                     364

                                     DECLARATION OF JUDGE OWADA

                        1. While I have voted in favour of all the dispositifs as contained in
                     paragraph 154 of the Judgment, I wish to elaborate on some salient points
                     of the Judgment, with a view to adding clarity to what I wanted to convey
                     through the language of the Judgment. First, I wish to show how I have
                     come to the conclusion that France’s first preliminary objection be
                     upheld, especially in the context of the alleged violations by France of the
                     provisions other than Article 4 of the Palermo Convention ; second, I
                     wish to put my own view on why the conclusion of the Judgment that
                     France’s third preliminary objection is to be rejected is justified, in par-
                     ticular in view of the essential nature of this objection in relationship to
                     the specific structure of preliminary objections as stipulated in Article 79,
                     paragraph 9, of the Rules of Court as revised in 1978 from the original
                     formulation.

                          (A) The Relevance of Article 4 of the Palermo Convention
                                         to the Alleged Violation

                                 (1) The Scope of Obligations of Article 4 as Such
                        2. The relevance of Article 4 to the alleged violation of the Convention
                     as claimed by Equatorial Guinea is, in my view, twofold. First, I concur
                     with paragraph 102 of the Judgment that “Article 4 does not incorporate
                     the customary international rules relating to immunities of States and
                     State officials”. The Court did not accept the argument advanced by the
                     Applicant that Article 4 had the legal effect of amounting to the so-called
                     “incorporation by reference” of customary rules of international law.
                     This term, when used as a technical legal term, means, according to the
                     Black’s Law Dictionary, “[t]he method of making one document of any
                     kind become a part of another separate document by referring to the for-
                     mer in the latter, and declaring that the former shall be taken and consid-
                     ered as a part of the latter as if it were fully set out therein” (Black’s Law
                     Dictionary (5th ed., 1979), p. 690). As the Judgment clearly demonstrates
                     in its interpretation of Article 4 in accordance with its ordinary meaning,
                     I agree that Article 4 does not amount to a provision that justifies the
                     legal effect of such “incorporation by reference”.

                        3. Second, however, this is not the end of the story in relation to the
                     issue of relevance of Article 4 claimed by Equatorial Guinea. The afore-

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                     365 	   immunities and criminal proceedings (decl. owada)

                     mentioned finding of the Judgment does not free the Court from its task
                     of scrutinizing Equatorial Guinea’s claims based on provisions other than
                     Article 4 of the Convention, in the context of the legal obligation arising
                     under Article 4 as defined by the Judgment. The Judgment clearly
                     accepted that Article 4 (1) of the Palermo Convention, unlike Article I of
                     the Treaty of Amity between Iran and the United States, which was inter-
                     preted by the Court in the case concerning Oil Platforms as “preambular
                     in character merely formulating a general aim”, imposes a legal obliga-
                     tion on States parties to perform other obligations of the Convention “in
                     a manner consistent with the principles [as referred to therein]” (para-
                     graph 92 of the Judgment). Thus, some of the Applicant’s claims based
                     on the provisions other than Article 4 of the Convention have been
                     advanced independently of Equatorial Guinea’s specific interpretation of
                     Article 4 based on the doctrine of “incorporation by reference”. Given
                     this latter obligation prescribed by Article 4, the provisions other than
                     Article 4, such as Articles 6, 7, 8 and 25, read in conjunction with Arti-
                     cle 4 as interpreted by the Court, will thus become relevant in evaluating
                     France’s acts complained of by Equatorial Guinea.

                        4. The principles of sovereign equality and non-intervention referred
                     to in Article 4 (1) of the Convention are not intended to have the effect of
                     incorporating the specific rules of customary international law relating to
                     immunities. Neither the travaux préparatoires of Article 4 (1) of the Pal-
                     ermo Convention, nor those of Article 2 of the Convention against Illicit
                     Traffic in Narcotic Drugs and Psychotropic Substances of 1988, which
                     “inspire[d]” Article 4 of the Palermo Convention, indicate otherwise (see
                     United Nations (1988), “United Nations Conference for the Adoption of
                     a Convention against Illicit Traffic in Narcotic Drugs and Psychotropic
                     Substances, Vienna, 25 November-20 December 1988, Official Records”,
                     Vol. II, pp. 155‑156, 171, 176‑177). This means that States parties to the
                     Palermo Convention are obligated to carry out their obligations under
                     Articles 6, 7, 8, 15 and 25 of the Convention “in a manner consistent with
                     the principles of sovereign equality and non-intervention”. The question
                     is, therefore, in deciding on the jurisdiction conferred upon the Court
                     under Article 35 of the Palermo Convention, to determine whether there
                     is a dispute concerning “the interpretation or application [of these arti-
                     cles] of this Convention” and to determine whether the acts of France
                     complained of by Equatorial Guinea do or do not fall within the scope of
                     Articles 6 and 15 of the Convention read in conjunction with Article 4 as
                     interpreted by the Judgment.

                           (2) Articles 5, 6, 8 and 23, Read in Conjunction with Article 4
                       5. To identify the scope of the jurisdiction conferred upon the Court
                     under Article 35 of the Palermo Convention, it is necessary to examine
                     the nature and the scope of the obligations prescribed by the provisions
                     of the Convention, where “interpretation or application is at issue”

                     77

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                     366 	    immunities and criminal proceedings (decl. owada)

                     between the parties as “subject-matter of the dispute”. It is important to
                     take note of the fact that the Palermo Convention was adopted by State
                     parties “convinced of the urgent need to strengthen co-operation to pre-
                     vent and combat such activities more effectively at the national, regional
                     and international levels” (United Nations doc. A/RES/55/25, 15 Novem-
                     ber 2000). The purpose of the Convention is clearly set out in its Article 1
                     as “promot[ing] co-operation to prevent and combat transnational orga-
                     nized crime more effectively”.
                        6. In implementation of this approach to these “predicate crimes”, the
                     Palermo Convention obligates States to “criminalize these crimes in their
                     respective domestic legal systems”, thus establishing a level playing field
                     for strengthening international co-operation under the Convention, rather
                     than a more traditional approach of “international legislation” (e.g. the
                     Genocide Convention of 1949), by which State parties are obligated
                     directly by the participation in the Convention to carry out (i.e. to exer-
                     cise jurisdiction over) the obligation to prevent and punish the criminals
                     in their respective domestic legal system.

                        7. This interpretation is confirmed by the travaux préparatoires. The
                     record of discussion in the Ad Hoc Committee on the Elaboration of a
                     Convention against Transnational Organized Crime shows that several
                     delegations raised concern that the draft article on jurisdiction “could be
                     understood to allow States Parties to apply their domestic laws to the ter-
                     ritory of other States”. In response, it was pointed out that what became
                     Article 4 (1) “emphasized the principles of sovereign equality, territorial
                     integrity and non-intervention in the domestic affairs of other States and
                     that those principles applied also to any exercise of jurisdiction”
                     (United Nations doc. A/AC.254/4/Rev.4, p. 20, fn. 102). Indeed, the focus
                     was on what became Article 4 as a safeguard against intervention on the
                     territory of another State.

                        8. A series provisions for the mechanism of international co-operation,
                     in the implementation of this obligation to criminalize these offences and
                     to establish jurisdiction, such as extradition (Article 16), transfer of sen-
                     tenced persons (Article 17), mutual legal assistance (Article 18), and joint
                     investigations (Article 20) follow these series of provisions which obli-
                     gates States parties to establish the criminalization of offences under the
                     Convention (such as Article 6) and to establish jurisdiction over them
                     (such as Article 15). The structure of the Convention thus indicates that
                     the Palermo Convention requires the States parties to adopt legislative,
                     administrative, or judicial measures to establish their jurisdictions over
                     these offences, without directly concerning itself with the actual modali-
                     ties of its exercise.
                        9. This construction contrasts with some other international conven-
                     tions that oblige States parties to prevent or punish crimes prescribed
                     under the conventions. For instance, Article I of the Convention on the
                     Prevention and Punishment of the Crime of Genocide (1949) obligates

                     78

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                     367 	    immunities and criminal proceedings (decl. owada)

                     the contracting parties “to prevent and to punish” genocide, as a crime
                     under international law. Article 2, paragraph 1, of the Convention against
                     Torture and Other Cruel, Inhuman or Degrading Treatment or Punish-
                     ment (1984) obligates each State party to “take effective legislative,
                     administrative, judicial or other measures to prevent acts of torture in any
                     territory under its jurisdiction”. Unlike these conventions, the obligations
                     under the Palermo Convention is essentially addressed to criminalizing
                     offences and to establishing jurisdiction over them in their domestic legal
                     systems. The prevention and combatting of transnational organized crime
                     is intended to be attained as a result of such international co‑operation in
                     establishing jurisdiction to “criminalize” these acts in their domestic legal
                     systems.

                        10. This analysis leads me to conclude that the proper appreciation of
                     the aforementioned nature of the Convention is crucial in determining the
                     scope of the compromissory clause of the Palermo Convention contained
                     in its Article 35 “concerning the interpretation or application” of the Pal-
                     ermo Convention. Since the relevant articles of the Convention is of the
                     nature to obligate States parties to establish their jurisdictions over
                     offences within their domestic legal systems by adopting legislative,
                     administrative, or judicial measures, the actual exercise of such jurisdic-
                     tion which is the actual subject‑matter of the dispute in the present case
                     (see Judgment, paragraph 67) cannot fall within the scope of the compro-
                     missory clause of this Convention.
                        11. Articles 5, 6, 8 and 23 obligate States parties both to prevent and
                     combat the “predicate crime” predetermined by the Convention, by
                     enacting legislative or other administrative, judicial measures to criminal-
                     ize offences as defined in other provisions of the Convention, including
                     offences committed “outside the jurisdiction of the State Party in ques-
                     tion” under certain conditions (Article 6 (2) (c)). It is significant that
                     Article 4 (1) functions here as a safeguard to allow a State party to estab-
                     lish its jurisdiction over criminal offences committed in the territory of
                     another State, to the extent that it is carried out in a manner that can be
                     regarded as consistent with the principles, inter alia, of sovereign equality
                     and of non-intervention. In this respect, Article 6 (2) (c) of the Conven-
                     tion provides that

                          “offences committed outside the jurisdiction of a State Party shall
                          constitute predicate offences only when the relevant conduct is a crim-
                          inal offence under the domestic law of the State where it is committed
                          and would be a criminal offence under the domestic law of the State
                          Party implementing or applying this article had it been committed
                          there”.
                     This sets the dual criminality requirement as the limitation on the pre-
                     scriptive power of Article 6 in establishing jurisdiction over offences com-

                     79

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                     368 	    immunities and criminal proceedings (decl. owada)

                     mitted on the territory of another State. While there is no explicit reference
                     to Article 4 (1), it seems clear that Article 6 (2) (c) is to be construed in a
                     manner to reflect the spirit of Article 4 (1) which provides a safeguard
                     against foreign intervention by way of extraterritorial jurisdiction. To the
                     extent that a State party limits its exercise of criminal jurisdiction over
                     offences of laundering of proceeds of crime committed abroad in confor-
                     mity with the language of Article 6 (2) (c), the State can be said to be
                     under the obligation to carry out its obligation in a manner consistent
                     with the principles of sovereign equality and non‑intervention prescribed
                     by Article 4 (1) of the Convention. This prescriptive of “dual criminality”
                     can be said to set the limits of the establishment of jurisdiction in terms of
                     the criminalization of the acts of money laundering as a category of
                     crimes to be provided for in both jurisdictions. However, this does not
                     mean that this extends to the actual exercise of jurisdiction on concrete
                     acts of money laundering allegedly committed. It is possible, at any rate
                     arguable, that it could constitute the crime of money laundering, which
                     could be a question that could only be determined by examining the mer-
                     its of the case, but not belonging to the scope of jurisdiction.

                                 (3) Article 15 Read in Conjunction with Article 4
                        12. The same holds true with regard to Article 15 of the Convention,
                     which allows a State party to establish its jurisdiction over offences com-
                     mitted in the territory of another State (Article 15 (2)). At first glance,
                     this provision might appear to provide a basis for jurisdictional interven-
                     tion on a foreign territory by way of establishing extraterritorial jurisdic-
                     tion. Nevertheless, such capacity of a State party to extend its jurisdiction
                     is circumscribed by Article 15 (2) (c) (i) and (ii), which allows the State
                     to do so only when a certain offence is committed abroad, inter alia, “with
                     a view to the commission of [a certain offence] within its territory”. Put
                     differently, the establishment of jurisdiction having an extraterritorial
                     reach is permitted only to the extent that the effect of offences is directed
                     against the territory of the State exercising such jurisdiction. Admittedly,
                     this arrangement is explicitly linked with the principles referred to in Arti-
                     cle 4 through the express qualification that it is “[s]ubject to article 4 of
                     th[e] Convention” in the chapeau of Article 15 (2). It is to be noted, how-
                     ever, that the principle of sovereign equality which is contained in Arti-
                     cle 4 and which is thus referenced by the qualifying language of
                     Article 15 (2) is a general principle of international law. While it helps to
                     identify the scope of the permissible exercise of jurisdiction based on the
                     effect of offences committed abroad, it does not amount to the direct
                     application of concrete rules that emerge from this principle in such a way
                     as to affect the manner in which this extraterritorial jurisdiction has to be
                     exercised.

                     80

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                     369 	    immunities and criminal proceedings (decl. owada)

                        13. Based on this analysis on the scope of Articles 6 and 15 read in
                     conjunction with Article 4 of the Palermo Convention, it is my view that
                     the conclusion reached by the Judgment is justified. To put it differently,
                     these provisions deal only with the formal establishment (be it legislative,
                     administrative or judicial), but not the actual exercise, of such jurisdiction
                     by a judicial breach of the State parties, including concrete acts which
                     allegedly may have a certain extraterritorial reach. In the present case, by
                     comparison, the acts of the French court complained of by Equato-
                     rial Guinea is the initiation of the actual exercise of criminal proceedings
                     against Mr. Teodoro Nguema Obiang Mangue, which is properly charac-
                     terized as the exercise rather than the establishment of jurisdiction by
                     France. Even if such exercise of criminal jurisdiction by France were to
                     amount to an exercise of jurisdiction with a certain extraterritorial reach
                     that arguably could constitute an internationally wrongful act, provided
                     that Mr. Teodoro Nguema Obiang Mangue were entitled to immunity as
                     argued by Equatorial Guinea, such act cannot fall within the jurisdic-
                     tional scope of these provisions for the purpose of determining the juris-
                     dictional scope conferred upon the Court under Article 35 of the Con-
                     vention.

                                   (B) France’s Third Preliminary Objection
                                          Based on “Abuse of Rights”

                        14. I concur with the dispositif contained in the Judgment which states
                     that it simply “rejects” France’s third preliminary objection. The Judg-
                     ment does not declare that “[this] objection does not possess an exclu-
                     sively preliminary character”. The relevant part of the Judgment however
                     does not explain in detail why the Court has not chosen the course to
                     declare that the objection on alleged “abuse of rights” does not possess an
                     exclusively preliminary character pursuant to Article 79, paragraph 9, of
                     the Rules of Court. Paragraph 151 of the Judgment simply states that
                     “abuse of rights cannot be invoked as a ground of inadmissibility when
                     the establishment of the right in question is properly a matter for the mer-
                     its” (emphasis added). In my view, this point would seem to require fur-
                     ther elaboration on the reasoning of the Court on this point.

                        15. It often happens in a contentious case before the Court that a pre-
                     liminary objection is raised either on the ground of the lack of jurisdiction
                     or inadmissibility in circumstances where the existence of a substantive
                     right at issue and the manner in which its exercise has been denied. In
                     such situations it is sometimes hard to establish the issue of jurisdiction or
                     admissibility of claim without an extensive examination in fact and in law
                     of the merits of the case. Such an examination is very often neither feasi-
                     ble nor appropriate at an early stage of preliminary objections when the
                     parties have no opportunity to elaborate respective arguments without
                     getting into the merits. This is the raison d’être of Article 79, paragraph 9,
                     of the Rules of Court, which provides, in addition to either to uphold or

                     81

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                     370 	    immunities and criminal proceedings (decl. owada)

                     reject the objection raised, that the Court has the third option to declare
                     that the objection at issue “does not possess an exclusively preliminary
                     character” (see Eduardo Jiménez de Aréchaga, “The Amendments to the
                     Rules of Procedure of the International Court of Justice”, American Jour-
                     nal of International Law, Vol. 67 (1973), pp. 11‑19).

                        16. At a first glance, Equatorial Guinea’s original alleged claims to the
                     immunity of Mr. Teodoro Nguema Obiang Mangue and to the inviolabil-
                     ity of the building located at 42 Avenue Foch in Paris and France’s obli-
                     gation thereto could appear to fall under such category. It could appear
                     that it required a further extensive examination of the facts and the law
                     surrounding the legal status of Mr. Obiang Mangue and the building in
                     relation to the establishment of the jurisdiction of the Court on the basis
                     of Article 35 of the Palermo Convention and Article I of the Optional
                     Protocol to the Vienna Convention on Diplomatic Relations.

                        17. The Court however did not take this third course, as envisaged in
                     Article 79, paragraph 9, of the Rules of Court, to declare that France’s
                     third objection did not possess an exclusively preliminary character. In
                     essence, what is significant in France’s argument on the abuse of rights is
                     that France advances a thesis that Equatorial Guinea’s claim in its
                     entirety relates to the fundamental issue of the legal validity of Equato-
                     rial Guinea’s claim as a “valid legal claim” that is capable of seising the
                     Court as a legitimate claim. Thus, France argues that

                          “it is not the individual elements which France has brought to this
                          Court’s attention, considered in isolation, that constitute an abuse of
                          process. Taken as a whole, however, they establish that Equatorial
                          Guinea’s application to the Court is abusive, since it in fact forms
                          part of a strategy to use the principle of diplomatic immunities as a
                          contrivance for the benefit of an individual who is not a diplomat,
                          and thereby to obstruct the criminal proceedings initiated against him
                          in France and avoid the potential confiscation of the personal prop-
                          erty he has acquired there.” (CR 2018/2, p. 53, para. 21 (Pellet).)

                     In other words, the Applicant’s claim, as understood and presented by
                     France, has an essential legal flaw that vitiates the whole claim of Equato-
                     rial Guinea as a “valid claim” that can seize the Court, in light of the
                     surrounding circumstances of the case. This is a “far cry” from the system
                     of preliminary objection to jurisdiction or admissibility envisaged under
                     Article 79 of the Rules of Court and cannot be said to fall within the
                     framework of the system of preliminary objections provided under the
                     Rules (Incidental Proceedings).
                        18. For an objection to be covered by Article 79, it is to be “an objec-
                     tion [that] must . . . possess a ‘preliminary’ character” (Questions of Inter-
                     pretation and Application of the 1971 Montreal Convention arising from the

                     82

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                     371 	    immunities and criminal proceedings (decl. owada)

                     Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United King-
                     dom), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 26,
                     para. 47). If an objection does not possess such a “preliminary” character,
                     it cannot fall within the mechanism of preliminary objections provided
                     for in Part III, Section D (Incidental Proceedings), Subsection 2 (Prelimi-
                     nary Objections) of the Rules of Court. Aside from the legal soundness of
                     France’s argument on this point, it is clear that this claim of France in the
                     form in which it is presented by her can no longer be in its nature “a pre-
                     liminary objection” in a procedural sense. In this legal situation the Judg-
                     ment has no option to declare that such objection does not possess an
                     “exclusively preliminary character” pursuant to paragraph 9 of Article 79.
                     The examples of these “abuse of rights” cases as cited by France (Phoenix
                     Action, Ltd. v. The Czech Republic, ICSID Case No. ARB/06/5, Award of
                     15 April 2009; Renée Rose Levy and Gremcitel S.A. v. Republic of Peru,
                     ICSID Case No. ARB/11/17, Award of 9 January 2015) also testify to the
                     fact that the relevant arbitral tribunals accepted the argument of the
                     Respondent not as a preliminary objection to be determined before pro-
                     ceeding to the merits, but as an issue that touches the very basis of the
                     claims advanced by the Applicant. It is true that Article 79 is said to
                     cover “any objection” raised by the parties, such objection must possess
                     the effect that “will be, if the objection is upheld, to interrupt further pro-
                     ceedings in the case, and which it will therefore be appropriate for the
                     Court to deal with before enquiring into the merits” (Panevezys-Saldutiskis
                     Railway (Estonia v. Lithuania), Preliminary Objections, Judgment, 1939,
                     P.C.I.J., Series A/B, No. 76, p. 16). This clearly is not the situation that
                     the Court is faced with here.

                        19. Thus in the present case, I consider that France’s objection based
                     on the abuse of rights does not possess such a “preliminary” character.
                     The alleged substantive right in question is Equatorial Guinea’s right to
                     the immunity ratione personae of the Vice-President in charge of National
                     Defence and Security and to immunity and inviolability of the building
                     located at 42 Avenue Foch in Paris. This has been challenged by France
                     that such a claim is tarnished by the abuse of rights. According to France,
                     the Applicant exploited such rights purely and exclusively for the pur-
                     poses of manipulating the ostensible rights granted, with a view to shield-
                     ing Mr. Teodoro Nguema Obiang Mangue and his properties from the
                     French criminal proceedings. For France, such use of immunity and inviol
                     ability is nothing else than abusive because the purpose of privileges
                     and immunities under the Vienna Convention, which is to safeguard the
                     independence of the State and its representatives abroad, and not to ben-
                     efit the individuals who enjoy them (Preliminary Objections of the French
                     Republic, paras. 78‑80), is completely ignored and manipulated to block
                     the unlawful activities to be brought to justice.

                       20. The Judgment has found that there has not been enough evidence
                     to establish this contention of France. However, whether this contention

                     83

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                     372 	    immunities and criminal proceedings (decl. owada)

                     of France is justified or not is not the point at issue in the present situa-
                     tion. France’s objection on abuse of rights to immunity and inviolability
                     by Equatorial Guinea, if upheld, could arguably result in a total rejection
                     of Equatorial Guinea’s claim as an “invalid claim” rather than the proce-
                     dural interruption of further proceedings of the present case before deal-
                     ing with the merits aspects of the claim.
                        21. It is for these reasons that I joined the conclusion of the Court that
                     France’s third preliminary objection be rejected in its entirety, without
                     passing any judgment on the validity of the contention of France in its
                     third preliminary objection, which, if sustained, could have much wider
                     legal implications.

                     (Signed) Hisashi Owada.

                     84

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40

OPINION BY M. EUGENE DREYFUS.

[ Translation. ]

However strange be the form in which the Court has felt bound
. to express a purely provisional opinion on the interpretation, as
between Switzerland and France, of Article 435, paragraph 2,
and its annexes, of the Treaty of Versailles, its interpretation is
clear : these provisions have not abrogated the old stipulations
which created the free zones; they had not even for their
object such abrogation, and that in spite of all the facts
pricr to the Treaty of Versailles which the Court declares
to be relevant, but without any influence on its present inter-
pretation under the Special Agreement.

I very much regret my inability to agree with the reasons
in the order which establish that interpretation, in the first
place because they involve an addition to the terms of the
Special Agreement, and secondly because Article 435, paragraph 2,
and annexes, becomes, as between Switzerland and France,
a provision void of meaning, a dead letter. .

In Judgment No. 9 (page 12), the Court had laid down a
very true principle the application of which by all tribunals
is to be recommended, namely, that when the terms of a
special agreement have a clear meaning permitting the judge
to understand exactly the mission with which he has been
entrusted by the Parties, it is by the terms of that Special
Agreement that he should be guided in his decision, and not
by the conclusions which may have been put forward by the
Parties. The Special Agreement which brought the present
suit before the Court is expressed in terms that leave no
room for doubt: as between France and Switzerland, has Art-
icle 435, paragraph 2, of the Treaty of Versailles, with its annexes,
abrogated here and now the provisions establishing the free
zones? or, if it has not immediately abrogated, has it for
its object their abrogation? These last words in themselves
imply no idea of obligation or compulsion; they contemplate
simply a future abrogation such as France and Switzerland
might decide on in time to come. When the framers of the
Treaty of Versailles provided in Article 435, paragraph 2, that
OPINION BY M. DREYFUS 41

the stipulations concerning the free zones were no longer con-
sistent with. present conditions and that a status established
by agreement between the two countries should be substituted
therefor in these territories, had they for their - object
the abrogation of these stipulations, i.e. to bring about their
abrogation in the future by the Parties concerned ?, That is
the only and quite limited question put by the Special Agree-
ment ; its purpose is not in any way to secure a decision
whether possibly abrogation might be realized by agreement
between the two countries, nor yet whether Switzerland would
possibly be bound to consent thereto; neither the words
“by agreement” nor the word ‘‘necessarily” are found in the
Special Agreement, and the very simple literal and grammatical
interpretation which I adopt seems in every respect preferable
to that which the Court has admitted, and which the Swiss
Government had set forth in its conclusions with a prolixity
which shows that the meaning if the Special Agreement (never-
theless perfectly clear) has been thereby strangely transformed.

The question which in my opinion should predominate in the
whole discussion was whether Switzerland had a right to the
maintenance of the free zones, and what was.the nature of
that right as regards each zone; this. question was, however,
only examined as a secondary consideration by the Court.
It is beyond dispute that Switzerland was not a Party to the
Treaty of Versailles, and that if it be admitted that she had
in the past a contractual right, that diplomatic instrument
could not deprive her of such right without her consent. As
regards the Sardinian zone, Switzerland certainly draws her
right from Article 3 of the Treaty of Turin of March 16th,
1816, signed by her with Sardinia, whose obligations must now
be assumed by France; Switzerland must therefore, in prin-
ciple, continue to enjoy that right in spite of Article 435, para-
graph 2, of the Treaty of Versailles, but subject to any pos-
sible application of the clause rebus sic stantibus. The order of
Court has justly recognized the relevance in the matter of
such facts prior to the Treaty of Versailles as the establish-
ment of the Federal customs in 1849, and it may therefore.
. be regretted that the Court has not at the present moment
expressly had before it the question whether these new facts
are such that the change in conditions unilaterally proclaimed
OPINION BY M. DREYFUS 42

by Article 435, paragraph 2, of the Treaty of Versailles, must
necessarily involve, as between France and Switzerland, the
nullity of the provisions which more than a century ago set
up the Sardinian and Saint-Gingolph zones. But this point
is wholly reserved, and I merely note that at the moment
it is admitted even in the Court’s opinion that the facts put
forward by France are in this respect relevant.

As regards the zone of the District of Gex, Switzerland cannot
rely on any right under a treaty. The fact “that the French
Government has consented to withdraw its customs line from
the frontiers of Switzerland in the direction of the Jura” is
mentioned for the first time, but purely incidentally, in the
Protocol of November 3rd, 1815, signed by: the plenipotentia-
ries of Austria, Great Britain, Prussia and Russia and annexed
to the Declaration signed at Paris on November 2oth, 1815.
Article 3 of the Treaties of Paris signed on November 2oth,
1815, by France with Austria, Great Britain, Prussia and
Russia, afterwards determined the exact limits within which
the customs line should be withdrawn... This forms the
birth . certificate of the Gex zone; it runs as follows: “The
French customs line shall be placed west of the Jura in such
a way that the whole of the District of Gex shall lie outside
this line.” ,

It is important to note that neither in the Protocol of
November 3rd, nor, above all, in Article 3 of the Treaties
of November 2oth, Ir815, is Switzerland mentioned; although
she did adhere by a formal act to the Declaration of Vienna
of March 2oth, 1815, by which the Powers signatory of the
Treaty of Paris recognized and guaranteed her perpetual
‘neutrality, Switzerland adhered neither to the Protocol of
November 3rd nor the Declaration of November zoth, 1815,
to which the Protocol was annexed. These instruments are
quite distinct from the Declaration of March 2oth, 1815,
which had a quite different purpose, and accession to the lat-
ter cannot involve accession to the former. Nor did Switzer-
land sign the Treaties of November zoth, 1815, which fixed
the limit of withdrawal of the customs, nor did she adhere
or accede to their provisions: it was Pictet-de Rochemont,
her envoy, who obtained for her the privilege of a with-
drawal of the customs line by France, but Switzerland
OPINION BY M. DREYFUS 43

took part neither in the Protocol of November 3rd, 1855,
which lays down the principle, nor in the treaties which carry
it out: she therefore acquired from France no contractual
right. The advantage of a free zone was granted to her by
Austria, Great Britain, Russia, Prussia and later Portugal
(identical treaty with France dated August 28th, 1817) by a
stipulation in her favour; now these same Powers in Article 435,
paragraph 2, of the Treaty of Versailles declare that the
stipulations of the treaties of 1815 and cf the other sup-
plementary acts concerning the free zone of the District of Gex
are no longer consistent with present conditions and that a
régime to be established by agreement between France and
Switzerland shall be put in their place. They therefore undid
in 1919 what they had done in 1815, and they consequently
authorized France to re-establish her customs line at her
political frontier. |

Switzerland disputes this and, in the absence of a direct
contractual right such as she has never claimed in regard to
the Gex zone, she claims that the Powers signatory to. the
Treaties of Paris at least made a stipulation on her behalf
and thus gave her a veritable right which they cannot deprive
her of without her consent.

The theory of the stipulation in favorem te:ti1, which the
Court declared to be effective in the present case, without,
however, expressing an opinion as to its admissibility in inter-
national public law, is well known in private law; but its
forms vary infinitely in different municipal legislations, and
whereas for instance Article 112 of the Swiss Federal Code on
Contracts proclaims the entire validity of stipulations on behalf
of a third Party, Article 1121 of the French Civil Code only
admits these in two cases: when they form a condition of a
stipulation made on one’s own behalf or of a gift made to
another. .

In view of this diversity in the nature and legal effects ot
the stipulation 7m favorem tertii in municipal law, there can
be no question of transferring it as such into international
public law, nor in particular of giving it such an unlimited
field of application as in the present case. It therefore seems
certain that it cannot be laid down as a general rule that a
State which stipulates on behalf of another State, guarantees

| 6
OPINION BY M. DREYFUS 44

the latter, not being a Party to the treaty in which the
stipulation appears, an individual and irrevocable right, the
execution of which it might personally demand, even if the
State stipulating declared that it freed the debtor State from
the obligation imposed upon it in favour of the third State.
Such is the predominant view of authorities at the present
date, and it is summed up as follows by Professor Anzilotti,
President. of the Permanent Court of International Justice,
in his Course of International Law, French edition, 1920,
vol. I, page 424:
_ “Whereas the law of a State may lay down that where
a stipulation has been made in favorem tertu, that third
Party immediately acquires the right to demand its ful-
filment or acquires that right by a simple act of its own
will, the very structure of the international legal system
shows that in the absence of a special rule in derogation of
general principles, a right of the third State to demand the
execution of stipulations favourable to it can only arise in
virtue of an agreement between the contracting Parties on
the one side and the third State on the other.”
_ Thus, the stipulation im favorem tertit is contrary to the
usual structure of the international legal system. How then
can it be given legal effect ? | .
The same ideas have prevailed in international practice ;
it is enough for me to quote Article 380 of the Treaty of
Versailles, which certainly did not intend to confer any
irrevocable right on the States for which it opened access to
the Kiel canal. It is admitted that as regards the withdrawal
of the French customs line, Switzerland signed no agreement
either with the Allied Powers or with France in 1815 ; whereas
the Declaration of November 2oth, 1815, in its last paragraph,
invited all the Powers of Europe to accede to its provisions,
and in fact numerous States did so accede, Switzerland
alone neither adhered nor acceded in any form whatever to
it, without doubt because she considered that she could not
draw any right from that treaty. She merely profited: by it
and cannot now, a century later, claim that these diplomatic
instruments in which her name is not even mentioned conferred
upon her any right. The Treaty of November zoth, 1815,
imposed on France a duty to do something: to place her
customs line west of the Jura in such a way that the. whole
OPINION BY M. DREYFUS 45

District of Gex lies outside that line. From that obligation to
do something, which was carried out by the French State, there
may have resulted for Switzerland certain advantages; but
the only obligation entered into by France in 1815 was towards
the Allied Powers. From the moment that those Powers,
in 1919, having again met together, declared that they freed
France from her obligation, the latter cannot exist in eter-
num merely because some advantages accrued to Switzer-
land, a third State, from its execution. Still less can this
be the case when, in freeing France from her obligation,
the Allied Powers took account of the special interests of
Switzerland or rather of Geneva, since they recommended
the two countries to give to the zones territories a special
status, which France, moreover, has declared herself ready to
grant.

In these circumstances and as regards the Gex zone,
Article 435, paragraph 2, of the Treaty of Versailles certainly
put an end to the former situation, which was based on no
right in favour of Switzerland. Nor must it be said that, in
the terms in which it is expressed, this clause was devoid of
all abrogatory effect. When the French Government in 1919,
without in any way being obliged to do so, spontaneously
communicated to M. Gustave Ador the draft which became
paragraph 2 of Article 435 of the Treaty of Versailles, the
Federal Council itself replied, in its note of May 5th, 1910,
that it made express reservations precisely because it did not
wish that “its acceptance of the above wording should lead
to the conclusion that it would agree to the suppression of
a system intended to give neighbouring territory the benefit
of a special régime which is appropriate to the geographical
and economic situation, and which has been well tested”.
From this declaration by the Federal Government it follows
that the intention of the provision which has textually become
Article 435, paragraph 2, certainly had for effect the suppression,
here and now, of the free zones. It may be submitted that this
interpretation was supported by oral conversations at the
moment, and it seems really impossible ten years afterwards
to. maintain that this clause had no abrogatory significance,
even if this contention were based on the different wording
of the two paragraphs of Article 435. It must not be
OPINION BY M. DREYFUS 46

forgotten that if the first paragraph expressly abrogates the _pro-
visions relating to the neutral zone, this is solely because it
merely constitutes a recognition of an agreement already
arrived at; the word ‘‘also” in paragraph 2 further shows
that the declaration of changed conditions should have the
same meaning in the two paragraphs and should equally
involve the abrogation of the provisions distinctly referred to
therein.

It is for these reasons that I am led to conclude that,
as between France and Switzerland, Article 435, paragraph 2, and
its annexes, have abrogated the provisions of the Protocol of the
Conferences of Paris of November 3rd, 1815, and of the Treaties
of Paris of November 2oth, 1815, which created the Gex
zone. As regards the zones of Upper Savoy and Saint-Gingolph,
subject to a subsequent decision by the Court to the effect
that the facts declared relevant by it in the affair permit the
application here of the rule vebus sic stantibus, I consider
that the same clause had for its object their abrogation.
If it had not at least had this object, the clause would mean
nothing, for it is not sufficient to say that, in signing it, the
Allied Powers, who had formerly imposed on France the humil-
lation of placing her customs line within her political fron-
tier, could solely have wished to declare that henceforth
they ceased to interest themselves in the matter and that
they now authorized France and Switzerland to settle it as
they thought fit. Sardinia before 1860 and France afterwards
had no need of a declaration of disinterestedness by the
Powers signatories to the treaties of 1815 to modify the régime
of the free zones in concluding’ with Switzerland the Conven-
tions of June 8th, 1856, June 30th, 1864, June 14th, 1881, and
October zoth, 1906. When the signatory Powers, in Article 435,
paragraph 2, framed what is claimed to be a declaration of
mere disinterestedness in regard to the question of the free
zones as between France and Switzerland, they did not
intend to make a _ platonic and theoretical declaration;
this declaration had, in their intention, an object and must
produce a practical effect. When these Powers solemnly
declared that the stipulations concerning these free zones
were no longer consistent with present conditions, they did
not merely wish to declare—what was obvious and had
OPINION BY M. DREYFUS » 47

already been done in the past—that Switzerland and France
might henceforth settle the status of these territories as they
thought fit; in so far as their declaration inscribed in para-
graph 2 of Article 435 did not #pso jure abrogate the free
zones because it ran counter to a right which might be put
forward as against France, it at least meant that abrogation
in the future appeared necessary and that it was extremely
desirable that the two countries should, if possible, succeed
in bringing it about.

(Signed) EUGÈNE DREYFUS.


625

DECLARATION OF JUDGE PARRA-ARANGUREN

Article 62 of the Statute refers to the dispositif, not to the findings or
reasoning supporting the future Judgment of the Court in the main case.

Notwithstanding my vote for the operative part of the Judgment, 1
consider it necessary to state that, in my opinion, Article 62 of the Statute
refers only to the dispositif part of the Judgment in the main case. The
findings or reasoning supporting the future Judgment of the Court in
the main case are not known at this stage of the proceedings. Therefore,
it is impossible to take them into consideration, as the majority main-
tains (para. 47), in order to determine whether they may affect the legal
interest of the State seeking for permission to intervene. Consequently,
I cannot agree with other paragraphs of the Judgment which, after
examining certain documents, conclude that the Philippines legal interest
may not be affected by their interpretation.

(Signed) Gonzalo PARRA-ARANGUREN.

54


                      DÉCLARATION DE M. LE JUGE YUSUF, VICE-PRÉSIDENT

[Traduction]

       Intégrité territoriale  Souveraineté territoriale  Traitement inadéquat des allégations
des Parties concernant la violation de leur intégrité territoriale  L’inviolabilité des frontières en
tant qu’élément fondamental de l’intégrité territoriale  Inviolabilité indépendante de
l’interdiction de la menace ou de l’emploi de la force  Violation de l’intégrité territoriale du fait
d’incursions  Défaut d’insistance sur le principe de l’intégrité territoriale, en contradiction avec
la jurisprudence de la Cour.

      1. Bien que je souscrive à la décision de la Cour et que j’aie voté en faveur de tous les points
du dispositif, j’estime devoir revenir brièvement dans la présente déclaration sur certaines
questions que la Cour n’a pas, à mon sens, traitées de manière adéquate dans les motifs de l’arrêt,
notamment en ce qui concerne le principe du respect de l’intégrité territoriale des Etats, que les
deux Parties ont invoqué dans leurs conclusions finales (arrêt, par. 49).

       2. La Cour traite certains aspects de ces conclusions aux paragraphes 91 à 93 et conclut que
«[l]a souveraineté sur le territoire litigieux appartient … au Costa Rica» (par. 92) et que, en
conséquence, les diverses activités menées par le Nicaragua sur ledit territoire «constituaient des
violations de la souveraineté territoriale du Costa Rica» (par. 93). Les deux Parties ayant
clairement invoqué le principe du respect de l’intégrité territoriale des Etats et les obligations en
découlant, le raisonnement de la Cour me semble relativement inadéquat et insuffisant.

       3. D’une manière générale, je suis d’avis que, dans son raisonnement, la Cour devrait non
seulement être explicite mais aussi en dire bien davantage sur les règles et principes du droit
international qui sont en jeu dans le différend dont elle est saisie, en particulier lorsque ces règles et
principes revêtent une importance fondamentale aussi bien pour les parties que pour l’ensemble de
la communauté internationale. En tant qu’organe judiciaire principal de l’Organisation des
Nations Unies, la Cour n’a pas pour seule mission de «régler conformément au droit international
les différends qui lui sont soumis» : elle doit également, dans l’exercice de ses fonctions
judiciaires, contribuer à éclairer, interpréter et développer les règles et principes du droit
international. A cette fin, elle doit s’engager dans une réflexion approfondie afin de préciser les
contours de ces principes, tels qu’ils s’appliquent dans le contexte factuel de l’affaire dont elle a à
connaître.

       4. Dans leurs conclusions finales, le Costa Rica et le Nicaragua ont tous deux renvoyé à
«l’obligation de respecter la souveraineté et l’intégrité territoriale» de l’autre Partie (arrêt, par. 49) ;
or, la Cour fait pour sa part référence, tant dans ses conclusions que dans le deuxième point du
dispositif, à la «violation de la souveraineté territoriale du Costa Rica». Je pense que les Parties ont
précisément utilisé les termes d’«intégrité territoriale» pour rendre compte d’une intrusion de
l’autre Partie sur une portion de territoire, fût-elle petite, que chacune revendiquait comme sienne.
En procédant de la sorte, la Cour n’a pas répondu aux allégations des Parties concernant la
violation de leur intégrité territoriale du fait d’incursions ou d’autres mesures de force.
L’inviolabilité des frontières constitue de fait un élément fondamental du principe plus général de
l’intégrité territoriale et la Cour aurait dû traiter cette question sans détour dans son arrêt.

      5. Comme le prévoit clairement l’article 21 de la Charte de l’Organisation des Etats
américains, «[l]e territoire d’un Etat est inviolable, il ne peut être l’objet d’occupation militaire ni
d’autres mesures de force de la part d’un autre Etat, directement ou indirectement, pour quelque

                                                          -2-

motif que ce soit et même de manière temporaire». Il est regrettable que la Cour ait décidé de ne
pas s’exprimer ni se prononcer sur les conséquences juridiques de cette règle fondamentale, à la
lumière de ses conclusions factuelles en l’espèce.

       6. La déclaration des Nations Unies relative aux principes du droit international touchant les
relations amicales et la coopération entre les Etats (résolution 2625 (XXV) de l’Assemblée
générale), que la Cour considère comme l’expression du droit international coutumier, éclaire
davantage le concept de l’inviolabilité et semble indiquer que les violations de l’intégrité
territoriale sont interdites indépendamment de considérations liées à l’emploi de la force. En
d’autres termes, un Etat peut violer la règle coutumière de l’inviolabilité territoriale sans enfreindre
l’interdiction de l’emploi de la force.

       7. Le premier principe énoncé dans cette déclaration se lit comme suit : «les Etats
s’abstiennent, dans leurs relations internationales, de recourir à la menace ou à l’emploi de la force,
soit contre l’intégrité territoriale ou l’indépendance politique de tout Etat, soit de toute autre
manière incompatible avec les buts des Nations Unies». Le huitième paragraphe de ce principe
précise qu’il est interdit d’«organiser ou [d’]encourager l’organisation de forces irrégulières ou de
bandes armées, notamment de bandes de mercenaires, en vue d’incursions sur le territoire d’un
autre Etat».

       8. Contrairement aux autres paragraphes du premier principe, le huitième ne lie pas la licéité
d’un acte à l’interdiction de la menace ou de l’emploi de la force1. Cela signifie que l’organisation
de forces irrégulières ou de bandes armées en vue d’incursions sur le territoire d’un autre Etat porte
atteinte à l’inviolabilité de celui-ci, que ces forces aient ou non recours à la menace ou à l’emploi
de la force dans les faits. Aussi l’envoi de forces armées, même en petit nombre, sur le territoire
d’un autre Etat constitue-t-il a fortiori une atteinte à l’inviolabilité dudit territoire, que ces forces
aient ou non recours à la menace ou à l’emploi de la force.

       9. En outre, à l’alinéa d) du sixième principe, lequel porte sur «l’égalité souveraine des
Etats», la déclaration prévoit que «[l]’intégrité territoriale et l’indépendance politique de l’Etat sont
inviolables». A la différence du premier principe, cette disposition ne lie pas d’une manière
générale l’inviolabilité du territoire à l’interdiction de la menace ou de l’emploi de la force, au
contraire : l’inviolabilité du territoire de l’Etat découle directement de la souveraineté de celui-ci.
La même approche se retrouve dans la déclaration d’Helsinki adoptée à l’issue de la conférence sur
la sécurité et la coopération en Europe, qui reconnaît également que l’intégrité territoriale des Etats
ne souffre aucune violation, qu’une telle violation découle ou non de l’emploi de la force :

             «Les Etats participants respectent l’intégrité territoriale de chacun des autres
      Etats participants.

             En conséquence, ils s’abstiennent de tout acte incompatible avec les buts et
      principes de la Charte des Nations Unies contre l’intégrité territoriale, l’indépendance
      politique ou l’unité de tout Etat participant, et en particulier de toute action de ce
      genre représentant une menace ou un emploi de la force.» (Déclaration d’Helsinki,
      sect. a) IV ; les italiques sont de moi.)

      1
          Par exemple, le premier paragraphe se lit comme suit :
              «Tout Etat a le devoir de s’abstenir, dans ses relations internationales, de recourir à la menace ou
      à l’emploi de la force, soit contre l’intégrité territoriale ou l’indépendance politique de tout Etat, soit de
      toute autre manière incompatible avec les buts des Nations Unies. Pareil recours à la menace ou à
      l’emploi de la force constitue une violation du droit international et de la Charte des Nations Unies et ne
      doit jamais être utilisé comme moyen de règlement des problèmes internationaux.»

                                                -3-

       10. Dans sa jurisprudence, la Cour a considéré le principe de l’intégrité territoriale comme
«l’une des bases essentielles des rapports internationaux» (Détroit de Corfou (Royaume-Uni
c. Albanie), fond, arrêt, C.I.J. Recueil 1949, p. 35) et comme «un élément important de l’ordre
juridique international» (Conformité au droit international de la déclaration unilatérale
d’indépendance relative au Kosovo, avis consultatif, C.I.J. Recueil 2010 (II), p. 437, par. 80). Elle
a aussi déjà déclaré clairement que ce principe «[était] consacré par la Charte des Nations Unies, en
particulier au paragraphe 4 de l’article 2» (ibid.), ainsi que par le droit international coutumier
(Activités militaires et paramilitaires au Nicaragua et contre celui-ci (Nicaragua c. Etats-Unis
d’Amérique), compétence et recevabilité, arrêt, C.I.J. Recueil 1984, p. 424, par. 73). A mon sens,
en laissant passer l’occasion de reconnaître tout cela et, non seulement de réaffirmer ces
considérations mais aussi de les mettre en avant, la Cour s’est manifestement écartée de sa
jurisprudence.

                                                             (Signé) Abdulqawi A. YUSUF.

                                           ___________


174

DISSENTING OPINION |
OF M. ALTAMIRA AND SIR CECIL HURST.

WE, the undersigned judges of the Court, regret that we
are unable to concur in the judgment of the Court for the
following reasons.

Apart from other points which will be considered hereinafter,
the two main questions in regard to which our opinion differs
from that of the majority are the question of the interpret-
ation of Article 435, paragraph 2, in so far as concerns the
second part of the question submitted to the Court by Arti-
cle x, paragraph 1, of the Special Agreement of 1924 and the
question of the interpretation of this Special Agreement, and,
in particular, of Article 2, paragraph 1, thereof.

Article I, paragraph 1, of the Special Agreement asks the
Court to say whether ‘‘as between France and Switzerland,
Article 435, paragraph 2, of the Treaty of Versailles’, etc.,
“has abrogated or is intended to lead to the abrogation of
the provisions .... regarding the customs and economic régime
of the free zones’, etc. There are therefore two distinct
questions. We have no remarks to make as regards the first.
As regards the second (whether Article 435, paragraph 2, ‘“is
intended to lead to the abrogation’), a preliminary observa-
tion must be made: the question is so worded that it is
put with regard to Article 435, paragraph 2, with its Annexes,
but only from the point of view of the legal effect of that
clause upon the international relations “between France and
Switzerland”. Accordingly, it is clear that whatever answer
is given to this question cannot prejudge the interpretation of
the Article outside the concrete case specifically defined by
the Special Agreement in Article 1.

This question of the “object”, that is to say of the intention,
ef Article 435 in itself, was not included in the Swiss counter-
proposal of 1924, in which, for the first time, the idea of
formulating the dispute between the two Governments in terms
of an interpretation of the above-mentioned Article 435 was
envisaged. It appears only in the Special Agreement, as
finally worded in 1924; and so soon as the proceedings

82
OPINION OF M. ALTAMIRA AND SIR CECIL HURST 175

following upon the submission of this Special Agreement to the
Court had begun, a modification in the wording of the ques-
tion above mentioned is to be observed in the submissions
appended to the Swiss Reply of 1929 (submission No. 2),
where the words “is intended to lead to the abrogation” are
explained as meaning whether or not it (Art. 435, para. 2)
compels Switzerland to accept the abrogation of the free zones
as the only possible basis of the future settlement.

This interpretation of the second question put by Article 1,
paragraph 1, of the Special Agreement has been accepted by
the Court, which has given expression to it by introducing
the word “‘necessarily’’ which has the same effect as the words
“only possible basis’ used by Switzerland. It seems evident
that the Court, like the Swiss Agent, in adopting this inter-
pretation, definitely had in mind the future negotiations with a
view to the conclusion of an agreement provided for by para-
graph 2 of Article 435 of the Treaty of Versailles. These
negotiations, to which the signatory Powers left the final
settlement of the matter and likewise the carrying out in
full of the terms of the Article, indicate the point at which
the zones’ question, originally stated in Article 435 from the
point of view of the ideas and intentions of the Powers
signatory to the Treaty and from that of the provisions
originally establishing the zones’ régime, becomes a question
exclusively within the jurisdiction of the two States primarily
concerned. It is also evident that the real object of this
change, as expressed in the closing words of paragraph 2 of
_ Article 435, is to prevent any attempt to force Switzerland to
accept abrogation as ‘‘the only possible basis” of the agreement.

The consequences which logically ensue are in our view as
follows: that abrogation may be envisaged as a possible basis
for the agreement, and that, even if the question put by
Article 1, paragraph 1, of the Special Agreement, be answered’
in the terms suggested by Switzerland and adopted by the
Court, it does not follow that this answer exhausts the inter-
pretation of the question of the intention of Article 435, para-
graph 2. For the answer given, as we have just shown] only
has in mind the relations between France and Switzerland
for the purposes of the negotiations, and cannot in any

Ir | 83
OPINION OF M. ALTAMIRA AND SIR CECIL HURST 176

way affect the meaning which Article 435 bore in the intention
of the Powers which signed the Treaty of Versailles.

Accordingly, the question of the intention of the Article
itself remains intact, and, in any case, the answer is not to be
found in a decision relating to an aspect of it entirely different
from that which emerges from the terms and tenour of the
Article taken by itself: So that the conversion of the answer
given on the basis of the interpolation of the word ‘‘neces-
sarily’ into an answer where this word (and consequently also
the interpretation which led to its insertion) has disappeared,
does not seem justified. The answer to the question in the
Special Agreement must be left with the. limited scope attach-
ing thereto—this we do not discuss—and the interpretation
of the other aspect which was not envisaged in Article 1 of
the Special Agreement must at the same time be left open.

“The question, when regarded from this other aspect, can
in our view only be answered in the affirmative, that is
to say that Article 435 was intended to lead to the abrogation
of the zones in the sense that the signatory Powers considered
that the inconsistency between the old ‘provisions and present
conditions pointed to such abolition, and that even though
they did not wish to force Switzerland to accept such aboli-
tion—she not being a signatory of the Treaty—they con-
sidered that the contemplated agreement should lead to this
result, just as the agreement regarding the neutralized zone
had done. Moreover, the actual text of the whole Article
affords, in our view, clear proof that the opinion expressed
therein by the High Contracting Parties is also indicative of
the object aimed at by the Article. This is true not only
of the second paragraph but also of the first. A careful
study of the wording of this paragraph shows that the High
Contracting Parties do not confine themselves simply to
acquiescing in the agreement concluded between the French
and Swiss Governments, but also expressly state the reason
for their acquiescence. This reason is that the High Con-
tracting Parties consider the agreement mentioned to be in
accordance with the consequence which naturally ensues from
the declaration made by them regarding the inconsistency
of the old provisions concerning the neutralized zone and

84

OPINION OF M. ALTAMIRA AND SIR CECIL HURST 177

“present conditions”. The first sentence of this paragraph,
in so far as is essential in this respect, says: “The High
Contracting Parties, while they recognize the guarantees
stipulated .... in favour of Switzerland .... declare .... that
the provisions .... are no longer consistent with present con-
ditions.”’ This sentence in itself and by its general arrange-
ment explains the fact that the High Contracting Parties
are willing to accept—as they do in so many words—an
agreement abrogating these guarantees. And to remove any
possibility of doubt as to this meaning which we read into
the first sentence of the paragraph, the second begins: “For :
this reason”, ie. for the reason that the old provisions are
inconsistent with present conditions and that this had led
to the abrogation of the guarantees given in 1815. It is
worthy of note that the first sentence does not mention
the agreement, and, accordingly, is not in itself applicable
to it—the application only follows from the connection estab-
lished by the words ‘For this reason” in the second sentence
between the principle laid down in the first and the fact,
not of the agreement, but of the acceptance of the agreement
which is recorded by the customary formula ‘‘take note”.

It is certain that if the agreement had not been in accord-
ance with the principle referred to, the High Contracting
Parties would not have accepted it.

This interpretation is not incompatible with that given in
reply to the concrete question in the Special Agreement,
because each interpretation corresponds to one of the two
elementsffwhich together form the contents of the Article: the
inconsistency between -the provisions concerning the zones and
present conditions, which inconsistency is categorically stated
as a fact by the Powers, and the respect for the will of Swit-
zerland which must have free play in the endeavour to reach
an agreement since that country was not a Party to the
Treaty.

Furthermore, these two elements and their respective inter-
pretations naturally lead to different consequences. In so far
as concerns negotiations with a view to an agreement between
France and Switzerland, there seems no doubt that it can-
not be gainsaid that the latter country is so situated that

85
OPINION OF M. ALTAMIRA AND SIR.CECIL HURST 178

abrogation cannot be forced upon her either as sole basis for
negotiations or by any singlehanded action on the part of France.
On the other hand, once the Parties are outside the field of
negotiations, it would seem that the other aspect of the Arti-
cle must predominate. This, in our view, was what the Spe-
cial Agreement contemplated and intended to make legally
possible by Article 2, in the event of the further. negotiations
mentioned in paragraph 2 of Article x not resulting in an
agreement. Now, these negotiations, the only ones contemplat-
ed by the Special Agreement, did not result in an agreement,
nor did the further negotiations for which time was allowed
by the Court in its 1930 Order. The eventuality contemplated
at the beginning of Article 2 of the Special Agreement having :
thus materialized, the powers conferred on the Court in that
eventuality come into ‘Play and must be exercised as provided
in that Article.

If, according to paragraph 1 of that Article, it now rests
with the Court “to pronounce its decision in regard to the
question formulated in Article x’ and also “to settle for a
period to be fixed by it and having regard to present condi-
tions, all the questions involved by the execution of pära-
graph 2 of Article 435 of the Treaty of {Versailles”, it is in our
view evident : (1) that ‘all these questions” {means “every one
of the questions’ and not only those which, in connection with
the idea expressed in Article xr of the Special Agreement,
correspond to the stage of negotiation with a view to an agree-
ment, a stage which is no longer in question in the present
phase of the proceedings, and which is only related to the last
- sentence of Article 435, paragraph 2; (2) that “‘all the ques-
tions’ necessarily include the question of the aim of this
Article, in the.intention of its authors, and accordingly. the
fulfilment of this aim. Otherwise it is certain that the Article
will not be executed as required by the Special Agreement, and
that the intention of the Parties as represented by this Special
Agreement will also remain unfulfilled. For these reasons, we
believe that the Court should have proceeded to settle all
the questions involved by this execution (save as regards these
to which paragraph 2 of Article 2 of the Special Agreement
relates) and accordingly also the question of the object of
Article 435 of the Treaty of Versailles, by examining it in

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OPINION OF M. ALTAMIRA AND SIR CECIL HURST 179

every aspect, ie. also in relation to “present conditions”, a
term. common to Article 435 and to the Special Agreement,
instead of confining itself to the entirely concrete and there-
fore partial solution contemplated by Article x of the Special
Agreement. |

In our view, the fact that the power conferred on the Court
by Article 2, paragraph I, of the Special Agreement includes
the possibility of executing Article 435, paragraph 2—-as we
understand the execution of that clause—is proved not only
by the foregoing arguments but also by the following consid-
erations,

The reason why France and Switzerland were entrusted by
Article 435 with the duty of arriving at the agreement contem-
plated at that time, just as it was by the Court in 1029 and
1930, under the terms of the Special Agreement, appears from
the opinion expressed in 1919 by the Signatories of the Treaty
of Versailles when they formulated the first part of the second
paragraph of Article 435. This reason is that the provisions
of the old treaties, in so far as they relate to the tree zones,
are no longer consistent with present conditions. It is to be
noted that the terms in which this opinion is expressed in the
said Article are not limited in any way, nor do they attach
any particular and solitary consequence to the inconsistency
between the stipulations of the 1815 treaties and other supple-
mentary instruments and any particular element in the situa-
tion which existed at the time ; on the contrary, the statement
as to this inconsistency is so worded as to apply to the whole
of the treaty stipulations.

Accordingly, no matter whether it is thought that the
essential feature of the régime lay in the withdrawal of the
French customs line or whether it is thought that the essential
feature consisted of economic advantages which are compat-
ible with the placing of the customs cordon at the French
political frontier, the inconsistency of the régime with ‘‘present
conditions” retains its full force as expressing the purpose of
the Article and, accordingly, the mind of the signatory Powers.
Moreover,. it certainly must not be forgotten that this inter-
pretation of Article 435, paragraph 2, {was, in 1921, taken'as a
basis for the draft convention between Switzerland and France,
under which the zones were to be abrogated, which draft was

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OPINION OF M. ALTAMIRA AND SIR CECIL HURST 180

approved by the Parliaments of the two countries, though it
was later rejected by the Swiss referendum. At the same time,
this draft, in our view, clearly indicated that, in adopting it,
the executives of the two States believed that they were
effecting the agreement contemplated in the last sentence of
Article 435, paragraph 2, of the Treaty of Versailles.

It is also the fact that, even after the rejection of the draft
convention of 1921, the result embodied in that draft con-
tinued to be envisaged as a possible outcome of the negotia-
tions between the Parties. The Court itself has recognized the
existence of this possibility; this obviously means, once again,
that the abolition of the zones is not in itself a solution essen-
tially incompatible with the interests and economic needs of
Switzerland and the zones, any more than with the meaning
of Article 435 of the Treaty of Versailles. And for this reason
also, we are unable (quite apart from the separate question
of the terms of Article 2, paragraph 1, of the Special Agree-
ment) to regard the limitation, which the Court holds has been
imposed upon it, as an inevitable consequence of the answer
to Article 1. In reality, this answer is entirely unconnected
with the eventuality referred to fat the beginning of paragraph 1
of Article 2 of the Special Agreement, and therefore with
the task which falls to the Court, should this eventuality
materialize,

The absence of inter-dependence between Article 2 and
Article x of the same Special Agreement is also to be explain-
ed by the following consideration, derived from facts which
are well known and not disputed. At the time of the conclu-
sion of the Special Agreement, designed to submit the dispute
between the two Governments to the Court, France had abol-
ished the zones—so far as their régime finds expression in
the withdrawal of the customs line—by a unilateral act.
France was, at that time, of opinion that Article 435 of the
Treaty of Versailles, with its Annexes, had abrogated the ©
former treaties—which were the basis of the Swiss right,—
that this right had ceased to exist, and that France was, in
consequence, justified in transferring her customs cordon to
her political frontier, whether or not an agreement with
Switzerland had been reached. It was in order to decide
whether that view was correct, and solely with that purpose,

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OPINION OF M. ALTAMIRA AND SIR CECIL HURST 181

that the question enunciated in Article x of the Special
Agreement was put to the Court, and that the latter, in
1929, gave its interpretation of Article 435, paragraph 2,
of the Treaty of Versailles, in the terms with which all are
acquainted,

Now, however, the situation is altogether different. In our
view the Court’s judgment should contain a settlement of the
whole matter, that is to say, of all the questions raised by
the execution of the said Article, which would have been

settled by the Parties themselves had they reached an agree-
ment. If the judgment fails to do this, the Court is omitting
to carry out the express mandate of the Parties in regard to
the new regulation of the zones’ régime, which, in our view,
is categorically expressed in Article 2, paragraph 1, of the
Special Agreement, and also in Article 435, paragraph 2, of
the Treaty of Versailles.

To us, indeed, it appears clear that what the Court has
received from Switzerland, as also from France, under this
Article 2 of the Special Agreement, is the power to settle
all the questions involved by the execution of Article 435,
paragraph 2, and a part of that settlement is the establish-
ment of the new régime; this may involve changes extending
even to the modification of what has been called the “struc-
ture” of the zones, in so far as that structure is represented
by the placing of the French Customs cordon in rear of the
political frontier.

The difference, in this respect, between the terms of Arti-
cle 435 of the Treaty of Versailles and those of Article 2 of the
Special Agreement is explained by the fact, which is entirely
comprehensible, that the Treaty of Versailles, to which Swit-
zerland was not a Party, had no power to provide for -the
establishment of the new régime (which it clearly considered
as having to be effected, taking as a basis the inconsistency
between the “former provisions” and the “present conditions’)
in any other way than by an agreement between Switzerland
and France, whereas the Special Agreement of 1924, which
was drawn up, accepted, and signed by the two States, could
—and did in so many words—request the Court to effect what
the Parties could have effected in 1930 and in 1931, just as
they did in 1921. Therefore, and without thereby prejudging

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OPINION OF M. ALTAMIRA AND SIR CECIL HURST 182

the terms of the settlement which the Court would have to
lay down, in conformity with its own convictions, it seems to
us unquestionable that the Court can legitimately claim the
same freedom of judgment as the Parties themselves in determ-
ining the system which would be most in harmony with
the present conditions and with the ideas of Article 435 of
the Treaty of Versailles.

We said just now, ‘‘the same freedom” as the Parties,
but in reality it is a wider freedom, not only in view {of the
very nature of the Court, but also because Governments are
sometimes hampered by constitutional difficulties, or difficulties
of a similar kind belonging to the sphere of domestic policy,
which the Court does not have to encounter.

Moreover, the Swiss!note of May 5th, 1910, cannot, in view
of the existence of the Special Agreement of 1924, produce
the same consequences as it did prior to that Agreement.
. And, as the said note is merely one of the Annexes to Arti-
cle 435 of the Treaty of Versailles, it does not have to be con-
sidered’ in interpreting Article 2 of the Special Agreement, |
which makes mention only of Article 435, as it stands. It
is not possible, in our opinion, to add any words to those
appearing in the text of that Article of the Special Agree-
ment without distorting it, and making it say something which
it does not say. It is quite impossible for us to read the’
text of the Special Agreement otherwise than as it was drawn
up and submitted to the Court.

Similarly, and in regard to the task now committed to
the Court, when considered as a whole, it appears to us
impossible to conceive of a Special Agreement which consists
of five articles—of which two are articles of substance—being
framed, still less being accepted—if the legal effects of it
are to be confined to the question enunciated in one only
of these articles (Art. I, para. 1, in the present case). Yet
this is the result at which we arrive, if we practically confine
our answer to the Special Agreement of 1924 to the single
point of law in its first Article} and make the judgment asked
for in Article 2 dependent upon this point alone. In our
opinion, it is impossible to believe, when one takes count of
human psychology and more particularly ‘of governmental

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OPINION OF M. ALTAMIRA AND SIR CECIL HURST 183

psychology, that a Special Agreement, such as that before us,
could have been adopted by two States, one of which, namely
France, has from the outset maintained the view that the zones:
were abrogated, and that this Special Agreement should con-:
tain an article, the interpretation and execution of which must
necessarily be favourable exclusively to the opposite conten-:
tion. The keeping open of both alternatives, that is to say, .
the possibility of applying the Article to either contention,:
is surely the natural construction in this case, whereas the
presumption of a deliberate purpose to give preference to one:
of the contentions would really exceed all imaginable bounds:
of disinterestedness on the part of a State. As such a result
would be utterly out of the question, the interpretation of
Article 2, paragraph I, as being applicable alike to the Swiss
and French contentions appears to be the most justifiable. If
any other interpretation should suggest itself, it would seem
more reasonable, instead of putting a meaningless construction:
on the Special Agreement, to consider that it is rather the.
interpretation which is at fault.

We have still to examine this question of Article 2, para-
graph I, of the Special Agreement {from the point of view
of the Court itself, that is to say of the Court’s jurisdiction ;
on that point, we wish to make the following observation.

We have been unable to see, either in the text or in the
construction which Articles 36 and 38 of the Statute appear
to us to bear, anything which, in principle, would deprive
the Court of jurisdiction to establish a settlement such as is
contemplated in Article 2 of the Special Agreement, fa ques-
tion which is distinct from that relating to paragraph f2.:
Moreover, it is clear from this Article that the Parties have
thereby invested the Court with the widest measure of juris-
diction compatible with Article 38 of the Statute. * Finally,
it is to be noted that the Parties in the case have never,
on one single occasion, thrown any doubt on the competence
of the Court to perform the task specified in Article 2, para-
graph 1, of the Special Agreement. They were even of opin-
ion that the Court was competent to decide on the matter
referred to in paragraph 2 of that Article, though the Court
very rightly refused to do so; upon the latter point, we
find ourselves in agreement with the judgment.

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OPINION OF M. ALTAMIRA AND SIR CECIL HURST 184,

Hence, it appears to us that the competence of the Court
is established in regard to paragraph x of Article 2 of the
Special Agreement, and that the settlement which is asked
for therein—whether or not it would be, as has been said,
a settlement wholly of expediency—would have as its legal
bases, on the one hand Article 2 of the Special Agreement,
on the other hand Article 435 of the Treaty of Versailles,
in their twofold capacity of international agreements and
texts governing the jurisdiction of the Court in this case.
It seems clear to us that the existence of these principles, the
one emanating from the signatory Powers of the old provisions,
the other from the two Governments parties in the case,
would provide that settlement with a legal foundation in
positive international law. By reason of this fact a settlement
on the basis of ‘‘present conditions’, although it would be
governed by criteria not derived from any pre-existing law
between the Parties—i.e., it would be governed by the ‘“‘pre-
sent conditions’—-would none the less be a settlement on
the basis of law, that is, of the rule which the Parties them-
selves laid down in the Special Agreement in order to obtain
a final settlement of the case, through a judgment of the
Court, taking the place of a voluntary agreement between
themselves.

This line of argument might encounter an objection based
on the distinction that has been drawn between the structure
of the zones and their economic régime. If such a distinction
were not only accurate and possible, but also necessary, one
might, for example, be led to the conclusion that the struc-
ture should be retained and the economic system modified.
That would imply the assumption that the structure, as
such, is the invariable feature of the zones, whereas the
regulations, or economic advantages, are its variable features ;
but the former of these suppositions would be ‘far from
justified in our opinion.

For indeed, although it is true—as we unreservedly admit
—that, in order that the right of negotiations, which is pro-
vided for in the last sentence of Article 435, paragraph 2,
of the Treaty of Versailles, may be exercised, it is necessary
that the step taken by France in 1923 should be regarded
as illegal, and should be cancelled, nevertheless it does not

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OPINION OF M. ALTAMIRA AND SIR CECIL HURST 185

follow that the zones system must necessarily continue to
be based on the withdrawal of the French Customs cordon
in rear of the political frontier. The same customs advantages
as are derived from the withdrawal of the customs line may
be obtained, with the good-will of the State concerned, by
other means, also dependent on the same factor. The Con-
vention of 1921 showed that this was in fact possible; and,
in. the face of that demonstration, it cannot now -be main-
tained that the economic benefits of the system, which have
always been regarded as its essential advantage, would not
be attainable unless the customs cordon and the political
frontier were kept apart. That would be ‘tantamount to
arguing that it would not be possible for a State to establish
a free-trade system, even if of a highly developed kind,
without shifting its customs line; yet this has been fre-
quently found possible and will continue to be so, unless
some day absolute free trade should be introduced. But
even in the last case, it would be unnecessary to withdraw
the customs line, since the customs offices themselves would
have ceased to exist throughout the territory.

In conclusion, we wish to make every reservation in regard
to a theory seeking to lay down, as a principle, that rights
accorded to third Parties by international conventions, to
which the favoured State is not a Party, cannot be amended
or abolished, even by the States which accorded them, without
the consent of the third State; such a theory would be
fraught with so great peril for the future of conventions of
this kind now in force, that it would be most dangerous to
rely on it in support of any conclusion whatever. Fortu-
nately, in the present case, this question does not arise, since,
as regards the compulsory .abolition of the zones, the last
sentence of paragraph 2 of Article 435 appears to place the
position of the signatory Powers of the Treaty. of Versailles
and of Switzerland on a plane other than the above.

(Signed) RAFAEL ALTAMIRA.
( , ) €C. J. B. Hurst.

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