        INTERNATIONAL COURT OF JUSTICE

          REPORTS OF JUDGMENTS,
       ADVISORY OPINIONS AND ORDERS

  APPLICATION OF THE CONVENTION
ON THE PREVENTION AND PUNISHMENT
     OF THE CRIME OF GENOCIDE
         (THE GAMBIA v. MYANMAR)

          ORDER OF 28 JANUARY 2021

               2021
        COUR INTERNATIONALE DE JUSTICE

            RECUEIL DES ARRÊTS,
     AVIS CONSULTATIFS ET ORDONNANCES

   APPLICATION DE LA CONVENTION
POUR LA PRÉVENTION ET LA RÉPRESSION
       DU CRIME DE GÉNOCIDE
           (GAMBIE c. MYANMAR)

       ORDONNANCE DU 28 JANVIER 2021

                             Official citation:
      Application of the Convention on the Prevention and Punishment
           of the Crime of Genocide (The Gambia v. Myanmar),
            Order of 28 January 2021, I.C.J. Reports 2021, p. 6

                         Mode officiel de citation :
      Application de la convention pour la prévention et la répression
               du crime de génocide (Gambie c. Myanmar),
        ordonnance du 28 janvier 2021, C.I.J. Recueil 2021, p. 6

                                                                1214
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ISSN 0074-4441                                  No de vente:
ISBN 978-92-1-003875-1

                 © 2022 ICJ/CIJ, United Nations/Nations Unies
                     All rights reserved/Tous droits réservés

                     Printed in France/Imprimé en France

                               28 JANUARY 2021

                                   ORDER

  APPLICATION OF THE CONVENTION
ON THE PREVENTION AND PUNISHMENT
     OF THE CRIME OF GENOCIDE
     (THE GAMBIA v. MYANMAR)

   APPLICATION DE LA CONVENTION
POUR LA PRÉVENTION ET LA RÉPRESSION
       DU CRIME DE GÉNOCIDE
       (GAMBIE c. MYANMAR)

                               28 JANVIER 2021

                               ORDONNANCE

                                                                             6

               COUR INTERNATIONALE DE JUSTICE

                               ANNÉE 2021                                            2021
                                                                                28 janvier
                               28 janvier 2021                                    Rôle général
                                                                                no 178

    APPLICATION DE LA CONVENTION
 POUR LA PRÉVENTION ET LA RÉPRESSION
        DU CRIME DE GÉNOCIDE
                        (GAMBIE c. MYANMAR)

                             ORDONNANCE

Présents : M. Yusuf, président ; Mme Xue, vice‑présidente ; MM. Tomka,
            Abraham, Bennouna, Cançado Trindade, Mme Donoghue,
            M. Gaja, Mme Sebutinde, MM. Bhandari, Robinson,
            Crawford, Gevorgian, Salam, Iwasawa, juges ; Mme Pillay,
            M. Kress, juges ad hoc ; M. Gautier, greffier.

  La Cour internationale de Justice,
   Ainsi composée,
   Après délibéré en chambre du conseil,
   Vu l’article 48 du Statut de la Cour et l’article 79bis, paragraphes 1 et 3,
de son Règlement,
   Vu l’ordonnance du 23 janvier 2020, par laquelle la Cour a fixé au
23 juillet 2020 et au 25 janvier 2021, respectivement, les dates d’expiration
des délais pour le dépôt du mémoire de la République de Gambie et du
contre‑mémoire de la République de l’Union du Myanmar,
   Vu l’ordonnance du 18 mai 2020, par laquelle la Cour a reporté au
23 octobre 2020 et au 23 juillet 2021, respectivement, les dates d’expira-
tion des délais pour le dépôt du mémoire et du contre‑mémoire,
   Vu le mémoire de la République de Gambie déposé dans le délai tel que
prorogé ;

                                                                             4

          application de convention génocide (ord. 28 I 21)                 7

   Considérant que, le 20 janvier 2021, la République de l’Union du
Myanmar a déposé des exceptions préliminaires d’incompétence de la
Cour et d’irrecevabilité de la requête, et qu’un exemplaire signé de celles‑ci
a immédiatement été transmis à l’autre Partie ;
   Considérant qu’en conséquence, en vertu des dispositions du para-
graphe 3 de l’article 79bis du Règlement, la procédure sur le fond est sus-
pendue et qu’il y a lieu de fixer un délai dans lequel la Partie adverse
pourra présenter un exposé écrit contenant ses observations et conclu-
sions sur les exceptions préliminaires ;
   Compte tenu de l’instruction de procédure V, aux termes de laquelle le
délai pour la présentation d’un tel exposé écrit ne devra en général pas
excéder quatre mois à compter de la date de présentation d’exceptions
préliminaires,
   Fixe au 20 mai 2021 la date d’expiration du délai dans lequel la Répu-
blique de Gambie pourra présenter un exposé écrit contenant ses observa-
tions et conclusions sur les exceptions préliminaires soulevées par la
République de l’Union du Myanmar ;
   Réserve la suite de la procédure.

   Fait en anglais et en français, le texte anglais faisant foi, au Palais de
 la Paix, à La Haye, le vingt-huit janvier deux mille vingt et un, en
trois exemplaires, dont l’un restera déposé aux archives de la Cour et les
 autres seront transmis respectivement au Gouvernement de la République
de Gambie et au Gouvernement de la République de l’Union du
Myanmar.

                                                   Le président,
                                      (Signé) Abdulqawi Ahmed Yusuf.
                                                      Le greffier,
                                           (Signé) Philippe Gautier.

                                                                            5


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DE L’OR MONÉTAIRE

PRIS À ROME EN 1943

(ITALIE c. FRANCE, ROYAUME-UNI DE GRANDE-
BRETAGNE ET DIRLANDE DU NORD ET
ETATS-UNIS D’AMERIQUE)

ORDONNANCE DU 26 JANVIER 1954

1954

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE OF THE MONETARY GOLD

REMOVED FROM ROME IN 1943

(ITALY v. FRANCE, UNITED KINGDOM OF GREAT
BRITAIN AND NORTHERN IRELAND AND
UNITED STATES OF AMERICA)

ORDER OF JANUARY 26th, 1954
La présente ordonnance doit être citée comme suit :

«Affaire de lor monétaire pris à Rome en 1943,
Ordonnance du 26 janvier 1954: C.I. J. Recueil 1954, p. 0.»

This Order should be cited as follows:

“Case of the monetary gold removed from Rome in 1943,
Order of January 26th, 1954: I.C.]. Reports 1954, p. ro.”

N° de vente: 114
Sales number

1954
Le 26 janvier
Rôle général
n° 19

10

COUR INTERNATIONALE DE JUSTICE

ANNÉE 1954

26 janvier 1954

AFFAIRE DE L’OR MONÉTAIRE

PRIS À ROME EN 1943

(ITALIE c. FRANCE, ROYAUME-UNI DE GRANDE-
BRETAGNE ET DIRLANDE DU NORD ET
ETATS-UNIS D’AMERIQUE)

ORDONNANCE

Le Vice-Président de la Cour internationale de Justice faisant
fonction de Président en la présente affaire,

vu l'article 48 du Statut de la Cour,
vu l’article 37 du Règlement de la Cour;

Vu l'ordonnance du 3 novembre 1953 par laquelle la Cour a
fixé au 15 décembre 1953 l'expiration du délai dans lequel le
Gouvernement italien pouvait présenter un exposé écrit précisant
sa position sur la question préliminaire soulevée par lui le 30 octobre
1953 en l'affaire de lor monétaire pris à Rome en 1943, et au
15 février 1954 l'expiration du délai dans lequel les Gouvernements
de la République française, du Royaume-Uni de Grande-Bretagne
et d’Irlande du Nord et des États-Unis d'Amérique pourront
présenter les exposés écrits de leurs observations et conclusions
sur cette question,

Considérant que l'exposé écrit du Gouvernement italien a été
déposé dans le délai fixé,

Considérant que, par télégramme du 14 janvier 1954 reçu au
Greffe le même jour, l’agent du Gouvernement du Royaume-

4
I AFFAIRE DE L’OR MONÉTAIRE (ORDONNANCE DU 26 1 54)

Uni a demandé la prolongation au 31 mars 1954 du délai dont
l'expiration avait été fixée au 15 février 1954, afin de donner
aux trois Gouvernements défendeurs le temps de se concerter
sur la nature de l'exposé ou des exposés qu'ils présenteront,

Considérant que, par lettre du 20 janvier 1954, Vagent du
Gouvernement italien, auquel la demande présentée avait été

communiquée, a déclaré ne pas soulever d’objection à une éven-
tuelle prorogation,

Considérant que les agents du Gouvernement français et du
Gouvernement des États-Unis d'Amérique, auxquels la demande
avait été également communiquée, ont fait savoir par des lettres
datées respectivement des 22 et 26 janvier 1954 qu'ils étaient
d'accord avec la demande de l'agent du Gouvernement du
Royaume-Uni;

Proroge au 31 mars 1954 la date d’expiration du délai dans
lequel les Gouvernements de la République française, du Royaume-
Uni de Grande-Bretagne et d’Irlande du Nord et des États-Unis
d'Amérique pourront présenter les exposés écrits de leurs obser-
vations et conclusions sur la question préliminaire soulevée en
Vaffaire de l’or monétaire pris à Rome en 1943.

Fait en français et en anglais, le texte français faisant foi, au
Palais de la Paix, à La Haye, le vingt-six janvier mil neuf cent
cinquante-quatre, en cinq exemplaires, dont l’un restera déposé
aux archives de la Cour et dont les autres seront transmis respec-
tivement aux Gouvernements de la République italienne, de la
République française, du Royaume-Uni de Grande- “Bretagne et
d'Irlande du Nord et des États-Unis d'Amérique.

Le Vice-Président,
(Signé) J. G. GUERRERO.

Le Greffier,
(Signé) J. LéPEz OLIVAN.


482

SEPARATE OPINION OF JUDGE HIGGINS

Removal from the List other than for reasons of discontinuance — Inherent
powers of the Court — Inherent powers not limited to two existing examples —
Reasons why this case should have been removed from the List — Inappropriate
for Judgment to have pronounced on Article 35, paragraph 2, of Statute.

1. The Court in its Judgment finds that the Observations of Serbia and
Montenegro have not had the legal effect of discontinuance of proceed-
ings under the Rules (para. 31). I agree. It is clear that the Applicant has
declined to “discontinue”, and that “discontinuance” as envisaged in the
Rules is dependent on the consent of the Parties.

2. The Court further observes that:

“Prior to the adoption of Article 38, paragraph 5, of the Rules of
Court, in a number of cases in which the application disclosed no
subsisting title of jurisdiction, but merely an invitation to the State
named as respondent to accept jurisdiction for the purposes of the
case, the Court removed the cases from the List by order. By Orders
of 2 June 1999, it removed from the List two cases brought by Serbia
and Montenegro concerning Legality of the Use of Force against
Spain and the United States of America, on the ground that the
Court ‘manifestly lack[ed] jurisdiction’ (Z C.J. Reports 1999, pp. 773
and 925).” (Judgment, para. 32.)

3. The Court then observes that “[t]he present case does not however
fall into either of these categories”. The Court thus appears to regard
these as a closed list of categories for the removal of cases from the List
(other than where discontinuance has occurred), and to suggest that no
removal from the List was open to the Court in the present case as the
facts do not fall within the existing two examples.

4. A case may be discontinued by the applicant alone and an order
issued to remove it from the List (Denunciation of the Treaty of 2 Novem-
ber 1865 between China and Belgium, Order of 25 May 1929, P.C.LJ.,
Series A, No. 18; Legal Status of the South-Eastern Territory of Green-
land, Order of 11 May 1933, P.C.I.J., Series AIB, No. 55, p. 157; Protec-
tion of French Nationals and Protected Persons in Egypt, Order of
29 March 1950, I. C.J. Reports 1950, p. 59; Electricité de Beyrouth Com-
pany, Order of 29 July 1954, I. C.J. Reports 1954, p. 107; Aerial Incident
of 27 July 1955 (United Kingdom v. Bulgaria), Order of 3 August 1959,

57
483 LEGALITY OF USE OF FORCE (SEP. OP. HIGGINS)

LC.J. Reports 1959, p. 264; Aerial Incident of 27 July 1955 (United
States of America v. Bulgaria), Order of 30 May 1960, I.C.J. Reports
1960, p. 146; Barcelona Traction, Light and Power Company, Limited,
Order of 10 April 1961, I.C.J. Reports 1961, p. 9; Trial of Pakistani Pris-
oners of War, Order of 15 December 1973, I.C.J. Reports 1973, p. 347;
Border and Transborder Armed Actions (Nicaragua v. Costa Rica),
Order of 19 August 1987, I.C.J. Reports 1987, p. 182; Military and Para-
military Activities in and against Nicaragua (Nicaragua v. United States
of America), Order of 26 September 1991, I C.J. Reports 1991, p. 47;
Border and Transborder Armed Actions (Nicaragua v. Honduras), Order
of 27 May 1992, L. C.J. Reports 1992, p. 222; Passage through the Great
Belt (Finland v. Denmark), Order of 10 September 1992, I. C.J. Reports
1992, p. 348; Maritime Delimitation between Guinea-Bissau and Senegal,
Order of 8 November 1995, I.C.J. Reports 1995, p. 423; Vienna Conven-
tion on Consular Relations (Paraguay v. United States of America),
Order of 10 November 1998, I.C.J. Reports 1998, p. 426; Armed Activi-
ties on the Territory of the Congo (Democratic Republic of the Congo v.
Burundi), Order of 30 January 2001, I. C.J. Reports 2001, p. 3; Armed
Activities on the Territory of the Congo (Democratic Republic of
the Congo v. Rwanda), Order of 30 January 2001, I.C.J. Reports 2001,
p. 6).

5. There is a comparable, and analogous, practice relating to discon-
tinuance upon the agreement of the parties, removal from the List being
effected by order. Among the many examples are Delimitation of the Ter-
ritorial Waters between the Island of Castellorizo and the Coasts of Ana-
tolia, Order of 26 January 1933, P.C.I.J., Series AIB, No. 51, p. 4;
Compagnie du Port, des Quais et des Entrepôts de Beyrouth and Société
Radio-Orient, Order of 31 August 1960, I.C.J. Reports 1960, p. 186; Cer-
tain Phosphate Lands in Nauru (Nauru v. Australia), Order of 13 Sep-
tember 1993, I.C.J. Reports 1993, p. 322; Questions of Interpretation and
Application of the 1971 Montreal Convention arising from the Aerial
Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom),
Order of 10 September 2003, I.C.J. Reports 2003, p. 149; Questions of
Interpretation and Application of the 1971 Montreal Convention arising
from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United
States of America), Order of 10 September 2003, I.C.J. Reports 2003,
p. 152.

6. The Court has also declined to proceed with cases in circumstances
other than discontinuance under the Rules. The Permanent Court termi-
nated interim measures proceedings in the Prince von Pless Administra-
tion case, on the grounds that the request made by Germany in its Appli-
cation had ceased to have any object (Order of 11 May 1933, P.C.LJ.,
Series AIB, No. 54, p. 150). And in the Northern Cameroons case, the
Court declined to proceed further with a case for what it saw as reasons
of judicial propriety (Preliminary Objections, Judgment, CJ.
Reports 1963, p. 29). In the Nuclear Tests cases, the Court did not
regard itself as constrained by the fact that Australia and New Zealand

58
484 LEGALITY OF USE OF FORCE (SEP. OP. HIGGINS)

had not, after the French announcement of the conclusion of its testing,
discontinued the proceedings under Article 74 of the 1972 Rules. The
Court stated that “this does not prevent the Court from making its own
independent finding” (Nuclear Tests (Australia v. France), Judgment,
ICI. Reports 1974, p. 270, para. 54; Nuclear Tests (New Zealand v.
France), Judgment, I.C.J. Reports 1974, p. 476, para. 57) and it deter-
mined that “the object of the claim has been achieved by other means”
— i.e., means other than litigation (Nuclear Tests (Australia v. France),
Judgment, I.C.J. Reports 1974, p. 271, para. 55; Nuclear Tests (New
Zealand v. France), Judgment, I.C.J. Reports 1974, p. 476, para. 58).

7. In a pertinent dictum the Court stated that it saw:

“no reason to allow the continuance of proceedings which it knows
are bound to be fruitless. While judicial settlement may provide a
path to international harmony in circumstances of conflict, it is none
the less true that the needless continuance of litigation is an obstacle
to such harmony.” (Nuclear Tests (Australia v. France), Judgment,
C.J. Reports 1974, p. 271, para. 58; Nuclear Tests (New Zea-
land v. France), Judgment, I.C.J. Reports 1974, p. 477, para. 61.)

In both the Northern Cameroons and Nuclear Tests cases, the Court
decided not to adjudicate further and did not issue a formal order.

8. In its Orders of 2 June 1999 (Legality of Use of Force ( Yugosla-
via v. United States of America), Provisional Measures, Order of
2 June 1999, C.J. Reports 1999, p. 916; Legality of Use of Force
(Yugoslavia v. Spain), Provisional Measures, Order of 2 June 1999,
1 C.J. Reports 1999, p. 761) the Court had removed the cases from the
List after hearings on provisional measures, on the grounds that the
Court manifestly lacked jurisdiction. And, as was recognized in the Judg-
ment at paragraph 32, prior to the formulation of Article 38, para-
graph 5, of the Rules of Court, there were cases removed from the List
because the application was merely an invitation to the respondent.

9. These were actions by the Court in the exercise of its inherent
powers. The precedents on removal from the List cited by the Court
— where from the outset no subsisting title of jurisdiction has been
disclosed, or where the Court manifestly lacked jurisdiction — do not
constitute two exclusive categories within which the Court has to fall if it
wishes to exercise its inherent powers in the absence of discontinuance.
There is nothing in the case law that so suggests. Indeed, it is hard to
know what might be the legal source of a right to remove cases from the
List provided only that this would be limited to these two examples.

10. The Court’s inherent jurisdiction derives from its judicial character
and the need for powers to regulate matters connected with the adminis-

59
485 LEGALITY OF USE OF FORCE (SEP. OP. HIGGINS)

tration of justice, not every aspect of which may have been foreseen in
the Rules. It was on such a basis that the Permanent Court had admitted
the filing of preliminary objections to jurisdiction even before this possi-
bility was regulated by the Rules of Court. The Court stated that it was
“at liberty to adopt the principle which it considers best calculated to
ensure the administration of justice” (Mavrommatis Palestine Conces-
sions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 16). The power
of the Court to identify remedies for any breach of a treaty, in a case
where jurisdiction was based solely upon the treaty concerned, has been
regarded as within the Court’s inherent powers in the Corfu Channel case
(Assessment of Amount of Compensation, Judgment, I. C.J. Reports 1949,
p. 244) and in the LaGrand (Germany v. United States of America) case
(Memorial of the Federal Republic of Germany, Vol. I, 16 Septem-
ber 1999, para. 3.60).

11. The very occasional need to exercise inherent powers may arise as
a matter in limine litis, or as a decision by the Court not to exercise a
jurisdiction it has, or in connection with the conduct or the merits of a
case. The judges who jointly dissented in the Nuclear Tests cases did not
challenge the existence of such inherent powers. They asserted that their
use “must be considered as highly exceptional and a step to be taken only
when the most cogent considerations of judicial propriety so require”
(Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974,
p. 322, para. 22, joint dissenting opinion). Understandably, these judges
were particularly concerned that the exercise of the power to decide pro-
prio motu should not be exercised without affording an applicant the
opportunity to submit counter arguments, as this was not consonant with
the due administration of justice. In the present instance, the issue of
whether the case should be removed from the List was fully canvassed
before the Court.

12. Thus the real question is not whether the Applicant has or has not
“discontinued” the case, nor whether the present circumstances are exactly
identical to the few examples where the Court itself has removed a case
from the List (examples which will, in their turn, have been “new” at the
relevant time and not falling into any previously established category).
The question is whether the circumstances are such that it is reasonable,
necessary and appropriate for the Court to strike the case off the List
as an exercise of inherent power to protect the integrity of the judicial
process.

I believe the answer is in the affirmative.

13. The starting point for discontinuance is Article 38, paragraph 2, of
the Rules of Court, whereby the applicant “shall specify as far as possible
the legal grounds upon which the jurisdiction of the Court is said to be
based”. The Court may, in certain circumstances, allow these grounds of
jurisdiction to be enlarged, and it may also occur that an applicant later
prefers to proceed on the basis of one specified ground rather than
another. Nonetheless, for all the flexibility built in to Article 38, para-

60
486 LEGALITY OF USE OF FORCE (SEP. OP. HIGGINS)

graph 2, of the Rules, the obligation contained in it is a continuing one.
An applicant which on Monday specifies two bases of jurisdiction for the
case it wishes the Court to decide, and on Thursday informs the Court
that these are not, after all, grounds on which it relies, cannot be said on
Saturday to be in conformity with Article 38, paragraph 2. It has put
itself out of conformity with Article 38, paragraph 2, and the fact that it
at the same time declines to “discontinue” the case under Article 88 or 89
of the Rules is irrelevant to that fact.

14. No more is the position of the Applicant who resiled from speci-
fied heads of jurisdiction without proffering others rendered in compli-
ance with the Rules by virtue of asking the Court “to decide on its
jurisdiction” in the light of these changes of position (Judgment, para. 28).
Such a request is totally outside of the contemplation of the Rules. Yet
this is what has occurred in this case. On 24 April 1999 the then Federal
Republic of Yugoslavia filed its Application instituting proceedings
against various States, invoking as the basis of the Court’s jurisdiction
Article 36, paragraph 2, of the Statute of the Court, as well as Article IX
of the Convention on the Prevention and Punishment of the Crime of
Genocide. On 20 December 2002, Serbia and Montenegro formally stipu-
lated that it was not a party to the Statute of the Court before 1 Novem-
ber 2000 — and that at the time of its initial Application, it was not
bound by the Genocide Convention.

15. Having thus put itself in a position incompatible with Article 38,
paragraph 2, of the Rules, Serbia and Montenegro did not inform the
Court it was discontinuing the case under Article 89 of the Rules, but
rather “asked the Court to decide on its jurisdiction”. It was in fact in no
position to make such a request of the Court, and these events alone are
sufficient, in my view, for the Court to have used its inherent powers to
ensure orderly conduct of its judicial function, and to have removed the
cases from the List.

16. In the event, the disorderly nature of the course now being fol-
lowed by Serbia and Montenegro was compounded. In response to its
initial claims on the merits against the various respondent States, in the
eight cases allowed to proceed by the Court beyond the initial hearings
on provisional measures, preliminary objections were lodged. For the
ensuing three years no response was made to these objections — and
indeed, when extremely brief Written Observations were eventually made,
they did not even attempt to counter or otherwise respond to the sub-
stantive arguments contained in the preliminary objections of the Respon-
dents. Instead, the Applicant resiled from its previously stated grounds of
jurisdiction and simply suggested that “the Court decide”. This incoher-
ent manner of proceeding is not, in my view, compatible with sound judi-
cial procedures, which are designed to be fair to all parties concerned,
and it provided further grounds for which the appropriate response of
the Court would have been to remove the cases from the List.

61
487 LEGALITY OF USE OF FORCE (SEP. OP. HIGGINS)

17. The regrettable history of events in this case falls within the
circumstances described by the Court in the Northern Cameroons
(Cameroon v. United Kingdom) case:

“There are inherent limitations on the exercise of the judicial func-
tion which the Court, as a court of justice, can never ignore. There
may thus be an incompatibility between the desires of an applicant,
or, indeed, of both parties to a case, on the one hand, and on the
other hand the duty of the Court to maintain its judicial character.
The Court itself, and not the parties, must be the guardian of the
Court’s judicial integrity.” (Preliminary Objections, Judgment, I. C.J.
Reports 1963, p. 29.)

x * +

18. In paragraph 39 of the Judgment, the Court states that it “cannot
decline to entertain a case simply because of a suggestion as to the
motives of one of the parties or because its judgment may have implica-
tions in another case”. Some observations in response to this statement
have been made in paragraph 12 of the joint declaration of seven judges.
In that context it is also necessary to make some observations on the
remarkable attention given by the Court to Article 35, paragraph 2, of
the Statute. This provision had, of course, never been invoked by the
Applicant during the period when it relied on its original grounds of
jurisdiction. The Applicant’s irregular request of 20 December 2002 to
the Court was “to decide on its jurisdiction considering the pleadings
formulated in these Written Observations”. These Written Observations
contained no invocation of Article 35, paragraph 2, as an alternative
ground of jurisdiction — yet, going beyond what the Applicant requested
in the present case, the Court has devoted some 23 paragraphs to laying
the grounds for a finding that Article 35, paragraph 2, of the Statute
could not have been an alternative basis for allowing access to the Court
in respect of the Genocide Convention so far as Serbia and Montenegro
is concerned. This exercise was clearly unnecessary for the present case.
Its relevance can lie, and only lie, in another pending case. I believe the
Court should not have entered at all upon this ground in the present case.

x * +

19. Because I am of the firm view that grounds ratione personae
should not have been chosen for the disposition of this case (for reasons
elaborated in the joint declaration of seven judges), it is not my intention
here to offer my own views as to the arguments that the Court advances
to support its findings on this ground. It suffices to say that, while
General Assembly resolution 55/12 of 1 November 2000, admitting the

62
488 LEGALITY OF USE OF FORCE (SEP. OP. HIGGINS)

Federal Republic of Yugoslavia as a new State, necessarily clarifies the
legal situation thereafter, it remains debatable whether “from the van-
tage point from which the Court now looks at the legal situation”, the
“new development in 2000 . . . has clarified the thus far amorphous legal
situation concerning the status of the Federal Republic of Yugoslavia
vis-a-vis the United Nations” at the relevant time (Judgment, para. 78).

20. It was said by Judge Lachs in 1992 that, while the various major
organs of the United Nations do each have their various roles to play in
a situation or dispute, they should act

“in harmony — though not, of course, in concert — and that each
should perform its functions with respect to a situation or dispute,
different aspects of which appear on the agenda of each, without
prejudicing the exercise of the other’s powers” (Questions of Inter-
pretation and Application of the 1971 Montreal Convention arising
from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v.
United Kingdom), Provisional Measures, Order of 14 April 1992,
LC.J. Reports 1992, p. 27, separate opinion of Judge Lachs).

The Court, in purporting to find an ex post facto clarification of the
situation as it was in 1992-2000, notwithstanding that the General Assem-
bly and Security Council had in all deliberation felt the objectives of the
United Nations were best met by legal ambiguity, seems to have ignored
that wise dictum.

(Signed) Rosalyn HIGGINS.

63


449

DISSENTING OPINION OF PRESIDENT WINIARSKI
[Translation ]

The subject or the third objection can be analysed in two ways.
It is possible to deny the existence of a dispute as such between the
Applicants and the Respondent and to find that the claim is in-
admissible on the basis of the Statute of the Court. It is also possible,
supposing Article 7 of the Mandate instrument to be still in force as
did the Court’s Opinion of rx July 1950, to show that that Article is
not applicable to the case brought before the Court by the Appli-
cants and that the Court therefore has no jurisdiction to hear the
present case.

It has been observed that the question of admissibility is one
which comes after that of jurisdiction; the consideration of a ques-
tion of admissibility assumes a finding of jurisdiction. Certainly, there
are cases where the observation would be justified; but there are
others in which it is not necessary that there should have been a
finding of competence before an Application can be held to be in-
admissible. The Permanent Court of International Justice adopted
a pragmatic position in this connection. In one case it said that the
distinction between lack of jurisdiction and inadmissibility, while
clear in municipal legal systems, has not the same significance in
international law. In another case it expressed the same opinion:
“Whether this submission should be classified as an ‘objection’ or as
a fin de non-recevoir, it is certain that nothing, either in the Statute or
Rules which govern the Court’s activities, or in the general principles
of law, prevents the Court from dealing with it at once, and before
entering upon the merits of the case; for there can be no proceedings
on the merits unless this submission is overruled.” (Polish Upber
Silesia, P.C.1.J., Series A, No. 6, p. 19.)

The second aspect involves both substantive and procedural law:
it is a question of whether the Court has jurisdiction to hear a case
in which the Applicants have no individual legal interest which is in
issue for them, as appears from the facts placed on record by the
Applicants themselves

For the purpose of the argument it will be assumed that after
examination the meaning of Article 7 remains doubtful; in fact it
is not, as will shortly be shown. The first question that arises in this
hypothetical case is what was the practice of the League of Nations
in this respect and what may be learned from it concerning the
interpretation and application of the provision. In the League of
Nations period fourteen. Mandates were in force over. twenty-five
years. During that whole period only one case concerning Mandates
came before the Permanent Court of International Justice, the

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S. W. AFRICA CASES (DISS. OP. PRESIDENT WINIARSKI) 450

Mavrommatis case, and this fact alone is significant. It was the
subject of three Judgments (Series A, Nos. 2, 5 and 11).

The Court directed its attention, :néer alva, to the following main
point: ‘violation of international obligations accepted by the
Mandatory and damage to M. Mavrommatis’ interests resulting
therefrom’”’ (Series A, No. 5, p. 28, IT). There were several concessions
involved; in one of the cases the Court asked ‘‘whether this fact
alone constituted a violation of the international obligations con-
templated in Article 11 of the Mandate” (zd7d., p. 38). It was able
to find (Series A, No. 11, p. 18), in virtue of the jurisdiction ‘‘which
it derives under Article 26 of the Mandate’ (the corresponding
article to Article 7 in the present case), that there had been a
breach of Article 11 of the Mandate to the detriment of the Greek
national. In another case (Series A, No. 5, p. 51) the Court gave
judgment “that no loss to M. Mavrommatis, resulting from this
circumstance, has been proved”’ and dismissed the Applicant’s claim
on this point. This was a classic case.

The authors of a number of dissenting opinions took the view
that the dispute was not one between States, but was in fact a dis-
pute between Great Britain and M. Mavrommatis.

The Court was at the outset of its activities and thought it
necessary to reply to these arguments by stating, with finality, the
unquestionable principle that (Series A, No. 2, p. 12): “Once a
State has taken up a case on behalf of one of its subjects before an
international tribunal, in the eyes of the latter the State is sole
claimant... By taking up the case of one of its subjects ... a State is,
in reality, asserting its own rights.”

But in addition to this difference of view there was another which
was much more important. In his dissenting opinion Judge Busta-
mante wrote (Series A, No. 2; p. 81): “As the latter [the League of
Nations] could not appear as a party to a dispute concerning the ap-
plication or interpretation of the Mandate, having regard to the re-
strictive terms of Article 34 of the Court’s Statute, it is the Members
of the League who have been authorized, in their capacity as Mem-
bers, to bring before the Court questions regarding the interpretation
or application of the Mandate.” And later (2b7d., pp. 81-82): “When
[the Mandatory] takes action ... in respect of individuals and private
companies ... there is no question of juridical relations between the
Mandatory and the Members of the League from which she holds
the Mandate, but of legal relations between third parties who have
nothing to do with the Mandate itself.”

The opinion of Judge Oda appears to be on similar lines (zbd.,
p. 86): “provision is made for indirect supervision by the Court; but
the latter may only be exercised at the request of a Member of the
League of Nations ... an application by such a Member must be

135
S. W. AFRICA CASES (DISS. OP. PRESIDENT WINIARSKI) 451

made exclusively with a view to the protection of general interests”’.

Neither Lord Finlay nor J. B. Moore, both in the minority for
other reasons, were able to concur in these views. Lord Finlay, on
the contrary, points out (2b:4., p. 42) that in the Palestine Mandate
(which was more detailed than the Mandate for South West Africa),
there were a whole series of provisions which could be violated by the
Mandatory to the prejudice of another Member of the League of
Nations (Articles 5-21): the operation of the judicial system, freedom
of communication and transit, equality of treatment, even questions
of antiquities and excavations, the possibility of discrimination
against a country without reasonable grounds, etc. “Under all these
heads’, he wrote (p. 43), “there are endless possibilities of dispute
between the Mandatory and other Members of the League of Nations,
and it was highly necessary that a Tribunal should be provided for
the settlement of such disputes.” In the same way Judge Moore
wrote (p. 61): “There must be a difference ... in the sense ... that the
government which professes to have been aggrieved should have
stated its claims’’, etc. The view taken by Judges Bustamante and
Oda remained isolated. In 1950 two judges, Judge Sir Arnold
McNair and Judge Read, expressed similar views, but here again
the Court was unable to subscribe to them.

The Council, the League supervisory organ, had constantly to
deal with important legal problems; in no case did it request an
advisory opinion of the Court, in spite of suggestions by the Per-
manent Mandates Commission; never, if I am not mistaken, did it
envisage the possibility of a Member of the League of Nations
bringing before the Court a question relating to the general super-
vision of the administration of the Mandate, which was within the
exclusive competence of the Council and, to a certain extent, of the
Assembly. The two Hymans reports to the Council (of 5 August
and 26 October 1920) and the Council’s report to the Assembly
of the League of Nations of 6 December 1920 on “Responsibilities
of the. League arising out of Article 22 (Mandates)” are unaware
of any such problem.

The Applicants rely on the views of certain jurists in favour of
a general supervision to which any Member of the League could
subject any Mandatory by bringing it before the Permanent Court
of International Justice.

And yet Mr. van Rees, one of the most active members, and Vice-
Chairman of the Permanent Mandates Commission, says nothing in
his book Les Mandats internationaux, Vol. 1, Le contrôle international
de Vadministration mandataire (Paris, 1927) about this judicial
supervision by the Permanent Court of International Justice claimed
to be able to be brought into operation by any Member of the
League. Even more significant, the official publication The Mandates
System—Origin—Principles—A pplication which the League put
out in 1945 with a preface by the Acting Secretary-General, Mr.

136
S. W. AFRICA CASES (DISS, OP. PRESINENT WINIARSKI) 452

Sean Lester, is also silent on the subject of this alleged role of the
Court, although it contains a passing reference to the jurisdictional
clause; yet such a role, if provided for, could not have escaped the
attention of the authors. If in League quarters such as the Council,
Secretariat and Permanent Mandates Commission judicial super-
vision was contemplated even only as a possibility provided for in
extreme cases by the international agreements, the fact that we
find no mention of it in these two books is inexplicable. If in the time
of the League, when the framers of the Covenant and the Mandates,
and their associates, were still alive, judicial supervision such as the
Applicants put forward found no authoritative proponent, it may
be taken as evidence that matters were not seen in this light.

The characteristic feature of this alleged supervision was that it
could be brought into operation by any Member of the League which
considered that there existed between it and the mandatory admin-
istration “a disagreement on a point of law or fact, a conflict of legal
views” on the way in which the Mandatory was exercising its Man-
date. Reference has been made in this connection to an institution
under the old Roman penal law known as “‘actio popularts’’ which,
however, seems alien to the modern legal systems of 1919-1920 and
to international law. Is it possible that such can have been the
common intent of the framers of the Mandate instruments? There
is no evidence for it, it has been asserted without any attempt to
show that it was so; on the contrary, it would seem that the circum-
stances in which the Mandate was established exclude such an
eventuality,

At the end of the First World War two new institutions were
introduced into international law: the minorities treaties and the
Mandates, The former were imposed on the “new States’ and some
other States by the Principal Allied and Associated Powers. These
treaties, as a security for their proper observance, provided for the
jurisdiction of the Court as compulsory for the States subject to
such a régime ; but the Principal Powers desired to share the respon-
sibilities of this innovation and proceedings could be instituted by
any Member represented on the Council of the League, that is to say
in the beginning by the four Principal Powers and the four other
non-permanent Members.

The Mandates were the work of the Principal Allied and Associated
Powers, which shared among themselves (apart from the United
States but with Belgium) the conquered territories, and agreed on
the terms of the Mandates. This is clearly apparent from, inéer alia,
the report of Viscount Ishii to the Council on 26 February 1922
(L. o. N., Official Journal, No. 8, 1922, p. 850), which contains the
following passage: “In general, therefore, the role of the Council
may be limited merely to ratification of the proposals made by the

137
S. W. AFRICA CASES (DISS. OP. PRESIDENT WINIARSKI) 453

mandatory Powers”; which is what was done, with a few changes
of which only one is here relevant.

These Powers were realistic; their resistance to the Mandate idea
is known. It is difficult to believe that they should have, as Manda-
tories, accepted the heavy new burden of judicial accountability,
with all its unforeseeable implications, towards any Member of the
League which might take exception to their administration of the
Mandate. This actto popularis would have been such a novelty in
international relations, going far beyond the novelty of the Mandates
system itself in its implications, that, if the drafters of these in-
struments had all agreed on the self-imposition of such a responsi-
bility, they would not have failed to say so explicitly, as they did in
the case of certain States subjected to the minorities régime.

It is not possible to infer such an obligation as implied, understood
or resulting from tacit agreement, since it would have been an
undertaking in favour of future and unknown third parties. The
need for an explicit and clear provision was more than ever obvious.
It is difficult to see in the second paragraph of Article 7 anything
other than a simple jurisdictional clause of that period, for in order
to form an opinion as to the character and scope of a legal instrument
it is necessary to consider it from the point of view of the period
when it was drawn up.

On 17 December 1920 Lord Balfour had submitted for approval
by the Council, inter alia, the Mandate for South West Africa. The
second paragraph of Article 7 of that text read as follows: “If any
dispute whatever should arise between the Members of the League
of Nations ... this dispute shall be submitted to the Permanent
Court”, etc. The Council modified the paragraph, putting it into its
present form: “The Mandatory agrees that ... any dispute ... shall
be submitted to the Permanent Court”, etc. The explanation is to
be found in the Ishii report referred to above (zbid., p. 854). In pro-
posing a modification of the jurisdictional clause of the Mandate in-
struments to be approved on 20 July 1922, the Rapporteur proposed
a wording identical with that of the second paragraph of Article 7,
which is now in question: ‘A similar alteration has been made by
the Council in the draft C mandates. It was inspired by the con-
sideration that Members of the League other than the Mandatory
could not be forced against their will to submit their differences to
the Permanent Court of International Justice.”

If the Powers represented on the Council were so scrupulous of
the right of Member States not to be bound without their express
consent, it is difficult to believe that they would have introduced
this alleged right of action without saying so expressly.

It is not possible to find any support for the Applicants’ conten-
tion in what has been called the ‘“Tanganyika clause”

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S. W. AFRICA CASES (DISS. OP. PRESIDENT WINIARSKI) 454

Article 13 of the British Mandate for East Africa contains, in
addition to the first paragraph which is identical to the jurisdic-
tional clause in Article 7 of the Mandate for South West Africa, a
further paragraph worded as follows:

“States Members of the League of Nations may likewise bring
any claims on behalf of their nationals for infractions of their rights
under this mandate before the said Court for decision.”

It has been said that since this paragraph specifically empowers
any Member of the League of Nations to submit to the Court
any case of infractions of the rights of its nationals, the first para-
graph, and hence Article 7 of the Mandate we are concerned with,
authorizes proceedings with a view to general judicial supervision.
This conclusion is unfounded: while that instrument, alone among
the fourteen Mandate instruments, devoted a special paragraph to
the case of infractions of the rights of nationals of a State Member,
the first paragraph relates merely to cases of infractions of rights
which are the State’s own rights. What was said by the Court in
1924, which is quoted above, has cleared up these questions.

No one has been able to explain how this paragraph, which seems
completely unnecessary, got into the Mandate for Tanganyika and
that Mandate alone, but this is not of the slightest importance.
The Permanent Mandates Commission turned to that question
in 1925 but quickly decided not to pursue its discussion.

In the practice of the League of Nations there were not two
types of supervisory machinery, one judicial and the other admini-
strative. The supervision of the Council (assisted by the Permanent
Mandates Commission) was not administrative, either by virtue
of the character of the organ which was not an administrative organ,
or by its object. The Council was a political organ; it exercised
supervision from the point of view of the conformity of the admini-
stration by the Mandatory with the terms of the Mandate, thus
from the point of view of legality; it consequently had to decide
questions of law and it did so by making available to itself suitably
qualified assistance; but, the matters with which it was concerned
being eminently of a political character, it acted with all the ne-
cessary flexibility; it never availed itself of its right to refer to
the Permanent Court of International Justice for an opinion. On
the other hand, any Member of the League of Nations which con-
sidered itself to have suffered injury as a result of the way in which
the Mandatory had exercised its functions, had the right to refer
the dispute in the ordinary way to the Court. There was only one
case of this kind, the Mavrommatis case, the classic case.

So far as scholarly authority is concerned it will suffice to cite the
opinion expressed by Professor Feinberg in his course at The
Hague Academy of International Law. He gave a summary of the

139
S. W. AFRICA CASES (DISS. OP. PRESIDENT WINIARSKI) 455

position in this connection in 1937, thus shortly before the Second
World War:

“Like most of the writers who have, in their works, expressed
a view on the question, I consider that the judicial settlement
clause does not confer on Members of the League of Nations the
right unilaterally to bring a Mandatory Power before the Court
except in cases where they can allege the violation of some right
of their own or some injury to the interests of their nationals.
This interpretation would seem to me to be entirely correct and
in conformity with the general scheme of the Mandates System.
It is indeed difficult to imagine that, by the inclusion of the judicial
settlement clause in the text of the Mandates, it was intended
to give each Member of the League of Nations a power so extensive
that it would enable it to set itself up'as a censor of the Mandatory’s
administration. The aim pursued was certainly a more limited
one; it was desired to secure compulsory reference to the Court of
all conflicts which might arise as a result of the non-performance of
obligations assumed by the Mandatory, under the Mandate, in
relation to other Members of the League of Nations.”

Pa
* *%

The Applicants rely upon the jurisdictional clause in Article 7
of the Mandate which, according to the Opinion of 1950, “‘is still in
force’ and according to which the Union of South Africa is under an
obligation to recognize as compulsory the jurisdiction of the Court
for “any dispute whatever” relative to the interpretation or the
application of the provisions of the Mandate.

These words clearly do not mean any dispute whatsoever and
still less any divergence of opinion whatsoever which a State
might see fit to bring before the Court. It is a principle of interna-
tional law that every conventional provision must be interpreted
on the basis of general international law. The relevant words of
Article 7 cannot be interpreted in such a way as to conflict with the
general rule of procedure according to which the Applicant State
must have the capacity to institute the proceedings, that is to
say, a subjective right, a real and existing individual interest
which is legally protected. ‘No interest, no action”: this old tag
expresses in a simplified, but, on the whole, correct form the rule
of all municipal law, but also of international law. We have seen it
in the Mavrommatis case. In the Wimbledon case the Permanent
Court of International Justice met the objection raised by Germany
by saying (Series A, No. 1, p. 20) that “each of the four Applicant
Powers has a clear interest in the execution of the provisions relating
to the Kiel Canal, since they all possess fleets and merchant vessels
flying their respective flags”.

The Statute of the Court is expressly to the same effect, since
Article 62 thereof requires that a request to intervene must be
made by a State which is qualified to do so; such a State must show

140
S. W. AFRICA CASES (DISS. OP. PRESIDENT WINIARSKI) 456

that it has ‘‘an interest of a legal nature which may be affected by
the decision in the case”, and it is for the Court to decide whether
that condition is satisfied. M. O. Hudson in the second edition of
his work on the Court (1943, p. 420) says: “The precise character of
the ‘interest of a legal nature’ to be established for intervention
under Article 62 is uncertain; it would seem to require a special
interest, in addition to a State’s general interest in the development
of international law.” Elsewhere (p. 209) he states: “The 1920
Committee of Jurists ... wished to exclude ‘political intervention’ ”;
the same reasons must be thought to hold good for the exclusion
of a political action.

In the discussion of the Rules of Court in 1922 (Series D, No. 2,
p. 87) Judge Max Huber said that he “did not think that interven-
tion under the terms of Article 62 should be admitted in cases
where no actual concrete right was at stake”. And Judge Anzilotti
(p. 90) did not think that Article 62 referred to cases which were
of interest from the point of view of international law; it was neces-
sary to have “an actual legal interest in the dispute”. A recent
Dutch work has pointed out that public international law also
requires that an applicant should have an interest in the claim
which it advances. “Why, indeed, should the requirement apply
solely to an intervening party and not to the applicant?” It is
a principle of international law which that law shares with municipal
legal systems.

The Applicants recognize this principle, since they have fre-
quently repeated that they have ‘‘a legal interest”; but what
interest ? That of ensuring that the burdens of the Mandate should
be faithfully performed by the Mandatory? Or perhaps that of
defending the fundamental interests of the organized international
community in the realization of international peace and security?
The Applicants contrast those interests which they describe as
“material”, ‘pecuniary’, “narrow’’, with higher legal interests.

It is unnecessary to dwell at length upon the concepts of action
and interest. In the works of writers there is an abundance of
interpretations and formulae. But the classic definition may
be taken to be that of Chiovenda: ‘An interest is a pre-condition
of an action and is to be understood in this way, that without the
intervention of judicial organs, the plaintiff would suffer some
unjust prejudice.’ An interest is therefore personal and direct.

It was not necessary for the Court to examine the question whe-
ther, in the present cases, the Applicants have such an interest since
they themselves say that this is not the way in which they under-
stand it. They assert that they have a sufficient legal interest to in-
stitute the present proceedings (Memorial, pp. 62-63): ‘‘a legal in-
terest in seeing to it through judicial process that the sacred trust of
civilization created by the Mandate is not violated”. But such a
legally protected interest has not been conferred on them by any
international instrument; such an action is not within the contem-

I4I
S. W. AFRICA CASES (DISS. OP, PRESIDENT WINIARSKI) 457

plation of Article 7. They lack the capacity to take legal action.
The decisive element for the interpretation of the second paragraph
of Article 7 is to be found in the very form of words used in that
hotly contested provision.

The second paragraph of Article 7 refers to a dispute which
“cannot be settled by negotiation”. The Applicants assert, and
the General Assembly has decided (resolution 1565 (XV) of 18 De-
cember 1960): ““The dispute which has arisen between Ethiopia,
Liberia and other Member States on the one hand, and the Union
of South Africa on the other ... has not and cannot be settled by
negotiation.” The Respondent denies that the dispute cannot be
settled by negotiation. There is here a misunderstanding. The
issue is not whether there have really been negotiations and whether
they have reached a deadlock.

When Article 7 lays down the condition “‘if it cannot be settled
by negotiation’, it is following the example of the traditional
arbitration clause. It refers to a dispute which by its nature lends
itself to settlement by negotiation but which in a particular case
cannot be so settled for one reason or another, that is, a dispute in
the classic sence, recognized by general international law for more
than forty years. In the case concerning Rights of Nationals of the
United States of America in Morocco (I.C.]. Reports 1952, p. 189)
the Court said: “It is necessary to take into account the meaning
of the word ‘dispute’ at the times when the ... treaties were con-
cluded.” .

By negotiations between States, however, it can only be possible
to settle disputes in which the parties can deal freely with their
rights and their interests. The condition laid down in Article 7
decisively proves that that Article envisages only legal cases in the
true, the only universally accepted sense of the expression, where
States, believing themselves to possess legally protected rights and
interests, and which have been unable to settle their dispute by
negotiation, ask the Court to decide as between them.

In the cases referred to the Court the three States are unable to
settle by negotiation between themselves the questions which are
the subject-matter of the submissions of the Applicants because they
do not involve their rights and interests.

It is sufficient to refer to the nine claims in the Memorials which
constitute the merits of the case to see that questions such as the
qualification of the General Assembly to exercise the supervisory
functions, or the duty to render annual reports, or that of preparing
the inhabitants for self-government, could not be settled by ne-
gotiation between the Mandatory and another Member of the League
of Nations. They do not have control over these problems, over these
duties and these interests. This condition forbids the construction
of Article 7 put forward by the Applicants; consequently it is
unnecessary to examine the impossible situation in which the Coun-
cil would have found itself if these problems had had to be settled by

142
S. W. AFRICA CASES (DISS. OP. PRESIDENT WINIARSK!) 458

negotiations between States Members in their own way and to suit
their own convenience; or if a problem which had been settled by
the Council in agreement with the Mandatory could be brought be-
fore the Court by no matter what Member of the League of Nations.

The Judgment recognizes as an undeniable fact that a general
judicial supervision, available to all the Members of the League of
Nations, was from the beginning regarded as an essential security
in the Mandates System: the Council in the last resort was powerless
in the face of the refusal of a Mandatory to comply with its decisions
and recommendations; the Assembly, which in-any event was nor-
mally called upon to exercise no more than a moral influence in this
domain being likewise impotent; any opinion whicn the Permanent
Court of International Justice might give was not binding; there
remained therefore individual or collective action by Members of the
League of Nations by means of contentious proceedings, since neither
the Council nor the League of Nations was entitled to appear as a
party before the Court.

This hypothesis is quite improbable; it is not and cannot be
supported by any evidence. Article 22, paragraph 1, of the Covenant
provided in fine “that the well-being and development of such peoples
form a sacred trust of civilization and that securities for the per-
formance of this trust should be embodied in this Covenant”. These
securities are set out in the following paragraphs of Article 22,
The Mandates System was perfectly well able to do without that
“security” now recognized by the Court and for which the Council
probably felt no need, just as it felt no need for any enforcement
action, the provisions of the Covenant and of the Mandate Agree-
ment being considered sufficient by the authors of those instruments.

If the General Assembly and the Republic of South Africa en-
counter very serious difficulties in finding a satisfactory solution to
what is unquestionably an abnormal situation, the Court, which is
not called upon to decide ex aequo et bono, notwithstanding its desire
to contribute to a settlement of the conflict, cannot do so without
infringing the legal provisions governing the matter, and the Court’s
jurisdiction must be clearly established in the interest of the
international community.

(Signed) B. WINIARSKI.

143


DISSENTING OPINION OF JUDGE GROS
[Translation]

As the Court’s Order in the case of the Federal Republic of Germany v.
Iceland is virtually a replica of the Order of the same date in United King-
dom v. Iceland, 1 feel it would be gratuitous for me to repeat the reasons.
for my dissent, which are the same.

I would only add that, in the case of the Federal Republic of Germany,
it is even more obvious that the Court should have examined the situation
before proceeding to a decision, for the request addressed to the Court
on 22 June 1973 contained three paragraphs of submissions which went
farther than a mere request that the interim measures indicated by the
Court on 17 August be confirmed. That same letter from the Agent of the
Federal Republic of Germany describes the situation with precision,
particularly in paragraphs 4, 5 and 6 (and Annex A, which gives a list
of incidents), thus providing the necessary bases for the Court to examine
the prevailing circumstances. Paragraph 5 points out how force has been
used against vessels of the Federal Republic of Germany, and at the end
of paragraph 6 the Applicant submits that the acts directed against the
vessels of the Federal Republic of Germany have aggravated the dispute.

These indications are the equivalent of those found in the United
Kingdom White Book (Cmnd. 5341, June 1973) and in the letter addressed
on 29 May 1973 to the Security Council by the Permanent Delegation of
the United Kingdom (S/10936).

The present Order of the Court, in paragraph 3, takes the Icelandic
Government’s telegram of 2 July 1973 as a reply to the Federal Republic’s
request, even though the text only refers to the United Kindom; there is
thus no direct reply, but it would not be straining probability to assume
that Iceland’s protest also applies to the continuance of the interim
measures indicated by the Order of 17 August 1972 in its dispute with the
Federal Republic of Germany.

It appears to me that the situation as described in the letter of 22 June
1973 from the Agent of the Federal Republic would have warranted an
examination by the Court of the prevailing circumstances, with the
assistance of the Applicant, on the basis of Article 41 of the Statute and
Article 61 of the Rules, as well as of the question of the time-limit for the
further procedure, as I argued in my dissenting opinion appended to the
Order made today in the United Kingdom case.

(Signed) André Gros.


                             INTERNATIONAL COURT OF JUSTICE

                              REPORTS OF JUDGMENTS,
                           ADVISORY OPINIONS AND ORDERS

                      APPLICATION OF THE INTERNATIONAL
                       CONVENTION FOR THE SUPPRESSION
                       OF THE FINANCING OF TERRORISM
                    AND OF THE INTERNATIONAL CONVENTION
                      ON THE ELIMINATION OF ALL FORMS
                          OF RACIAL DISCRIMINATION
                           (UKRAINE v. RUSSIAN FEDERATION)

                                ORDER OF 28 JUNE 2021

                                    2021
                             COUR INTERNATIONALE DE JUSTICE

                                RECUEIL DES ARRÊTS,
                         AVIS CONSULTATIFS ET ORDONNANCES

                     APPLICATION DE LA CONVENTION
                  INTERNATIONALE POUR LA RÉPRESSION
                    DU FINANCEMENT DU TERRORISME
                 ET DE LA CONVENTION INTERNATIONALE
                SUR L’ÉLIMINATION DE TOUTES LES FORMES
                       DE DISCRIMINATION RACIALE
                          (UKRAINE c. FÉDÉRATION DE RUSSIE)

                             ORDONNANCE DU 28 JUIN 2021

3 Ord_1224.indb 1                                             2/08/22 13:35

                                                  Official citation:
                          Application of the International Convention for the Suppression
                         of the Financing of Terrorism and of the International Convention
                              on the Elimination of All Forms of Racial Discrimination
                              (Ukraine v. Russian Federation), Order of 28 June 2021,
                                            I.C.J. Reports 2021, p. 196

                                             Mode officiel de citation :
                           Application de la convention internationale pour la répression
                          du financement du terrorisme et de la convention internationale
                           sur l’élimination de toutes les formes de discrimination raciale
                          (Ukraine c. Fédération de Russie), ordonnance du 28 juin 2021,
                                             C.I.J. Recueil 2021, p. 196

                                                                                1224
                                                                     Sales number
                    ISSN 0074-4441                                   No de vente:
                    ISBN 978-92-1-003886-7

                                     © 2022 ICJ/CIJ, United Nations/Nations Unies
                                         All rights reserved/Tous droits réservés

                                          Printed in France/Imprimé en France

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                                                      28 JUNE 2021

                                                           ORDER

                      APPLICATION OF THE INTERNATIONAL
                       CONVENTION FOR THE SUPPRESSION
                       OF THE FINANCING OF TERRORISM
                    AND OF THE INTERNATIONAL CONVENTION
                      ON THE ELIMINATION OF ALL FORMS
                          OF RACIAL DISCRIMINATION
                       (UKRAINE v. RUSSIAN FEDERATION)

                         APPLICATION DE LA CONVENTION
                      INTERNATIONALE POUR LA RÉPRESSION
                        DU FINANCEMENT DU TERRORISME
                     ET DE LA CONVENTION INTERNATIONALE
                    SUR L’ÉLIMINATION DE TOUTES LES FORMES
                           DE DISCRIMINATION RACIALE
                       (UKRAINE c. FÉDÉRATION DE RUSSIE)

                                                     28 JUIN 2021

                                                    ORDONNANCE

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                                                                                196

                               COUR INTERNATIONALE DE JUSTICE

                                               ANNÉE 2021                                        2021
                                                                                28 juin
                                                28 juin 2021                                  Rôle général
                                                                                no 166

                    APPLICATION DE LA CONVENTION
                 INTERNATIONALE POUR LA RÉPRESSION
                   DU FINANCEMENT DU TERRORISME
                ET DE LA CONVENTION INTERNATIONALE
               SUR L’ÉLIMINATION DE TOUTES LES FORMES
                      DE DISCRIMINATION RACIALE
                               (UKRAINE c. FÉDÉRATION DE RUSSIE)

                                             ORDONNANCE

                    La présidente de la Cour internationale de Justice,
                   Vu l’article 48 du Statut de la Cour et les paragraphes 3 et 4 de l’ar-
                ticle 44 de son Règlement,
                   Vu l’ordonnance du 8 novembre 2019, par laquelle la Cour a fixé au
                8 décembre 2020 la date d’expiration du délai pour le dépôt du contre‑
                mémoire de la Fédération de Russie, ainsi que les ordonnances des 13 juillet
                2020 et 20 janvier 2021, par lesquelles elle a, à la demande du défendeur,
                reporté cette date d’abord au 8 avril 2021 puis au 8 juillet 2021 ;

                  Considérant que, par lettre du 17 juin 2021, M. Grigory Lukiyantsev,
                agent de la Fédération de Russie, a demandé que le délai fixé pour le
                dépôt du contre‑mémoire soit à nouveau prorogé d’un mois, en expli-
                quant que deux collaborateurs essentiels à la préparation de cette pièce
                avaient été diagnostiqués positifs à la COVID‑19 et étaient temporaire-
                ment empêchés de travailler en raison des effets sévères du virus ; et que,

                                                                                4

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                        application de la cirft et de la ciedr (ord. 28 VI 21)             197

                dès réception de ladite lettre, le greffier en a transmis copie à l’agent de
                l’Ukraine, conformément au paragraphe 3 de l’article 44 du Règlement ;

                   Considérant que, par lettre du 23 juin 2021, M. Yevhenii Yenin, agent
                de l’Ukraine, a indiqué que, au vu des circonstances mentionnées dans la
                lettre de l’agent de la Fédération de Russie, son gouvernement ne s’oppo-
                sait pas à une nouvelle prorogation d’un mois pour le dépôt du
                contre‑mémoire ;
                  Compte tenu des vues des Parties,
                  Reporte au 9 août 2021 la date d’expiration du délai pour le dépôt du
                contre‑mémoire de la Fédération de Russie ;
                  Réserve la suite de la procédure.

                  Fait en anglais et en français, le texte anglais faisant foi, au Palais de la
                Paix, à La Haye, le vingt‑huit juin deux mille vingt et un, en trois exem-
                plaires, dont l’un restera déposé aux archives de la Cour et les autres
                seront transmis respectivement au Gouvernement de l’Ukraine et au
                Gouvernement de la Fédération de Russie.

                                                                         La présidente,
                                                              (Signé) Joan E. Donoghue.
                                                                           Le greffier,
                                                               (Signé) Philippe Gautier.

                                                                                5

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                    ISBN 978-92-1-003886-7

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