. Hence the conduct ofCameroon in that territory has pertinence only for thequestion of whether it acquiesced in the establishment of achange in treaty title, which cannot be wholly precluded as apossibility in law.

The Court further finds that the evidence presented to itas reflected in the case file, shows that there was noacquiescence by Cameroon in the abandonment of its title in

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the area in favour of Nigeria. It therefore concludes that thesituation was essentially one where the effectivités adducedby Nigeria did not correspond to the law, and thataccordingly "preference should be given to the holder of thetitle".

Accordingly, the Court concludes that, as regards thesettlements situated to the east of the frontier confirmed inthe Henderson-Fleuriau Exchange of Notes of 1931,sovereignty has continued to lie with Cameroon.

The course of the land boundary from Lake Chadto the Bakassi Peninsula

(paras. 71-192)

Having examined the question of the delimitation in thearea of Lake Chad, the Court then considers the course ofthe land boundary from Lake Chad to the Bakassi Peninsula.

Relevant instruments and task of the Court(paras. 72-86)

After summarizing the arguments of the Parties, theCourt notes that Cameroon and Nigeria agree that the landboundary between their respective territories from LakeChad onwards has already been delimited, partly by theThomson-Marchand Declaration incorporated in theHenderson-Fleuriau Exchange of Notes of 1931, partly bythe British Order in Council of 2 August 1946 and partly bythe Anglo-German Agreements of 11 March and 12 April1913. The Court likewise notes that, with the exception ofthe provisions concerning Bakassi contained in ArticlesXVIII et seq. of the Anglo-German Agreement of 11 March1913, Cameroon and Nigeria both accept the validity of thefour above-mentioned legal instruments which effected thisdelimitation. The Court finds that it will therefore not berequired to address these issues further in relation to thesector of the boundary from Lake Chad to the point definedin fine in Article XVII of the Anglo-German Agreement ofMarch 1913. It will, however, have to return to them inregard to the sector of the land boundary situated beyondthat point, in the part of its Judgment dealing with theBakassi Peninsula.

The Court points out that independently of the issueswhich have just been mentioned, a problem has continued todivide the Parties in regard to the land boundary. It concernsthe nature and extent of the role which the Court is calledupon to play in relation to the sectors of the land boundaryin respect of which there has been disagreement between theParties at various stages of the proceedings, either on theground that the relevant instruments of delimitation wereclaimed to be defective or because the interpretation ofthose instruments was disputed. The Court notes that, whilethe positions of the Parties on this issue have undergone asignificant change and have clearly become closer in thecourse of the proceedings, they still appear unable to agreeon what the Court's precise task should be in this regard.

The Parties have devoted lengthy arguments to thedifference between delimitation and demarcation and to theCourt's power to carry out one or other of these operations.

The Court observes that, as noted by it in the caseconcerning the Territorial Dispute (Libyan ArabJamahiriya/Chad) (I.C.J. Reports 1994, p. 28, para. 56;, thedelimitation of a boundary consists in its "definition",whereas the demarcation of a boundary, which presupposesits prior delimitation, consists of operations marking it outon the ground. In the present case, the Parties haveacknowledged the existence and validity of the instrumentswhose purpose was to effect the delimitation between theirrespective territories; moreover, both Parties have insistedtime and again that they are not asking the Court to carryout demarcation operations, for which they themselves willbe responsible at a later stage. The Court's task is thusneither to effect a delimitation de novo of the boundary norto demarcate it.

The task which Cameroon referred to the Court in itsApplication is "to specify definitively" (emphasis added bythe Court) the course of the land boundary as fixed by therelevant instruments of delimitation. In the Court's viewssince the land boundary has already been delimited byvarious legal instruments, it is indeed necessary, in order tospecify its course definitively, to confirm that thoseinstruments are binding on the Parties and are applicable.However, contrary to what Cameroon appeared to bearguing at certain stages in the proceedings, the Courtcannot fulfil the task entrusted to it in this case by limitingitself to such confirmation. Thus, when the actual content ofthese instruments is the subject of dispute between theParties, the Court, in order to specify the course of theboundary in question definitively, is bound to examine themmore closely. The dispute between Cameroon and Nigeriaover certain points on the land boundary between LakeChad and Bakassi is in reality simply a dispute over theinterpretation or application of particular provisions of theinstruments delimiting that boundary. It is this disputewhich the Court will undertake to settle. In order to do so,the Court addresses in succession each of the points indispute.

Limani(paras. 87-91)

The Court notes that in the Limani area the interpretationof the Thomson-Marchand Declaration raises difficulties inthat it simply refers to "a river" in this area, whereas thereare in fact several river channels between the Agzabamemarsh and the "confluence at about 2 kilometres to thenorth-west [of the village of Limanti (Limani)]" (para. 14 ofthe Declaration).

A careful study of the wording of the Thomson-Marchand Declaration and of the map and other evidenceprovided by the Parties leads the Court to the followingconclusions. In the first place, the Court observes that thesecond channel from the north, proposed by Cameroon asthe course of the boundary, is unacceptable. The southernchannel proposed by Nigeria poses other problems. TheCourt: cannot therefore accept this channel either. The Courtnotes, however, that the river has another channel, calledNargo on DOS sheet "Ybiri N.W.", reproduced at page 23

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of the atlas annexed to Nigeria's Rejoinder, which meets theconditions specified in the Thomson-Marchand Declaration.Accordingly, the Court concludes that the "river" mentionedin paragraph 14 of the Thomson-Marchand Declaration isthe channel running between Narki and Tarmoa, and thatfrom the Agzabame marsh the boundary must follow thatchannel to its confluence with the Ngassaoua River.

The Keraita (Kirewa or Kirawa) River(paras. 92-96)

The Court notes that, in the area of the Keraua (Kirewaor Kirawa) River, the interpretation of paragraph 18 of theThomson-Marchand Declaration raises difficulties, since thewording of this provision merely makes the boundaryfollow "the Keraua", whereas at this point that river splitsinto two channels: a western channel and an easternchannel. The Court finds that its task is thus to identify thechannel which the boundary is to follow pursuant to theThomson-Marchand Declaration.

After rejecting some of each of the Parties' contentions,the Court notes that according to the Moisel map theboundary runs, as Nigeria maintains, just to the east of twovillages called Schriwe and Ndeba, which are on the sitenow occupied by the villages of Chérivé and Ndabakora,and which the map places on Nigerian territory. Only theeastern channel meets this condition. The Court accordinglyconcludes that paragraph 18 of the Thomson-MarchandDeclaration must be interpreted as providing for theboundary to follow the eastern channel of the Keraua River.

The Kohom River(paras. 97-102)

The Court notes that the initial problem posed byparagraph 19 of the Thomson-Marchand Declarationconsists in the identification of the course of the RiverKohom, along which the boundary is to pass. After adetailed study of the map evidence available to it, the Courtreaches the conclusion that, as Nigeria contends, it is indeedthe River Bogaza which has its source in Mount Ngosi, andnot the River Kohom. The Court's task is accordingly todetermine where the drafters of the Thomson-MarchandDeclaration intended the boundary to run in this area whenthey described it as following the course of a river called"Kohom".

In order to locate the course of the Kohom, the Courtfirst examines the text of the Thomson-MarchandDeclaration, finding that il does not provide a decisiveanswer. The Court points out that it therefore had to haverecourse to other means of interpretation. Thus it hascarefully examined the sketch-map prepared in March 1926by the French and British officials which served as the basisfor the drafting of paragraphs 18 and 19 of the: Thomson-Marchand Declaration. The Court finds that it is able todetermine, on the basis of a comparison of the indicationsprovided by the sketch-map with the maps provided by theParties, that the Kohom whose course the Thomson-Marchand Declaration provides for the boundary to follow

is that indicated by Cameroon. It notes, however, that theboundary line claimed by Cameroon in this area runs onpast the source of the river which the Court has identified asthe Kohom. Nor does the Court consider that it candisregard the fact that the Thomson-Marchand Declarationexpressly provides that the boundary must follow a riverwhich has its source in Mount Ngosi. In order to complywith the Thomson-Marchand Declaration, it is thereforenecessary to join the source of the River Kohom, asidentified by the Court, to the River Bogaza, which rises onMount Ngosi. The Court accordingly concludes thatparagraph 19 of the Thomson-Marchand Declaration shouldbe interpreted as providing for the boundary to follow thecourse of the River Kohom, as identified by the Court, as faras its source at 13°44'24" longitude east and 10°59'09"latitude north, and then to follow a straight line in asoutherly direction until it reaches the peak shown as havingan elevation of 861 m on the 1:50,000 map in Figure 7.8 atpage 334 of Nigeria's Rejoinder and located at 13°45'45"longitude east and 10°59'45" latitude north, beforefollowing the River Bogaza in a south-westerly direction asfar as the summit of Mount Ngosi.

The watershed from Ngosi to Humsiki (Roumsiki)/Kamale/Turu (the Mandara Mountains)

(paras. 103-114)

The Court notes that the problem in the area betweenNgosi and Humsiki derives from the fact that Cameroon andNigeria apply the provisions of paragraphs 20 to 24 of theThomson-Marchand Declaration in different ways. In thissector of the boundary the Court's task is thus to determinethe course of the boundary by reference to the terms of theThomson-Marchand Declaration, that is to say by referenceessentially to the crest line, to the line of the watershed andto the villages which are to lie to either side of the boundary.The Court addresses this question section by section, andconcludes that in the area between Ngosi and Humsiki theboundary follows the course described by paragraphs 20 to24 of the Thomson-Marchand Declaration as clarified by theCourt.

From Mount Kuli to Bourha/Maduguva (incorrectwatershed line on Moisel's map)

(paras. 115-119)

The Court notes that the text of paragraph 25 of theThomson-Marchand Declaration, on the application ofwhich the two Parties disagree, provides quite expressly thatthe boundary is to follow "the incorrect line of thewatershed shown by Moisel on his map". Since the authorsof the Declaration prescribed a clear course for theboundary, the Court cannot deviate from that course.

From careful study of the Moisel map the Courtconcludes that paragraph 25 of the Thomson-MarchandDeclaration should be interpreted as providing for theboundary to run from Mount Kuli to the point marking thebeginning of the "incorrect line of the watershed", located at13°31'47" longitude east and 10°27'48" latitude north,

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having reached that point by following the correct line ofthe watershed. Then, from that point, the boundary followsthe "incorrect line of the watershed" to the point markingthe end of that line, located at 13° 30' 55" longitude east and10° 15' 46" latitude north. Between these two points theboundary follows the course indicated on the map annexedto this Judgment, which was prepared by the Court bytransposing the "incorrect line of the watershed" from theMoisel map to the first edition of sheet "Uba N.E." of theDOS 1:50,000 map of Nigeria. From this latter point, theboundary will again follow the correct line of the watershedin a southerly direction.

Kotcha (Koja)(paras. 120-124)

The Court finds that, in the Kotcha area, the difficultyderives solely from the fact, as Nigeria recognizes, that theNigerian village of Kotcha has spread over onto theCameroonian side of the boundary. As the Court has alreadyhad occasion to point out in regard to the village of Turu, ithas no power to modify a delimited boundary line, even in acase where a village previously situated on one side of theboundary has spread beyond it. It is instead up to the Partiesto find a solution to any resultant problems, with a view torespecting the rights and interests of the local population.

The Court accordingly concludes that the boundary inthe Kotcha area, as described in paragraphs 26 and 27 of theThomson-Marchand Declaration, follows the line of thewatershed, including where it passes close to the village ofKotcha, the cultivated land lying on the Cameroonian sideof the watershed remaining on Cameroonian territory.

Source of the Tsikakiri River(paras. 125-129)

The Court notes that the interpretation of paragraph 27of the Thomson-Marchand Declaration poses problemsbecause the Tsikakiri River has more than one source,whereas the Declaration simply states that the boundarypasses through "the source" of the Tsikakiri withoutproviding any indication as to which source is to be chosen.

The Court observes that it may reasonably be assumedthat the drafters of the Declaration, in referring to the sourceof the Tsikakiri, intended to designate a point which couldbe readily identified, both on maps and on the ground andnotes that one of the sources of the Tsikakiri, namely theone having the highest elevation, stands out from the others.It accordingly concludes that, in the area referred to inparagraph 27 of the Thomson-Marchand Declaration, theboundary starts from a point having coordinates 13°17'50"longitude east and 10°03'32" latitude north, which is locatedin the vicinity of Dumo. From there, the boundary runs in astraight line to the point which the Court has identified asthe "source of the Tsikakiri" as referred to in theDeclaration, and then follows that river.

From Beacon 6 to Wamni Budungo(paras. 130-134)

The Court notes that the interpretation of paragraphs 33and 34 of the Thomson-Marchand Declaration raises aproblem in that those provisions describe the line of theboundary as passing through three beacons of which at leasttwo have now disappeared.

After careful study of the text of the Anglo-GermanAgreement of 1906 and the cartographic material providedby the Parties in order to discover the location of these threebeacons, the Court concludes that paragraphs 33 and 34 ofthe Thomson-Marchand Declaration must be interpreted asproviding for the boundary to pass through the pointshaving the following coordinates: 12°53'15" longitude eastand 9°04'19" latitude north; 12°51'55" longitude east and9°0r03" latitude north; and 12°49'22" longitude east and8°58'18" latitude north.

Maio Senche(paras. 135-139)

The Court notes that, in the Maio Senche area, coveredby paragraph 35 of the Thomson-Marchand Declaration, thedifficulty lies in identifying the line of the watershed, ofwhich the two Parties have proposed differing cartographicrepresentations.

After studying the cartographic material provided to itby the Parties, the Court observes that the watershed linepasses, as Nigeria contends, between the basin of the MaioSenche and that of the two rivers to the south.

Jimbare and Sapeo(paras. 140-146)

The Court notes that the interpretation of paragraphs 35to 38 of the Thomson-Marchand Declaration posesproblems, since the description of the boundary thereinappears both to contain a series of material errors and, incertain places, to contradict the representation of thatboundary on the 1931 map appended to the Declaration. TheCourt notes, however, that, as regards the area to the northof Nananoua as referred to in paragraph 36 of the Thomson-Marchand Declaration, the Parties agree that the riverswhose courses form the boundary are the Leinde and theSassiri. Similarly, the cartographic representations of thissection of the boundary proposed by the Parties correspondin every respect. To the south of Nananoua, on the otherhand, there is no agreement between Cameroon and Nigeria.

The Court concludes, first, that paragraphs 35 and 36 ofthe Thomson-Marchand Declaration must be interpreted asproviding for the boundary to pass over Hosere Bila, whichit has identified as the "south peak of the AlantikaMountains" referred to in paragraph 35, and then from thatpoint along the River Leinde and the River Sassiri "as far asthe confluence with the first stream coming from theBalakossa Range". It further concludes that paragraphs 37and 38 of the Thomson-Marchand Declaration must beinterpreted as providing for the boundary to follow the

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course described in paragraph 1 of the Logan-Le Brunprocès-verbal, as shown by Nigeria in Figures 7.15 and 7.16at pages 346 and 350 of its Rejoinder.

Noumberou-Banglang(paras. 147-152)

The Court notes that the final part of paragraph 38 of theThomson-Marchand Declaration poses problems ofinterpretation in that it contains fundamental errors of amaterial nature; it further notes that it is, however, only thepart of the boundary situated to the south of the source ofthe Noumberou which poses any problem. To the north ofthat point, Cameroon and Nigeria agree that the boundaryshould follow the course of the Noumberou. The course ofthe boundary shown on the Cameroonian and Nigerian mapsconfirm that agreement.

The Court considers that, to the south of the source, it isthe boundary line proposed by Nigeria which is to bepreferred. That line is moreover more favourable toCameroon than the line shown on its own maps, andCameroon has not opposed it. The Court accordinglyconcludes that the final part of paragraph 38 of theThomson-Marchand Declaration must be interpreted asproviding for the boundary to follow the course of the RiverNoumberou as far as its source, and then from that point torun in a straight line as far as Hosere Tapere as identified bythe Court.

Tipsan(paras. 153-155)

The Court observes that at the hearings the Partiesagreed that the boundary must follow a line running parallelto the Fort Lamy-Baré road some 2 km to the west thereof,as paragraph 41 of the Thomson-Marchand Declarationprovides. The Court takes note of that agreement. However,the Court considers that, in order to remove any doubt, itshould identify the terminal point of this section of theboundary — namely the point situated on the Mayo Tipsal"2 kilometres to the south-west of the point at which theroad crosses said Mayo Tipsal" — as corresponding to thecoordinates 12°12'45" longitude east and 7°58'49" latitudenorth.

Crossing the Maio Yin(paras. 156-160)

The Court confirms that the boundary in the area whereit crosses the Maio Yin follows the course described inparagraphs 48 and 49 of the Thomscn-MarchandDeclaration.

The Hambere Range area(paras. 161-168)

The Court notes that paragraphs 60 and 61 of theThomson-Marchand Declaration raise problems ofinterpretation, since they provide for the boundary to passover "a fairly prominent peak" without any further

clarification and the Parties have differing views as to thelocation of that peak.

The Court observes that paragraphs 60 and 61 contain anumber of indications which are helpful in locating the"fairly prominent, pointed peak" referred to therein. Havingstudied with the greatest care the maps provided by theParties, the Court concludes that paragraph 60 of theThomson-Marchand Declaration must be interpreted asproviding for the boundary to follow the line of thewatershed through the Hosere Hambere or Gesumi, asshown on sheet NB-32-XVIII-3a-3b of the 1955 IGN1:50,000 map of Cameroon, produced in the proceedings byNigeria, as far as the foot of Tamnyar Peak, which the Courthas identified as the "fairly prominent, pointed peak"referred to in the Declaration.

From the Hambere Range to the Mburi River(Lip and Yang)

paras. 169-179)

The Court notes that the interpretation of the Order inCouncil of 1946 raises two fundamental difficulties in thearea between the "fairly prominent pointed peak" referred toin the Thomson-Marchand Declaration and the River Mburi.The first lies in joining up the lines prescribed by the twotexts and, in particular, in identifying the peak described inthe Order in Council as "prominent", without furtherclarification. The second consists in determining the courseof the boundary beyond that point.

The Court observes that, while unable to designate aspecific peak, it has nonetheless been able to identify thecrest line of which that peak must form part. This crestbegins at the point where the watershed through the HosereHambere turns suddenly to the south at the locality namedGaladima Wanderi on Figure 7.37 in Nigeria's Rejoinder,then runs due south until it approaches the point namedTonn Hill on that same Figure. The intention of the draftersof the Order in Council was to have the boundary followthis crest line. As a result, what the Court finds it has to dois to trace a line joining the peak referred to in paragraph 60of the Thomson-Marchand Declaration, namely TamnyarPeak, to that crest line. The Court points out that thewatershed through the Hosere Hambere, on which TamnyarPeak lies, extends naturally as far as the crest line markingthe former Franco-British frontier, starting point of thesector of the boundary delimited by the 1946 Order inCouncil. It is thus possible to link the boundary sectorsdelimited by the two texts by following, from TamnyarPeak, that watershed as represented on sheet NB-32-XVÏÏI-3a-3b of the 1955 IGN 1:50,000 map of Cameroon,produced in the proceedings by Nigeria.

The Court then addresses the question of the course ofthe boundary from that crest line. It observes that the 1946Order in Council contains a great deal of information on thecourse of the boundary in this area. After careful study ofthe maps provided to it by the Parties, the Court concludesthat, from east to west, the boundary first follows thewatershed line through the Hosere Hambere from TamnyarPeak to the point where that line reaches the crest line

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marking the former Franco-British frontier. In accordancewith the 1946 Order in Council, the boundary then followsthis crest line southward, then west-south-west to the sourceof the River Namkwer and then follows the course of thatriver to its confluence with the River Mburi, 1 mile north ofNyan. From that point, the boundary follows the course ofthe River Mburi. It first runs northwards for a distance ofapproximately 2 km, and then takes a south-westerly coursefor some 3 km and then west-north-west along a stretchwhere the river is also called the Maven or the Ntem. Then,some 2 km further on, it turns to run due north where theRiver Mburi is also called the Mantón or Ntem.

Bissaula-Tosso(paras. 180-184)

The Court notes that the problem in the Bissaula-Tossoarea consists in determining which tributary of the RiverAkbang crosses the Kentu-Bamenda road and is thus thetributary which the Order in Council provides for theboundary to follow.

The Court concludes that the 1946 Order in Councilshould be interpreted as providing for the boundary to runthrough the point where the southern tributary of the RiverAkbang, as identified by the Court, crosses the Kentu-Bamenda road, and then from that point along the southerntributary until its junction with the River Akbang.

The Sama River(paras. 185-189)

The Court notes that the interpretation of the Order inCouncil poses problems in regard to the River Sama, sincethe river has two tributaries, and hence two places where it"divides into two" as the Order in Council prescribes, butthe Order does not specify which of those two places is tobe used in order to determine the course of the boundary.

The Court finds that a reading of the text of the Order inCouncil of 1946 permits it to conclude that this Order mustbe interpreted as providing for the boundary to run up theRiver Sama to the confluence of its first tributary, that beingthe point, with coordinates 10°10'23" longitude east and6°56'29" latitude north, which the Court has identified as theone specified in the Order in Council where the River Sama"divides into two"; and then, from that point, along astraight line to the highest point of Mount Tosso.

Boundary in Bakassi and question of sovereigntyover the Peninsula

(paras. 193-225)

Having recalled each of the Parties' final submissions,the Court notes that according to Cameroon the Anglo-German Agreement of 11 March 1913 fixed the course ofthe boundary between the Parties in the area of the BakassiPeninsula, placing the latter on the German side of theboundary. Cameroon relies for this purpose on ArticlesXVIII to XXI of the said Agreement, and adds that hence,when Cameroon and Nigeria acceded to independence, this

boundary became that between the two countries, successorStates to the colonial powers and bound by the principle ofuti possidetis. The Court further notes that Nigeria, for itspart, does not contest that the meaning of these provisionswas to allocate the Bakassi Peninsula to Germany. It does,however, insist that the said terms were never put intoeffect, and indeed were invalid on various grounds, thoughthe other Articles of the Agreement of 11 March 1913remained valid. Nigeria contends rather, that the title tosovereignty over Bakassi on which it relies was originallyvested in the Kings and Chiefs of Old Calabar. It considersthat, the Treaty of Protection signed on 10 September 1884between Great Britain and the Kings and Chiefs of OldCalabar only conferred certain limited rights on GreatBritain; in no way did it transfer sovereignty to Britain overthe territories of the Kings and Chiefs of Old Calabar.Nigeria argues that, since Great Britain did not havesovereignty over those territories in 1913, it could not cedethem to a third party. The Court notes in this connectionthat, in Cameroon's view, the treaty signed on 10 September1884 between Great Britain and the Kings and Chiefs of OldCalabar established a "colonial protectorate" and, "in thepractice of the period, there was little fundamentaldifference at international level, in terms of territorialacquisition, between colonies and colonial protectorates".According to Cameroon substantive differences between thestatus of colony and that of a colonial protectorate werematters of the national law of the colonial Powers ratherthan of international law.

The key element of the colonial protectorate was the"assumption of external sovereignty by the protectingState", which manifested itself principally through "theacquisition and exercise of the capacity and power to cedepart of the protected territory by international treaty, withoutany intervention by the population or entity in question".

The Court begins by observing that during the era of theCongress of Berlin the European Powers entered into manytreaties with local rulers, and that Great Britain concludedsome 350 treaties with the local chiefs of the Niger delta.Among these were the treaties concluded in July 1884 withthe Kings and Chiefs of Opobo and, in September 1884,with Ihe Kings and Chiefs of Old Calabar. The latter Treatydid not specify the territory to which the British Crown wasto extend "gracious favour and protection", nor did itindicate the territories over which each of the Kings andChiefs signatory to the Treaty exercised his powers. In theview of the Court, Great Britain had, however, a clearunderstanding of the area ruled at different times by theKings and Chiefs of Old Calabar, and of their standing.

Nigeria has contended that the very title of the 1884Treaty and the reference in Article I to the undertaking of"protection", shows that Britain had no entitlement to domore than protect, and in particular had no entitlement tocede the territory concerned to third States: "nemo dat quodnon habef. The Court in this respect calls attention to thefact that the international legal status of a "Treaty ofProtection" entered into under the law obtaining at the timecannot be deduced from its title alone. Some treaties of

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protection were entered into with entities which retainedthereunder a previously existing sovereignty underinternational law. This was the case whether the protectedparty was henceforth termed "protectorat" or "a protectedState". In sub-Saharan Africa, treaties termed "treaties ofprotection" were entered into not with States, but rather withimportant indigenous rulers exercising local rule overidentifiable areas of territory. In relation to a treaty of thiskind in another part of the world, Max Huber, silting as solearbitrator in the Island of Palmas case, explained that such atreaty

"is not an agreement between equals; it is rather a formof internal organisation of a colonial territory, on thebasis of autonomy of the natives ... And thus suzeraintyover the native States becomes the basis of territorialsovereignty as towards other members of the communityof nations." (RIIA, Vol. IT, pp. 858-859).The Court observes that these concepts also found

expression in the Western Sahara Advisory Opinion. Therethe Court stated that in territories that were not terra nuUiiis,but were inhabited by tribes or people having & social andpolitical organization, "agreements concluded with localrulers ... were regarded as derivative roots of title" (WesternSahara, Advisory Opinion, l.C.J. Reports 1975, p. 39, para.80). The Court points out that even if this mode ofacquisition does not reflect current international law, theprinciple of intertemporal law requires that the legalconsequences of the treaties concluded at that time in theNiger delta be given effect today, in the present dispute.

In the view of the Court many factors point to the 1884Treaty signed with the Kings and Chiefs of Old Calabar asnot establishing an international protectorate. Nigeria itselfhas been unable to point to any role, in matters relevant tothe present case, played by the Kings and Chiefs of OldCalabar after the conclusion of the 1884 Treaty, The Courtfurther notes that a characteristic of an internationalprotectorate is that of ongoing meetings and discussionsbetween the protecting Power and the Rulers of theProtectorate. In the present case the Court was informed that"Nigeria can neither say that no such meetings ever tookplace, or that they did take place ... the records which wouldenable the question to be answered probably no longerexist..." The Court also notes that there is no reference toOld Calabar in any of the various British Orders in Council,of whatever date, which list protectorates and protectedStates. Moreover, the Court has been presented with noevidence of any protest in 1913 by the Kings and Chiefs ofOld Calabar; nor of any action by them to pass territory toNigeria as it emerged to independence in 1960. The Courtthus concludes that, under the law at the time, Great Britainwas in a position in 1913 to determine its boundaries withGermany in respect of Nigeria, including in the southernsection.

The Court then examines the treatment, in the period1913 to 1960, of the southern sector of the boundary asdefined by the Anglo-German Agreement of 11 March1913.

Cameroon contends that the mandate and trusteeshipperiod, and the subsequent independence process, showrecognition on the part of the international community ofCameroon's attachment to the Bakassi Peninsula. Nigeriafor its part argues that, at all times while the 1884 Treatyremained in force, Great Britain continued to lack power togive Bakassi away. As such, it claims that no amount ofBritish activity in relation to Bakassi in the mandate ortrusteeship periods could have severed Bakassi from theNigeria protectorate.

The Court notes that after the First World War Germanyrenounced its colonial possessions. Under the VersaillesTreaty the German possessions of Cameroon were dividedbetween Great Britain and France. In 1922 Great Britainaccepted the mandate of the League of Nations for "that part[of the former German colony] of the Cameroons which layto the west of the line laid down in the [Milner-Simon]Declaration signed on the 10th July, 1919". Bakassi wasnecessarily comprised within the mandate. When, after theSecond World War and the establishment of the UnitedNations, the mandate was converted to a trusteeship, theterritorial situation remained exactly the same. Thus for theentire period from 1922 until 1961 (when the Trusteeshipwas terminated), Bakassi was comprised within BritishCameroon. The boundary between Bakassi and Nigeria,notwithstanding the administrative arrangements, remainedan international boundary.

The Court is unable to accept Nigeria's contention thatuntil its independence in 1961, and notwithstanding theAnglo-German Agreement of 11 March 1913, the BakassiPeninsula had remained under the sovereignty of the Kingsand Chiefs of Old Calabar. Neither the League of Nationsnor the United Nations considered that to be the position.Equally, the Court observes that it has seen no evidence thatNigeria thought that upon independence it was acquiringBakassi from the Kings and Chiefs of Old Calabar. Nigeriaitself raised no query as to the extent of its territory in thisregion upon attaining independence. The Court notes inparticular that there was nothing which might have ledNigeria to believe that the plebiscite which took place in theSouthern Cameroons in 1961 under United Nationssupervision did not include Bakassi. The Court furtherobserves that this frontier line was acknowledged in turn byNigeria when it voted in favour of General Assemblyresolution 1608 (XV), which both terminated theTrusteeship and approved the results of the plebiscite.Shortly after, in Note Verbale No. 570 of 27 March 1962addressed to Cameroon, Nigeria referred to certain oillicensing blocks. A sketch-map was appended to the Note,from which it is clear that the block "N" referred to laydirectly south of the Bakassi Peninsula. The block wasdescribed as offshore Cameroon. This commonunderstanding of where title lay in Bakassi continuedthrough until the late 1970s, when the Parties were engagingin discussions on their maritime frontier. The Court findsthat it is clear from the ensuing discussions and agreementsthat the Parties took it as a given that Bakassi belonged toCameroon. Nigeria, drawing on the full weight of its expertsas well as its most senior political figures, understood

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Bakassi to be under Cameroon sovereignty. Accordingly,the Court finds that at that time Nigeria accepted that it wasbound by Articles XVIII to XXII of the Anglo-GermanAgreement of 11 March 1913, and that it recognizedCameroonian sovereignty over the Bakassi Peninsula. In theview of the Court, this common understanding of the Partiesis also reflected by the geographic pattern of the oilconcessions granted by the two Parties up to 1991. TheCourt further takes account of certain formal requests upuntil the 1980s submitted by the Nigerian Embassy inYaounde, or by the Nigerian consular authorities, beforegoing to visit their nationals residing in Bakassi.

For all of these reasons the Court finds that the Anglo-German Agreement of 11 March 1913 was valid andapplicable in its entirety.

The Court then turns to further claims to Bakassi reliedon by Nigeria. Nigeria advances "three distinct butinterrelated bases of title over the Bakassi Peninsula":

"(i) Long occupation by Nigeria and by Nigeriannationals constituting an historical consolidation oftitle and confirming the original title of the Kingsand Chiefs of Old Calabar, which title vested inNigeria at the time of independence in 1960;

(ii) peaceful possession by Nigeria, acting as sovereign,and an absence of protest by Cameroon; and

(iii) manifestations of sovereignty by Nigeria togetherwith acquiescence by Cameroon in Nigeriansovereignty over the Bakassi Peninsula."

Nigeria particularly emphasizes that the title on the basisof historical consolidation, together with acquiescence, inthe period since the independence of Nigeria, "constitutes anindependent and self-sufficient title to Bakassi". Cameroonfor its part argues that a legal treaty title cannot be displacedby what in its view amounts to no more than a number ofalleged effectivités.

The Court first recalls its finding above regarding theclaim to an ancient title to Bakassi derived from the Kingsand Chiefs of Old Calabar. It observes that it followstherefrom that at the time of Nigeria's accession toindependence there existed no Nigerian title capable ofbeing confirmed subsequently by "long occupation". On thecontrary, on the date of its independence Cameroonsucceeded to title over Bakassi as established by the Anglo-German Agreement of 11 March 1913. The Court also findsthat invocation of the theory of consolidation of historictitles cannot in any event vest title to Bakassi in Nigeria,where its "occupation" of the peninsula is adverse toCameroon's prior treaty title and where, moreover, thepossession has been for a limited period.

The Court then deals with other aspects of the secondand third bases of title advanced by Nigeria together.

It points out that the legal question of whethereffectivités suggest that title lies with one country rather thananother is not the same legal question as whether sucheffectivités can serve to displace an established treaty title.As the Chamber of the Court made clear in the FrontierDispute (Burkina Faso/Republic of Mali) case, where there

is a conflict between title and effectivités, preference will begiven to the former (I.C.J. Reports 1986, Judgment, pp.586-587, para. 63). In the view of the Court the morerelevant legal question in this case is whether the conduct ofCameroon, as the title holder, can be viewed as anacquiescence in the loss of the treaty title that it inheritedupon independence. The Court recalls that in 1961-1962,Nigeria clearly and publicly recognized Cameroon title toBakassi. That continued to be the position until at least1975, when Nigeria signed the Maroua Declaration. NoNigerian effectivités in Bakassi before that time can be saidto have legal significance for demonstrating a Nigerian title;this may in part explain the absence of Cameroon protestsregarding health, education and tax activity in Nigeria. TheCourt also notes that Cameroon had since its independenceengaged in activities which made clear that it in no way wasabandoning its title to Bakassi. The Court considers that theforegoing shows that Nigeria could not have been acting àtitre de souverain before the late 1970s, as it did notconsider itself to have title over Bakassi; and in the ensuingperiod the evidence does not indicate an acquiescence byCameroon in the abandonment of its title in favour ofNigeria. For all of these reasons the Court is also unable toaccept the second and third bases of title to Bakassiadvanced by Nigeria.

The Court accordingly concludes that the boundarybetween Cameroon and Nigeria in Bakassi is delimited byArticles XVIII to XX of the Anglo-German Agreement of11 March 1913, and that sovereignty over the peninsula lieswith Cameroon.

The maritime boundary between Cameroonand Nigeria

(paras. 226-307)

The Court then turns to the maritime boundary betweenCameroon and Nigeria.

In its final submissions presented to the Court at the endof the oral proceedings on 21 March 2002, Cameroonrequests that the Court confirm that "[t]he boundary of themaritime areas appertaining respectively to the Republic ofCameroon and the Federal Republic of Nigeria takes thefollowing course", which Cameroon describes in detail inthe two subparagraphs of paragraph (c) of its submissions.Nigeria claims that the Court should refuse to carry out inwhole or in part the delimitation requested by Cameroon,first, because the delimitation affects areas claimed by thirdStates (eighth preliminary exception) and, secondly, becausethe requirement of prior negotiations has not been satisfied.

The Court first deals with these arguments of Nigeria.

Nigeria's eighth preliminary objection(paras. 237-238)

After summarizing the contentions and arguments ofeach of the Parties, the Court first observes that its findingin its Judgment of 11 June 1998 on the eighth preliminaryobjection of Nigeria that that preliminary objection did "nothave, in the circumstances of the case, an exclusively

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preliminary character" requires it to deal now with thepreliminary objection before proceeding further on themerits. Since Nigeria maintains its objection, the Court mustrule on it.

The Court begins by observing that its jurisdiction isfounded on the consent of the parties. The Court cannottherefore decide upon legal rights of third States not partiesto the proceedings. In the present case there are States otherthan the parties to these proceedings whose rights might beaffected, namely Equatorial Guinea and Sao Tome andPrincipe. Those rights cannot be determined by decision ofthe Court unless Equatorial Guinea and Sao Tome andPrincipe have become parties to the proceedings. EquatorialGuinea has indeed requested — and has been granted —permission to intervene, but as a non-party inteirvener only.Sao Tome and Principe has chosen not to intervene on anybasis.

The Court considers that, in particular in the case ofmaritime delimitations where the maritime areas of severalStates are involved, the protection afforded by Article 59 ofthe Statute may not always be sufficient. In the present case,Article 59 may not sufficiently protect Equatorial Guineaand/or Sao Tome and Principe from the effects: — even ifonly indirect — of a judgment affecting their legal rights. Itfollows that, in fixing the maritime boundary betweenCameroon and Nigeria, the Court must ensure that it doesnot adopt any position which might affect the rights ofEquatorial Guinea and Sao Tome and Principe. Moreover,in relation to the specific issue of the tripoint, the Courtnotes that both Parties agree that it should not fix one. It isindeed not entitled to do so. In determining any line, theCourt must take account of this.

The Court concludes that it cannot rule on Cameroon'sclaims insofar as they might affect rights of EquatorialGuinea and Sao Tome and Principe. Nonetheless, the merepresence of those two States, whose rights might be affectedby the decision of the Court, does not in itself preclude theCourt from having jurisdiction over a maritime delimitationbetween the Parties to the case before it, namely Cameroonand Nigeria, although it must remain mindful, as always insituations of this kind, of the limitations on its jurisdictionthat such presence imposes.

Nigeria's argument that the requirement of priornegotiations has not been satisfied

(paras. 239-245)

Nigeria further argues that Article 74, paragraph 1, andArticle 83, paragraph 1, of the United Nations Conventionon the Law of the Sea require that the parties :o a disputeover maritime delimitation should first attempt to resolvetheir dispute by negotiation. According to Nigeria, theseprovisions lay down a substantive rule, not a proceduralprerequisite. Negotiation is prescribed as the proper andprimary way of achieving an equitable maritimedelimitation, and the Court is not a forum for negotiations.Nigeria accepts that, to the extent that the dispute over themaritime boundary pertains to areas around point G and tothe areas of overlapping licences, this requirement has been

satisfied. However, it maintains that waters to the south "of4° N and 3° N and even 2° N" have never been the subjectof any attempt at negotiation with Nigeria or, as far asNigeria is aware, with any other affected State.

The Court points out that, in its Judgment of 11 June1998, it noted that negotiations between the Governments ofCameroon and Nigeria concerning the entire maritimedelimitation — up to point G and beyond — wereconducted as far back as the 1970s. These negotiations didnot lead to an agreement. In the Court's view, however,Articles 74 and 83 of the United Nations Law of the SeaConvention do not require that delimitation negotiationsshould be successful; like all similar obligations to negotiatein international law, the negotiations have to be conductedin good faith. The Court reaffirms its finding in regard to thepreliminary objections that negotiations have indeed takenplace. Moreover, if, following unsuccessful negotiations,judicial proceedings are instituted and one of the partiesthen alters its claim, Articles 74 and 83 of the Law of theSea Convention would not require that the proceedings besuspended while new negotiations were conducted. It is ofcourse true that the Court is not a negotiating forum. In sucha situation, however, the new claim would have to be dealtwith exclusively by judicial means. Any other solutionwould lead to delays and complications in the process ofdelimitation of continental shelves and exclusive economiczones. The Law of the Sea Convention does not require sucha suspension of the proceedings.

As to negotiations with Equatorial Guinea and SaoTome and Principe, the Court does not find that it followsfrom Articles 74 and 83 of the Law of the Sea Conventionthat the drawing of the maritime boundary betweenCameroon and Nigeria presupposes that simultaneousnegotiations between all four States involved have takenplace.

The Court concludes that it is therefore in a position toproceed to the delimitation of the maritime boundarybetween Cameroon and Nigeria insofar as the rights ofEquatorial Guinea and Sao Tome and Principe are notaffected.

The maritime boundaiy up to point G(paras. 247-268)

The Court then turns to Cameroon's request for thetracing of a precise line of maritime delimitation. It firstaddresses the sector of the maritime boundary up to point G.

The Court notes that, according to Cameroon, themaritime boundary between Cameroon and Nigeria isdivided into two sectors. The first, from the mouth of theAkwayafe River to point G fixed by the Maroua Declarationof 1 June 1975, is said to have been delimited by validinternational agreements between the Parties. In relation tothis sector, Cameroon asks the Court merely to confirm thatdelimitation, which it says that Nigeria is now seeking toreopen. The sector beyond point G remains to be delimited,and Cameroon requests the Court to fix the limits of theParties' respective areas in this sector, so as to put acomplete and final end to the dispute between them. The

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delimitation of the first sector, from the mouth of theAkwayafe River to point G, is said by Cameroon to bebased mainly on three international legal instruments,namely the Anglo-German Agreement of 11 March 1913,the Cameroon-Nigeria Agreement of 4 April 1971,comprising the Yaounde II Declaration and the appendedChart 3433, and the Maroua Declaration of 1 June 1975.The Court then notes that Nigeria for its part draws nodistinction between the area up to point G and the areabeyond. It denies the existence of a maritime delimitation upto that . point, and maintains that the whole maritimedelimitation must be undertaken de novo. Nonetheless,Nigeria xioes advance specific arguments regarding the areaup to point G, which in the Court's view it is appropriate toaddress in this part of the Judgment. In the first place, on thebasis of "its claim to sovereignty over the Bakassi Peninsula,Nigeria contends that the line of the maritime boundarybetween itself and Cameroon will commence in the watersof the Rio del Rey and run down the median line towardsthe open sea. Since the Court has already found thatsovereignty over the Bakassi Peninsula lies with Cameroonand not with Nigeria, it is unnecessary to deal any furtherwith this argument of Nigeria. Nigeria further contends that,even if Cameroon's claim to Bakassi were valid,Cameroon's claim to a maritime boundary should havetaken into account the wells and other installations on eachside of the line established by the oil practice and should notchange the status quo in this respect. In relation to theYaounde II Declaration, Nigeria contends that it was not abinding agreement. Nigeria likewise regards the MarouaDeclaration as lacking legal validity.

The Court begins by pointing out that it has alreadyfound that the Anglo-German Agreement of 11 March 1913is valid and applicable in its entirety and that, inconsequence, territorial title to the Bakassi Peninsula lieswith Cameroon. It follows from these findings that themaritime boundary between Cameroon and Nigeria lies tothe west of the Bakassi Peninsula and not to the east, in theRio del Rey. It also follows from these findings that themaritime boundary between the Parties is "anchored" to themainland at the intersection of the straight line from BakassiPoint to King Point with the centre of the navigable channelof the Akwayafe River in accordance with Articles XVIIIand XXI of the said Anglo-German Agreement.

The Court observes that it is apparent from thedocuments provided to the Court by the Parties that,irrespective of what may have been the intentions of itsoriginal signatories, the Yaounde II Declaration was calledinto question on a number of occasions by Nigeriasubsequently to its signature and to the Joint BoundaryCommission meeting of June 1971. However, it isunnecessary to determine the status of the Declaration inisolation, since the line described therein is confirmed bythe terms of the Maroua Declaration, which refers in itsthird paragraph to "Point 12 ... situated at the end of the lineof the maritime boundary adopted by the two Heads of Stateon April 4, 1971".

The Court considers that the Maroua Declarationconstitutes an international agreement concluded betweenStates in written form and tracing a boundary; it is thusgoverned by international law and constitutes a treaty in thesense of the Vienna Convention on the Law of Treaties (seeArt. 2, para. 1), to which Nigeria has been a party since1969 and Cameroon since 1991, and which in any casereflects customary international law in this respect. TheCourt further considers that it cannot accept the argumentthat the Maroua Declaration was invalid under internationallaw because it was signed by the Nigerian Head of State ofthe time but never ratified. It observes that, while ininternational practice a two-step procedure consisting ofsignature and ratification is frequently provided for inprovisions regarding entry into force of a treaty, there arealso cases where a treaty enters into force immediately uponsignature. In the Court's opinion, the Maroua Declarationentered into force immediately upon its signature.

The Court then addresses Nigeria's argument that itsconstitutional rules regarding the conclusion of treaties werenot complied with. In this regard the Court recalls thatArticle 46, paragraph 1, of the Vienna Convention providesthat "[a] State may not invoke the fact that its consent to bebound by a treaty has been expressed in violation of aprovision of its internal law regarding competence toconclude treaties as invalidating its consent". It is true thatthe paragraph goes on to say "unless that violation wasmanifest and concerned a rule of its internal law offundamental importance", while paragraph 2 of Article 46provides that "[a] violation is manifest if it would beobjectively evident to any State conducting itself in thematter in accordance with normal practice and in goodfaith". The rules concerning the authority to sign treaties fora State are constitutional rules of fundamental importance.However, a limitation of a Head of State's capacity in thisrespect is not manifest in the sense of Article 46, paragraph2, unless at least properly publicized. This is particularly sobecause Heads of State belong to the group of persons who,in accordance with Article 7, paragraph 2, of the Convention"[i]n virtue of their functions and without having to producefull powers" are considered as representing their State. Withregard to the Nigerian argument that Cameroon knew, orought to have known, that the Head of State of Nigeria hadno power legally to bind Nigeria without consulting theNigerian Government, the Court notes that there is nogeneral legal obligation for States to keep themselvesinformed of legislative and constitutional developments inother States which are or may become important for theinternational relations of these States.

In these circumstances the Maroua Declaration, as wellas the Yaounde II Declaration, have to be considered asbinding and as establishing a legal obligation on Nigeria. Itfollows that it is unnecessary for the Court to addressNigeria's argument regarding the oil practice in the sectorup to point G. Thus the maritime boundary betweenCameroon and Nigeria up to and including point G must beconsidered to have been established on a conventional basisby the Anglo-German Agreement of 11 March 1913, theYaounde II Declaration of 4 April 1971 and the Maroua

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Declaration of 1 June 1975, and takes the following course:starting from the straight line joining Bakassi Point andKing Point, the line follows the "compromise line" jointlydrawn at Yaounde on 4 April 1971 by the Heads of State ofCameroon and Nigeria on British Admiralty Chart 3433appended to the Yaounde II Declaration of 4 April 1971,and consisting of 12 numbered points, whose precisecoordinates were determined by the two countries' JointCommission meeting in Lagos in June 1971; from point 12on that compromise line the course of the boundary followsthe line to point G specified in the Maroua Declaration of 1June 1975, as corrected by the exchange of letters betweenthe Heads of State of Cameroon and Nigeria of 12 June and17 July 1975.

The maritime boundary beyond point G(paras. 269-307)

The Court then addresses the maritime boundary beyondpoint G, where no maritime boundary delimitation has beenagreed.

The Court notes that in Cameroon's view this is a classiccase of maritime delimitation between States with adjacentcoasts which have been unable to reach agreement on theline to be drawn between their respective exclusiveeconomic zones and continental shelves, although in thiscase the special circumstances of the geographical situationare particularly marked, and the Court is also required totake account of the interests of third States. As regards theexercise of delimitation, Cameroon argues that the law onthe delimitation of maritime boundaries is dominated by thefundamental principle that any delimitation must lead to anequitable solution. In support of this contention, it citesparagraph 1 of Articles 74 and 83 of the 1982 Law of theSea Convention and a number of decisions of this Court orof arbitral tribunals. Cameroon concludes thai; there is nosingle method of maritime delimitation; the choice ofmethod depends on the circumstances specific to each case.Cameroon insists on the fact that the equidistance principleis not a principle of customary law that is automaticallyapplicable in every maritime boundary delimitation betweenStates whose coasts are adjacent, observing that, if a strictequidistance line were drawn, it would be entitled topractically no exclusive economic zone or continental shelf,despite the fact that it has a longer relevant coastline thanNigeria. The Court observes that Nigeria agrees that it isappropriate in the present case to determine a singlemaritime boundary, but that it rejects Cameroon's line.Nigeria describes that line as fanciful and constructed indefiance of the basic concepts and rules of international law.It criticizes both the line's construction and the"equitableness" of the result in light of the jurisprudence. Itdirects its criticism of the construction essentially to fivepoints: the actual nature of the line; the relevant coasts usedin its construction; the treatment of the islands in thisconstruction; the definition of the area relevant to thedelimitation; the method followed in the construction of theline. Nigeria further argues that the Parties' conduct inrespect of the granting and exploitation of oil concessions,

leading to the establishment of de facto lines, plays a veryimportant role in establishing maritime boundaries. Itcontends that, within the area to be delimited, the Courtcannot redistribute the oil concessions established by thepractice of Nigeria, Equatorial Guinea and Cameroon, andthat it must respect the configuration of the concessions inits determination of the course of the maritime boundary.Equatorial Guinea, the'Court notes, requests''that theboundary to be fixed by the Court should nowhere encroachupon the median line between its own coasts and those ofCameroon and Nigeria, which it regards as "a reasonableexpression of its legal rights and interests that must not betransgressed in proceedings to which Equatorial Guinea isnot a party". It has a number of specific criticisms of the"equitable line" proposed by Cameroon, ofwhich,moreover, it claims it only became aware in December1998. • - '

The Court begins by observing that the maritime areason whose delimitation it is to rule in this part of theJudgment lie beyond the outer limit of the respectiveterritorial seas of the two States. The Court further recallsthat the Parties agree that it is to rule on the maritimedelimitation in accordance with international law. BothCameroon and Nigeria are parties to the United NationsLaw of the Sea Convention of 10 December 1982, whichthey ratified on 19 November 1985 and 14 August 1986respectively. Accordingly the relevant provisions of thatConvention are applicable, and in particular Articles 74 and83 thereof, which concern delimitation of the continentalshelf and the exclusive economic zone between States withopposite or adjacent coasts. Paragraph 1 of those Articlesprovides that such delimitation must be effected in such away as to "achieve an equitable solution". The Court alsonotes that the Parties agreed in their written pleadings thatthe delimitation between their maritime areas should beeffected by a single line.

The Court points out that it has on various occasionsmade it clear what the applicable criteria, principles andrules of delimitation are when a line covering several zonesof coincident jurisdictions is to be determined. They areexpressed in the so-called equitable principles/relevantcircumstances method. This method, which is very similarto the equidistance/special circumstances method applicablein delimitation of the territorial sea, involves first drawingan equidistance line, then considering whether there arefactors calling for the adjustment or shining of that line inorder to achieve an "equitable result". The Court observesthat it will apply the same method in the present case.

Before it can draw an equidistance line and considerwhether there are relevant circumstances that might make itnecessary to adjust that line, the Court must, however,define the relevant coastlines of the Parties by reference towhich the location of the base points to be used in theconstruction of the equidistance line will be determined. Inthe present case the Court cannot accept Cameroon'scontention, on the one hand, that account should be taken ofthe coastline of the Gulf of Guinea from Akasso (Nigeria) toCap Lopez (Gabon) in order to delimit Cameroon's

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maritime boundary with Nigeria, and, on the other, that noaccount should be taken of the greater part of the coastlineof Bioko Island. Once the base points have been establishedin accordance with the above-mentioned principles, it willbe possible to determine the equidistance line between therelevant coastlines of the two. States. As the Court hasalready had occasion to explain, this equidistance linecannot be extended beyond a point where it might affectrights of Equatorial Guinea.

The Court then considers whether there arecircumstances that might make it necessary to adjust thisequidistance line in order to achieve an equitable result. TheCourt feels bound to stress in this connection that delimitingwith a concern to achieving an equitable result, as requiredby current international law, is not the same as delimiting inequity¡ The Court's jurisprudence shows that, in disputesrelating to maritime delimitation, equity is not a method ofdelimitation, but solely an aim that should be borne in mindin effecting the delimitation. The geographical configurationof the maritime areas that the Court is called upon to delimitis a given. It is not an element open to modification by theCourt but a fact on the basis of which the Court must effectthe delimitation.

The Court notes in this respect that Cameroon contendsthat the concavity of the Gulf of Guinea in general, and ofCameroon's coastline in particular, creates a virtualenclavement of Cameroon, which constitutes a specialcircumstance to be taken into account in the delimitationprocess. Nigeria, for its part, argues that it is not for theCourt to compensate Cameroon for any disadvantagessuffered by it as a direct consequence of the geography ofthe area. It stresses that it is not the purpose of internationallaw to refashion geography.

The Court finds that although it does not deny that theconcavity of the coastline may be a circumstance relevant todelimitation, it nevertheless should stress that this can onlybe the case when such concavity lies within the area to bedelimited. It notes that the sectors of coastline relevant tothe present delimitation as determined above exhibit noparticular concavity.

The Court then observes that Cameroon further contendsthat the presence of Bioko Island constitutes a relevantcircumstance which should be taken into account by theCourt for purposes of the delimitation. It argues that BiokoIsland substantially reduces the seaward projection ofCameroon's coastline. Here again Nigeria takes the viewthat it is not for the Court to compensate Cameroon for anydisadvantages suffered by it as a direct consequence of thegeography of the area.

The Court points out that in the present case BiokoIsland is subject to the sovereignty of Equatorial Guinea, aState which is not a party to the proceedings. Consequentlythe effect of Bioko Island on the seaward projection of theCameroonian coastal front is an issue between Cameroonand Equatorial Guinea and not between Cameroon andNigeria, and is not relevant to the issue of delimitationbefore the Court. The Court does not therefore regard thepresence of Bioko Island as a circumstance that would

justify the shifting of the equidistance line as Cameroonclaims.

Lastly, Cameroon invokes the disparity between thelength of its coastline and that of Nigeria in the Gulf ofGuinea as a relevant circumstance that justifies shifting thedelimitation line towards the north-west. For its part,Nigeria considers that Cameroon fails to respect the criteriaof proportionality of coastline length, which would operaterather in Nigeria's favour.

The Court notes that in the present case, whichevercoastline of Nigeria is regarded as relevant, the relevantcoastline of Cameroon, as described in paragraph 291, is notlonger than that of Nigeria. There is therefore no reason toshift the equidistance line in favour of Cameroon on thisground.

The Court finds that, before ruling on the delimitationline between Cameroon and Nigeria, it must still address thequestion raised by Nigeria whether the oil practice of theParties provides helpful indications for purposes of thedelimitation of their respective maritime areas.

Thus Nigeria contends that State practice with regard tooil concessions is a decisive factor in the establishment ofmaritime boundaries. In particular it takes the view that theCourt cannot, through maritime delimitation, redistributesuch oil concessions between the States party to thedelimitation. Cameroon, for its part, maintains that theexistence of oil concessions has never been accordedparticular significance in matters of maritime delimitation ininternational law.

The Court concludes that overall, it follows from its owncase law and that of arbitral tribunals that, although theexistence of an express or tacit agreement between theparties on the siting of their respective oil concessions mayindicate a consensus on the maritime areas to which they areentitled, oil concessions and oil wells are not in themselvesto be considered as relevant circumstances justifying theadjustment or shifting of the provisional delimitation line.Only if they are based on express or tacit agreementbetween the parties may they be taken into account. In thepresent case there is no agreement between the Partiesregarding oil concessions. The Court is therefore of theopinion that the oil practice of the Parties is not a factor tobe taken into account in the maritime delimitation in thepresent case.

Having further concluded that there were no otherreasons that might have made an adjustment of theequidistance line necessary in order to achieve an equitableresult, the Court decides that the equidistance line representsan equitable result for the delimitation of the area in respectof which it has jurisdiction to give a ruling.

The Court notes, however, that point G, which wasdetermined by the two Parties in the Maroua Declaration of1 June 1975, does not lie on the equidistance line betweenCameroon and Nigeria, but to the east of that line.Cameroon is therefore entitled to request that from point Gthe boundary of the Parties' respective maritime areasshould return to the equidistance line. The Court considersthat from point G the delimitation line should directly join

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the equidistance line at a point with coordinates 8o21'20"longitude east and 4°17'00" latitude north, which will becalled X. The boundary will turn at point X and continuesouthwards along the equidistance line.

However, the equidistance line adopted by the Courtcannot be extended very far. The Court has already statedthat it can take no decision that might affect rights ofEquatorial Guinea, which is not a party to the proceedings.In these circumstances the Court considers that it can do nomore than indicate the general direction, from point X, ofthe boundary between the Parties' maritime areas. Theboundary will follow a loxodrome having an azimuth of187°52'27".

Cameroon's submissions on Nigeria's Stateresponsibility and Nigeria's counter-claimsregarding Cameroon's State responsibility

(paras. 308-324)

The Court finally addresses Cameroon's submissionsconcerning Nigeria's State responsibility and Nigeria'scounter-claims concerning Cameroon's State responsibility.In this connection, Cameroon puts forward two separateseries of submissions concerning, on the one hand, the LakeChad area and the Bakassi Peninsula and, on ihe other, theremaining sectors of the boundary.

The Court recalls that in paragraphs 57, 60, 61 and 225of its Judgment it fixed the boundary between the two Statesin the Lake Chad area and the Bakassi Peninsula. It observesthat Nigeria does not deny that Nigerian armed forces and aNigerian administration are currently in place in these areaswhich the Court has determined are Cameroonian territory,adding in respect of the establishment of the municipality ofBakassi that, if the Court were to recognize Cameroon'ssovereignty over such areas, there is nothing iixeversible inthe relevant arrangements made by Nigerk. The samereasoning clearly applies to other spheres of civiladministration, as well as to military or police forces. TheCourt notes that Nigeria is under an obligation expeditiouslyand without condition to withdraw its administration and itsmilitary and police forces from that area of Lake Chadwhich falls within Cameroon's sovereignty and from theBakassi Peninsula.

The Court further observes that Cameroon is under anobligation expeditiously and without condition to withdrawany administration or military or police forces which may bepresent in areas along the land boundary from Lake Chad tothe Bakassi Peninsula which pursuant to the presentJudgment fall within the sovereignty of Nigeria.. Nigeria hasthe same obligation in regard to any administration ormilitary or police forces which may be present in areasalong the land boundary from Lake Chad to the BakassiPeninsula which pursuant to the present Judgment fallwithin the sovereignty of Cameroon.

The Court also notes that the implementation of thepresent Judgment will afford the Parties a beneficialopportunity to cooperate in the interests of the populationconcerned, in order notably to enable it to continue to haveaccess to educational and health services comparable to

those it currently enjoys. Such cooperation will beespecially helpful, with a view to the maintenance ofsecurity, during the withdrawal of the Nigerianadministration and military and police forces. Moreover, on21 March 2002 the Agent of Cameroon stated before theCourt that "over three million Nigerians live onCameroonian territory, where, without any restriction, theyengage in various activities, and are well integrated intoCameroonian society". He went on to declare that, "faithfulto its traditional policy of hospitality and tolerance,Cameroon will continue to afford protection to Nigeriansliving in the [Bakassi] Peninsula and in the Lake Chadarea". The Court takes note with satisfaction of thecommitment thus undertaken in respect of these areas wheremany Nigerian nationals reside. . ,

The Court, moreover, does not uphold Cameroon'ssubmissions with regard to obtaining guarantees of non-repetition in the future, considering that it could notenvisage a situation where either Party would fail to respectthe territorial sovereignty of the other Party, now that theland and maritime boundary between the two States hadbeen specified by the Court in definitive and mandatoryterms.

In the circumstances of the case, the Court considersmoreover that, by the very fact of its Judgment and of theevacuation of the Cameroonian territory occupied byNigeria, the injury suffered by Cameroon by reason of theoccupation of its territory will in all events have beensufficiently addressed. The Court does not therefore seek toascertain whether and to what extent Nigeria's responsibilityto Cameroon has been engaged as a result of thatoccupation.

Finally, concerning various boundary incidents, theCourt finds that neither of the Parties sufficiently proves thefacts which it alleges, or their imputability to the otherParty. The Court is therefore unable to uphold eitherCameroon's submissions or Nigeria's counter-claims basedon the incidents cited.


Judge Oda fully supports the conclusions reached by theCourt on the main issues of the present case, namely theBakassi Peninsula and the land boundaries in Lake Chadand between Lake Chad and the sea, although he doesexpress some reservations on technical matters.

Judge Oda holds stronger reservations concerning theCourt's decision in subparagraph IV, on the "maritimeboundary" issues, which cannot be considered main issuesin the present dispute. He shares very few of the Court'sviews and only voted in favour of points IV (B), (C) and (D)because the lines drawn therein are not wholly inappropriateand do not in fact cause any harm. He identifies bothprocedural and substantive errors made not only by theApplicant but also by the Court.

From the procedural perspective, Judge Oda stresses thefact that in its 1994 Applications Cameroon could not be

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seen as asking the Court to adjudge on any "legal dispute"concerning a maritime boundary within the meaning ofArticle 36 (2) of the Court's Statute. It only requested thedrawing of a boundary course. In its 1998 Judgment, theCourt erred in rejecting Nigeria's'preliminary objections andin deciding that a dispute could be unilaterally submitted tothe Court by Cameroon. The Applicant, Cameroon, alteredits position in later proceedings by asserting its ownmaritime claim identified by map coordinates. Thisprocedural error effected an essential change in thecomplexion of the entire case. In this light, Judge Oda votedagainst point IV (A) of the operative part of the Judgment.

From the substantive perspective, Judge Oda underlinesthe failure by the Court and the Applicant to recognize theessential difference between the territorial sea and the areaof the continental shelf, which are regulated by two differentlegal régimes. Judge Oda submits that on the issue of theboundary within the territorial sea, the difference betweenthe two Parties is, in fact, an issue relating solely to thestatus of the Bakassi Peninsula (whether the boundarybetween Cameroon and Nigeria lies to the west or to the eastof the Bakassi Peninsula) and not to a maritime boundary.After stating that Bakassi is part of Cameroon, the Court'sJudgment should have had nothing more to add. It issenseless for the Court to present the two tables ofcoordinates referring to the territorial sea, as neither Partyraised this particular issue.

As for the boundary of the continental shelf, the Courtrenders a decision establishing a line different from theParties' respective claim lines. The Court's mistakentreatment of the maritime boundary may derive from itsfailure to understand the law governing this issue.According to Judge Oda, there is no legal rule or principlethat mandates recognition of a given line as the only oneacceptable under international law. The concrete boundaryline of the continental shelf is to be chosen by negotiationprovided that it remains within the bounds of equity. JudgeOda further states that the 1958 Geneva Convention on theContinental Shelf offers a guiding principle for parties'negotiations: they should seek an "equitable solution" underthe so-called "equidistance (median) line + specialcircumstance" rule. The 1982 United Nations Conventionon the Law of the Sea tried to further clarify the issue in itsArticle 83 (1), which provides for the delimitation of thecontinental shelf to be "effected by agreement on the basisof international law ... in order to achieve an equitablesolution".

In Judge Oda's view, great misunderstanding prevails inacademic circles regarding the interpretation of Article 83(2) of the 1982 Convention. First, this provision does notconstitute a compromissory clause such as is referred to inArticle 36 (1) of the Court's Statute. Second, the fact thatboundary negotiations have failed does not in itself meanthat a "(legal) dispute" has arisen. Third, Article 83(2)should not be interpreted as conferring compulsoryjurisdiction on those institutions listed in Article 287, PartXV. Judge Oda asserts that the Court could act as a third-party authority if it were asked jointly by the Parties to draw

the boundary line, but the present case was broughtunilaterally by Cameroon and the Parties have not evenstarted negotiations. The Court could not initiatecompulsory procedures entailing a binding decision andcould not "decide" any specific line.

Separate opinion of Judge Ranjeva

Subscribing to the operative part and to the conclusionsset out in the Judgment, Judge Ranjeva is satisfied with theundertaking given by the two Parties, under the auspices ofthe Secretary-General of the United Nations, to abide by theCourt's Judgment in the case concerning Land andMaritime Boundary between Cameroon and Nigeria(Cameroon v. Nigeria), an undertaking which confirms theirconsent to jurisdiction under international procedural law.

Judge Ranjeva expresses reservations in respect of theanalysis set out in paragraphs 203 and 209 of the Judgment.The Judgment relies on rules of intertemporal law to justifythe conclusion that the United Kingdom had authority todetermine Nigeria's boundary with Cameroon (para. 209).Did the refusal to accord international status to theagreements concluded by the United Kingdom with thechiefs of Old Calabar justify reference to the concept of "thelaw at the time"? No lawyer can help but be surprised at theCourt's warping of the founding principle of internationallaw. In effect, as far as agreements with leaders or eminentdignitaries of what international law terms "uncivilizednations" are concerned, pacta non servanda sunt. Legal"unilateralism" has already been the target of criticism bylegal scholars. In the case concerning Frontier Dispute(Burkina Faso/Republic of Mali), the Chamber directlyapplied colonial law, which it recognized as such and as thesource of the applicable law. Thus, it would, have beenpreferable to distinguish between the two spheres of law inthe present case: international law in respect of relationsbetween European colonial Powers and colonial law inrespect of relations between the métropole and the colonialterritories.


In his declaration Judge Herczegh expresses the viewthat the critical comments made in paragraph 238 in thereasoning in the Judgment, concerning the insufficientprotection which Article 59 of the Statute may afford insome cases to third States' interests of a legal nature, areunjustified.


Judge Koroma in his dissenting opinion acknowledgedthe important role of the Court as a forum for the peacefulsettlement of disputes, particularly territorial and boundarydisputes between neighbouring States, which have apropensity to escalate with destructive consequences for theStates concerned. However, in his view, if the Court as ajudicial organ is to effectively play its assigned role, itsdecision must be based on the application of the relevantconventions and relevant principles of international law,

246

foremost among which is the fundamental principle of pactasunt servanda, that every treaty in force is binding upon theparties to it and must be performed in good faith. In hisview, the Court cannot operate on a different set ofprinciples. He regretted the fact that on this occasion, themajority of the Court departed from the law and legalprinciples enriching its decision which is therefore notsustainable.

Judge Koroma observed that, by failing to uphold thevalidity of the 1884 Treaty between the Kings and Chiefs ofOld Calabar and Great Britain, which expressly provided forthe "gracious protection" of the people of Old Calabar byGreat Britain, but instead upholding the validity of theAnglo-German Agreement of 1913 which ceded theterritory of the people of Old Calabar to Germany withouttheir consent, the Court chose to consecrate political realityover legal validity. In his view, the 1884 Treaty did notentitle Great Britain to transfer the territory of the people ofOld Calabar without their consent, and to the extent that the1913 Anglo-German Treaty purportedly had i:his effect, itshould have been declared defective by the Court. Hence,the Court was in error in upholding Cameroon's title basedon the 1913 Anglo-German Agreement.

Judge Koroma also disagreed with the Court's responseto the principal claim of Nigeria to Bakassi and settlementsaround Lake Chad based on historical consolidation andeffective authority. In his view, historical consolidation, ifestablished by the evidence, remains a valid basis ofterritorial title. In Judge Koroma's view, the acquisition ofterritorial title is not closed to what the Court described inthe Judgment as "established" modes. If this were so, therewould have been no place in international jurisprudence for"prescription", "recognition", "estoppel or preclusion", or"acquiescence". In other words, proven long usage, coupledwith a complex of interests and relations which, inthemselves, have the effect of attaching a territory, andwhen supported by evidence of acquiescence, constitutes alegal basis of territorial title. Such a basis to territorial titlehas been recognized in the jurisprudence of the Court.Accordingly, what was required in this case was proof of theclaim and it is for the Court to examine the evidence if itsubstantiates such claim. Nigeria, he observes, presentedsubstantial evidence to justify the claim of historicalconsolidation and effectivités linking the Bakassi Peninsulaand the settlements around Lake Chad with Nigeria and withthe necessary evidence of acquiescence. It should have beenfor the Court to examine such evidence, xo determinewhether it established title, and not to concentrate on the"label" under which the evidence was presented to it. TheCourt stated that apart from the Norwegian Fisheries casethe "notion ... has never been used as a basis of title in otherterritorial disputes, whether in its own or in other case law".Even if this were so, which is not the case, what should havemattered most is the evidence and not the appellationapplied to it.

In Judge Koroma's view, it is the approach taken by theCourt in considering the law and material evidence before itwhich proved to be the flaw in the decision which it

reached. This approach led the Court quite erroneously touphold Cameroon's title based on the Anglo-GermanAgreement of 1913, and to reject Nigeria's claim toterritorial sovereignty based on original title and historicalconsolidation. He took the view that on the basis of theevidence presented to the.Court, if the issues of originaltitle, historical consolidation and effective authority hadbeen given their due consideration, a different conclusionwould have been reached by the Court with regard toBakassi and the settlements around Lake Chad.

In conclusion, Judge Koroma insisted that where thejudicial settlement of territorial and boundary disputes isconcerned, it is imperative for the Court to apply- a validtreaty, and the relevant principles of international law, if theJudgment is to be regarded as based on law.


Judge Parra-Aranguren declared that his vote for theoperative part of the Judgment, with the exception of pointV (C), should not be understood as an agreement to eachand every part of the reasoning followed by the Court inreaching its conclusions. He also explained that his voteagainst point V (C), is based on the well-establishedprinciple that "it is the duty of the Court not only to reply tothe questions as stated in the final submissions of theparties, but also to abstain from deciding points not includedin those submissions", as was recalled by the Court veryrecently, on 14 February 2002 (case concerning the ArrestWarrant of 11 April 2000, (Democratic Republic of Congov. Belgium), Judgment, I.C.J. Reports 2002, para. 43).Neither Cameroon nor Nigeria requested the Court in itssubmissions to take note of the commitment undertaken byCameroon to afford protection to Nigerians living in theBakassi Peninsula. Therefore, in his opinion, the Courtshould have abstained from taking note of such commitmentin the operative part of the Judgment, even though the Courtwas entitled to address it in its reasoning, as it did inparagraph 317 of the Judgment.

Declaration of Judge Rezek

Judge Rezek did not join the majority in respect of thequestion of sovereignty over the Bakassi Peninsula andadjacent waters.

He sets out the main reason for that in his declaration: inhis view, it is unacceptable for the treaty concluded in 1884between Great Britain and the Kings and Chiefs of OldCalabar not to be considered a treaty, because it is obviousthat at the time in question even the colonial Powers wererequired to show a minimum of good faith.

Separate opinion of Judge Al-Khasawneh

Judge Al-Khasawneh associates himself with thereasoning of the Court in paragraphs 214 to 216 of theJudgment; however he submits that it was unnecessary andunfortunate for the Court to revert to the questions of the1913 Agreement between Great Britain and Germany and to

247

the 1884 Treaty of Protection between Great Britain and theKings and Chiefs of Old Calabar. Indeed, it is morally andlegally difficult to reconcile a duty of protection with thesubsequent alienation of the entire territory of the protectedentity.

In its Judgment, the Court fails to distinguish betweenprotectorates and colonies and concludes that Great Britainhas acquired sovereignty to the Bakassi Peninsula through aderivative root of title. The central questions of the case thusrelate to the interpretation of the 1884 Treaty and of thesubsequent practice of the Parties. These cannot becircumvented by the invention of a fictitious sub-category ofprotectorates named "colonial protectorates" where title ispresumed to pass automatically and regardless of the termsof the treaty.

No support can be found to the Court's conclusion byreference to the Western Sahara or the Island of Palmasdecisions. The latter especially mistakenly confoundsinequality in status and inequality in power by concludingthat suzerainty over a native State becomes the basis ofterritorial sovereignty by the protecting Power. In addition,its excessive generalization results in the assumption thatlocal chiefs are deemed to have become virtual colonies orvassal of the States under the suzerainty of the protectingcolonial Power regardless of the nominal control exercisedby the protecting State and the fact that they were oftenrecognized as sovereigns in their subsequent dealings withthe protecting State. Besides, it is doubtful that thegeneralization about suzerainty and vassalage with regard tothe colonial protectorates was in fact supported by Statepractice at that time. Moreover, this approach is based onthe notion of otherness, and results in an almost regionalapplication of intertemporal law. Judge Al-Khasawnehemphasizes that treaties of protection were sometimes a firststep towards the development of a full colonial title, butuntil that happened and in the absence of provisions whichmay be interpreted as conveying title, they remained a leverand no more. This conclusion is supported by severalexamples of State practice — in particular by GreatBritain — contemporaneous with the Berlin Conference.

Even assuming, argiiendo, that the Berlin Conferencedid sanction the behaviour of colonial Powers vis-à-viscolonial protectorates, is this practice opposable to theParties in the present dispute? This should be addressedwithin the principle of intertemporal law. Historically,protection, a concept traceable to the Roman jurist Ulpian,excludes notion of ownership and connotes elements ofguardianship. After 1885, State practice began to deform theoriginal classical concept and converted it into aninstrument of colonialism. Should this deformation be takeninto consideration in the application of the intertemporalrule? Besides, should not the rule pacta simt servando, oneof the most important principles of international law,continue to be applied?

Intertemporal law is not as static as some jurists wouldlike to think. Moreover, the intertemporal rule is not a well-defined rule capable of automatic application, it is rather aperplexing idea that was incapable of finding a place in the

1969 Vienna Convention on the Law of Treaties, and whichwas consistently rejected in successive decisions of theEuropean Court of Human Rights, overcome by certaindecisions of this Court and abandoned in the realm of gravecrimes. In sum, the Court's hopes to find the basis forceding Bakassi to Germany are misplaced on a truncatedconcept.

In conclusion, the 1884 Treaty had international legalstanding: it concerned protection and not colonial title andthe Kings and Chiefs of Old Calabar had capacity to enterinto treaty relations. The plain words of the Treaty suggestthat there was no intent to transfer territorial sovereignty.This situation was not altered until 1913, when Great Britainceded Bakassi to Germany. The cession implied powersassociated with territorial sovereignty that Great Britain didnot possess. The case of the Kings and Chiefs of OldCalabair was not weakened by the Treaty itself. However,their subsequent behaviour and their failure to protest leaveJudge Al-Khasawneh with no choice but to conclude thatthey had given their consent to that transfer: volenti non fitinjuria.

Separate opinion of Judge Mbaye

In an endeavour to obtain greater insight into this disputebetween two brother African countries, I have set out somegeneral observations by way of introduction to my opinion.

I share the Court's conclusions as regards "the LakeChad area and Bakassi". There are existing titles in respectof sovereignty over these areas of territory. It is Cameroonwho holds these titles, which must prevail over effectivités.

However, I regret that the Court did not rely on theprinciple of "respect for colonial frontiers", since the Partiesdevoted lengthy and varied arguments to this matter, and itis of great importance in Africa.

As regards the land boundary between Lake Chad andBakassi, the maritime delimitation and the issue ofresponsibility, my conclusions differ in minor respects fromthose reached by the Court.


In the case concerning the Land and Maritime Boundarybetween Cameroon and Nigeria, Judge Ajibola votes insupport of the Court's decision on the issue of maritimedelimitation beyond point "G" which the Court based on itsprinciple of equidistance in accordance with itsjurisprudence and international law. He also supports thedecision of the Court to deny Cameroon's claim of Stateresponsibility against Nigeria. In his opinion, the claim israther anticipatory in that it pertains to acts allegedlycommitted on a disputed territory and a dispute yet to bedetermined by the Court. It is for the same reason that JudgeAjibola supports the decision of the Court to dismissNigeria's counter-claim of State responsibility againstCameroon.

Judge Ajibola however disagrees with the decision ofthe Court, which declares that the territorial sovereigntyover the Bakassi Peninsula belongs to Cameroon. In his own

248

opinion, the Court's acceptance of Cameroon's title claimbased on the 1913 Anglo-German Agreement can befaulted, because its Articles XVIII-XXII upon whichCameroon bases its claim are null and void, and thoseArticles are severable from the Agreement. He goes furtherto state that the Court failed in its Judgment to consider theeffect of Nigeria's argument based on historicalconsolidation and effectivités. In his opinion, the evidentialvalue of the Treaty of 10 September 1884, between theKings and Chiefs of Old Calabar and Great Britain, isclearly in favour of Nigeria's case. It is a clear indicationthat at all relevant times before Nigeria's independence, theterritorial sovereignty over the Bakassi Peninsula trulybelonged to the Kings and Chiefs of Old Calabar and thatthe Treaty was a treaty of protection, which did not transferany territorial sovereignty to Great Britain. 'Great Britaincould not therefore transfer any territorial rights to Germanyor to Cameroon, after its independence.

Judge Ajibola also votes against the decision of theCourt on the delimitation of the Lake Chad boundary. In hisopinion, the Court failed to give adequate consideration toNigeria's claim based on historical consolidation andeffectivités which entitles Nigeria to the 33 villages claimed.

In his view, Judge Ajibola opines that the conclusionreached by the Court in this case is not in line with thedevelopment of its own jurisprudence and in particular withregard to the case of the Frontier Dispute (BurkinaFaso/Mali). It is his view that the Court, in acceptingCameroon's one-sided argument, merely gave recognition toa part of paragraph 63 of the case mentioned above whenreaching its decision. In Judge Ajibola's view, the Courtfailed to give cognizance to the last three sentences of thatparagraph, which urged that effectivités must invariably betaken into consideration.

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139. CASE CONCERNING SOVEREIGNTY OVER PULAU LIGITAN AND PULAUSIPADAN (INDONESIA v. MALAYSIA) (MERITS)


In its Judgment in the case concerning Sovereignty overPulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), theCourt found, by sixteen votes to one, that "sovereignty overPulau Ligitan and Pulau Sipadan belongs to Malaysia".Ligitan and Sipadan are two very small islands located inthe Celebes Sea, off the north-east coast of the: island ofBorneo.

The Court was composed as follows: PresidentGuillaume; Vice-President Shi; Judges Oda, Ranjeva,Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins,Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh,Buergenthal and Elaraby; Judges ad hoc Weeramantry andFranck; Registrar Couvreur.

Judge Oda appended a declaration to the Judgment ofthe Court; Judge ad hoc Franck appended a dissentingopinion to the Judgment of the Court.


For these reasons,"THE COURT,By sixteen votes to one,Finds that sovereignty over Pulau Ligitan and Pulau

Sipadan belongs to Malaysia.IN FAVOUR: President Guillaume; Vice-President

Shi; Judges Oda, Ranjeva, Herczegh, Fldschhauer,Koroma, Vereshchetin, Higgins, Parra-Aranguren,Kooijmans, Rezek, Al-Khasawneh, Buergenthal,Elaraby; Judge ad hoc Weeramantry;

AGAINST: Judge ad hoc Franck."

History of the proceedings and claims of the Parties(paras. 1-13)

On 2 November 1998 Indonesia and Malaysia notified tothe Registrar of the Court a Special Agreement between thetwo States, signed at Kuala Lumpur on 31 May 1997 andhaving entered into force on 14 May 1998. In that SpecialAgreement they requested the Court to determine on thebasis of the treaties, agreements and any other evidencefurnished by the Parties, whether sovereignty over Pulau

Ligitan and Pulau Sipadan belongs to the Republic ofIndonesia or to Malaysia.

Each of the Parties duly filed a Memorial, Counter-Memorial and Reply within the time limits fixed by theCourt.

Since the Court included upon the Bench no judge of thenationality of either of the Parties, each Party proceeded tochoose a judge ad hoc to sit in the case: Indonesia chose Mr.Mohamed Shahabuddeen and Malaysia Mr. ChristopherGregory Weeramantry. After Mr. Shahabuddeen hadresigned, Indonesia chose Mr. Thomas Franck to replacehim.

On 13 March 2001, the Republic of the Philippines filedin the Registry of the Court an Application for permission tointervene in the case, invoking Article 62 of the Statute ofthe Court. By a Judgment rendered on 23 October 2001, theCourt found that the Application of the Philippines couldnot be granted.

Public hearings were held from 3 to 12 June 2002.At the oral proceedings, the following submissions were

presented by the Parties:On behalf of the Government of Indonesia,"On the basis of the facts and legal considerationspresented in Indonesia's written pleadings and in its oralpresentation, the Government of the Republic ofIndonesia respectfully requests the Court to adjudge anddeclare that:

(i) sovereignty over Pulau Ligitan belongs to theRepublic of Indonesia; and

(ii) sovereignty over Pulau Sipadan belongs to theRepublic of Indonesia."

On behalf of the Government of Malaysia,"The Government of Malaysia respectfully requests theCourt to adjudge and declare that sovereignty over PulauLigitan and Pulau Sipadan belongs to Malaysia."

Geographical context(para. 14)

The Court first describes the geographical context of thedispute as follows:

The islands of Ligitan and Sipadan (Pulau Ligitan andPulau Sipadan) are both located in the Celebes Sea, off thenorth-east coast of the island of Borneo, and lieapproximately 15.5 nautical miles apart. Ligitan is a verysmall island lying at the southern extremity of a large star-shaped reef extending southwards from the islands ofDanawan and Si Amil. Its coordinates are 4°09' latitudenorth and 118°53' longitude east. The island is situated some21 nautical miles from Tanjung Tutop, on the Semporna

263

Peninsula, the nearest area on Borneo. Permanently abovesea level and mostly sand, Ligitan is an island with low-lying vegetation and some trees. It is not permanentlyinhabited.

Although bigger than Ligitan, Sipadan is also a smallisland, having an area of approximately 0.13 sq. km. Itscoordinates are 4°06' latitude north and 118°37' longitudeeast. It is situated some 15 nautical miles from TanjungTutop, and 42 nautical miles from the east coast of theisland of Sebatik. Sipadan is a densely wooded island ofvolcanic origin and the top of a submarine mountain some600 to 700 m in height, around which a coral atoll hasformed. It was not inhabited on a permanent basis until the1980s, when it was developed into a tourist resort for scuba-diving.

Historical background(paras. 15-31)

The Court then gives an overview of the complexhistorical background of the dispute between the Parties.

Bases of the Parties ' claims(paras. 32 and 33)

The Court notes that Indonesia's claim to sovereigntyover the islands of Ligitan and Sipadan rests primarily onthe Convention which Great Britain and the Netherlandsconcluded on 20 June 1891 for the purpose of "defining theboundaries between the Netherland possessions in the Islandof Borneo and the States in that Island which [were] underBritish protection". Indonesia also relies on a series ofeffectivités, both Dutch and Indonesian, which it claimsconfirm its conventional title. At the oral proceedingsIndonesia further contended, by way of alternativeargument, that if the Court were to reject its title based onthe 1891 Convention, it could still claim sovereignty overthe disputed islands as successor to the Sultan of Bulungan,because he had possessed authority over the islands.

For its part, Malaysia contends that it acquiredsovereignty over the islands of Ligitan and Sipadanfollowing a series of alleged transmissions of the titleoriginally held by the former sovereign, the Sultan of Sulu.Malaysia claims that the title subsequently passed, insuccession, to Spain, to the United States, to Great Britainon behalf of the State of North Borneo, to the UnitedKingdom of Great Britain and Northern Ireland, and finallyto Malaysia itself. It argues that its title, based on this seriesof legal instruments, is confirmed by a certain number ofBritish and Malaysian effectivités over the islands. It arguesin the alternative that, if the Court were to conclude that thedisputed islands had originally belonged to the Netherlands,its effectivités would in any event have displaced any suchNetherlands title.

The 1891 Convention between Great Britain andthe Netherlands

(paras. 34-92)

The Court notes that Indonesia's main claim is thatsovereignty over the islands of Ligitan and Sipadan belongsto it by virtue of the 1891 Convention. Indonesia maintainsthat "[t]he Convention, by its terms, its context, and itsobject and purpose, established the 4° 10' N parallel oflatitude as the dividing line between the Parties' respectivepossessions in the area now in question". It states in thisconnection that its position is not that "the 1891 Conventionline was from the outset intended also to be, or in effectwas. a maritime boundary ... east of Sebatik island" but that"the line must be considered an allocation line: land areas,including islands located to the north of 4° 10' N latitudewere ... considered to be British, and those lying to the southwere Dutch". As the disputed islands lie to the south of thatparallel, "[i]t therefore follows that under the Conventiontitle to those islands vested in The Netherlands, and nowvests in Indonesia".

Indonesia relies essentially on Article IV of the 1891Convention in support of its claim to the islands of Ligitanand Sipadan. That provision reads as follows:

"From 4° 10' north latitude on the east coast theboundary-line shall be continued eastward along thatparallel, across the Island of Sebittik: that portion of theisland situated to the north of that parallel shall belongunreservedly to the British North Borneo Company, andthe portion south of that parallel to the Netherlands."The Parties disagree over the interpretation to be given

to that provision.

• Interpretation of the 1891 Convention(paras. 37-92)

The Court notes that Indonesia is not a party to theVienna Convention of 23 May 1969 on the Law of Treaties;the Court would nevertheless recall that, in accordance withcustomary international law, reflected in Articles 31 and 32of that Convention:

"a treaty must be interpreted in good faith in accordancewith the ordinary meaning to be given to its terms intheir context and in the light of its object and purpose.Interpretation must be based above all upon the text ofthe treaty. As a supplementary measure recourse may behad to means of interpretation such as the preparatorywork of the treaty and the circumstances of itsconclusion."It further recalls that, with respect to Article 31,

paragraph 3, it has had occasion to state that this provisionalso reflects customary law, stipulating that there shall betaken into account, together with the context, the subsequentconduct of the parties to the treaty, i.e., "any subsequentagreement" (subpara, («)) and "any subsequent practice"(subpara, (b))

264

The Court observes that Indonesia does not dispute thatthese are the applicable rules.

• The text of Article IV(paras. 39-43)

With respect to the terms of Article IV, Indonesiamaintains that this Article contains nothing to suggest thatthe line stops at the east coast of Sebatik Island. Accordingto Malaysia, the plain and ordinary meaning of the words"across the Island of Sebittik" is to describe, "in English andin Dutch, a line that crosses Sebatik from the west coast tothe east coast and goes no further".

The Court notes that the Parties differ as to how thepreposition "across" (in the English) or "over" (in theDutch) in the first sentence of Article IV of the 1891Convention should be interpreted. It acknowledges that theword is not devoid of ambiguity and is capable of bearingeither of the meanings given to it by the Parties. A lineestablished by treaty may indeed pass "across" an island andterminate on the shores of such island or continue beyond it.

The Parties also disagree on the interpretation of the partof the same sentence which reads "the boundary-line shallbe continued eastward along that parallel [4° 10' north]". Inthe Court's view, the phrase "shall be continued" is also notdevoid of ambiguity. Article I of the Convention defines thestarting point of the boundary between the two States, whilstArticles II and III describe how that boundary continuesfrom one part to the next. Therefore, when Article IVprovides that "the boundary-line shall be continued" againfrom the east coast of Borneo along the 4° 10' N parallel andacross the island of Sebatik, this does not, contrary toIndonesia's contention, necessarily mean that the linecontinues as an allocation line beyond Sebatik.

The Court moreover considers that the difference inpunctuation in the two versions of Article IV of the 1891Convention does not as such help elucidate the meaning ofthe text with respect to a possible extension of the; line out tosea, to the east of Sebatik Island.

The Court observes that any ambiguity could, have beenavoided had the Convention expressly stipulated that the4° 10' N parallel constituted, beyond the east coast ofSebatik, the line separating the islands under Britishsovereignty from those under Dutch sovereignty. In thesecircumstances, the silence in the text cannot be ignored. Itsupports the position of Malaiysia.

• The context(paras. 44-48)

Having summarized the Parties' arguments concerningthe context of the 1891 Convention, the Court considers thatthe Dutch Explanatory Memorandum appended to the draftLaw submitted to the Netherlands States-General with aview to ratification of the Convention, the only documentrelating to the Convention to have been published during theperiod when the latter was concluded, provides usefulinformation on a certain number of points.

First, the Memorandum refers to the fact that, in thecourse of the prior negotiations, the British delegation hadproposed that the boundary line should run eastwards fromthe east coast of North Borneo, passing between the islandsof Sebatik and East Nanukan. As regards Sebatik, theMemorandum explains that the island's partition had beenagreed following a proposal by the Dutch Government andwas considered necessary in order to provide access to thecoastal regions allocated to each party. The Memorandumcontains no reference to the disposition of other islandslying further to the east, and in particular there is nomention of Ligitan or Sipadan.

As regards the map appended to the ExplanatoryMemorandum, the Court notes that this shows fourdifferently coloured lines, the boundary eventually agreedbeing represented by a red line. On the map, the red linecontinues out to the sea along parallel 4° 10' N to the southof Mabul Island, such an extension out to sea having notbeen commented in the Memorandum, nor discussed in theDutch Parliament. It also notes that this map shows only anumber of islands situated to the north of parallel 4° 10';apart from a few reefs, no island is shown to the south ofthat line. It further notes that there is nothing in the case fileeither to suggest that Ligitan and Sipadan, or other islandssuch as Mabul, were territories disputed between GreatBritain and the Netherlands at the time when the Conventionwas concluded. The Court cannot therefore accept theargument of Indonesia that the red line on the map wasextended in order to settle any dispute in the waters beyondSebatik, with the consequence that Ligitan and Sipadanwere attributed to the Netherlands.

Nor does the Court accept Indonesia's argumentregarding the legal value of the map appended to theExplanatory Memorandum. The Court observes that theExplanatory Memorandum and map were never transmittedby the Dutch Government to the British Government, butwere simply forwarded to the latter by its diplomatic agentin The Hague. The British Government did not react to thisinternal transmission. The Court then notes that such a lackof reaction to the line on the map appended to theMemorandum cannot be deemed to constitute acquiescencein this line. The Court concludes from the foregoing that themap cannot be considered either an "agreement relating to[a] treaty which was made between all the parties inconnection with the conclusion of the treaty", within themeaning of Article 31, paragraph 2 (a), of the ViennaConvention, or an "instrument which was made by [a]part[y] in connection with the conclusion of the treaty andaccepted by the other parties as an instrument related to thattreaty", within the meaning of Article 31, paragraph 2 (b), ofthe Vienna Convention.

• The object and purpose of the 1891 Convention(paras. 49-51)

Having examined the arguments of Indonesia andMalaysia, the Court considers that the object and purpose ofthe 1891 Convention was the delimitation of boundariesbetween the parties' possessions within the island of Borneo

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itself, as shown by the preamble to the Convention, whichprovides that the parties were "desirous of defining theboundaries between the Netherlands possessions in theIsland of Borneo and the States in that island which areunder British protection" (emphasis added by the Court).This interpretation is, in the Court's view, supported by thevery scheme of the 1891 Convention. The Court does notfind anything in the Convention to suggest that the partiesintended to delimit the boundary between their possessionsto the east of the islands of Borneo and Sebatik or toattribute sovereignty over any other islands.

The Court accordingly concludes that the text of ArticleIV of .the 1891 Convention, when read in context and in thelight of the Convention's object and purpose, cannot beinterpreted as establishing an allocation line determiningsovereignty over the islands out to sea, to the east of theisland of Sebatik.

• Supplementary means to seek possibleconfirmation of Court's interpretation:"travaux préparatoires" of the 1891Convention and circumstances of itsconclusion(paras. 53-58)

In view of the foregoing, the Court considers that it isnot necessary to resort to supplementary means ofinterpretation, such as the travaux préparatoires of the 1891Convention and the circumstances of its conclusion, todetermine the meaning of that Convention; however, as inother cases, it considers that it can have recourse to suchsupplementary means in order to seek a possibleconfirmation of its interpretation of the text of theConvention.

The Court observes that following its formation, in May1882, the British North Borneo Company (BNBC) assertedrights which it believed it had acquired from Alfred Dentand Baron von Overbeck — who themselves acquired themfrom the Sultan of Sulu — to territories situated on thenorth-eastern coast of the island of Borneo (in the State ofTidoeng "as far south as the Sibuco River"); confrontationsthen occurred between the Company and the Netherlands,the latter asserting its rights to the Sultan of Bulungan'spossessions, "with inclusion of the Tidoeng territories"(emphasis in the original). These were the circumstances inwhich Great Britain and the Netherlands set up a JointCommission in 1889 to discuss the bases for an agreementto settle the dispute.

The Joint Commission met three times and devoted itselfalmost exclusively to questions relating to the disputed areaof the north-east coast of the island of Borneo. It was only atthe last meeting, held on 27 July 1889, that the Britishdelegation proposed that the boundary should pass betweenthe islands of Sebatik and East Nanukan. The Netherlandshad rejected the British proposal. The specific idea ofSebatik Island being divided along the 4° 10' N parallel wasonly introduced later. In a letter of 2 February 1891 theNetherlands agreed with this partition.

During the negotiations, the parties used various sketch-maps to illustrate their proposals and opinions. The Courtconsiders that it is impossible to deduce anything at all fromthe length of the lines on these sketch-maps.

The Court concludes that neither the travauxpréparatoires of the Convention nor the circumstances of itsconclusion can be regarded as supporting the position ofIndonesia when it contends that the parties to theConvention agreed not only on the course of the landboundary but also on an allocation line beyond the eastcoast of Sebatik.

Subsequent practice(paras. 59-80)

The Court observes that the relations between theNetherlands and the Sultanate of Bulungan were governedby a series of contracts entered into between them. TheContracts of 12 November 1850 and 2 June 1878 laid downthe limits of the Sultanate. These limits extended to thenorth of the land boundary that was finally agreed in 1891between the Netherlands and Great Britain. For this reasonthe Netherlands had consulted the Sultan before concludingthe Convention with Great Britain and was moreoverobliged in 1893 to amend the 1878 Contract in order to takeinto account the delimitation of 1891. The new textstipulated that the islands of Tarakan and Nanukan, and thatportion of the island of Sebatik situated to the south of theboundary line, belonged to Bulungan, together with "thesmall islands belonging to the above islands, so far as theyare situated to the south of the boundary-line". The Courtobserves that these three islands are surrounded by manysmaller islands that could be said to "belong" to themgeographically. The Court, however, considers that thiscannot apply to Ligitan and Sipadan, which are situatedmore than 40 nautical miles away from the three islands inquestion.

The Court then recalls that the 1891 Conventionincluded a clause providing that the parties would in thefuture be able to define the course of the boundary line moreexactly. Thus, Article V of the Convention states: "Theexact positions of the boundary-line, as described in the fourpreceding Articles, shall be determined hereafter by mutualagreement, at such times as the Netherlands and the BritishGovernments may think fit."

The first such agreement was the one signed at Londonby Great Britain and the Netherlands on 28 September 1915relating to "the boundary between the State of North Borneoand the Netherlands possessions in Borneo". By thatAgreement, the two States approved and confirmed a jointreport, incorporated into that Agreement, and the mapannexed thereto, which had been drawn up by a mixedCommission. The Commissioners started their work on theeast coast of Sebatik and, from east to west, undertook to"delimitate on the spot the frontier" agreed in 1891, asindicated in the preamble to the Agreement. In the Court'sview., the Commissioners' assignment was not simply ademarcation exercise, the task of the parties being to clarifythe course of a line which could only be imprecise in view

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of the somewhat general wording of the 1891 Conventionand the line's considerable length. The Court finds that theintention of the parties to clarify the 1891 delimitation andthe complementary nature of the demarcation operationsbecome very clear when the text of the Agreement isexamined carefully. Thus the Agreement indicates that"[w]here physical features did not present naturalboundaries conformable with the provisions of theBoundary Treaty of the 20th June, 1891, [theCommissioners] erected the following pillars". Moreover,the Court observes that the course of the boundary linefinally adopted in the 1915 Agreement does not totallycorrespond to that of the 1891 Convention.

In view of the foregoing, the Court does not acceptIndonesia's argument that the 1915 Agreement was purely ademarcation agreement; nor can it accept the conclusiondrawn therefrom by Indonesia that the very nature of thisAgreement shows that the parties were not required toconcern themselves therein with the course of the line out tosea to the east of Sebatik Island.

After examining the title and preamble of the 1915Agreement and the terms of the joint repiort of theCommission, the Court concludes that the 1915 Agreementcovered a priori the entire boundary "between theNetherlands territory and the State of British North Borneo"and that the Commissioners performed their task beginningat the eastern end of Sebatik. In the opinion of i;he Court, ifthe boundary had continued in any way to the east ofSebatik, at the very least some mention of that could havebeen expected in the Agreement. The Court, in addition,considers that an examination of the map annexed to the1915 Agreement reinforces its interpretation of thatAgreement.

The Court is further of the view that a debate, referred toby Indonesia, that took place within the Dutch Governmentbetween 1922 and 1926 over whether the issue of thedelimitation of the territorial waters off the east coast of theisland of Sebatik should be raised with the BritishGovernment, suggests that, in the 1920s, the best informedDutch authorities did not consider that there had beenagreement in 1891 on the extension out to sea of the linedrawn on land along the 4° 10' north parallel.

The Court finally is of the opinion that it cannot drawany conclusion for purposes of interpreting Article IV of the1891 Convention from the practice of the Parties inawarding oil concessions.

In view of all the foregoing, the Court considers that anexamination of the subsequent practice of the parties to the1891 Convention confirms the conclusions at which theCourt has arrived in paragraph 52 above as to theinterpretation of Article IV of that Convention.

• Maps(paras. 81-91)

The Court observes that no map reflecting the agreedviews of the parties was appended to the 1891 Convention,which would have officially expressed the will of Great

Britain and the Netherlands as to the prolongation of theboundary line, as an allocation line, out to sea to the east ofSebatik Island.

It notes that in the course of the proceedings, the Partiesmade particular reference to two maps: the map annexed tothe Explanatory Memorandum appended by the NetherlandsGovernment to the draft Law submitted to the States-General for the ratification of the 1891 Convention, and themap annexed to the 1915 Agreement. The Court has alreadyset out its findings as to the legal value of these maps (seeparas. 47,48 and 72 above).

Having examined the other maps produced by theParties, the Court finds that, in sum, with the exception ofthe map annexed to the 1915 Agreement (see above), thecartographic material submitted by the Parties isinconclusive in respect of the interpretation of Article IV ofthe 1891 Convention.

The Court ultimately comes to the conclusion thatArticle IV, interpreted in its context and in the light of theobject and purpose of the Convention, determines theboundary between the two Parties up to the easternextremity of Sebatik Island and does not establish anyallocation line further eastwards. That conclusion isconfirmed both by the travaux préparatoires and by thesubsequent conduct of the parties to the 1891 Convention.

Title by succession(paras. 93-125)

The Court then turns to the question whether Indonesiaor Malaysia obtained title to Ligitan and Sipadan bysuccession. The Court recalls that Indonesia contendedduring the second round of the oral proceedings that, if theCourt were to dismiss its claim to the islands in dispute onthe basis of the 1891 Convention, it would neverthelesshave title as successor to the Netherlands, which in turnacquired its title through contracts with the Sultan ofBulungan, the original title-holder. Malaysia contends thatLigitan and Sipadan never belonged to the possessions ofthe Sultan of Bulungan.

The Court observes that it has already dealt with thevarious contracts of vassalage concluded between theNetherlands and the Sultan of Bulungan when it consideredthe 1891 Convention. It recalls that in the 1878 Contract theisland possessions of the Sultan were described as"Terekkan [Tarakan], Nanoekan [Nanukan] and Sebittikh[Sebatik], with the islets belonging thereto". As amended in1893, this list refers to the three islands and surroundingislets in similar terms while taking into account the divisionof Sebatik on the basis of the 1891 Convention. The Courtfurther recalls that it stated above that the words "the isletsbelonging thereto" can only be interpreted as referring to thesmall islands lying in the immediate vicinity of the threeislands which are mentioned by name, and not to islandswhich are located at a distance of more than 40 nauticalmiles. The Court therefore cannot accept Indonesia's

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contention that it inherited title to the disputed islands fromthe Netherlands through these contracts, which stated thatthe Sultanate of Bulungan as described in the contractsformed part of the Netherlands Indies.

The Court then recalls that for its part, Malaysiamaintains that it acquired sovereignty over the islands ofLigitan and Sipadan further to a series of alleged transfers ofthe title originally held by the former sovereign, the Sultanof Sulu, that title having allegedly passed in turn to Spain,the United States, Great Britain on behalf of the State ofNorth Borneo, the United Kingdom of Great Britain andNorthern Ireland and finally to Malaysia. It is this "chain oftitle" which, according to Malaysia, provides it with atreaty-based title to Ligitan and Sipadan.

The Court notes at the outset that the islands in disputeare not mentioned by name in any of the international legalinstruments presented by Malaysia to prove the allegedconsecutive transfers of title. It further notes that the twoislands were not included in the grant by which the Sultanof Sulu ceded all his rights and powers over his possessionsin Borneo, including the islands within a limit of 3 marineleagues, to Alfred Dent and Baron von Overbeck on 22January 1878, a fact not contested by the Parties. Finally,the Court observes that, while the Parties both maintain thatthe islands of Ligitan and Sipadan were not terme nulliusduring the period in question in the present case, they do soon the basis of diametrically opposed reasoning, each ofthem claiming to hold title to those islands.

The Court first deals with the question whether Ligitanand Sipadan were part of the possessions of the Sultan ofSulu. In all relevant documents, the Sultanate is invariablydescribed as "the Archipelago of Sulu and the dependenciesthereof or "the Island of Sooloo with all its dependencies".These documents, however, provide no answer to thequestion whether Ligitan and Sipadan, which are located ata considerable distance from the main island of Sulu, werepart of the Sultanate's dependencies. The Court furtherrefers to Malaysia's allegation of the existence of ties ofallegiance between the Sultan of Sulu and the Bajau Lautwho inhabited the islands off the coast of North Borneo andwho from time to time may have made use of the twouninhabited islands. The Court is of the opinion that suchties may well have existed but that they are in themselvesnot sufficient to provide evidence that the Sultan of Suluclaimed territorial title to these two small islands orconsidered them part of his possessions. Nor is there anyevidence that the Sultan actually exercised authority overLigitan and Sipadan.

Turning to the alleged transfer of title over Ligitan andSipadan to Spain, the Court notes that in the Protocolbetween Spain and Sulu Confirming the Bases of Peace andCapitulation of 22 July 1878 the Sultan of Sulu definitivelyceded the "Archipelago of Sulu and the dependenciesthereof to Spain. But the Court concludes that there is noevidence that Spain considered Ligitan and Sipadan ascovered by that Protocol. The Court observes, however, thatit cannot be disputed, that the Sultan of Sulu relinquishedthe sovereign rights over all his possessions in favour of

Spain, thus losing any title he may have had over islandslocated beyond the 3-marine-league limit from the coast ofNorth Borneo. The Court, therefore, is of the opinion thatSpain was the only State which could have laid claim toLigitan and Sipadan by virtue of the relevant instrumentsbut that there is no evidence that it actually did so. It furtherobserves that at the time neither Great Britain, on behalf ofthe State of North Borneo, nor the Netherlands explicitly orimplicitly laid claim to Ligitan and Sipadan.

The next link in the chain of transfers of title is theTreaty of 7 November 1900 between the United States andSpain, by which Spain "relinquished] to the United Statesall title and claim of title ... to any and all islands belongingto the Philippine Archipelago" which had not been coveredby the Treaty of Peace of 10 December 1898. The Courtfirst notes that, although it is undisputed that Ligitan andSipadan were not within the scope of the 1898 Treaty ofPeace, the 1900 Treaty does not specify islands, apart fromCagayan Sulu and Sibutu and their dependencies, that Spainceded to the United States. Spain nevertheless relinquishedby that Treaty any claim it may have had to Ligitan andSipadan or other islands beyond the 3-marine-league limitfrom the coast of North Borneo. Subsequent events showthat the United States itself was uncertain to which islands ithad acquired title under the 1900 Treaty. A temporaryarrangement between Great Britain and the United Stateswas made in 1907 by an Exchange of Notes.

This Exchange of Notes, which did not involve atransfer of territorial sovereignty, provided for acontinuation of the administration by the BNBC of theislands situated more than 3 marine leagues from the coastof North Borneo but left unresolved the issue to which ofthe parties these islands belonged.

This temporary arrangement lasted until 2 January 1930,when a Convention was concluded between Great Britainand the United States in which a line was drawn separatingthe islands belonging to the Philippine Archipelago on theone hand and the islands belonging to the State of NorthBorneo on the other hand. Article III of that Conventionstated that all islands to the south and west of the line shouldbelong to the State of North Borneo. From a point well tothe north-east of Ligitan and Sipadan, the line extended tothe north and to the east. The Convention did not mentionany island by name apart from the Turtle and MangseeIslands, which were declared to be under United Statessovereignty. By concluding the 1930 Convention, theUnited States relinquished any claim it might have had toLigitan and Sipadan and to the neighbouring islands. But theCourt cannot conclude either from the 1907 Exchange ofNotes or from the 1930 Convention or from any documentemanating from the United States Administration in theintervening period that the United States did claimsovereignty over these islands. It can, therefore, not be saidwith any degree of certainty that by the 1930 Conventionthe United States transferred title to Ligitan and Sipadan toGreat Britain, as Malaysia asserts. On the other hand, theCourt cannot let go unnoticed that Great Britain was of theopinion that as a result of the 1930 Convention it acquired,

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on behalf of the BNBC, title to all the islands beyond the 3-marine-league zone which had been administered by theCompany, with the exception of the Turtle and the MangseeIslands. To none of the islands lying beyond the 3-marine-league zone had it ever before laid a formal claim. Whethersuch title in the case of Ligitan and Sipadan and theneighbouring islands was indeed acquired as a result of the1930 Convention is less relevant than the fact that GreatBritain's position on the effect of this Convention was notcontested by any other State.

The State of North Borneo was transformed into acolony in 1946. Subsequently, by virtue of Article IV of theAgreement of 9 July 1963, the Government of the UnitedKingdom agreed to take "such steps as [might] beappropriate and available to them to secure the enactment bythe Parliament of the United Kingdom of an Act providingfor the relinquishment ... of Her Britannic Majesty'ssovereignty and jurisdiction in respect of North Borneo,Sarawak and Singapore" in favour of Malaysia.

In. 1969 Indonesia challenged Malaysia's title to Ligitanand Sipadan and claimed to have title to the two islands onthe basis of the 1891 Convention.

In view of the foregoing, the Court concludes that itcannot accept Malaysia's contention that there is anuninterrupted series of transfers of title from the allegedoriginal title-holder, the Sultan of Sulu, to Malaysia as thepresent one. It has not been established with certainty thatLigitan and Sipadan belonged to the possessions of theSultan of Sulu nor that any of the alleged subsequent title-holders had a treaty-based title to these two islands. TheCourt can therefore not find that Malaysia has inherited atreaty-based title from its predecessor, the United Kingdomof Great Britain and Northern Ireland.

"Effectivités "(paras. 126-149)

The Court then considers whether evidence furnished bythe Parties with respect to "effectivités" relied upon by themprovides the basis for a decision — as requested in theSpecial Agreement — on the question to whom, sovereigntyover Ligitan and Sipadan belongs.

The Court observes that both Parties claim that theeffectivités on which they rely merely confirm a treaty-basedtitle. On an alternative basis, Malaysia claims that itacquired title to Ligitan and Sipadan by virtue of continuouspeaceful possession and administration, without objectionfrom Indonesia or its predecessors in title.

The Court indicates thai, having found that neither of theParties has a treaty-based title to Ligitan and Sipadan, it willconsider these effectivités as an independent and separateissue.

It notes that, in support of its argument!? relating toeffectivités, Indonesia cites patrols in the area by vessels ofthe Dutch Royal Navy, activities of the Indonesian Navy, aswell as activities of Indonesian fishermen. It notes furtherthat, in regard to its Act No. 4 concerning IndonesianWaters, promulgated on 18 February 1960, in which its

archipelagic baselines are defined, Indonesia recognizes thatit did not at that time include Ligitan or Sipadan as basepoints for the purpose of drawing baselines and defining itsarchipelagic waters and territorial sea, although it arguesthat this cannot be interpreted as demonstrating thatIndonesia regarded the islands as not belonging to itsterritory.

As regards its effectivités on the islands of Ligitan andSipadan, Malaysia mentions control over the taking ofturtles and the collection of turtle eggs, allegedly the mostimportant economic activity on Sipadan for many years.Malaysia also relies on the establishment in 1933 of a birdsanctuary on Sipadan. Malaysia further points out that theBritish North Borneo colonial authorities constructedlighthouses on Ligitan and Sipadan Islands in the early1960s and that these exist to this day and are maintained bythe Malaysian authorities.

The Court first recalls the statement by the PermanentCourt of International Justice in the Legal Status of EasternGreenland (Denmark v. Norway) case:

"a claim to sovereignty based not upon some particularact or title such as a treaty of cession but merely uponcontinued display of authority, involves two elementseach of which must be shown to exist: the intention andwill to act as sovereign, and some actual exercise ordisplay of such authority.

Another circumstance which must be taken intoaccount by any tribunal which has to adjudicate upon aclaim to sovereignty over a particular territory, is theextent to which the sovereignty is also claimed by someother Power."

The Permanent Court continued:"It is impossible to read the records of the decisions

in cases as to territorial sovereignty without observingthat in many cases the tribunal has been satisfied withvery little in the way of the actual exercise of sovereignrights, provided that the other State could not make out asuperior claim. This is particularly true in the case ofclaims to sovereignty over areas in thinly populated orunsettled countries." (P.C.I.J., Series A/B, No. 53, pp.45-46)

The Court points out that in particular in the case of verysmall islands which are uninhabited or not permanentlyinhabited — like Ligitan and Sipadan, which have been oflittle economic importance (at least until recently) —effectivités will indeed generally be scarce.

The Court further observes that it cannot take intoconsideration acts having taken place after the date onwhich the dispute between the Parties crystallized unlesssuch acts are a normal continuation of prior acts and are notundertaken for the purpose of improving the legal positionof the Party which relies on them. The Court therefore,primarily, analyses the effectivités which date from theperiod before 1969, the year in which the Parties assertedconflicting claims to Ligitan and Sipadan.

The Court finally observes that it can only considerthose acts as constituting a relevant display of authority

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which leave no doubt as to their specific reference to theislands in dispute as such. Regulations or administrative actsof a general nature can therefore be taken as effectivités withregard to Ligitan and Sipadan only if it is clear from theirterms or their effects that they pertained to these twoislands.

Turning then to the effectivités relied on by Indonesia,the Court begins by pointing out that none of them is of alegislative or regulatory character. It finds, moreover, that itcannot ignore the fact that Indonesian Act No. 4 of 8February 1960, which draws Indonesia's archipelagicbaselines, and its accompanying map do not mention orindicate Ligitan and Sipadan as relevant base points orturning points.

With regard to a continuous presence of the Dutch andIndonesian navies in the waters around Ligitan and Sipadan,as cited by Indonesia, it cannot, in the opinion of the Court,be deduced either from the report of the commanding officerof the Dutch destroyer Lynx — which patrolled the area in1921 — or from any other document presented by Indonesiain connection with Dutch or Indonesian naval surveillanceand patrol activities that the naval authorities concernedconsidered Ligitan and Sipadan and the surrounding watersto be under the sovereignty of the Netherlands or Indonesia.

The Court finally observes that activities by privatepersons such as Indonesian fishermen, cannot be seen aseffectivités if they do not take place on the basis of officialregulations or under governmental authority. The Courtconcludes that the activities relied upon by Indonesia do notconstitute acts à titre de souverain reflecting the intentionand will to act in that capacity.

With regard to the effectivités relied upon by Malaysia,the Court first observes that pursuant to the 1930Convention, the United States relinquished any claim itmight have had to Ligitan and Sipadan and that no otherState asserted its sovereignty over those islands at that timeor objected to their continued administration by the State ofNorth Borneo. The Court further observes that thoseactivities which took place before the conclusion of thatConvention cannot be seen as acts "à titre de souverain", asGreat Britain did not at that time claim sovereignty onbehalf of the State of North Borneo over the islands beyondthe 3-marine-league limit. Since it, however, took theposition that the BNBC was entitled to administer theislands, a position which after 1907 was formallyrecognized by the United States, these administrativeactivities cannot be ignored either.

Both the measures taken to regulate and control thecollecting of turtle eggs and the establishment of a birdreserve, as cited by Malaysia as evidence of such effectiveadministration over the islands, must, in the view of theCourt, be seen as regulatory and administrative assertions ofauthority over territory which is specified by name.

The Court observes that the construction and operationof lighthouses and navigational aids are not normallyconsidered manifestations of State authority. It recalls,however, that in its Judgment in the case concerning

Maritime Delimitation and Territorial Questions betweenQatar and Bahrain (Qatar v. Bahrain) it stated as follows:

"Certain types of activities invoked by Bahrain suchas the drilling of artesian wells would, taken bythemselves, be considered controversial as actsperformed à titre de souverain. The construction ofnavigational aids, on the other hand, can be legallyrelevant in the case of very small islands. In the presentcase, taking into account the size of Qit'at Jaradah, theactivities carried out by Bahrain on that island must beconsidered sufficient to support Bahrain's claim that ithas sovereignty over it." (Judgment, Merits, I.C.J.Reports 2001, para. 197)

The Court is of the view that the same considerationsapply in the present case.

The Court notes that the activities relied upon byMalaysia, both in its own name and as successor State ofGreat Britain, are modest in number but that they are diversein character and include legislative, administrative andquasi-judicial acts. They cover a considerable period of timeand show a pattern revealing an intention to exercise Statefunctions in respect of the two islands in the context of theadministration of a wider range of islands.

The Court moreover cannot disregard the fact that at thetime when these activities were carried out, neitherIndonesia nor its predecessor, the Netherlands, everexpressed its disagreement or protest. In this regard, theCourt notes that in 1962 and 1963 the Indonesian authoritiesdid not even remind the authorities of the colony of NorthBorneo, or Malaysia after its independence, that theconstruction of the lighthouses at those times had takenplace on territory which they considered Indonesian; even ifthey regarded these lighthouses as merely destined for safenavigation in an area which was of particular importance fornavigation in the waters off North Borneo, such behaviour isunusual. Given the circumstances of the case, and inparticular in view of the evidence furnished by the Parties,the Court concludes that Malaysia has title to Ligitan andSipadan on the basis of the effectivités referred to above.


Judge Oda considers the present case a "weak" one inthat neither Party made a strong showing in support of itsclaim to title to the islands on any basis. Judge Oda notesthat the Court was requested to choose between the twoParties in adjudging sovereignty, and he considers thatgiven that choice, the Court reached a reasonable decision.

In Judge Oda's view, a full understanding of the presentcase requires an awareness of the underlying facts andcircumstances. He notes that the existence of the islands ofLigitan and Sipadan has been known since the nineteenthcentury, but that neither Indonesia nor Malaysia claimedsovereignty over them until the late 1960s. Prior to thattime, there was no dispute between the two Statesconcerning sovereignty over the islands. Any dispute thatmay have arisen at that time concerned only the delimitationof the continental shelf between the two States, which had

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become of interest because of submarine oil reserves, butnot sovereignty over the islands.

In the mid-1960s agreements between neighbouringStates to delimit the continental shelf were entered into inall parts of the world. Indonesia and Malaysia succeeded inconcluding an agreement on the delimitation of thecontinental shelf in the Malacca Straits and the South ChinaSea. However, negotiations on the area to the east of Borneobecame deadlocked in September 1969 and the Partiesagreed to suspend them. The Parties considered this date tobe the "critical date" in respect of their dispute concerningsovereignty. Prior to these negotiations, Indonesia andMalaysia had also granted Japanese oil companies oilexploration and exploitation concessions in this area. Theconcession zones did not overlap and neither Indonesia norMalaysia claimed that its zone had been violated by theother Party.

Judge Oda finds that, contrary to the assertion in theSpecial Agreement, the only dispute which existed in oraround 1969 was one concerning the delimitation of thecontinental shelf and that such delimitation disipute wouldhave been referred more properly to the Court by jointagreement. Judge Oda further notes that the Application bythe Philippines in 2001 for permission to intervene did notconcern either Party's title to the two islands but thedelimitation of the continental shelf between the Parties.

In the 1960s, the prevailing rule concerning thedelimitation of the continental shelf was the one set out inArticle 6, paragraph 1, of the 1958 Convention on theContinental Shelf. This provision is extremely ambiguousbecause it neither makes clear the baselines from which themedian line should be measured nor does it explain the"special circumstances" which justify departing from amedian line in connection with certain islands. Judge Odasuspects that the main concern of both Parties in theirnegotiations on the delimitation of their respectivecontinental shelves related to the definition of the baselinesand the role in terms of the "special circumstances" test tobe played by the two islands. In fact, the Parties(particularly Indonesia) might have concluded thatsovereignty over the islands would entitle them to a muchwider continental shelf. In Judge Oda's view, the issue ofsovereignty arose only as a result of Ihe Parties'manoeuvring for better bargaining positions in thecontinental shelf delimitation. This resulted from amisconception on the part of the Parties, who failed tounderstand that, in accordance with the "specialcircumstances" rule, a delimitation line could have also beendrawn disregarding these two islands.

Though Malaysia has now been awarded sovereigntyover the islands, the impact of the Court's Judgment on thedelimitation of the continental shelf should be consideredfrom a different angle. The rule concerning the delimitationof the continental shelf is set out in Article 83 of the 1982United Nations Convention on the Law of the: Sea callingfor "an equitable solution". The question remains how"equitable" considerations apply to these islands. Judge Odaconcludes that the present Judgment does not necessarily

have a direct bearing on the delimitation of the continentalshelf.

Dissenting opinion of Judge Franck

Judge Franck agrees with the Court's finding andreasoning in rejecting Malaysia's contention that it hasinherited sovereignty over Pulau Ligitan and Pulau Sipadanby virtue of a "chain of title" that stretches from the Sultanof Sulu to Spain to the United States to Britain to Malaysia.

As for the effectivités, acts undertaken by the Parties intheir sovereign capacity with regard to the two islands, theseare so inconsequential that, weighing them against eachother resembles trying to guess the respective weight of ahandful of cut grass and a handful of feathers. Malaysia setup navigational lights which, in other cases, this Court hasconsidered not to be acts demonstrating a claim tosovereignty. The establishment by Malaysia of a deep-seadiving resort occurred after the critical date on which theParties agreed to a "stand-still" that excludes evidence ofthis sort of subsequent activity. The Dutch, by their effortsby sea and air to control piracy in the area demonstrated anactive interest of at least equal vigour to that of the British.The assessment of these and other such lightweightactivities cannot but lead to inconclusive results.

Moreover, the Court should not even have embarked onthis unsatisfying task because such effectivités are irrelevantwhen title to territory has been established by treaty. In thisinstance, Judge Franck maintains, the Anglo-DutchConvention of 1891, in delimiting the entire frontierbetween the colonial predecessors on Borneo of Malaysiaand Indonesia, has established a line intended to resolvepotentially conflicting territorial claims of the two empires.The object and purpose was to bring peace to a vast area ofoverlapping ambitions and, in accordance with the ViennaConvention on Treaties, that objective should have beenhonoured by this Court.

In particular, Article IV of the 1891 Convention, inestablishing the 4° 10' line to allocate territory beyondBorneo's east coast and "across the Island of Sebittik"should have been presumed to extend so far as necessary toallocate the two islands — which clearly lie south of theline— and thereby to resolve any future source ofdisputation. It ought to have been presumed that a treatyintended to resolve all outstanding issues in the area couldnot have intended to leave the disposition of Ligitan andSipadan up to turtle egg collection and piracy patrolling.

Indeed there is ample evidence to validate this logical, ifrebuttable but unrebutted, presumption. The DutchGovernment's map accompanying the ExplanatoryMemorandum by which the ratification of the 1891Convention was urged upon the States-General shows the4° 10' line extending out to sea eastward of Sebatik. Thismap was well known to the British Government, which hadbeen alerted to it by its Minister in The Hague. There wasno objection from London. In more recent times, Indonesianand Malaysian oil exploration concessions were also carefulto respect the extension of this line well east of Sebatik.

271

These facts duly support the inference that the 4° 10' line establishing the legal régime that underpins world peace,was not intended to end on the east coast of Sebatik. Such treaties should be interpreted broadly, not narrowly as

Moreover, the legal presumption — recognized in this if they were contracts for the sale of barley. In this light, theCourt's jurisprudence — that treaties establishing borders, 4°1°' line in the 1891 Convention should have beenboundaries and lines of allocation between States are recognized as dispositive in this dispute,intended to effect closure has an important role to play in

272

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