622

SEPARATE OPINION OF JUDGE KOROMA

Doubt about Court’s interpretation of “decision” in Article 62 to include
“reasoning”. Such broader interpretation may prevent Court from performing
judicial function with respect to particular case before it — No compelling
reason to adopt wider interpretation of Article 62.

1. Although I have voted in favour of the Judgment, I cannot, how-
ever, express unqualified adherence to some of the positions taken in the
Judgment.

2. Article 59 of the Statute of the Court notwithstanding, under
Article 62 of the Statute a State may seek to intervene in a matter
before the Court if it considers that it has a legal interest which may be
affected by the decision of the Court in a case before it. The raison d’étre
for a State so seeking to intervene under Article 62 is to ensure that its
interest will not be affected or jeopardized by the decision of the Court
in the dispute before it.

3. However, in construing “decision” in relation to “interest of a legal
nature” in Article 62 of the Statute, the Court stated in paragraph 47 of
the Judgment that “[t]he word ‘decision’ in the English version of this
provision could be read in a narrower or a broader sense”. The Court
adopted the broader reading stating that:

“the French version clearly has a broader meaning. Given that a
broader reading is the one which would be consistent with both lan-
guage versions and bearing in mind that this Article of the Statute of
the Court was originally drafted in French, the Court concludes that
this is the interpretation to be given to this provision. Accordingly,
the interest of a legal nature to be shown by a State seeking to inter-
vene under Article 62 is not limited to the dispositif alone of a judg-
ment.”

Also in paragraph 60 of the Judgment, the Court stated that: “In order
to make concrete its submission that it has an interest of a legal nature
which might be harmed by the reasoning of the Court in the forthcoming
Judgment as to sovereignty . . .” (emphasis added).

4. With respect, I am afraid that what is at stake is more than just the
rendition of the provision in one language or another; the matter is more
one of substance, or at least more complex. From my perspective, even if
the Court’s reading is not wrong, it is however not free from doubts or

SI
623 PULAU LIGITAN AND PULAU SIPADAN (SEP. OP. KOROMA)

difficulties, which may prevent the Court from carrying out its function
of declaring the law in adjudicating a concrete dispute by giving due con-
sideration to the issues before it, or may constrain it from giving inter-
pretation to a legal instrument related to a concrete dispute before it for
fear that such determination will come to haunt it in a prospective or
future dispute yet to be submitted to it. I do not think the Court should
impose such burdens or constraints on itself as to prevent it from making
a proper determination or judgment of the issues involved in a case
before it. As it is the function of the Court to declare the law in a specific
dispute before it, it should not be deterred from so doing for fear that it
might be asked to interpret the same instrument in another dispute that
might be brought before it, when the facts and circumstances of that
other dispute might be different. In the Continental Shelf (Libyan Arab
Jamahiriyal Malta) case, where Italy had sought to intervene, the Court
stated as follows in rejecting the Italian Application:

“the rights claimed by Italy would be safeguarded by Article 59 of
the Statute... the principles and rules of international law found by
the Court to be applicable, .. . and the indications given by the Court
as to their application in practice, cannot be relied on by the Parties
against any other State.

there can be no doubt that the Court will, in its future judgment in
the case, take account, as a fact, of the existence of other States
having claims in the region... The future judgment will not merely
be limited in its effects by Article 59 of the Statute: it will be
expressed, upon its face, to be without prejudice to the rights and
titles of third States.” (Application for Permission to Intervene, Judg-
ment, LC.J. Reports 1984, pp. 26-27, paras. 42-43; emphasis added.)

Accordingly, every case should be judged on its merits, in the light of the
facts and the applicable law. If the judgment (operative clauses) and the
applicable principles and rules relied on in a case are limited by Article 59
to the parties to the dispute and will not affect third States, neither
should the reasoning supportive of that judgment affect them. The justi-
fication (reasoning) of the Court’s decision, which may be considered
obiter dicta, should not be put on the same level as the Court’s finding or
directive (operative clauses).

5. Furthermore, it should be observed that the scope of the Court’s
decision is defined by the claims or submissions of the parties before it,
and the decision of the Court constitutes an embodiment of its findings in
response to the submissions made by parties in a particular case. In the
case of an intervention, the would-be intervening State has to define its
“interests of a legal nature” and the “object” of that legal nature has to
be indicated in order for the Court to be in a position to judge whether
the intervention is admissible. It is then for the Court to decide whether
or not an application for permission to intervene discloses an interest of

52
624 PULAU LIGITAN AND PULAU SIPADAN (SEP. OP. KOROMA)

a legal nature which might be affected by a decision in the case. It there-
fore stands to reason that the procedure envisaged under Article 62 is
intended to enable a State with a legal interest that may be affected by a
decision of the Court to be allowed to intervene in a dispute before the
Court, in order to preserve its interest. Here too, whether an application
to intervene succeeds or not, the decision in that particular case cannot
be considered res judicata for a State which was not a party to the dis-
pute before the Court, and nor should the reasoning underlying the deci-
sion.

6. It is equally important that the fact of permission to intervene being
granted or not should not prevent the Court from making a proper deter-
mination of the submissions in a specific case before it. The Court’s full
interpretation or appreciation of the legal issues or instruments involved
in a matter before it should not be constrained by virtue of the fact that
it will be called upon to decide a similar case in the future involving dif-
ferent parties. While it is a postulate that the decision of the Court must
be supported by its reasoning, of more immediate and major concern to
a third State is how the Court’s “operative decision” in a case before it
may impact on its interests. This is not to say that the Court’s reasoning
should be of no interest or relevance to that State, but to interpret a
“decision” as including “reasoning” might somehow stymie the Court in
the performance of its judicial function in a particular case and place too
onerous a burden on States by requiring them to be extra vigilant for fear
of what the Court’s reasoning might be in a particular case. As noted
earlier, the Court has stated that where a third State has an interest, not
even its judgment has an erga omnes effect (Continental Shelf (Libyan
Arab Jamahiriyal Malta), Application for Permission to Intervene, Judg-
ment, LCJ. Reports 1984, pp. 26-27, paras. 42-43). It should also
be noted that additional protection for third parties is provided by
Article 59 of the Statute of the Court, under which a decision of the
Court “has no binding force except between the parties and in respect
of that particular case”. Article 62, in my considered opinion, should
therefore not be interpreted in such a way that it could lead to con-
ceptual confusion or prevent the Court from properly discharging its
judicial function in a case before it.

(Signed) Abdul G. Koroma.

53


459

DECLARATION OF JUDGE ODA

Bakassi Peninsula — Lake Chad — Unnecessary precision of Court’s bound-
ary delimitation — Land boundary from Lake Chad to the Bakassi Penin-
sula — Withdrawal of armed forces, police and administration from “occupied”
territory — State responsibility — Counter-claims — Future treatment of
Nigerian nationals — Maritime boundary — Procedural error by Applicant —
Definition of “legal dispute” under Article 36, paragraph 2, of the Statute
Boundary of territorial sea — Preliminary objections — Alteration of Party’s
position in the course of proceedings — No legal dispute concerning the terri-
torial sea — Substantive error — Law governing the boundary of the conti-
nental shelf — Jurisdiction of the Court in boundary delimitation of the conti-
nental shelf — Boundary of the continental shelf is an equity issue, it cannot be
subject of legal dispute — Negotiation as guiding principle for boundary of

the continental shelf -— Third-party authority — “Equidistance and special
circumstances” Rule — Continental Shelf in the United Nations Convention
on the Law of the Sea, Article 83 — Failure of agreement does not mean

that a “dispute” exists — No compulsory procedures entailing binding deci-
sions for the continental shelf boundary.

I. THE BAKASSI PENINSULA AND LAND BOUNDARIES — MAIN ISSUES OF
THE PRESENT CASE

1. The present case, as unilaterally presented to the Court in March
and June 1994 by Cameroon, is one in which “[t]he dispute relates essen-
tially to the question of sovereignty over the Bakassi Peninsula”
(Cameroon’s Application instituting proceedings, p. 5, para. 1, emphasis
added) and

“[the] aspect of the dispute relates essentially to the question of
sovereignty over a part of the territory of Cameroon in the area
of Lake Chad .. . and to the course of the boundary between the
Republic of Cameroon and the Federal Republic of Nigeria,
from Lake Chad to the sea.” (Additional Application, p. 77, para. 1,
emphasis added.)

While the present Judgment has my full support in respect of these three
questions, which alone constitute the essence of the present case, I wish
to express the several reservations set out below.

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A. The Bakassi Peninsula (Subparagraph III of the Operative Part of
the Judgment)

2. With regard to the status of the Bakassi Peninsula, which is the
main issue in the present case, I fully agree with the Court’s decision in
point II (B) of the operative part of the Judgment that “sovereignty over
the Bakassi Peninsula lies with the Republic of Cameroon” (Judgment,
para. 325 III (B)).

B. Land Boundaries (Subparagraphs I and I of the Operative Part of
the Judgment)

3. With regard to the land boundary between Cameroon and Nigeria
in Lake Chad and in the area from Lake Chad to the sea, I support the
Court’s decisions in subparagraphs I and II in the operative part of the
Judgment. Yet I have some reservations concerning the Court’s determi-
nation of the boundary as the straight line “[f]rom a tripoint in Lake Chad
lying at 14°04’ 59” 9999 longitude east and 13°05’ latitude north . . . to
the mouth of the River Ebeji” (Judgment, para. 325 I (B)). The Court
states in paragraph 57 of the Judgment that,

“[flollowing that examination [the examination of the Moisel map
annexed to the Milner-Simon Declaration of 1919 and the map
attached to the Henderson-Fleuriau Exchange of Notes of 1931], it
... considers that the longitudinal co-ordinate of the tripoint is situ-
ated at 14°04’ 59”9999 longitude east, rather than at ‘approximately’
14°05’ east [thus reaching the same conclusions as the LCBC (Lake
Chad Basin Commission)]”.

It is difficult to understand why the Court has seen fit to speak of such a
precise point. In fact, a measurement of 1/10,000 of a second (in other
words, the difference between 14°05’ and 14°04’ 59”9999) in respect of
the longitude in this region of low latitude represents less than 3 mm and
has no significant effect on any map. It is not meaningful for the Court to
specify any spot to 1/10,000 of a second. It would be sufficient for the
Court in this respect to refer simply to the “tripoint” as indicated in the
report of the Lake Chad Basin Commission.

C. Difference of Positions Taken by the Parties towards Sovereignty
over the Bakassi Peninsula and towards the Land Boundaries (Subpara-
graph V of the Operative Part of the Judgment)

4. I note that the decisions in points V (A), (B), (C) and (D) of the
operative part of the Judgment all relate to the issues dealt with in sub-
paragraphs I, II and III of the operative part. These decisions mainly
concern the status of the Bakassi Peninsula and the boundaries in
Lake Chad and in the area from Lake Chad to the sea, but nor the mari-

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time boundaries dealt with in the immediately preceding subparagraph,
subparagraph IV. The placement of this subparagraph V not before but
after subparagraph IV gives the impression, however, that the Court
takes a very different view of the relationship between these paragraphs.
5. It is a matter of course that Nigeria must withdraw its “administra-
tion and its military and police forces” (Judgment, para. 325 V (A)) from
the area concerned, which the Court now decides is Cameroonian terri-
tory, without the need for any further decision by the Court. Yet, the
withdrawal should be conducted in accordance with arrangements to be
agreed upon by the Parties, due consideration also being given to the
orderly repatriation of those Nigerian nationals wishing to leave the area.
6. I assume that the Court’s position (implicit in point V (C) of the
operative part) that no State responsibility was engaged in connection
with any incidents having occurred in the area which Nigeria previously
claimed to be under its sovereignty is based on the reasons stated in para-
graphs 323 and 324 of the Judgment. This point should be more clearly
expressed in subparagraphs I, II and III of the operative part rather than
being dealt with as a separate and independent holding after subpara-
graph IV of the operative part, dealing with the maritime boundary.

7. The question of Nigeria’s counter-claims, rejected in point V (D) of
the operative part, was already decided in the process of the Court’s deci-
sions on territorial sovereignty over the Bakassi Peninsula and on the
land boundaries in Lake Chad and in the area from Lake Chad to the
sea, as the Court states in the two paragraphs of the Judgment referred to
above (paras. 323 and 324).

8. Point V (B) refers to Cameroon’s commitment as to the future treat-
ment of Nigerian nationals on its territory. The Court clearly noted that
commitment in paragraph 317 in the reasoning of the Judgment and this
matter requires no further decision in the operative part.

II]. THE MARITIME BOUNDARIES (SUBPARAGRAPH IV OF THE OPERATIVE
PART OF THE JUDGMENT)

9. I have stronger reservations concerning the Court’s decision in sub-
paragraph IV of the operative part on the “maritime boundary” issues.
Rather, I share very few of the Court’s views in respect of the “maritime
boundary”. I did however vote in favour of points IV (B) and (C), but
only because the boundary lines drawn therein, whether concrete or not,
are not wholly inappropriate and do not in fact cause any harm.

10. The mishandling of the “maritime boundary” issues by the Court
has resulted, I believe, from, first, Cameroon’s misguided presentation of

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the case to the Court and, second, the Court’s confusion and misunder-
standing with regard to the fundamental nature of the law relating to
“maritime delimitation”. I will point out the procedural errors involving
the maritime boundary issues in Cameroon’s presentation and in the
Court’s response, before also drawing attention to substantive errors in
Cameroon’s Application and the Court’s Judgment, resulting notably
from the failure to recognize the difference between areas close to shore
and those further out to sea. These procedural and substantive errors
have significantly clouded the issues in this case.

A. Procedural Errors

11. First, I must point out that the present case, as referred to the
Court on 29 March and 6 June 1994, did not involve any “legal dispute”,
within the meaning of Article 36, paragraph 2, of the Court’s Statute,
concerning the “maritime boundary”. In its Application of March 1994,
Cameroon states (as already noted above) that “[t]he dispute relates
essentially to the question of sovereignty over the Bakassi Peninsula”
(emphasis added) and asks the Court to adjudge and declare on various
points relating to the status of the Bakassi Peninsula. Indeed, the Court
properly ruled on these points in subparagraphs I, II and III of the
operative part of the Judgment. However, the “maritime boundary” issue
was not regarded by Cameroon in the March 1994 Application as a ques-
tion having given rise to a “dispute”. The “maritime boundary” is not
mentioned in the Application as an object of a “dispute” but is referred
to in unique terms. The June 1994 (additional) Application says nothing
whatsoever about the “maritime boundary”.

12. Cameroon, in the section of its March 1994 Application entitled
“subject of the dispute”, refers as follows to the maritime boundary,
without mentioning this as being the subject of a “dispute”:

“{T]he maritime boundary between the two States has been the
subject of several delimitation agreements, from the Agreement of
11 March 1913 to the Maroua Declaration of 1 June 1975. However,
this delimitation has remained a partial one and, despite many
attempts to complete it, the two parties have been unable to do so.
In order to avoid further incidents between the two countries, the
Republic of Cameroon requests the Court to determine the course of
the maritime boundary between the two States beyond the line fixed
in 1975.” (Application of 29 March 1994, p. 5, para. 3.)

As I see it, the words “maritime boundary” in the first line of the quota-
tion above refer to a boundary in the immediate offshore areas. In the
latter part of the same quotation, Cameroon refers to the boundary in the
vast ocean, the boundary “beyond the line fixed in 1975 [point G]”. In

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463 LAND AND MARITIME BOUNDARY (DECL. ODA)

its March 1994 Application, Cameroon does not identify either the
“many attempts to complete [the delimitation]” “beyond the line fixed in
1975 [point G]” or the previous “incidents between the two countries”
which occurred in that area if indeed “further” incidents are to be pre-
vented. Contrary to the Court’s assertion (paragraph 239 of the present
Judgment and paragraph 110 of the 1998 Judgment), no evidence of any
incident in the areas beyond point G or of any negotiation to draw the
boundary beyond point G was presented to the Court, either in
the March 1994 Application itself or during the written and oral
proceedings.

13. In connection with the “decision requested” in that Application,
Cameroon states under item (f) (in wording quite different from that in
requests {a} to (e”), in which Cameroon asks the Court to “adjudge and
declare”), as follows:

“(f) In order to prevent any dispute arising between the two States
concerning their maritime boundary, the Republic of Cam-
eroon requests the Court to proceed to prolong the course of
its maritime boundary with the Federal Republic of Nigeria up
to the limit of the maritime zones which international law
places under their respective jurisdictions.” (Application of
29 March 1994, p. 15, para. 20.)

Item (f) contains nothing to indicate that there is a “decision requested”
of the Court; rather Cameroon here requests the drawing of a boundary
course. In my view, in regard to the “maritime boundary” Cameroon
cannot be seen to be asking the Court to adjudge and declare on any
“legal dispute” within the meaning of Article 36, paragraph 2, of the
Court’s Statute.

14. It was natural for Nigeria to raise objections concerning the Court’s
jurisdiction in this respect in December 1995. In its 1998 Judgment
regarding preliminary objections raised in the present case, the Court
however rejected Nigeria’s objections with regard to the delimitation of
the maritime boundary (1 C.J. Reports 1998, p. 275). With all due respect
for the Court’s authority, I still consider that, as stated in my separate
opinion appended to that Judgment (C.J. Reports 1998, p. 328), the
Court erred in so deciding. Notwithstanding the Court’s 1998 Judgment,
the fact remains that there was in 1994 no “legal dispute” concerning the
“maritime boundary” which Cameroon could unilaterally bring to the
Court for adjudication under Article 36, paragraph 2, of the Court’s
Statute and Article 38 of the Rules of Court.

15. Secondly, it must be noted that Cameroon changed the gravamen
of the present case (which it brought in March and June 1994) in the sub-
missions subsequently presented in its 1995 Memorial. Cameroon first
presented its own maritime boundary claim, identified by map co-ordi-

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464 LAND AND MARITIME BOUNDARY (DECL. ODA)

nates, in its Memorial (Livre I, p. 669). These submissions are far differ-
ent in nature from the “decision requested” in connection with the “mari-
time boundary” in the March 1994 Application. I believe that the
1995 submissions did not fall within the purview of the original
March 1994 Application. The Court should have taken cognizance of this
fundamental and essential alteration of Cameroon’s position in the case
during the jurisdictional phase. The Court however failed in 1998 to do
so and, a fortiori, failed to realize that the 1995 submissions regarding the
“maritime boundary” issue had effected an essential change in the com-
plexion of the entire case.

16. As already noted, Cameroon did not describe in the March 1994
Application or even in the 1995 submissions any “legal dispute” between
Nigeria and it concerning the “maritime boundary”. Cameroon pre-
sented its “maritime boundary” claim in the 1995 submissions. While
Nigeria contended in the submissions in its 1999 Counter-Memorial that
Cameroon’s “maritime claim” was “inadmissible” for various reasons
(Counter-Memorial of Nigeria, Vol. II, p. 834), it was only in 2001, in its
Rejoinder, that Nigeria first asserted certain maritime boundary claims in
opposition to Cameroon’s claims (Rejoinder of Nigeria, Vol. II], p. 765).

17. In the light of the procedural error on the part of the Applicant,
Cameroon, I voted against point IV (A) of the operative part of the
present Judgment.

B. Substantive Error

18. After having explained that Cameroon’s referral to the Court of
the “maritime boundary” aspects of the present case was highly irregular,
I shall now turn to the merits of the case in respect of the “maritime
boundary”. Underlying both Cameroon’s mishandling of the case and
the Court’s confusion and misunderstanding is, I believe, the failure to
recognize the essential difference between the narrow sea-belt around the
land, i.e., the expanse of water within the 12-mile territorial sea (which,
for the sake of convenience, I shall call the “inner sea”) and the wider
offshore area of the continental shelf (which, again for convenience, I
shall call the “outer sea”). This difference is reflected in the difference
between the two régimes, that of the territorial sea on the one hand and
the continental shelf on the other’. The delimitation of the territorial sea
and the delimitation of the continental shelf are radically different in
nature and | submit that this difference is completely overlooked in the
present Judgment. I shall return to this issue towards the end of this
declaration.

' The comments below concerning the continental shelf apply in general to the exclusive
economic zone as well.

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465 LAND AND MARITIME BOUNDARY (DECL. ODA)

(1) Boundary in the “inner sea” (up to point G)

19. I must point out first of all that the Court does not grasp the true
meaning of the “maritime boundary” in the “inner sea” in this case. I
would suggest that the disagreement between Cameroon and Nigeria in
respect of the “inner sea” is not, in fact, an issue concerning the “mari-
time boundary” but is an issue relating so/e/y to the status of the Bakassi
Peninsula (that is to say, whether the boundary between the two States
should lie to the west or to the east of the Bakassi Peninsula). The issue
of the “maritime boundary” in the “inner sea”, i.e., up to point G, is for
all practical purposes resolved in subparagraph III of the operative part,
when the Court, by reference to the 1913 Anglo-German Agreement,
adjudges that the Bakassi Peninsula is part of Cameroon’s territory,
thereby determining that the boundary between the two States lies to the
west of the Bakassi Peninsula, and once the Court takes note of the
1971 Second Yaoundé Declaration, setting out the compromise reached
by the Heads of State of the two countries, and of the 1975 Maroua Dec-
laration signed by the two Heads of State.

20. The Court should have had nothing more to say with regard to the
maritime boundary in the “inner sea” (up to point G). Accordingly, I find
it senseless for the Court to present the two tables of co-ordinates refer-
ring to the “inner sea” as a Court decision in the operative part of the
Judgment (Judgment, para. 325 IV (B)). There was no “maritime bound-
ary” issue as such in respect of the “inner sea”. Cameroon itself did not
put forward any such co-ordinates in its claim or submission; nor did
Nigeria raise any such issue.

(2) Boundary of the continental shelf in the “outer sea” (beyond
point G)

21. With regard to the “maritime boundary” in the “outer sea”,
reference must be made again to the March 1994 Application and it is
worth quoting Cameroon once more:

“[Tlhe maritime boundary between the two States has been the
subject of several delimitation agreements, from the Agreement of
11 March 1913 to the Maroua Declaration of 1 June 1975. However,
this delimitation has remained a partial one and, despite many
attempts to complete it, the two parties have been unable to do so.
In order to avoid further incidents between the two countries, the
Republic of Cameroon requests the Court to determine the course of
the maritime boundary between the two States beyond [point G].”
(Application of 29 March 1994, p. 5, para. 3.)

As I stated above, notwithstanding this assertion, there has been no inci-
dent in the “outer sea” between the two States and no negotiations have

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466 LAND AND MARITIME BOUNDARY (DECL. ODA)

been held to determine the boundary of the continental shelf beyond
point G.

22. In point IV (D) of the operative part, the Court in fact does not
respond at all to Cameroon’s and Nigeria’s respective submissions concern-
ing the maritime boundary in the “outer sea” and renders a decision estab-
lishing a line different from the Parties’ respective claim lines. If the Court
now has no more to say on this point than that the boundary “follows a
loxodrome having an azimuth of 187° 52’27””, as set out in point IV (D) of
the operative part, which in no way responds to Cameroon’s submissions,
then the implication could be that the Court admits that Cameroon’s
framing of the question of the boundary in the “outer sea” as a legal issue
is clearly unjustified in this case of unilateral application. Yet the Court
“{djecides that ... the boundary . . . follows a loxodrome having an azi-
muth of 187° 52’27”” (Judgment, para. 325 IV (D)).

23. I would question whether the Court gave any thought to the fact
that specifying a line with the precision of one second results in a differ-
ence of only a few metres, even at the point lying at the 200-mile limit
from the coast. The Court does not specify how far the line should
extend, whether just several miles from the coast or even 200 miles out to
sea. Rather than deciding upon the line itself, the Court would appear to
suggest that the boundary line should be drawn, as agreed by the Parties,
along the equidistance line. It appears to me that the Court’s mistaken
treatment of the maritime boundary in the “outer sea” may derive from
its failure to understand the law governing the determination of the con-
tinental shelf boundary.

(3) Rule governing the boundary of the continental shelf

24. Cameroon’s obvious error in unilaterally submitting to the Court
the issue of the maritime boundary in the “outer sea” as the object of a
“legal dispute” merits further examination. Unlike land boundaries
(including that of the territorial sea), which relate essentially to the ques-
tion of territorial sovereignty, the boundary of the continental shelf in the
“outer sea”, not being the subject of a legal dispute, cannot, in principle,
be determined simply by applying a legal rule or principle. No legal rule
or principle mandates recognition of a given line as the only one accept-
able under international law. The concrete boundary line may be chosen
by negotiation from among the infinite number of possibilities falling
within the bounds of equity. This is the view I propounded, after an
extensive analysis of the issues and the travaux préparatoires, in my sepa-
rate opinion appended to the Court’s Judgment in the case concerning
Maritime Delimitation in the Area between Greenland and Jan Mayen
(LC.J. Reports 1993, p. 109).

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467 LAND AND MARITIME BOUNDARY (DECL. ODA)

25. Article 6 of the 1958 Geneva Convention on the Continental Shelf
provides “the boundary of the continental shelf . . . shall be determined
by agreement between [the parties]”. It is important to note that even at
the time of its adoption, this rule was fundamentally different from that
applicable to the territorial sea, where recourse to the median line is the
governing principle (1958 Geneva Convention on the Territorial Sea,
Art. 12). The basic principle that the continental shelf boundary should
be agreed upon by negotiation was carried over into the 1982 United
Nations Convention on the Law of the Sea (Art. 83).

26. It is certainly true that a provision simply stating that the boundary
should be agreed upon by negotiation does not identify any precise
boundary line and, in fact, the outcome of negotiations concerning the
continental shelf boundary is dictated by the relative bargaining power of
the parties. But the 1958 Convention did offer a guiding principle where
negotiations fail: “[iJn the absence of agreement, and unless another
boundary line is justified by special circumstances, the boundary is the
median line [in the case of opposite coasts]” and “the boundary shall be
determined by application of the principle of equidistance [in the case of
adjacent coasts]” (Art. 6, paras. | and 2). This so-called “equidistance
(median) line + special circumstances” rule could have been applied in
various ways aiming at an “equitable solution”.

27. Having realized that this provision did not lay down any objective
criteria for drawing the boundary, the drafters of the 1982 United Nations
Convention on the Law of the Sea attempted to formulate such criteria
but, after much effort over several years, could do no better than come to
the compromise solution now found in the 1982 Convention:

“1. The delimitation of the continental shelf . . . shall be effected
by agreement on the basis of international law . . . in order to
achieve an equitable solution.

2. If no agreement can be reached within a reasonable period of
time, the States concerned shall resort to the procedures provided
for in Part XV [settlement of disputes].” (Art. 83.)

28. I am afraid that great misunderstanding prevails in academic
circles regarding interpretation of these provisions. I must state, first, that
the provisions of Article 83, paragraph 2, do not constitute a compro-
missory clause such as is referred to in Article 36, paragraph 1, of the
Court’s Statute; secondly, the fact that boundary negotiations have failed
does not in itself mean that a “(legal) dispute” has arisen; and, thirdly,
the provisions of Article 83, paragraph 2, should not be interpreted
as conferring compulsory jurisdiction on those institutions listed in
Article 287 of Part XV. Notwithstanding the title of Section 2 (“Com-
pulsory Procedures entailing Binding Decisions”) of Part XV of the
1982 Convention, it is clear that Section 2, when read in conjunction with
Section 3 (“Limitations and Exceptions to Applicability of Section 2”),

168
468 LAND AND MARITIME BOUNDARY (DECL. ODA)

does not provide for such procedures in a boundary delimitation case
referred to any of those institutions, including this Court.

29. It is submitted that the Court could well act as a third-party
authority if it were asked jointly by the parties to draw such a line. The
present case was, however, brought before the Court unilaterally by
Cameroon. At the time Cameroon initiated the case, Nigeria expressed
no desire to entrust to the Court the determination of this segment of the
boundary between the two States; in fact, Nigeria expressed its opposi-
tion to Cameroon’s approach, as manifested by its objection to the
Court’s jurisdiction in this respect in December 1995.

30. I would like to point out that Cameroon and Nigeria had not even
started negotiations to agree upon the delimitation of the continental
shelf and understandably so, since the status of the Bakassi Peninsula,
from which the continental shelf extends, was not certain. In that context
the Court could not initiate compulsory procedures entailing a binding
decision. The Court could not “decide” any specific line. The Court could
only have determined the line if it had been requested jointly by the
Parties to decide upon one specific line; however, this is not such a case.
I voted in favour of point IV (D) of the operative part for the reason that
the general orientation described by the Court in that paragraph, though
misguided in itself as I suggested above in paragraph 22, is not likely to
cause any harm.

(Signed) Shigeru Opa.

169


117

SEPARATE OPINION OF Mr. HUDSON.

I.

The special agreement of August 28th, 1936 formulates the
question before the Court in this case in the following terms :

Whether the contract concluded on April 1st/r4th, 1913, between
the French firm Collas & Michel, known as the ‘Administration
générale des Phares de l'Empire ottoman’, and the Ottoman
Government, extending from September 4th, 1924, to Septem-
ber 4th, 1949, concession contracts granted to the said firm,
was duly entered into and is accordingly operative as regards
the Greek Government in so far as concerns lighthouses situated
in the territories of Crete, including the adjacent islets, and
of Samos, which were assigned to that Government after the
Balkan wars.

In a case between the same parties decided by the Court on
March 17th, 1934 (Series A/B, No. 62), the question had been
formulated in the special agreement of July 15th, 1931 (Series C,
No. 74, p. 11), as follows:

Whether the contract concluded on April 1st/14th, 1913, between
the French firm Collas & Michel, known as the “Administration
générale des Phares de l'Empire ottoman”, and the Ottoman
Government, extending from September 4th, 1924, to Septem-
ber 4th, 1949, concession contracts granted to the said firm,
was duly entered into and is accordingly operative as regards
the Greek Government in so far as concerns lighthouses situated
in the territories assigned to it after the Balkan wars or sub-
sequently.

The striking similarity of these two questions makes it neces-
sary to begin a consideration of this case with an analysis of
the Court’s judgment of March 17th, 1934, as a preliminary to
an interpretation of the special agreement of August 28th, 1936.

*

In the previous judgment, after analyzing the terms of the
special agreement of July 15th, 1931 in the light of its history
and after summarizing the arguments of the parties, the Court
stated (p. 18) that

There are therefore three questions of substance with which
the Court must deal: it must determine the intention of the
Parties as regards the scope of the contract ; it must consider
whether this contract was “duly entered into” according to
Ottoman law, and whether it is enforceable against Greece.

4 27
A./B. 7I (LIGHTHOUSES IN CRETE, ETC.).—OP. HUDSON 118

The answers given to these three questions constituted the
basis of the judgment. As to the first question, the conclusion
was reached that the parties to the contract of April 1st/r4th,
1913 did not intend to exclude from the operation of the
contract territories which were then under military occupation.
As to the second question, the Court took the view that the
contract of April 1st/r4th, 1913 was “‘duly entered into”’ accord-
ing to Ottoman law, in the sense that the formalities required
for the validity of the contract had been complied with. As
to the third question, the answer was given that the contract
of April 1st/r4th, 1013 was enforceable against Greece under
the provisions of Article 9 of Protocol XII signed at Lausanne
on July 24th, 1923 (28 League of Nations Treaty Series, p. 203).
In addition to the replies given to these three questions, the
Court answered (p. 26) three objections advanced by the Greek
Government ‘‘to the consequences of applying Article 9 of
Protocol XII”. .

The Court’s decision in 1934 was

that the contract of April 1st/r4th, 1013, between the French
firm Collas & Michel, known as the “Administration générale
des Phares de l’Empire ottoman”, and the Ottoman Govern-
ment, extending from September 4th, 1024, to September 4th,
1049, concession contracts granted to the said firm, was duly
entered into and is accordingly operative as regards the Greek
Government in so far as concerns lighthouses situated in the
territories ‘assigned to it after the Balkan wars or subsequently.

Immediately before setting forth this decision, however, the
Court made an important statement which it characterized as
a “reservation”. The special agreement of July 15th, 1931
had envisaged, in Chapter II as summarized by the Court
(pp. 12, 13), “subsequent proceedings which are to follow the
delivery of the judgment by the Court and the object of which
is the settlement of all pecuniary claims of the Lighthouse
Administration against the Greek Government or vice versa, as
also the determination of the sum payable for buying out the
concession, should the judgment declare that the contract of
April 1st/r4th, 1013 was duly entered into’. It was doubtless
with these ‘‘subsequent proceedings’ in mind and to ensure
that too much would not be read into its judgment that the
Court made the following statement (p. 28):

Moreover, the Court holds that the Special Agreement only
requires it to decide on a question of principle, and that it is
not called upon to specify which are the territories, detached
from Turkey and assigned to Greece after the Balkan wars or
subsequéntly, where the lighthouses in regard to which the
contract of 1913 is operative are situated. It is moreover all
the more necessary to make this reservation because the Parties

28
A./B. 7I (LIGHTHOUSES IN CRETE, ETC.).—OP. HUDSON  II9

have not argued before the Court the questions of fact and of
law which might be raised in that connection and which the
Court has not been asked to decide. -

It may not have been necessary for this purpose, but the
reservation would seem to have left the way open to the Greek
Government, with respect to lighthouses in a particular terri-
tory, to contend, at any rate for reasons not dealt with in the
judgment, that the operative part of that judgment to the
effect that the contract of 1013 was duly entered into and was
accordingly operative as to Greece, was not applicable.

This is precisely what happened. Four months after the
delivery of the judgment, on July 17th, 1934, the Greek Min-
istry for Foreign Affairs addressed a note verbale to the French
Legation at Athens (French Memorial, p. 42), in which it
expressed the willingness of the Greek Government to carry out
the Court’s judgment, but observed that the Court had given,
in its own words, only a decision on a question of principle,
that it had not been called upon to determine the territories
to which the contract was applicable, and that it had refrained
from any such determination. The note verbale indicated the
intention of the Greek Government to take advantage of the
reservation made by the Court, and to confine its acceptance of
the judgment to the questions which were before the Court and
which the Court actually decided. It proceeded to set forth
the view of the Greek Government that the contract of April rst/
14th, 1013 did not apply to lighthouses in Crete and Samos,
that it was dénué de tout effet à l'égard de ces îles. No subse-
quent diplomatic exchanges have been placed before the Court ;
but the view of the Greek Government not being shared by
the French Government, on August 28th, 1936 the two Govern-
ments concluded the special agreement under which the present
case arises.

#

The special agreement of August 28th, 1936 shows by its
opening words that its conclusion is to be attributed to the
reservation made by the Court in 1934, the text of the reserva-
tion being quoted in the first paragraph. The second para-
graph describes the ‘difference of opinion” between the two
Governments by stating that it relates to the question of ‘‘the
applicability of the principle laid down’’ by the Court’s judg-
ment ‘in the case of lighthouses situated in Crete, including
the adjacent islets, and in Samos’. According to the third
paragraph, this question was regarded on both sides as “‘acces-
sory to the principal question” already decided by the Court ;
and in the fourth paragraph it is said that the two Govern-
ments considered that this question (/adite question) should be

29
A./B. 71 (LIGHTHOUSES IN CRETE, ETC.).—OP. HUDSON 120

referred to the Court: The fifth paragraph states that in con-
sequence the two Governments request the Court, taking into
account the period at which the territories specified were detached
from the Ottoman Empire, to give its decision on the question
there formulated. The sixth paragraph contains a reference to
points of procedure. The seventh. paragraph, dealing with the
agreement’s entering into force and its transmission to the
Court, again emphasizes that the answer to the question sub-
mitted is “regarded as relating to the applicability in a parti-
cular case of the judgment already rendered by the Court”.

It is the task of the Court to interpret this special agreement.
In the performance of this task, the Court is not bound by
the interpretations given to the instrument by the parties.
Nor is it bound to confine itself to dealing with the instrument
in the light of the arguments advanced by the parties. The
questions to be decided are those contained in the. special
agreement as the Court itself construes that agreement; they
may or may not be the same as those to which the parties
have addressed themselves. Whatever may be the position
when obligatory jurisdiction is being exercised, in answering a
question placed before it by a special agreement the Court
must have full freedom to construe the terms of the agreement,
to say what is the question which the agreement requires it
to answer, and to frame its answer in accordance with the
applicable law.

Moreover, the text of the special agreement must be con-
sidered as a whole (Series B, No. 2, p. 23; Series A/B, No. 49,
p. 317). This is especially important where, as here, the parties
have not only formulated a question and directed that a cer-
tain element be taken into account in deciding it, but have
also employed various descriptive phrases with reference to the
question formulated.

The quotation in the first paragraph of the special agreement
indicates the intention of both parties to place this case within
the cadre of the reservation made by the Court in its earlier
judgment, and to raise, in the words of the Court, ‘questions
. of fact and of law’’ which were not argued in 1934 and which
the Court was not then asked to decide. In other words, it
indicates that the Court is now asked to say whether Crete and
Samos are among ‘the territories detached from Turkey and
assigned to Greece after.the Balkan wars or subsequently,
where the lighthouses in regard to which the contract of 1913
is operative are situated”.

The various descriptions given by the special agreement to the
question submitted to the Court contain further indications: it
is described (in the second paragraph) as a question “regarding

30
A./B. 71 (LIGHTHOUSES IN CRETE, ETC.).—OP. HUDSON IZI

the applicability of the principle laid down by the said judgment
[of 1934] in the case of lighthouses situated in Crete, includ-
ing the adjacent islets, and in Samos’; (in the third para-
graph) as being “accessory to the principal question which has
already been decided’; and (in the seventh paragraph) as a
question the answer to which will relate “to the applicability
in a particular case of the judgment already rendered” by the
Court. Clearly the parties did not intend to attack the ear-
lier judgment, or to reopen any of the issues which it closed.
That judgment was a décision de principe ; it dealt in a general
way with lighthouses to which the contract was applicable
in Greek territories; it fixed “the scope of the contract” as
governed by the intention of the parties; it declared that cer-
tain formalities of Ottoman law had been complied with ; and
it established, again in a general way, the enforceability of the
contract as regards Greece. All of these points are now res
judicata, and the parties show no disposition to challenge their
character as such. The descriptions found in the special agree-
ment indicate that what is now sought is a judgment on the
“applicability in a particular case’’, “applicability .... in the case
of lighthouses” situated in particular territories, of the points
which were decided in 1934.

In reaching its decision, the Court is asked to take into
account (tvancher, en tenant compte) a special element of the case,
viz., the period (V’épogue) at which Crete and Samos were
“detached from the Ottoman Empire”. Quite naturally so, as
the only argument which had been advanced by the Greek
Government in its note verbale of July 17th, 1934 in support
of its view that the contract of April 1st/r4th, 1913 did not
apply to lighthouses in Crete and Samos, was that these terri-
tories had been detached from Turkey before that date. If
other arguments might have been employed to support its
view, the Greek Government had not chosen to use them.
Hence, the Court would not be able to settle the “difference
of opinion” which arose, without dealing with this argument.
This explains the emphasis given by the parties to a particular
feature of this case.

Yet is does not follow that the Court has been asked to deal
only with this one element of the case. Nor does it follow
that the Court is bound to answer the question formulated
solely on the basis of its view as to the epoch of detachment.
If the parties had so intended, they would have submitted to
the Court a question formulated in terms which would have
raised this single and simple issue. This they did not do.
Instead, they formulated a much broader question relating to
the validity and enforceability of the contract of 1913 as concerns

31
A./B. 7I (LIGHTHOUSES IN CRETE, ETC.).—OP. HUDSON 122

lighthouses in Crete and Samos. The Court having said in its
previous judgment that the contract of 1913 was duly entered
into and was accordingly operative as regards the Greek Govern-
ment with respect to lighthouses situated in territories assigned
to Greece after the Balkan wars or subsequently, but having.
reserved the specification of such territories in which light-
houses in regard to which the contract of 1913 is operative are
situated, the parties have now asked specifically whether Crete
and Samos are among those territories. In the terms formu-
lated, the question is whether the contract of 1913 “was duly
entered into and is accordingly operative as regards the Greek
Government in so far as concerns lighthouses situated in the
territories of Crete, including the adjacent islets, and of
Samos”. To restrict the issues in this case to the single ques-
tion as to the epoch of detachment would be to pay insufficient
attention to this careful formulation in the fifth paragraph of
the special agreement. While the Court is bound to take
account of the period at which Créte and Samos were detached
from the Ottoman Empire, it is free to appreciate the importance
of that element of the case in arriving at its answers to the
much broader questions presented.

Viewing the special agreement as a whole, it seems that the
parties intended to place before the Court questions which fall
within the reservation made in the 1934 judgment; that they
thought of these questions as being concerned with the appli-
cation, with respect to particular territories, of principles already
laid down by the Court in its décision de principe of 1934;
that they wished to raise, as to these territories, ‘questions of
fact and of law’ which the Court had said ‘might be raised
in that connection” and which the Court had not been asked
to decide in 1934; that they saw one, but only one, of these
“questions of fact and of law’’ as being that relating to the
epoch of detachment of Crete and Samos from the Ottoman
Empire; and that they intended that the Court should deal
with the “questions of fact and of law’’ connected with the
validity and enforceability wvis-d-vis Greece of the contract of
1913, with respect to lighthouses in Crete and Samos, in so
far as those issues had not become ves judicata in consequence
of the 1934 judgment. .

If.

It will suffice for the purposes of this opinion to deal very
briefly with the disposition which should be made of the case
in accordance with the view expressed above.

32
A./B. 71 (LIGHTHOUSES IN CRETE, ETC.).—OP. HUDSON 123

*

In the judgment of March 17th, 1934, the Court stated (p. 28)
that its decision was founded on Article 9 of Protocol XII
which provides as follows:

In territories detached from Turkey under the Treaty of
Peace signed this day, the State which acquires the territory is
fully subrogated as regards the rights and obligations of Turkey
towards the nationals of the other contracting Powers and
companies in which the capital of the nationals of the said
Powers is preponderant, who are beneficiaries under conces-
sionary contracts entered into before the 29th October, I9r4,
with the Ottoman Government or any local Ottoman authority.
The same provision will apply in territories detached from
Turkey after the Balkan wars so far as regards concessionary
contracts entered into with the Ottoman Government or any
Ottoman local authority before the coming into force of the
treaty providing for the transfer of the territory. This subro-
gation will have effect as from the coming into force of the
treaty by which the transfer of territory was effected except
as regards territories detached by the Treaty of Peace signed
this day, in respect of which the subrogation will have effect
as from the 30th October, 1918.

Several questions arise in connection with the application of
this Article to the contract of April 1st/r4th, 1913, as regards
lighthouses situated in Crete and Samos.

*

As Crete and Samos were not ‘‘’detached from Turkey under
the Treaty of Peace” of Lausanne, Article 9 of Protocol XII
can have no application to them unless it can be said that
they were ‘‘detached from Turkey after the Balkan wars”. The
question arises, therefore, as to the sense in which the term
“detached” (défachés) was employed in Article 9.

The same term ‘‘detached’’ (détachés) was employed in the
fifth paragraph of the special agreement of August 28th, 1936.
Early in the written proceedings, the French Agent (French
Memorial, p. 5) thus stated the question now before the Court :

Ce dont il s’agit précisément est ceci: Est-ce que, dans une
certaine période où ces territoires n’étaient pas encore grecs, ils pou-
vaient déjà être considérés comme n'étant plus ottomans au point
que le Gouvernement impérial ottoman n'avait plus le droit dy
passer certains contrats ?

It is in this sense, the Greek Agent insists, that the epoch of
detachment is to be taken into account by the Court; in his
view, detachment is to be considered to have taken place upon

33
A./B. 7I (LIGHTHOUSES IN CRETE, ETC.).—OP. HUDSON 124

a discontinuance of the power to conclude concessionary con-
tracts such as the contract of April 1st/r4th, 1913. It was
apparently in this sense that the term “détachés’’ had been
employed in the Greek note verbale of July 17th, 1934. At
later stages of the presentation of the case, the French Agent
seems to have taken a different view; he assimilated the word
détachés in the fifth paragraph of the special agreement to the
word détachés in Article g of Protocol XIT, and he argued that
“Je détachement, dans le système de ce texte [i.e., Article 9],
ne se conçoit pas sans un changement de souveraineté”. It
thus appears that the parties are not agreed as to the mean-
ing of the term défachés as used in the special agreement of
August 28th, 1936. Even if they can be said to be agreed
that the term as used in the special agreement is the equiva-
lent of the term as used in Article 9 of Protocol XII, they
are not agreed as to the meaning of the term in the latter

instrument. |

A somewhat similar disagreement existed in 1934 (Series A/B,
No. 62, pp. 15-16) with reference to the term “duly entered
into”, used both,in the special agreement of July 15th, 1931
and in Article 1 of Protocol XII. The Court was then aided by
reference to travaux préparatoires relating to the special agree-
ment of July 15th, 1931; but in this case it has been supplied
with no comparable historical facts with reference to the special
agreement of August 28th, 1936.

The Court’s judgment of 1934 offers little assistance in this
connection. There it was said (p. 28):

In founding its decision on Article 9 of Protocol XII, the
Court has not overlooked the fact that the words used in that
Article differ somewhat from those used in the first Article of
the Special Agreement: thus, the Special Agreement speaks of
“territories which were assigned’ to Greece “‘after the Balkan
wars or subsequently” ; whereas Article 9 refers to ‘‘territories
detached from Turkey” either ‘under the Treaty of Peace” (of
Lausanne) or “after the Balkan wars”. The Court is, however,
of opinion that in both texts and in so far as concerns Greece
the same territories are meant, all the more so, since neither
Party, when discussing Article 9, has suggested that there is
any substantial difference between the territories referred to in
these two texts.

In this case, the question as formulated in the special agree-
ment distinctly states that the territories in question, Crete
and Samos, “were assigned to that [the Greek] Government
after the Balkan wars’’, and yet the Court is directed to take
into account the period at which these territories were detached

34
A./B. 71 (LIGHTHOUSES IN CRETE, ETC.).—OP. HUDSON 125

from the Ottoman Empire. In view of this fact, it can not be
said in this case, as it was said in the former case, that “the
same territories are meant’? by territories assigned to Greece and
by territories detached from the Ottoman Empire.

The word défachés might have been used in the fifth para-
graph of the special agreement of August 28th, 1936 in either
of two senses: (I) in the sense of discontinuance of such govern-
mental power as is necessary for making concession contracts,
4.e., the sense in which at one time the Agents of both parties
interpreted the word ; or (2) in the sense of a complete extin-
guishment of a former sovereignty by such an act as cession.
The assignment of one of these meanings to the term as used
in the special agreement would not necessarily, however, dispose
of the question as to the meaning of the term as used in
Article g of Protocol XII.

Whatever meaning is given to the term détachés in the fifth
paragraph of the special agreement and in Article 9 of Proto-
col XII, it would still remain for the Court to appreciate the
importance of the question for a decision of this case.

*

Another question must be answered, also, before the Court,
basing its decision on Article 9 of Protocol. XII, can say that as
to lighthouses in Crete and Samos the contract of April Ist/14th,
1913 was “duly entered into and is accordingly operative as
regards the Greek Government”. This cannot be said unless it
can be found that, notwithstanding the autonomy possessed by
Crete and Samos, the Sultan or the Ottoman Government had
legal power on April 1st/r4th, 1913 to enter into concessionary
contracts with reference to lighthouses in these territories. Pro-
tocol XII did not have the effect of giving validity to contracts
which had never been valid theretofore. It did not set up
ultra vires contracts. When it was being drafted, the Turkish
representative, Ismet Pasha, must have had this point in mind
in saying that he ne peut pas reconnaitre comme valables des
engagements pris par le Gouvernement de Constantinople pour les
territoires sur lesquels ne s étendait pas son autorité effective. (Recueil
des Actes de la Conférence de Lausanne, second series, I, pp. 419-420.)
The whole conception of the subrogation for which Article 9
provides is predicated upon the previous existence of droits et
charges de la Turquie. Hence, even if the term diment inter-
venu should be given a narrower meaning, the contract of
April ist/14th, 1913 cannot be held to be opérant vis-d-vis the
Greek Government, with respect to lighthouses in Crete and
Samos, unless the Sultan or the Ottoman Government had

5 35
A./B. 71 (LIGHTHOUSES IN CRETE, ETC.).—OP. HUDSON 126

power on that date to bind these territories by such a contract.

_ The Agents of the parties have not directly addressed them-
selves to this question. The French Agent has not argued it
because in his view of the task of the Court the question does
not arise. . The Greek Agent has confined his discussion of the
effect of the autonomy of Crete and Samos to its bearing on
the epoch of detachment. This presentation of the case does
not preclude the Court’s consideration of the question as having
been placed before it by the special agreement. Such consider-
ation is greatly facilitated by the Agents’ exploration of the
extent of the autonomy of Crete and Samos in connection with
the question as to the epoch of their detachment from the
Ottoman Empire.

This question as to the power of the Sultan or the Ottoman
Government to conclude the contract of April 1st/r4th, 1913
in respect to Crete and Samos, was in no way determined by
the Court’s judgment of 1934. It was not then considered by
the Court, and except for a very general reference by the
Greek Agent to Crete as a vassal State (Series C, No. 74, p. 317)
it was in no way adumbrated in the argument before the
Court at that time. It is one of the ‘‘questions of fact and
of law’ to which the Court’s reservation applies.

%

With the assistance and protection of other Governments—
viz., those of France, Great Britain, Italy and Russia—and
by measures taken in opposition to the will of the Ottoman
Government, Crete achieved its autonomy in 1899. Its Consti-
tution was finally adopted by the Cretan Assembly on April zgth,
1890, after it had been approved not by the Ottoman Government
but by representatives of the four European States meeting
in Conference at Rome. The first Article of the Cretan
Constitutions of 1899 and of 1907 provided that the island of
Crete, with the adjacent islets, should constitute a State
(odtteta) enjoying a complete autonomy, under the conditions
established by the four Great Powers. Throughout the action
of these latter they had at all times declared their intention
to maintain the integrity of the Ottoman Empire ; in notifying
the Sublime Porte of their selection of a High Commissioner
of Crete, on November 30th, 1898, they expressed a willing-
ness to confirm the “supreme rights of the Sultan” in Crete
(Greek Memorial, p. 34), and in notifying the High Commis-

36
A./B. 71 (LIGHTHOUSES IN CRETE, ETC.).—OP. HUDSON 127

sioner of their approval of the first Constitution, on March 28th,
1899, they stipulated that the Constitution should not impinge
on the “legitimate rights” of the Sultan (French Memorial,

p. 38).

The Agent of the Greek Government characterizes the situation
of Crete after 1899 as that of an Etat mi-souverain; the Agent
of the French Government stresses the suzerainty of the
Sultan. It is unnecessary to attempt to place the Crete of this
period in a precise legal category. Nor is it necessary, in this
opinion, to set forth the complete extent of the Cretan autonomy.
It will suffice to say that after 1899 the Ottoman Government
exercised no governmental powers in Crete, and that although
the Sultan’s flag was ceremoniously flown in Crete until February,
1913, the government of this island was entirely in the hands
of the High Commissioner and the Cretans themselves, sub-
ject in certain respects to the approval of the four European
States. In its external relations, the Cretan Government acted
independently of the Ottoman Government, also, and it con-
cluded or acceded to various international conventions, among
them those of the Universal Postal Union and the International
Telegraphic Union. If it can be said that a theoretical sover-
eignty remained in the Sultan after 1899, it was a sovereignty
shorn of the last vestige of power. He could neither terminate
nor modify the autonomy with which Crete had been endowed
against his will and with the sanction of the four European
States. A juristic conception must not be stretched to the
breaking-point, and a ghost of a hollow sovereignty cannot be
permitted to obscure the realities of this situation.

After 1908 the union of Crete with Greece was envisaged in
various acts of the Cretan Government, and in 1912, on the
eve of the war with Turkey, some steps were taken in this
direction. By Article 4 of the unratified Treaty of London of
May i7th/30th, 1913 (107 British and Foreign State Papers,
p. 656), it was provided that the Sultan ceded the island of
Crete to the Balkan States allied against him and renounced
in their favour all the rights of souveraineté et autres qu’il possé-
dait over the island; this provision was maintained between
Greece and Turkey in the Treaty of Athens, signed on
November 1st/r4th, 1913 and brought into force later in that
month (bid., p. 893), and by the end of 1913 all the other
Balkan States had renounced their interests in Crete in favour
of Greece. An analysis of the equivocal phrase employed in
the Treaty of London would shed no light on the issues of
this case.

37
A./B. 7I (LIGHTHOUSES IN CRETE, ETC.).—OP. HUDSON 128

The concession contract of 1860 as it had been extended in
1879 and 1894 was applicable to lighthouses in Crete, and it
did not cease to be so applicable after the realization of Cretan
autonomy. The firm of Collas & Michel was therefore per-
mitted to continue its maintenance of the previously established
lighthouses after the reins of government had passed to the
local authorities, but it seems that no new lighthouses were
established. Negotiations were under way from 1903 to IgII con-
cerning the construction of lighthouses at Spada and Elaphonissi,
during the course of which the governments of certain mari-
time States, for reasons which. were not stated, addressed
themselves to the Ottoman Government with reference to the
question. The fact does not warrant any conclusion to be drawn
as to the lodgment of legal power; the Cretan Government
finally refused to authorize the construction, and in the end
nothing came of the matter. After the expiration in 1924 of
the contract of 1860 as extended in 1879 and 1894, the Greek
Government did not in any way admit the applicability in
Crete of the contract of April xst/r4th, 1913 ; indeed, it took
into its own hands the construction of lighthouses in Crete
(Series C, No. 74, p. 212).

The position of Crete with. reference to the contract of
April ist/t4th, 1913 may be compared with that of Cyprus
with reference to the contract of June 3oth/July 12th, 1879.
By the Convention of June 4th, 1878, the Sultan consented to
. assign the island of Cyprus to be occupied and administered by
Great Britain; an Annex to the Convention, dated July 1st, 1878,
envisaged the evacuation of the island by Great Britain on certain
conditions. Unquestionably, Cyprus remained a part of the
Ottoman Empire and subject to the Sultan’s sovereignty during
the period of the occupation, and until it was annexed by
Great Britain on November 5th, 1914. The annexation was
recognized by Turkey in Article 20 of the Treaty of Peace
signed at Lausanne on July 24th, 1923. The lighthouse con-
tract of August 8th/zoth, 1860 was applicable to three light-
houses in Cyprus, and it appears from a statement made by
the Colonial Secretary’s Office in Cyprus (Greek Memorial,
p. 65) that after the beginning of the British occupation ‘‘the
concessionaries were allowed by the British Government to
continue in the exercise of their privilege, but on the expira-
tion of the concession, 4th September, 1884, formal handing
over of the lighthouses to the Government of the Island took
place”. Apparently no claim was made that after September 4th,
1884 the contract of 1860 as extended in 1879 continued to
be applicable to lighthouses in Cyprus.

It seems necessary to conclude that on April 1st/rath, 1913
neither the Sultan nor the Ottoman Government had power
to extend the then existing concessionary contract with respect

38
A./B. 7I (LIGHTHOUSES IN CRETE, ETC.).—OP. HUDSON. 129

to lighthouses in Crete and the adjacent islets. Hence, whe-
ther Crete should be said to have been detached from the
Ottoman Empire before or after the Balkan wars, it is impos-
sible to apply Article 9 of Protocol XII as the basis for subro-
gating Greece to the rights and charges of Turkey under the
contract of April 1st/r4th, 1913 in so far as it concerns light-
houses in Crete and the adjacent islets.

On this view, the Court should refuse to say that the con-
tract of April rst/r4th, 1013 “was duly entered into and is
accordingly operative as regards the Greek Government” in so
far as concerns lighthouses situated in the territories of Crete,
including the adjacent islets.

*

The autonomous régime set up in Samos in 1835 was in some
respects unlike that in Crete. If it was originally due to the
intercession of France, Great Britain and Russia (xr Young,
Corps de Droit ottoman, p. 114), it rested on the expressed will
of the Sultan, on the provisions of the Hatt issued by him on
August 23rd, 1832 and on the additional provisions contained
in the Hatt issued by him on September 16th, 1852. The first
of these decrees describes Samos as a ‘‘part of the hereditary
estates” of the Sultan. Unlike Crete, Samos was obligated to
pay an annual tribute to the Sublime Porte. While the Govern-
ment of the Principality exercised a large control of its local
affairs, it seems doubtful whether in external affairs it ever
achieved independence comparable to that of ‘Crete. In this
connection, however, it may be noted that in 1926 the Greco-
Bulgarian Mixed Arbitral Tribunal held that a vessel flying the
Samian flag was to be treated as a neutral vessel during a war
in which Turkey was a belligerent. (Katranisios v. Bulgaria,
7 Recueil des Décisions des Tribunaux arbitraux mixtes, p. 39.)

The autonomy of Samos continued for almost four score of
years. By Article 5 of the unratified Treaty of London of
May x7th/30th, 1913, it was provided that the future of the
island should be determined by the Heads of six European
States; this provision was maintained between Greece and
Turkey by Article 15 of the Treaty of Athens of November 1st/
14th, 1913. Three months later, on February 13th, 1914,
the Governments of the six States decided to turn the island
over to Greece; this decision was confirmed by Article 12 of
the Treaty of Peace signed at Lausanne on July 24th, 1923.

While the autonomy possessed by Samos was extensive,
admittedly (French Mémoire, p. 33) being complete as to com-
mercial and maritime matters, the Samian Government did not

39
A./B. 7I (LIGHTHOUSES IN CRETE, ETC.).—OP. HUDSON 130

assume control of the administration of lighthouses and it did
not interfere with the performance in Samos by Collas & Michel
of their contracts concluded with the Ottoman Government.
The contract of 1860, in Annex A (Series C, No. 74, p. 382),
provided for the establishment of the Feu de Vathy in Samos,
and the Greek Government admits (bid., p. 210) that this Feu
was established in 1890; it must have been established, there-
fore, under the concession contract of 1860 as extended in 1879.
The Greek Government also admits that the Feu de Tigam
was established in Samos in 1912; this must have been done
under the contract of 1860 as extended in 1879 and 1894. In
reply to a question the French Agent has stated that Collas &
Michel maintained these two lights until 1915, and collected
the droits de phares until a more recent date ; and that neither
the Samian Government nor the Greek Government made
objection to the application of the contracts.

These facts have a bearing on the extent of the autonomy
enjoyed by Samos. In the face of them, it is impossible to
say that on April xrst/r4th, 1913 the Sultan or the Ottoman
Government lacked. the legal power to extend the concession of
Collas & Michel with respect to lighthouses in Samos. The
same facts also dispose of a contention advanced by the Greek
Agent that in view of the autonomy possessed by Samos the
parties to the contract of April. 1st/r4th, 1913 did not intend
that the contract should apply to Samos.

It follows that whatever view be taken of the meaning of
the term défachés in the fifth paragraph of the special agreement
of August 28th, 1936 and in Article 9 of Protocol XII, Samos
was not detached from the Ottoman Empire until after the
Balkan wars. As the contract of 1913 was not ultra vires to
the Sultan or the Ottoman Government with respect to light-
houses in Samos, Article 9 of Protocol XII subrogates Greece
to the droits et charges of Turkey under the contract, in so far
as it concerns such lighthouses.

This makes it necessary to say that the contract of
April xst/r4th, 1013 “was duly entered into and is accordingly
operative as regards the Greek Government’ in so far as con-
cerns lighthouses situated in the territory of Samos.

*
% *

To the extent indicated in this opinion, I am compelled to
dissent from the judgment of the Court.

(Signed) MANLEY O. Hupson.

40