                     117

                               DISSENTING OPINION OF JUDGE SEBUTINDE

                         The first preliminary objection of the UAE does not, in the circumstances of the
                     present case, have an exclusively preliminary character and should be joined to the
                     merits, pursuant to the provisions of Article 79ter, paragraph 4, of the Rules of
                     Court — In particular, the question of whether or not the measures taken by the
                     UAE against Qatar and Qataris on 5 June 2017 had “the purpose or effect of
                     racial discrimination” within the meaning of Article 1, paragraph 1, of the CERD,
                     is a delicate and complex one that can only be determined after a detailed
                     examination of the evidence and arguments of the Parties during the merits
                     stage — Secondly, the preconditions referred to in Article 22 of the CERD are in
                     the alternative and are not cumulative — The wording of Article 22 of the CERD
                     does not expressly require a party to exhaust the CERD procedures before that
                     party can unilaterally seise the Court — Both Parties acknowledge that the CERD
                     Committee and the Court have related but fundamentally distinct roles relating to
                     resolving disputes between States parties to the CERD — The Committee’s role is
                     conciliatory and recommendatory, while that of the Court is legal and binding —
                     Accordingly, the second preliminary objection should be rejected as there is nothing
                     incompatible about Qatar pursuing the two procedures in parallel — Thirdly,
                     according to the Court’s well‑established jurisprudence, a claim based upon a valid
                     title of jurisdiction cannot be challenged on grounds of “abuse of process” unless
                     the high threshold of “exceptional circumstances” has been met — The UAE has
                     not met that threshold — Qatar’s Application is therefore admissible and the third
                     preliminary objection of the UAE should be rejected.

                                                     I. Introduction

                        1. I have not voted with the majority in paragraph 115, as I disagree
                     with the Court’s conclusion in paragraphs 113 and 114 of the Judgment.
                     In my respectful view, the first preliminary objection of the United Arab
                     Emirates (hereinafter the “UAE”) does not, in the circumstances of the
                     present case, have an exclusively preliminary character and should be
                     joined to the merits, pursuant to the provisions of Article 79ter, para-
                     graph 4, of the Rules of Court (as amended on 21 October 2019). That
                     provision requires that: “After hearing the parties, the Court shall decide
                     upon a preliminary question or uphold or reject a preliminary objection.
                     The Court may however declare that, in the circumstances of the case, a
                     question or objection does not possess an exclusively preliminary charac-
                     ter.” (Emphasis added.)

                     50

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                        2. In my view, the majority should not have rushed to conclude that
                     Qatar’s claims fall outside the scope of the International Convention on
                     the Elimination of All Forms of Racial Discrimination (hereinafter “the
                     CERD”) based on the pleadings of the Parties at this early stage of the
                     proceedings, but should have carefully examined the evidence during the
                     merits stage, before reaching a conclusion one way or the other. In par-
                     ticular, the question of whether or not the measures taken by the UAE
                     against Qatar and Qataris on 5 June 2017 had “the purpose or effect of
                     racial discrimination” within the meaning of Article 1, paragraph 1, of
                     the CERD, is a delicate and complex one that can only be determined
                     after a detailed examination of the evidence and arguments of the Parties
                     during the merits stage. Because of the approach taken by the majority, it
                     is regrettable that the other objections raised by the UAE were also not
                     considered. In this dissenting opinion, I endeavour to show why the first
                     preliminary objection of the UAE does not, in the circumstances of the
                     present case, have an exclusively preliminary character and should
                     instead, be joined to the merits. I also opine on the other preliminary
                     objections raised by the UAE.

                                        II. The Submissions of the Parties

                                          A. Qatar’s Claims and Requests
                        3. Qatar in its own right and as parens patriae of its citizens, respect-
                     fully requests the Court to adjudge and declare that the UAE through its
                     State organs, State agents and other persons and entities exercising gov-
                     ernmental authority, and through other agents acting on its instructions
                     or under its direction and control, has violated its obligations under Arti-
                     cles 2, 4, 5, 6 and 7 of the CERD by taking, inter alia, the following
                     unlawful actions:

                     (a) Expelling on a collective basis, all Qataris from, and prohibiting the
                         entry of all Qataris into, the UAE on the basis of their national
                         origin;
                     (b) Violating other fundamental rights, including the rights to marriage
                         and choice of spouse, freedom of opinion and expression, public
                         health and medical care, education and training, property, work, par-
                         ticipation in cultural activities, and equal treatment before tribunals;

                     (c) Failing to condemn and instead encouraging racial hatred against
                         Qatar and Qataris and failing to take measures that aim to combat

                     51

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                      119 	              application of the cerd (diss. op. sebutinde)

                               prejudices, including by, inter alia, criminalizing the expression of
                               sympathy towards Qatar and Qataris; allowing, promoting, and
                               financing an international anti‑Qatar public and social‑media cam-
                               paign; silencing Qatari media; and calling for physical attacks on
                               Qatari entities; and

                      (d) Failing to provide effective protection and remedies to Qataris to seek
                          redress against acts of racial discrimination through UAE courts and
                          institutions 1.

                        4. Accordingly, Qatar respectfully requests the Court to order the UAE
                      to take all steps necessary to comply with its obligations under the CERD
                      and, inter alia:

                      (a) Immediately cease and revoke the discriminatory measures, including
                          but not limited to the directives against “sympathizing” with Qataris,
                          and any other national laws that discriminate de jure or de facto
                          against Qataris on the basis of their national origin;

                      (b) Immediately cease all other measures that incite discrimination
                          (including media campaigns and supporting others to propagate dis-
                          criminatory messages) and criminalize such measures;

                      (c) Comply with its obligations under the CERD to condemn publicly
                          racial discrimination against Qataris, pursue a policy of eliminating
                          racial discrimination, and adopt measures to combat such prejudice;

                      (d) Refrain from taking any further measures that would discriminate
                          against Qataris within its jurisdiction or control;

                      (e) Restore rights of Qataris to, inter alia, marriage and choice of spouse,
                          freedom of opinion and expression, public health and medical care,
                          education and training, property, work, participation in cultural
                          activities, and equal treatment before tribunals, and put in place
                          measures to ensure those rights are respected;

                      (f) Provide assurances and guarantees of non‑repetition of the UAE’s
                          illegal conduct; and
                      (g) Make full reparation, including compensation, for the harm suffered
                          as a result of the UAE’s actions in violation of the CERD 2.

                           1   Application of Qatar, pp. 58 and 60, para. 65.
                           2   Ibid., p. 60, para. 66.

                      52

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                      120 	        application of the cerd (diss. op. sebutinde)

                         5. In its Memorial, Qatar in its own right and as parens patriae of its
                      citizens, respectfully requests the Court to adjudge and declare that the
                      UAE, by the acts and omissions of its organs, agents, persons, and enti-
                      ties exercising governmental authority, and through other agents acting
                      on its instructions or under its direction and control, is responsible for
                      violating its obligations under Articles 2, 4, 5, 6 and 7 of the CERD,
                      including by:

                      (a) expelling, on a collective basis, all Qataris from the UAE;
                      (b) applying the Absolute Ban and Modified Travel Ban in violation of
                          fundamental rights that must be guaranteed equally to all under the
                          CERD, regardless of national origin, including the rights to family,
                          freedom of opinion and expression, education and training, property,
                          work, and equal treatment before tribunals;

                      (c) engaging in, sponsoring, supporting, and otherwise encouraging
                          racial discrimination, including racially discriminatory incitement
                          against Qataris, most importantly by criminalizing “sympathy” with
                          Qatar and orchestrating, funding, and actively promoting a campaign
                          of hatred against Qatar and Qataris, and thereby failing to nullify
                          laws and regulations that have the effect of creating or perpetuating
                          racial discrimination, to take “all appropriate” measures to combat
                          the spread of prejudice and negative stereotypes, and to promote tol-
                          erance, understanding and friendship; and

                      (d) failing to provide access to effective protection and remedies to
                          Qataris to seek redress against acts of racial discrimination under the
                          CERD through UAE tribunals or institutions, including the right to
                          seek reparation.

                         6. Qatar further requests the Court to adjudge and declare that the
                      UAE has violated the Court’s Order on Provisional Measures of 23 July
                      2018; and that the UAE is obligated to cease its ongoing violations, make
                      full reparations for all material and moral damage caused by its interna-
                      tionally wrongful acts and omissions under the CERD, and offer assur-
                      ances and guarantees of non‑repetition.

                        7. Accordingly Qatar requests the Court to order that the UAE:

                      (a) Immediately cease its ongoing internationally wrongful acts
                          and omissions in contravention of Articles 2 (1), 4, 5, 6 and 7 of the
                          CERD;

                      53

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                      121 	            application of the cerd (diss. op. sebutinde)

                      (b) Provide full reparation for the harm caused by its actions, including
                          (i) restitution by lifting the ongoing Modified Travel Ban as it applies
                          to Qataris collectively based on their national origin; (ii) financial
                          compensation for the material and moral damage suffered by Qatar
                          and Qataris, in an amount to be quantified in a separate phase of
                          these proceedings; and (iii) satisfaction in the forms of a declaration
                          of wrongfulness and an apology to Qatar and the Qatari people, as
                          requested; and

                      (c) Provide Qatar with assurances and guarantees of non‑repetition in
                          written form.

                                          B. The Preliminary Objections of the UAE

                        8. The UAE raised three preliminary objections against the jurisdiction
                      of the Court and the admissibility of Qatar’s claims, namely that:

                      (a) The dispute between the Parties falls outside the scope ratione mat
                          eriae of the CERD since the measures of the UAE were directed at
                          Qatari citizens on the basis of their “nationality” and not “national
                          origin” 3;
                      (b) Qatar has not fulfilled the procedural preconditions of negotiation
                          and the Committee on the Elimination of Racial Discrimination
                          (hereinafter the “CERD Committee”) procedures prescribed in Arti-
                          cles 11 to 13 of the CERD before resorting to judicial settlement by
                          the Court, as required by Article 22 of the CERD 4; and
                      (c) Qatar’s initiation of parallel proceedings before the Court in respect
                          of the same dispute whilst the Article 11 procedure was pending
                          before the CERD Committee renders Qatar’s Application inad          -
                          missible 5.

                                     III. The Court’s Jurisdiction under Article 22
                                                      of the CERD

                        9. Article 22 of the CERD provides as follows:
                                  “Any dispute between two or more States Parties with respect to
                               the interpretation or application of this Convention, which is not set-
                               tled by negotiation or by the procedures expressly provided for in this
                               Convention shall, at the request of any of the parties to the dispute,

                           3 Preliminary Objections of the United Arab Emirates, Part III.
                           4 Ibid., Part IV.
                           5 Ibid., Part V.

                      54

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                      122 	            application of the cerd (diss. op. sebutinde)

                            be referred to the International Court of Justice for decision, unless
                            the disputants agree to another mode of settlement.” (Emphasis added.)

                         10. In light of the written and oral arguments raised by the Parties, a
                      determination of whether or not the Court has jurisdiction ratione mat
                      eriae to entertain the claims of Qatar pursuant to Article 22 of the CERD
                      depends on the determination of the following factors, namely:
                      (a) What is the subject‑matter of the dispute between Qatar and the
                          UAE?
                      (b) Does the dispute concern the interpretation or application of the
                          CERD within the meaning of Article 22 of that Convention or do
                          Qatar’s claims actually fall outside the scope of the CERD by virtue
                          of the exceptions contemplated in Article 1, paragraphs 2 or 3?
                      (c) If so, did Qatar comply with the procedural requirements stipulated
                          in Article 22 of CERD or alternatively did the Parties agree to another
                          mode of settling their dispute, before seising the Court?
                      (d) Lastly, are the claims of Qatar admissible?
                         I will briefly examine each of these in turn, starting with the first.

                           A. The Subject‑Matter of the Dispute between Qatar and the UAE
                        11. Article 40, paragraph 1, of the Statute of the Court, and Article 38,
                      paragraph 1, of the Rules of Court require an applicant to indicate the
                      “subject of the dispute” and to specify the “precise nature of the claim” 6.
                      Furthermore, it is for the Court itself to determine, on an objective basis,
                      the subject‑matter of the dispute, isolating the real issue in the case and
                      identifying the object of the claim 7. The Court does this by examining the
                      dispute as formulated in the application, including the basis that the
                      applicant identifies as the basis of jurisdiction, as well as the written and
                      oral pleadings of the parties 8.

                         6 Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary

                      Objection, Judgment, I.C.J. Reports 2015 (II), p. 602, para. 25; Application of the Interna-
                      tional 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), Preliminary Objections, Judgment, I.C.J. Reports 2019 (II), p. 575, para. 24.
                         7 Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary

                      Objection, Judgment, I.C.J. Reports 2015 (II), p. 602, para. 26.
                         8 See ibid., pp. 602‑603, para. 26: “the Court bases itself . . . on the application, as well as

                      the written and oral pleadings of the parties. In particular, it takes account of the facts that
                      the Applicant identifies as the basis for its claim (see Nuclear Tests (Australia v. France),
                      Judgment, I.C.J. Reports 1974, p. 263, para. 30; Nuclear Tests (New Zealand v. France),
                      Judgment, I.C.J. Reports 1974, p. 467, para. 31; Fisheries Jurisdiction (Spain v. Canada),
                      Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, p. 449, para. 31; pp. 449‑450,
                      para. 33).”

                      55

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                      123 	           application of the cerd (diss. op. sebutinde)

                         12. Taking into account the dispute as formulated in Qatar’s Applica-
                      tion, the object of Qatar’s claims, the jurisdictional basis upon which
                      those claims are based, and the written and oral pleadings of the Parties,
                      the subject‑matter of the dispute is whether the UAE by taking the mea-
                      sures that it did on 5 June 2017 and subsequently, against Qatar and
                      Qataris, violated its obligations under the CERD.

                                       B. Whether the Dispute Falls within the Scope
                                            Ratione Materiae of the CERD
                        13. In order to determine whether or not the dispute in the present case
                      concerns the interpretation or application of the CERD, the Court must
                      determine whether the acts complained of by Qatar (namely, the mea-
                      sures taken by the UAE on 5 June 2017 against Qataris living in the
                      UAE) fall within the scope ratione materiae of Article 1, paragraph 1, of
                      the CERD; or alternatively, whether those acts fall outside the scope of
                      the CERD by virtue of the exceptions stipulated in Article 1 paragraphs 2
                      or 3, as argued by the UAE.

                         14. The Court has stated in Oil Platforms 9 and in Certain Iranian
                      Assets 10 that, in order to determine the Court’s jurisdiction ratione mat
                      eriae under a jurisdictional clause concerning disputes relating to the inter-
                      pretation or application of a treaty, it is necessary to ascertain whether
                      the acts of which the applicant complains “fall within the provisions” of
                      the treaty containing the clause. At the jurisdictional stage of the proceed-
                      ings, a detailed examination by the Court of the alleged wrongful acts of
                      the respondent or of the plausibility of the applicant’s claims is not war-
                      ranted. The Court’s task, as reflected in Article 79 of the Rules of Court,
                      is to consider the questions of law and fact that are relevant to the objec-
                      tion to its jurisdiction 11.
                         15. In the present case, the Court has already stated in its provisional
                      measures Order of 23 July 2018 that:
                             “27. In the Court’s view, the acts referred to by Qatar, in particular
                           the statement of 5 June 2017 — which allegedly targeted Qataris on
                           the basis of their national origin — whereby the UAE announced that
                           Qataris were to leave its territory within 14 days and that they would

                         9 Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary

                      Objection, Judgment, I.C.J. Reports 1996 (II), pp. 809‑810, para. 16.
                         10 Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Prelim-

                      inary Objections, Judgment, I.C.J. Reports 2019 (I), p. 23, para. 36.
                         11  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), Preliminary Objections, Judgment,
                      I.C.J. Reports 2019 (II), p. 584, paras. 57‑58.

                      56

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                      124 	          application of the cerd (diss. op. sebutinde)

                           be prevented from entry, and the alleged restrictions that ensued,
                           including upon their right to marriage and choice of spouse, to edu-
                           cation as well as to medical care and to equal treatment before tribu-
                           nals, are capable of falling within the scope of CERD ratione materiae.
                           The Court considers that, while the Parties differ on the question
                           whether the expression ‘national . . . origin’ mentioned in Article 1,
                           paragraph 1, of CERD encompasses discrimination based on the
                           ‘present nationality’ of the individual, the Court need not decide at
                           this stage of the proceedings, in view of what is stated above, which
                           of these diverging interpretations of the Convention is the correct one.

                              28. The Court finds that the above‑mentioned elements are suffi-
                           cient at this stage to establish the existence of a dispute between the
                           Parties concerning the interpretation or application of CERD.” 12
                      At this stage, I see no reason for the Court to depart from its earlier posi-
                      tion.
                           C. Alternatively, whether Qatar’s Claims Fall outside the Scope of
                           the CERD by Virtue of the Exceptions Contemplated in Article 1,
                                                   Paragraphs 2 or 3
                        16. Article 1 (1) of the CERD defines “racial discrimination” to mean:

                           “any distinction, exclusion, restriction or preference based on race,
                           colour, descent, or national or ethnic origin which has the purpose or
                           effect of nullifying or impairing the recognition, enjoyment or exer-
                           cise, on an equal footing, of human rights and fundamental freedoms
                           in the political, economic, social, cultural or any other field of public
                           life” (emphasis added).

                        17. Article 1 (2) of the CERD provides that the Convention:
                           “shall not apply to distinctions, exclusions, restrictions or preferences
                           made by a State Party to this Convention between citizens and
                           non‑citizens”.
                        18. Article 1 (3) of the CERD provides that:
                             “Nothing in this Convention may be interpreted as affecting in any
                           way the legal provisions of States Parties concerning nationality,

                         12 Application of the International Convention on the Elimination of All Forms of Racial

                      Discrimination (Qatar v. United Arab Emirates), Provisional Measures, Order of 23 July
                      2018, I.C.J. Reports 2018 (II), p. 417, paras. 27‑28.

                      57

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                      125 	          application of the cerd (diss. op. sebutinde)

                           citizenship or naturalization, provided that such provisions do not
                           discriminate against any particular nationality.”

                         19. The Court has stated in Ukraine v. Russia that in order to deter-
                      mine whether it has jurisdiction ratione materiae under the CERD, it does
                      not need to satisfy itself that the measures of which the applicant com-
                      plains actually constitute “racial discrimination” within the meaning of
                      Article 1, paragraph 1, of the CERD; nor does the Court need to estab-
                      lish if and to what extent, certain acts may be covered by Article 1, para-
                      graphs 2 and 3, of the CERD. Both determinations concern issues of fact,
                      largely depending on evidence regarding the purpose or effect of the mea-
                      sures alleged by the applicant, and are thus properly a matter for the
                      merits, should the case proceed to that stage. At the current stage of the
                      proceedings, the Court only needs to ascertain whether the measures
                      complained of by Qatar target a protected group on the basis of national
                      or ethnic origin and whether those measures are capable of negatively
                      affecting the enjoyment of rights protected under the Convention 13.
                         20. In the present case, Qatar maintains that Qataris are a protected
                      people of a distinct historical‑cultural national origin and has submitted
                      expert evidence to support this contention, which the UAE has not rebut-
                      ted 14. Qatar further maintains that the measures taken by the Respon-
                      dent against its nationals “had the purpose and effect” of racial
                      discrimination of Qatari nationals within the meaning of Article 1, para-
                      graph 1, of the CERD. This evidence should, of course, be examined and
                      verified on the merits, rather than at this jurisdictional stage of the pro-
                      ceedings. In my view, there is a thin line between “Qatari national origin”
                      and “Qatari nationality or citizenship” and this line is particularly blurred
                      by the circumstances of the case. As earlier stated, the question of whether
                      or not the measures taken by the UAE against Qatar and Qataris on
                      5 June 2017 had “the purpose or effect of racial discrimination” within
                      the meaning of Article 1, paragraph 1, of the CERD, is a delicate and
                      complex one that can only be determined after a detailed examination of
                      the evidence and arguments of the Parties during the merits stage. In the
                      present Judgment, the majority simply carried out an academic discussion
                      of the terms “current nationality” and “national origin” but has clearly
                      not examined the detailed evidence adduced by the Applicant in support

                         13 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), Preliminary Objections, Judgment,
                      I.C.J. Reports 2019 (II), p. 595, paras. 94‑95.
                         14  Memorial of Qatar, Vol. I, pp. 131‑134, paras. 3.96-3.100 and Vol. VI, Ann. 162,

                      Expert Report of Dr. J. E. Peterson of 9 April 2019, in which he documents the Qataris
                      as “a distinct people, as a group of individuals who belong to a long‑standing historical-
                      cultural community defined by a distinct heritage, particular family or tribal affiliations,
                      shared national traditions and culture, and geographic ties to the peninsular of Qatar”.

                      58

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                      126 	          application of the cerd (diss. op. sebutinde)

                      of its claim of “indirect discrimination” before reaching the conclusion in
                      paragraphs 113 and 114 of the Judgment.

                        21. At an earlier stage of these proceedings, the Court, when examining
                      the plausibility of the rights claimed by Qatar, noted that:

                           “on the basis of the evidence presented to it by the Parties, . . . the
                           measures adopted by the UAE on 5 June 2017 appear to have targeted
                           only Qataris and not other non‑citizens residing in the UAE. Further-
                           more, the measures were directed to all Qataris residing in the UAE,
                           regardless of individual circumstances. Therefore, it appears that
                           some of the acts of which Qatar complains may constitute acts of
                           racial discrimination as defined by the Convention. Consequently, the
                           Court finds that at least some of the rights asserted by Qatar under
                           Article 5 of CERD are plausible. This is the case, for example, with
                           respect to the alleged racial discrimination in the enjoyment of rights
                           such as the right to marriage and to choice of spouse, the right to
                           education, as well as freedom of movement, and access to justice.” 15

                         22. At this jurisdictional stage of the proceedings, I see no reason to
                      depart from the Court’s earlier finding that at least some of the acts of
                      which Qatar complains are capable of constituting acts of racial discrimi-
                      nation as defined by the Convention. Qatar’s claims therefore fall within
                      the scope ratione materiae of CERD. In this regard, I am of the consid-
                      ered view that the approach of the majority whereby the jurisdiction rati-
                      one materiae of the Court turns on a theoretical definition or analysis of
                      the term “national origin” without taking into account the facts and evi-
                      dence adduced by Qatar in support of its claims (see paragraphs 75
                      to 105) is not in the interests of justice. Similarly, the issues discussed in
                      paragraphs 109 to 110 pertaining to the measures that Qatar character-
                      izes as “indirect discrimination” are issues that should have been properly
                      examined during the merits stage in light of the facts, evidence and argu-
                      ments of the Parties, before drawing the conclusion that these claims fall
                      outside the scope ratione materiae of the Court’s jurisdiction.

                        23. Regarding the UAE’s preliminary objection based on its argument
                      that Qatar’s claims fall under the exceptions stipulated under Article 1 (2)

                         15 Application of the International Convention on the Elimination of All Forms of Racial

                      Discrimination (Qatar v. United Arab Emirates), Provisional Measures, Order of 23 July
                      2018, I.C.J. Reports 2018 (II), p. 427, para. 54.

                      59

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                      127 	          application of the cerd (diss. op. sebutinde)

                      and therefore outside the scope ratione materiae of the CERD, I am of
                      the considered view that this objection does not possess an exclusively
                      preliminary character and can only be properly determined after a detailed
                      examination of the evidence during the merits stage.

                        24. This brings me to the second preliminary objection of the UAE,
                      namely that Qatar did not fulfil the procedural requirements of Article 22
                      of the CERD before seising the Court.

                               D. Whether Qatar Fulfilled the Procedural Requirements
                       of Article 22 of the CERD or, Alternatively, whether the Parties Agreed
                         to another Mode of Settling Their Dispute, before Seising the Court
                         25. In order to answer this question, the Court must address whether
                      Qatar satisfied one of the procedural requirements stipulated in Article 22
                      before seising the Court. Alternatively, in the event that Qatar chose more
                      than one mode of dispute settlement (namely, negotiations, CERD proce-
                      dures and judicial settlement), the Court must determine whether the
                      Applicant is obliged to exhaust negotiations and the CERD procedures
                      before seising the Court.
                         26. Both Parties agree that the Court’s jurisdiction pursuant to Arti-
                      cle 22 of the CERD is limited to disputes “not settled by negotiation or by
                      the procedures expressly provided for in [the] Convention”. The Parties
                      also agree that they have not agreed to “another mode of [dispute] settle-
                      ment”. It is settled jurisprudence in Ukraine v. Russia that the precondi-
                      tions referred to in Article 22 are in the alternative and are not
                      cumulative 16. The Court in that case stated as follows:

                              “110. The Court therefore considers that ‘negotiation’ and the ‘pro-
                           cedures expressly provided for in [the] Convention’ are two means to
                           achieve the same objective, namely to settle a dispute by agreement.
                           Both negotiation and the CERD Committee procedure rest on the
                           States parties’ willingness to seek an agreed settlement of their dis-
                           pute. It follows that should negotiation and the CERD Committee
                           procedure be considered cumulative, States would have to try to nego-
                           tiate an agreed solution to their dispute and, after negotiation has not
                           been successful, take the matter before the CERD Committee for
                           further negotiation, again in order to reach an agreed solution. The

                         16 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), Preliminary Objections, Judgment,
                      I.C.J. Reports 2019 (II), pp. 599‑600, paras. 110‑113.

                      60

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                      128 	        application of the cerd (diss. op. sebutinde)

                           Court considers that the context of Article 22 of CERD does not
                           support this interpretation. In the view of the Court, the context of
                           Article 22 rather indicates that it would not be reasonable to require
                           States parties which have already failed to reach an agreed settlement
                           through negotiations to engage in an additional set of negotiations in
                           accordance with the modalities set out in Articles 11 to 13 of CERD.

                              111. The Court considers that Article 22 of CERD must also be
                           interpreted in light of the object and purpose of the Convention. Arti-
                           cle 2, paragraph 1, of CERD provides that States parties to CERD
                           undertake to eliminate racial discrimination ‘without delay’. Arti-
                           cles 4 and 7 provide that States parties undertake to eradicate incite-
                           ment to racial discrimination and to combat prejudices leading to
                           racial discrimination by adopting ‘immediate and positive measures’
                           and ‘immediate and effective measures’ respectively. The preamble to
                           CERD further emphasizes the States’ resolve to adopt all measures
                           for eliminating racial discrimination ‘speedily’. The Court considers
                           that these provisions show the States parties’ aim to eradicate all
                           forms of racial discrimination effectively and promptly. In the Court’s
                           view, the achievement of such aims could be rendered more difficult
                           if the procedural preconditions under Article 22 were cumulative.

                              112. The Court notes that both Parties rely on the travaux prépara-
                           toires of CERD in support of their respective arguments concerning
                           the alternative or cumulative character of the procedural precondi-
                           tions under Article 22 of the Convention. Since the alternative chara
                           cter of the procedural preconditions is sufficiently clear from an
                           interpretation of the ordinary meaning of the terms of Article 22 in
                           their context, and in light of the object and purpose of the Conven-
                           tion, the Court is of the view that there is no need for it to examine
                           the travaux préparatoires of CERD.
                              113. The Court concludes that Article 22 of CERD imposes alter-
                           native preconditions to the Court’s jurisdiction. Since the dispute
                           between the Parties was not referred to the CERD Committee, the
                           Court will only examine whether the Parties attempted to negotiate a
                           settlement to their dispute.”
                         27. In the present case, the Parties did pursue the procedures before the
                      CERD Committee and the Conciliation Commission pursuant to Arti-
                      cles 11 to 13 of the CERD. The question is therefore whether Qatar
                      should have exhausted the preconditions of bilateral negotiations and of
                      conciliation before the CERD Committee, before resorting to judicial
                      settlement.
                         28. It will also be recalled that Qatar founded the Court’s jurisdiction
                      on the basis of the failed bilateral negotiations envisaged under Article 22,
                      rather than on the exhaustion of the CERD procedures initiated by Qatar

                      61

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                      129 	          application of the cerd (diss. op. sebutinde)

                      on 8 March 2018 17 pursuant to Article 11. Regarding the precondition of
                      bilateral negotiations, the Court has in the present case already found in
                      its provisional measures Order of 23 July 2018 as follows:
                              “37. The Court notes that it has not been challenged by the Parties
                           that issues relating to the measures taken by the UAE in June 2017
                           have been raised by representatives of Qatar on several occasions in
                           international fora, including at the United Nations, in the presence
                           of representatives of the UAE. For example, during the thirty‑seventh
                           session of the United Nations Human Rights Council in Febru-
                           ary 2018, the Minister for Foreign Affairs of Qatar referred to ‘the
                           violations of human rights caused by the unjust blockade and the
                           unilateral coercive measures imposed on [his] country that have been
                           confirmed by the . . . report of the Office of the United Nations High
                           Commissioner for Human Rights Technical Mission’, while the
                           UAE — along with Bahrain, Saudi Arabia and Egypt — issued a joint
                           statement ‘in response to [the] remarks’ made by the Minister for
                           Foreign Affairs of Qatar.

                              38. The Court further notes that, in a letter dated 25 April 2018
                           and addressed to the Minister of State for Foreign Affairs of the UAE,
                           the Minister of State for Foreign Affairs of Qatar referred to the
                           alleged violations of CERD arising from the measures taken by the
                           UAE beginning on 5 June 2017 and stated that ‘it [was] necessary to
                           enter into negotiations in order to resolve these violations and the
                           effects thereof within no more than two weeks’. The Court considers
                           that the letter contained an offer by Qatar to negotiate with the UAE
                           with regard to the latter’s compliance with its substantive obligations
                           under CERD. In light of the foregoing, and given the fact that the
                           UAE did not respond to that formal invitation to negotiate, the Court
                           is of the view that the issues raised in the present case had not been
                           resolved by negotiations at the time of the filing of the Application.” 18

                        29. Qatar clearly satisfied the precondition of bilateral negotiation
                      before seising the Court. In view of the above, the Court should deter-
                      mine whether in fact Qatar was obliged to exhaust the other procedures
                      expressly provided for in the Convention before seising the Court.

                         17 On 8 March 2018, Qatar filed a communication with the CERD Committee

                      requesting that the UAE take all necessary steps to end the measures enacted and imple-
                      mented since 5 June 2017 (see paragraph 31 of the Judgment).
                         18 Application of the International Convention on the Elimination of All Forms of Racial

                      Discrimination (Qatar v. United Arab Emirates), Provisional Measures, Order of 23 July
                      2018, I.C.J. Reports 2018 (II), p. 420, paras. 37‑38.

                      62

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                      130 	           application of the cerd (diss. op. sebutinde)

                              E. Whether Qatar Was Obligated to Exhaust the Conciliation
                                   Commission Procedures before Seising the Court
                         30. It is not disputed that Qatar referred its claims against the UAE to
                      the CERD Committee before seising the Court. The CERD Committee
                      in turn referred the Parties’ dispute to the Conciliation Commission and
                      to date the processes before that Commission are ongoing and have not
                      been concluded. Both Parties claim that they are fully engaged in those
                      processes “in good faith”. Unlike the bilateral negotiations referred to in
                      the earlier part of Article 22 of the CERD, the procedures before the
                      Conciliation Commission are tripartite and conciliatory. In its oral argu-
                      ments, the UAE maintained that Qatar was obligated to first exhaust the
                      processes before the Conciliation Commission before seising the Court.
                      Citing the principles of lis pendens 19 and electa una via 20, the UAE argues
                      that there remains the possibility of the two processes (conciliation and
                      judicial settlement) yielding contradictory outcomes, and that therefore
                      Qatar should have waited “to determine whether or not the Conciliation
                      Commission procedures had resulted in a settlement of the dispute”
                      before pursuing judicial settlement 21.
                         31. The wording of Article 22 of the CERD does not expressly require
                      a party to exhaust the CERD procedures before that party can unilater-
                      ally seise the Court. The wording of that Article cannot be compared, for
                      example, to Article IV of the Pact of Bogotá, which provides that: “Once
                      any pacific procedure had been initiated, whether by agreement between
                      the parties or in fulfillment of the present Treaty or a previous pact, no
                      other procedure may be commenced until that procedure is concluded.”
                      (Emphasis added.)
                         32. Both Parties acknowledge that the CERD Committee and the pro-
                      ceedings before the Court have related but fundamentally distinct roles
                      relating to resolving disputes between States parties to the CERD. The
                      Committee’s role is conciliatory and recommendatory, while that of the
                      Court is legal and binding. Accordingly, there is nothing incompatible
                      about Qatar pursuing the two procedures in parallel.

                        33. Furthermore, the Court stated in its provisional measures Order of
                      23 July 2018, regarding the second precondition of “other procedures
                      expressly provided for in the Convention” as follows:
                              “39. . . . It is recalled that, according to Article 11 of the Conven-
                           tion, ‘[if] a State Party considers that another State Party is not giving

                         19 Meaning “a doctrine under which one purchasing an interest in property involved in

                      a pending suit does so subject to the adjudication of the rights of the parties to the suit”.
                         20 Meaning “he who has chosen one means of dispute settlement, cannot have recourse

                      to another”.
                         21 CR 2020/6, pp. 53‑67, paras. 1-32 (Forteau).

                      63

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                      131 	          application of the cerd (diss. op. sebutinde)

                           effect to the provisions of this Convention’, the matter may be brought
                           to the attention of the CERD Committee. The Court notes that Qatar
                           deposited, on 8 March 2018, a communication with the CERD Com-
                           mittee under Article 11 of the Convention. It observes, however, that
                           Qatar does not rely on this communication for the purposes of showing
                           prima facie jurisdiction in the present case. Although the Parties disa-
                           gree as to whether negotiations and recourse to the procedures referred
                           to in Article 22 of CERD constitute alternative or cumulative precon-
                           ditions to be fulfilled before the seisin of the Court, the Court is of
                           the view that it need not make a pronouncement on the issue at this
                           stage of the proceedings (see Application of the International Conven-
                           tion for the Suppression of the Financing of Terrorism and of the Inter-
                           national Convention on the Elimination of All Forms of Racial
                           Discrimination (Ukraine v. Russian Federation), Provisional Meas-
                           ures, Order of 19 April 2017, I.C.J. Reports 2017, pp. 125‑126,
                           para. 60). Nor does it consider it necessary, for the present purposes,
                           to decide whether any electa una via principle or lis pendens exception
                           are applicable in the present situation.

                              40. The Court thus finds, in view of all the foregoing, that the pro-
                           cedural preconditions under Article 22 of CERD for its seisin appear,
                           at this stage, to have been complied with.” 22 (Emphasis added.)

                         34. In my view therefore, Qatar was not obligated to exhaust the Con-
                      ciliation Commission processes before seising the Court. I would there-
                      fore dismiss the second preliminary objection of the UAE. This brings
                      me to the third preliminary objection of the UAE, namely whether
                      Qatar’s claims are inadmissible on grounds of alleged abuse of process
                      by Qatar.

                           F. Whether Qatar’s Claims Are Inadmissible on the Grounds that
                                      Qatar Has Committed Abuse of Process
                         35. During the oral proceedings the UAE abandoned its third prelimi-
                      nary objection pertaining to “abuse of process” 23. However, according to
                      the Court’s well‑established jurisprudence, a claim based upon a valid
                      title of jurisdiction cannot be challenged on grounds of “abuse of pro-
                      cess” unless the high threshold of “exceptional circumstances” has been
                      met. In my view, Qatar’s alleged abuse of process should not be easily
                      assumed in the absence of clear proof of any exceptional circumstances

                         22 Application of the International Convention on the Elimination of All Forms of Racial

                      Discrimination (Qatar v. United Arab Emirates), Provisional Measures, Order of 23 July
                      2018, I.C.J. Reports 2018 (II), pp. 420‑421, paras. 39-40.
                         23 Oral argument by Sir Daniel Bethlehem.

                      64

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                      132 	       application of the cerd (diss. op. sebutinde)

                      pointing to such abuse. Qatar’s claims are admissible and the third pre-
                      liminary objection should have been rejected.

                                                 IV. Conclusion

                        36. In conclusion, the first preliminary objection of the UAE does not
                      possess an exclusively preliminary character and should be joined to the
                      merits. The second and third preliminary objections of the UAE should
                      be dismissed and the Court should find that it has jurisdiction and that
                      Qatar’s claims are admissible.

                      (Signed) Julia Sebutinde.

                      65

6 Ord_1221.indb 126                                                                              4/08/22 08:26


294

SEPARATE OPINION OF JUDGE RANJEVA
[Translation]

I voted for the whole of the operative part, in particular the first clause
of paragraph 2 E, since this Opinion confirms the principle of the illegal-
ity of the threat or use of nuclear weapons, although I consider that the
second clause of paragraph 2 E raises problems of interpretation which
may impair the clarity of the rule of law.

a * +

The illegality of the threat or use of nuclear weapons will have been
affirmed, for the first time, in the international jurisprudence inaugurated
by this Advisory Opinion requested by the General Assembly of the
United Nations. If the first clause of operative paragraph 2 E had been
worded differently, it would have kept alive the doubt about the justifica-
tion of this principle of positive law, for a superficial comparison of the
two declaratory paragraphs 2 A and 2 B could have led to error. To have
regarded the statements contained in these paragraphs as of equal weight
would presumably have excluded either an affirmative or a negative
answer to the question put in the resolution referring the matter to the
Court. The Court’s true answer is given in paragraph 2 E, more accu-
rately in the first clause thereof, while paragraph 104 of the reasons pro-
vides the key to the reading of the reasons and the operative part in the
sense that this paragraph 2 E cannot be detached from paragraphs 2 A,
2 C,2 D and 2 F. In my view, the adverb “generally” means: in the major-
ity of cases and in the doctrine; its grammatical function is to determine
with emphasis the statement made in the main proposition. By using a
determinative adverb the Opinion dismisses any other interpretation
which would have resulted from the use of a dubitative adverb such as
“apparently”, “perhaps” or “no doubt”. Lastly, the conditional mood of
the verb “to be” used in making this statement expresses two ideas: on
the one hand a probability, i.e. a characteristic which can be more easily
characterized than some other characteristic; and on the other hand a
supposition about the future which it is hoped will never come about.
These reasons, producing the conclusion of the illegality of the threat or
use of nuclear weapons, merely confirm, in my view, the state of positive
law.

The absence of a direct and specific reference to nuclear weapons can-
not be used to justify the legality, even indirect, of the threat or use of
nuclear weapons. The wording of the first clause of operative para-
graph 2 E excludes any limitation to the general principle of illegality. On

72
THREAT OR USE OF NUCLEAR WEAPONS (SEP. OP. RANJEVA) 295

the assumption that the intention is to assign a dubitative value to the
adverb “generally”, no conclusion implying modification of the scope of
the illegality could withstand legal analysis. When “generally” is taken as
an adverb of quantity, the natural meaning of the word excludes any
temptation to infer an idea of legality, which is contrary to the funda-
mental principle stated. The use of the adverb “generally” is due only to
an indirect appeal by the Court for the consequences of the analyses con-
tained in paragraphs 70, 71 and 72 of the reasons to be drawn by those to
whom the Opinion is addressed. In other words, the current law, which
the Opinion has stated, wants consolidation. The absence of a specific
reference to nuclear weapons in fact has more to do with considerations
of diplomatic, technical or political expediency than with juridical con-
siderations. It would thus seem necessary to analyse the international
practice in terms of law, in order to confirm this interpretation.

Three facts deserve attention. Firstly, there has been no repetition of
the precedents of Hiroshima and Nagasaki since 1945 even though the
spectre of the nuclear threat has been widely debated; on the other hand,
the effects of nuclear power in general, and of nuclear weapons in par-
ticular, are such as to challenge the very foundations of humanitarian law
and the law of armed conflict. Secondly, no declaration of the legality of
nuclear weapons in principle has been recorded; there is no need to
emphasize the fact that it is in the form of a justification of an exception
to a principle accepted as being established in law, in this case the ille-
gality of the threat or use of nuclear weapons, that the nuclear-weapon
States seek to present the reasons for their attitude. Thirdly and lastly,
the consistently guarded and even hostile attitude of the General Assem-
bly towards nuclear weapons and the continuous development of nuclear
awareness have resulted in the steady tightening of the juridical mesh of
the régime governing nuclear weapons, the control of which belongs less
and less to the discretionary power of their possessors, in order to arrive
at juridical situations of prohibition.

Two observations are prompted by this account of the facts. Firstly,
the principle of the illegality of the threat or use of nuclear weapons has
taken shape gradually in positive law. An exhaustive inventory of the
relevant legal instruments and acts reveals the catalytic effect of the prin-
ciple that nuclear weapons should be regarded as unlawful. The study of
the positive law cannot be limited, therefore, to stating purely and simply
the current state of the law; as the Permanent Court of International Jus-
tice stressed in the case concerning Nationality Decrees Issued in Tunis
and Morocco, the question of conformity with international law depends
on the evolution of thinking and of international relations. Legal realism
argues for acceptance of the notion that the juridical awareness of
nuclear matters depends on the evolution of attitudes and knowledge,
while one fact remains permanent: the final objective — nuclear dis-
armament. The same catalytic effect can be seen in the evolution of the law
of the Charter of the United Nations. The examples of the law of decolo-
nization and of the law of Article 2, paragraph 4, show that, originally, to

73
THREAT OR USE OF NUCLEAR WEAPONS (SEP. OP. RANJEVA) 296

regard the relevant principles as falling within the sphere of juridical pro-
legomena amounted to a legal heresy. Can these same arguments be
maintained today? Cannot questions also be asked about the advent of
an ecological and environmental order which would tend to superimpose
itself on the nuclear order and which is in process of being elaborated in
the order of positive law? There is no longer any permissible doubt about
the illegality of the threat or use of nuclear weapons. But for some States
the difficulty stems from the fact that this principle has not been consoli-
dated in treaties, a question raised by the second observation.

Secondly, does the silence on the specific case of nuclear weapons with
respect to a legal régime for their use truly exclude the customary illegal-
ity of the threat or use of nuclear weapons? There can be no doubt that,
in a matter of such importance for peace and the future of mankind, the
treaty solution remains the best means of achieving general disarmament
and nuclear disarmament in particular. But the consensualism character-
istic of international law cannot be limited either to a technique of con-
tractual or conventional engineering or to the formalization by majority
vote of the rules of international law. The law of nuclear weapons is one
of the branches of international law which is inconceivable without a
minimum of ethical requirements expressing the values to which the
members of the international community as a whole subscribe. The sur-
vival of mankind and of civilization is one of these values. It is not a
question of substituting a moral order for the legal order of positive law
in the name of some higher or revealed order. The moral requirements
are not direct and positive sources of prescriptions or obligations but
they do represent a framework for the scrutiny and questioning of the
techniques and rules of conventional and consensual engineering. On the
great issues of mankind the requirements of positive law and of ethics
make common cause, and nuclear weapons, because of their destructive
effects, are one such issue. In these circumstances, is illegality a matter of
opinio juris? To this question the Court gives an answer which some
would consider dubitative, whereas an answer in the affirmative, in my
view, cannot be questioned and prevails.

Traditionally, when an opinio juris is sought, the fact precedes the law
in the examination of the relations between the fact and the law: the
analysis of the facts determines the application of the rule of law. But can
this hold good in the present advisory proceedings? The Court is in fact
requested to go back to the first principles which provide the foundation
of the normative rule (see below) before saying whether the combined
interpretation of the relevant rules results in the legality or illegality of
the threat or use of nuclear weapons. In other words, the Court is dealing
with a case in which the rule of law appears to precede the fact. The
Court is rightly very rigorous and very exacting when it is considering
sanctioning the juridical consolidation of a practice by way of an opinio

74
THREAT OR USE OF NUCLEAR WEAPONS (SEP. OP. RANJEVA) 297

juris. But does not the Court’s increasingly frequent reference to the prin-
ciples stated in the Charter and to the resolutions and legal instruments
of international organizations indicate a solution of continuity? The rec-
ognition of the customary nature of the principles set out in Article 2,
paragraph 4, of the Charter and in the case concerning Military and
Paramilitary Activities in and against Nicaragua constitutes in fact a sig-
nificant break with earlier practice. Does not the repeated proclamation
of principles, hitherto regarded as merely moral but of such importance
that the irreversible nature of their acceptance appears definitive, consti-
tute the advent of a constant and uniform practice? It is on the basis of
these concrete considerations that such important principles as the pro-
hibition of genocide, the right to decolonization, the prohibition of the
use of force, and the theory of implicit jurisdictions have been incorpo-
rated in customary law. In the present case it is this conviction, con-
stantly affirmed and never denied in principle in the facts, which indicates
the incorporation of the principle of the illegality of the threat or use of
nuclear weapons in customary law.

x * x

The second clause of paragraph 2E might prompt one to wonder
whether the Court did not try to evade giving a clear answer to the basic
question addressed to it by the General Assembly. Much of the argumen-
tation of the reasons for the Opinion is designed to establish that inter-
national law would not prohibit the threat or use of nuclear weapons.
Thus, the problem is to decide whether in its handling of the General
Assembly’s request the Court has not based its position on a postulate:
the equality of treatment to be accorded both to the principle of legality
and to the principle of illegality. This difficulty, in my view, calls for an
examination of the essential purpose of the question put, followed by an
examination of the subject-matter of the second clause of paragraph 2 E.

The natural meaning of the words used in the General Assembly reso-
lution defines the actual subject-matter of the question: does interna-
tional law authorize the threat or use of nuclear weapons in any circum-
stance? Does the Opinion answer this question honestly when it speaks
simultaneously, and most importantly on the same footing, of “the legal-
ity or the illegality”?

In my view, the structure of the question implied a comprehensive
analysis of the law governing nuclear weapons within the framework of
the limits set by the subject-matter of the question.

Several delegations were uncomfortable with the structure of the Gen-
eral Assembly’s question, partly because the question was unprecedented
and partly because of the scope of the matters dealt with in the first sec-
tion of the operative part of the Opinion.

Firstly, the legal character of the question amply justifies the Court’s
positive reaction to the General Assembly’s request. But the Court’s judi-

75
THREAT OR USE OF NUCLEAR WEAPONS (SEP. OP. RANJEVA) 298

cial reply would appear enigmatic or even incoherent if the Court had not
previously provided the key to its reading. The Opinion ought to have
elaborated on the meaning of the interpretation of the notion of “legal
question” it had implicitly opted for. The travaux préparatoires of the
San Francisco Conference are reticent on the attempts to define this
notion. Can we take it that its meaning is to be found in the data directly
available to the mind or should we view this silence as the expression of
the jurist’s unease when he has to contemplate the notion of “question”
as such.

The context of these advisory proceedings is unique in the history of
the World Court. The General Assembly’s request has nothing whatso-
ever in common with an international dispute or with a dispute born of a
difference of interpretation of a specific written rule. The Court’s task is
in fact a complex one in the present case. The final conclusion, or to use
the language of the theatre, the dénouement, is for the Court to pro-
nounce on the compliance or non-compliance of an act, decision or fact
with a higher normative rule; but in order to do this the Court must first
ascertain the presence or absence of general, objective prescriptions
(paras. 2 A and 2 B of the dispositif) and then justify the legal nature of
the principles thus identified and stated. In other words, to parody Lévi-
Strauss, the General Assembly is requesting the Court to try to answer
questions which no one asks. The inherent difficulty of this kind of ques-
tion lies in the scope of the reply which the Court wishes to give both in
the reasons and in the operative part (see Opinion, para. 104). In this
case, as pointed out above, the Court gave equal treatment to the differ-
ent aspects of the problem of legality and illegality, devoting particular
attention to the question of the absence of a prohibition on use.

Expressis verbis, resolution 49/75 does not request a legal opinion on the
illegality or prohibition of the threat or use of nuclear weapons. The
General Assembly invites the Court to go back to the first principles and
to the most general propositions which explain or may call into question
the interpretation that, in the absence of rules accepted as such which
prohibit such acts, discretionary freedom would be the norm. There was
obviously no lack of criticism of the structure of the question. The argu-
ments put forward to support the idea that the question was poorly
defined were based on two main grounds: first, the obvious or absurd
nature of the question, for the reply is not in doubt: no rule authorizes in
international law the threat or use of nuclear weapons; second, such a
question, which these criticisms regard as apparently valid, would run the
risk of leading to inadmissible conclusions in view of the judicial nature
of the Court. By seeing fit on the one hand to respond to the General
Assembly’s request (last section of the operative part) and on the other
hand not to reformulate the terms of the question (see para. 20), notwith-
standing the slight difference between the English and French versions of
the text, the Court rejected the sophistry of fear of innovation. Such a

76
THREAT OR USE OF NUCLEAR WEAPONS (SEP. OP. RANJEVA) 299

question does not amount to a questioning of positive law or to a request
for it to be modified; nor was the Court asked to depart from its judicial
function, for:

“The Court . .. as an international judicial organ, is deemed to
take judicial notice of international law, and is therefore required in
a case falling under Article 53 of the Statute, as in any other case, to
consider on its own initiative all rules of international law which
may be relevant to the settlement of the dispute. It being the duty of
the Court itself to ascertain and apply the relevant law in the given
circumstances of the case, the burden of establishing or proving rules
of ... law... lies within the judicial knowledge of the Court.”
(I C.J. Reports 1974, p. 9, para. 17, and p. 181, para. 18.)

These considerations facilitate a better understanding of the meaning
of the notion of legal question and of the method followed by the Court
in replying to the General Assembly’s question, which does not in fact
amount to a request or question which would restrict the Court’s reply to
one alternative.

By addressing exhaustively all the aspects of the problem, the Opinion
invests the legal question with a broad dimension. A question represents
a subject, a matter on which the knowledge of the relevant rule lacks cer-
tainty. This uncertainty results from the inflationary proliferation of con-
tradictory propositions having a link to the subject submitted to the
Court. The Court is then invited to impose order on them by identifying
the propositions clad in the sanction of juridical normativity and by
explaining, in terms of an opinio juris, the normative status of various
propositions. It is obvious that the outcome of such a consultation can-
not avoid producing a proposition of a general character.

Secondly, the decision to accept the General Assembly’s request for an
opinion, the subject of the first section of the operative part, confirms the
Court’s liberal interpretation of the right of access of authorized interna-
tional institutions to advisory proceedings. The case of the request for
an opinion submitted by the World Health Organization will in all proba-
bility remain unusual, if not unique. Intrinsically, the subject-matter of
WHO resolution 46/40 could not give rise to criticism, since each institu-
tion is the judge of its own jurisdiction. But when the question establishes
a link of conditionality between the Court’s reply, if any, and the per-
formance of the preventive functions of primary health care, the special-
ized agency has substituted a link of conditionality for the link of con-
nectivity envisaged by the Charter, the Statute and the relevant instru-
ments of the World Health Organization. The fact that the subject-matter
of the question can be detached from the Organization’s functions did
not allow the Court, in the light of the rules of its own jurisdiction, to
perform its advisory function. This connection to today’s Opinion is not

77
THREAT OR USE OF NUCLEAR WEAPONS (SEP. OP. RANJEVA) 300

without interest; it is evident that the same majority of States wanted to
obtain from the General Assembly confirmation of a request for an advi-
sory opinion which contained defects capable of justifying a decision by
the Court not to reply. By referring to the WHO request, the General
Assembly revived memories of Article 14 of the Covenant of the League
of Nations. By not effecting a joinder of decisions, each request being
dealt with separately, the Court confirmed the magnitude of the potential
scope of requests for advisory opinions which is adjudged by it to belong
to the General Assembly. Nevertheless, the limits of access to the advi-
sory procedure are constituted by the legal nature of the subject-matter
of the question put. On the other hand, there is no effect on the settled
case-law that a request seeking to obtain by the advisory procedure the
amendment of positive law amounts to a political question.

The conditions in which the Court discharged its task expose it to the
criticism that procedural law professionals will inevitably level at the
whole of paragraph 2 of the operative part of the Opinion. The judi-
cial reply stricto sensu is found in paragraph 2 E; in fact, its purpose is to
declare compliance or non-compliance with a pre-established rule. How-
ever, revolving round this judicial conclusion are a number of proposi-
tions whose purpose is to state the justification or petitio principii leading
to the actual conclusion. This circumductory structure of the operative
part combined with the wording of paragraph 2 E poses the problem of
the actual consistency of the judicial conclusion in the Advisory Opinion
of the Court. It is regrettable that the inherent difficulties of the very sub-
ject of nuclear weapons were not turned to advantage by the Court to
enable it to exercise its judicial function more definitely by stating the
principle of illegality more clearly through a division of the two clauses of
paragraph 2 E into two separate paragraphs. A casual perusal of the
whole text of the Opinion (reasons and operative part) can give the
impression of a Court setting itself up as a legal consultation service. But
on this question the Court was not requested to carry out legal analyses
whose use would be left to the discretion of the various parties. The exer-
cise of its advisory function imposes on the Court the duty to state the
law on the question put by the author of the application; the optional
character attached to the normative scope of an opinion does not how-
ever have the consequence of changing the nature of the Court’s judicial
function. Its “dictum” constitutes the interpretation of the rule of law in
question, and to violate the operative part of the dictum amounts to a
failure to fulfil the obligation to respect the law. It is always the case that,
unlike contentious proceedings concerning a dispute over subjective
rights, the statement of the law in advisory proceedings can necessarily
not be limited to the alternatives of permitted/prohibited; although com-
plex, positive law must be stated with clarity, a quality wanting in the
second clause of paragraph 2 E.

78
THREAT OR USE OF NUCLEAR WEAPONS (SEP. OP. RANJEVA) 301

In my view, the second clause of paragraph 2 E raises difficulties of
interpretation by virtue of the problem of its intrinsic coherence in rela-
tion to the rules of the law of armed conflict themselves, although its
positive aspect must be emphasized: the principle that the exercise of self-
defence is subject to the rule of law.

Paragraph 2 E deals with the law of armed conflict and with humani-
tarian law, the second branch of law applicable to the threat or use of
nuclear weapons (see para. 34). The law of armed conflict is a matter of
written law, while the so-called Martens principle performs a residual
function.

Two consequences flow from this: firstly, this law of armed conflict
cannot be interpreted as containing lacunae of the sort likely to warrant
reserve or at least doubt; secondly, nuclear weapons cannot be used out-
side the context of the law of armed conflict. Moreover, since no State
supported the principle of a régime of non-law, the use of these weapons
must be in conformity, from the standpoint of the law, with the rules
governing such conflict. In these circumstances and on such an important
question, there cannot be any doubt about the validity of the principle of
illegality in the law of armed conflict.

With regard to the substance of the law of armed conflict, the second
clause of operative paragraph 2 E introduces the possibility of an excep-
tion to the rules of the law of armed conflict by introducing a notion
hitherto unknown in this branch of international law: the “extreme cir-
cumstance of self-defence, in which the very survival of a State would be at
stake”. Two criticisms must be offered. Firstly, the Court makes an amal-
gamation of the rules of the Charter of the United Nations on the one
hand and the law of armed conflict and specifically the rules of humani-
tarian law on the other; whereas paragraph 2 E deals only with the law of
armed conflict, and the right of self-defence belongs in paragraph 2 C.
Rigorousness and clarity were necessary, failing a paragraph 2 E bis
separate from paragraph 2E and the attachment of the notion of
“extreme circumstance of self-defence” to the more general problem of
self-defence dealt with in paragraph 2 C. Paragraph 2 C covers all the
cases of the right to use force by reference to the provisions of the Char-
ter (Arts. 2 and 4 and Art. 51). A priori nothing prohibits an interpreta-
tion giving precedence to the rules of self-defence, including nuclear self-
defence, over the rules of humanitarian law, a difficulty which leads
consequentially to the second criticism. Secondly, the criticism is
addressed to the acceptance of this concept of “extreme circumstance of
self-defence, in which the very survival of a State would be at stake”.
There is no doubt that the meaning of this concept is expressed in the
normal meaning of the words, but this observation is not sufficient. for
the purposes of legal qualification.

The principal difficulty of the interpretation of the second clause of para-
graph 2 E lies in the true nature of the exception of “extreme circum-
stance of self-defence” to the application of humanitarian law and the
law of armed conflict. Neither the case-law of the International Court or

79
THREAT OR USE OF NUCLEAR WEAPONS (SEP. OP. RANJEVA) 302

of any other court nor the doctrine offer any authority to confirm the
existence of a distinction between the general case of application of the
rules of the law of armed conflict and the exceptional case exempting a
belligerent from fulfilling the obligations imposed by those rules.

If such a rule must exist, it can be deduced only from the intention of
the States authors of and parties to these instruments. The fact that the
case of nuclear weapons was deliberately not addressed during the nego-
tiation and conclusion of the major conventions on the law of armed con-
flict has been repeatedly stressed. Accordingly, it is difficult to see how
these plenipotentiaries could envisage exceptions of such importance to
the principles governing the law of armed conflict. These principles were
intended to be applied in all cases of conflict without any particular con-
sideration of the status of the parties to the conflict — whether they
were victims or aggressors. If an exceptional authorization had been
envisaged, the authors of these instruments could have referred to it, for
example by incorporating limits or exceptions to their universal applica-
tion.

The distinction proposed by the Court would certainly be difficult to
apply and in the end would only render even more complicated a prob-
lem which is already difficult to handle in law. O. Schachter has drawn up
an inventory of the cases in which, quite apart from any question of
aggression, a State has claimed the privilege of self-defence. These are:

“(1) the use of force to rescue political hostages believed to face
imminent danger of death or injury;

(2) the use of force against officials or installations in a foreign
state believed to support terrorist acts directed against nationals of
the state claiming the right of defense;

(3) the use of force against troops, planes, vessels or installations
believed to threaten imminent attack by a state with declared hostile
intent;

(4) the use of retaliatory force against a government or military
force so as to deter renewed attacks on the state taking such action;

(5) the use of force against a government that has provided arms
or technical support to insurgents in a third state;

(6) the use of force against a government that has allowed its ter-
ritory to be used by military forces of a third state considered to be
a threat to the state claiming self-defense;

(7) the use of force in the name of collective defense (or counter-
intervention) against a government imposed by foreign forces
and faced with large-scale military resistance by many of its

80
THREAT OR USE OF NUCLEAR WEAPONS (SEP. OP. RANJEVA) 303

people.” (O. Schachter, “Self-defense over the Rule of Law”, AJIL,
1989, p. 271.)

The question is to decide in which category the case of an extreme cir-
cumstance of self-defence, in which the very survival of a State is at stake,
must be placed to justify recourse to the ultimate weapon and the paraly-
sis of the application of the rules of humanitarian law and the law appli-
cable in armed conflict. This question must be answered in the negative:
the obligation of each belligerent to respect the rules of humanitarian law
applicable in armed conflict is in no way limited to the case of self-
defence; the obligation exists independently of the status of aggressor or
victim. Furthermore, no evidence of the existence of a “clean nuclear
weapon” was presented to the Court, and States merely argued that there
was indeed a problem of compatibility between the legality of the use of
nuclear weapons and the rules of humanitarian law. In my view, these
criticisms strip the exception of “extreme circumstance of self-defence” of
ali logical and juridical foundation.

However, the respect in which I hold the Court prompts me to acknow-
ledge that the principal judicial organ of the United Nations was not un-
aware of these criticisms or of the reproaches which the professionals of
the juridical and judicial worlds would certainly offer. But I still believe
that the close interrelationship of all the elements of this decision requires
that the second clause of paragraph 2 E should be read in the light of
paragraph 2 C. It must be acknowledged that in the final analysis the
Court does affirm that the exercise of self-defence cannot be envisaged
outside the framework of the rule of law. Paragraphs 2 C and 2 E define
the prior legal constraints on the exercise of this right under such condi-
tions that, in the light of paragraphs 2 C, 2 D and 2 E, the legality of its
exercise is more than improbable in actuality. The most important ele-
ment, however, is the ordering of the legal guarantees. Paragraph 2 E
leaves open in these extreme circumstances the question of legality or ille-
gality; it thus sets aside the possibility of creating predefined or predeter-
mined blocks of legality or illegality. A reply can be envisaged only in
concreto in the light of the conditions of the preceding paragraphs 2 C
and 2 D. This conclusion must be emphasized, for if the Court had
addressed only one of the alternatives, the solution of indirect legality,
the second clause would have nullified the subject-matter of the first
clause. By addressing the two branches of the question the Court opens
the way to a debate on illegality and legality with respect to international
law, as the Nuremberg Tribunal had already stated:

“Whether action taken under the claim of self-defense was in
fact aggressive or defensive must ultimately be subject to investiga-
tion or adjudication if international law is ever to be enforced.”
(O. Schachter, op. cit., p. 262.)

This complicated construction ultimately limits the unilateral exercise
of self-defence. Moreover, by reserving its definitive reply, therefore in

81
THREAT OR USE OF NUCLEAR WEAPONS (SEP. OP. RANJEVA) 304

principle, the Court is creating a possible sphere of competence hitherto
inconceivable owing to the effect of the combined mechanism of unilat-
eral qualification and the right of veto. The difficulty of the terms of the
problem did not, however, induce the Court to agree to assert the pri-
macy of the requirements of the survival of a State over the obligation to
respect the rules of international humanitarian law applicable in armed
conflict.

In conclusion, if the two clauses of paragraph 2 E had appeared as
separate paragraphs, I would have voted without hesitation in favour of
the first clause and, if the provisions of the Statute and the Rules of the
Court so allowed, I would have abstained on the second clause. The join-
der of these two propositions caused me to vote in all conscience in
favour of the whole, for the essence of the law is safe and the prohibition
of nuclear weapons is a question of the responsibility of all and everyone,
the Court having made its modest contribution by questioning each sub-
ject and actor of international life on the basis of the law. I hope that no
court will ever have to rule on the basis of the second clause of para-
graph 2 E.

(Signed) Raymond RANIEVA.

82


CAMEROUN SEPTENTRIONAL (ARRÊT DU 2 XII 63) 39

archives de la Cour et dont les autres seront transmis respective-
ment au Gouvernement de la République fédérale du Cameroun et
au Gouvernement du Royaume-Uni de Grande-Bretagne et
d'Irlande du Nord.

Le Président,
(Signé) B. WINIARSKI.

Le Greffier,
(Signé) GARNIER-COIGNET.

M. SPIROPOULOS, juge, fait la déclaration suivante:

Je ne partage pas Vopinion de la Cour. Je considère que la
requête de la République du Cameroun est recevable et que la
Cour est compétente pour examiner au fond le différend dont elle
est saisie.

M. KoRETSKY, juge, fait la déclaration suivante:

Je ne puis souscrire à l'arrêt de la Cour, en tant qu’il n’a pas été
établi conformément aux règles et principes pertinents définis par
le Règlement de la Cour.

Cet arrêt est rendu au stade de l'examen des exceptions prélimi-
naires, stade qui se distingue très précisément de celui de l'examen
de la requête quant au fond. Négligeant la question de sa compé-
tence, la Cour a traité de la question de Virrecevabilité des deman-
des de la République du Cameroun.

Si la question de l’irrecevabilité est soulevée non point à raison
de l’inobservation des prescriptions purement formelles du Régle-
ment, telles que l’article 32, paragraphe 2, mais à l’égard du fond
de la requête (vatione materiae), la Cour doit tout d’abord se pro-
noncer sur sa compétence, pour examiner ensuite l'exception d’irre-
cevabilité. C’est là une règle largement admise. Je me permettrai
de citer, parmi de nombreux avis autorisés, celui que sir Percy
Spender a énoncé dans son opinion individuelle en l'affaire de
VInterhandel (C. I. J. Recueil 1959, p. 54) et aux termes duquel la
Cour est tenue de s'assurer qu’elle est compétente avant de se
prononcer sur une exception ayant trait à la recevabilité de la
requête. Le même point de vue a été exprimé par sir Hersch Lauter-
pacht dans son opinion dissidente (¢b:d., p. 100): «les exceptions
préliminaires, conformément à la pratique établie par la Cour,
doivent être examinées — et rejetées — avant l’examen de la
demande portant sur la recevabilité ».

28


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRÊTS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE NOTTEBOHM

(LIECHTENSTEIN c. GUATEMALA)
ORDONNANCE DU 26 JANVIER 1952

1952

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

NOTTEBOHM CASE

(LIECHTENSTEIN v. GUATEMALA)
ORDER OF JANUARY 26th, 1952
La présente ordonnance doit être citée comme suit :

«Affaire Nottebohm,
Ordonnance du 26 janvier 1952: C.I. J. Recueil 1952, p. 10.»

This Order should be cited as follows :

“Nottebohm case,
Order of January 26th, 1952: I.C.J. Reports 1952, p. 10.”

Ne de vente: 7 8
Sales number

26 JANVIER 1952

ORDONNANCE

AFFAIRE NOTTEBOHM
(LIECHTENSTEIN c. GUATEMALA)

NOTTEBOHM CASE
(LIECHTENSTEIN v. GUATEMALA)

JANUARY 26th, 1952

ORDER
IO

COUR INTERNATIONALE DE JUSTICE

1952
Le 26 janvier

Role général ANNEE 1952

26 janvier 1952

AFFAIRE NOTTEBOHM

(LIECHTENSTEIN c. GUATEMALA)

ORDONNANCE

Le Président de la Cour internationale de Justice,
vu l’article 48 du Statut de la Cour,
vu l'article 37 du Règlement de la Cour ;

Considérant qu’à la date du 17 décembre 1951, le Gouvernement
de la Principauté du Liechtenstein a fait déposer au Greffe de
la Cour une requête, datée du 10 décembre 1951, introduisant
contre la République de Guatemala une instance relative aux
mesures prises par ce dernier gouvernement contre la personne
et les biens de Friedrich Nottebohm, ressortissant du Liechtenstein ;

Considérant que la requête invoque la déclaration en date du
29 mars 1950 par laquelle le Gouvernement de la Principauté du
Liechtenstein a accepté les conditions déterminées par l’Assemblée
générale des Nations Unies et est devenu ainsi partie au Statut
de la Cour ;

Considérant que la requête invoque, en outre, les déclarations
par lesquelles le Gouvernement de la Principauté du Liechtenstein
et le Gouvernement de la République de Guatemala ont accepté
la juridiction obligatoire de la Cour aux termes de l’article 36,
paragraphe 2, du Statut de la Cour, et que ladite requête contient,
par conséquent, la mention de la disposition par laquelle le requé-
rant prétend établir la compétence de la Cour ;

4
II ORDONNANCE DU 26 I 52 (AFFAIRE NOTTEBOHM)

Considérant que, par une lettre reçue au Greffe le 17 décembre
1951, le chef du Gouvernement de la Principauté du Liechtenstein
a notifié à la Cour la désignation comme agent de ce gouvernement
de M. Erwin H. Loewenfeld, docteur en droit, LL. B., conseiller
juridique du Gouvernement de la Principauté, ainsi que son
élection de domicile au siège de la Cour ;

Considérant que la requête, qui porte la signature de l'agent,
dûr.ent légalisée par le chef du Gouvernement princier, contient
Vindication de l’objet de la demande et un exposé succinct des
faits et des motifs par lesquels la demande est prétendue justifiée ;

Considérant que, dans ces conditions, la requête satisfait aux
conditions de forme posées par le Règlement ;

Considérant qu’à la date du 17 décembre 1951, le Gouvernement
de la République de Guatemala a été avisé télégraphiquement du
dépôt de ladite requête, dont copie certifiée conforme lui a été
adressée le 18 décembre 1951 ;

Fixe comme suit la date d’expiration des délais pour le dépôt
par les Parties des deux premiéres piéces de la procédure écrite :

pour le mémoire du Gouvernement de la Principauté du Liech-
tenstein : 2 avril 1952 ;

pour le contre-mémoire du Gouvernement de la République de
Guatemala: 12 juillet 1952 ;

Réserve la suite de la procédure.

Fait en frangais et en anglais, le texte francais faisant foi, au
Palais de la Paix, 4 La Haye, le vingt-six janvier mil neuf cent
cinquante-deux, en trois exemplaires, dont l’un restera déposé
aux archives de la Cour et dont les autres seront transmis respec-
tivement au Gouvernement de la Principauté du Liechtenstein et
au Gouvernement de la République de Guatemala.

Le Président de la Cour,
(Signé) BaSDEVANT.

Le Greffier de la Cour,
(Signé) E. HAMBRO.