COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

CERTAINES QUESTIONS DE PROCEDURE
RELATIVES A L’INTERPRETATION DES
TRAITES DE PAIX CONCLUS
AVEC LA BULGARIE, LA HONGRIE
ET LA ROUMANIE

ORDONNANCE DU 7 NOVEMBRE 1949

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CERTAIN PROCEDURAL QUESTIONS
RELATING TO THE INTERPRETATION
OF PEACE TREATIES WITH BULGARIA,

HUNGARY AND ROMANIA

ORDER OF NOVEMBER 7th, 1949
La présente ordonnance doit étre citée comme suit :

« Interprétation des Traités de parx,
Ordonnance du 7 novembre 1949: ‘
C. I. J. Recueil 1949, p. 229.»

This Order should be cited as follows :

“Interpretation of Peace Treaties, Order of November 7th, 1949 :
I. C. J. Reports 1949, p. 229.”

No de vente:
Sales number 24

229

INTERNATIONAL COURT OF JUSTICE

1949

YEAR 1949 November 7th

General List:
No. 8

Order made on November 7th, 1949.

CERTAIN PROCEDURAL QUESTIONS
RELATING TO THE INTERPRETATION
OF PEACE TREATIES WITH BULGARIA,

HUNGARY AND ROMANIA

The Acting President of the International Court of Justice,
Having regard to Articles 48, 63, 66 and 68 of the Statute,
Having regard to Article 37 of the Rules of Court,

Makes the following Order :

Whereas, on the 22nd October, 1949, the General Assembly of
the United Nations adopted a Resolution by the terms of which
it requested the Court for an Advisory Opinion on the following
questions :

“J. Do the diplomatic exchanges between Bulgaria, Hungary
and Romania on the one hand and certain Allied and
Associated Powers signatories to the Treaties of Peace
on the other, concerning the implementation of Article 2
of the Treaties with Bulgaria and Hungary and Article 3
of the Treaty with Romania, disclose disputes subject
to the provisions for the settlement of disputes con-
tained in Article 36 of the Treaty of Peace with Bulgaria,
Article 40 of the Treaty of Peace with Hungary, and
Article 38 of the Treaty of Peace with Romania ?”

In the event of an affirmative reply to question I:

“Ti. Are the Governments of Bulgaria, Hungary and Romania
obligated to carry out the provisions of the Articles

4
ORDER OF 7 XI 49 (INTERPRETATION OF PEACE TREATIES) 230

referred to in question I, including the provisions for
the appointment of their representatives to the Treaty
Commissions ?”

In the event of an affirmative reply to question IT and if within
thirty days from the date when the Court delivers its opinion,
the Governments concerned have not notified the Secretary-
General that they have appointed their representatives to the
Treaty Commissions, and the Secretary-General has so advised
the International Court of Justice :

“TIT. If one party fails to appoint a representative to a Treaty
Commission under the Treaties of Peace with Bulgaria,
Hungary and Romania where that party is obligated to
appoint a representative to the Treaty Commission, is
the Secretary-General of the United Nations authorized
to appoint the third member of the Commission upon
the request of the other party to a dispute according
to the provisions of the respective Treaties ?”’

In the event of an affirmative reply to question IIT:

“IV. Would a Treaty Commission composed of a representative
of one party and a third member appointed by the
Secretary-General of the United Nations constitute a
Commission, within the meaning of the relevant Treaty
articles, competent to make a definitive and binding
decision in settlement of a dispute ?”

Whereas a certified true copy of the English and French texts
of the Resolution of the General Assembly was transmitted to the
Court by means of a letter dated 31st October, 1949, signed by
the Secretary-General of the United Nations ;

Whereas on the 7th November, 1949, the Registrar, in pur-
suance of paragraph 1 of Article 66 of the Statute, gave notice of
the request for an advisory opinion to all States entitled to appear
before the Court ;

Whereas, on the same date, the Registrar, in pursuance of
paragraph 2, Article 66, of the Statute, gave notice to ali States
entitled to appear before the Court and who signed the Peace
Treaties concerned, and, in pursuance of paragraph 1 of Article 63,
and of Article 68 of the Statute, to the other signatory States of
these Peace Treaties, that the Court was prepared to receive
written statements relating to the question:
ORDER OF 7 XI 49 (INTERPRETATION OF PEACE TREATIES) 231

1. Appoints Monday, January 16th, 1950, as the date of expiry
of the time-limit within which the aforesaid States may file written
statements.

z. Reserves the rest of the procedure for further decision.

Done in English and in French, the French text being author-
itative, at the Peace Palace, The Hague, this seventh day of
November, one thousand nine hundred and forty-nine.

(Signed) J. G. GUERRERO,
Acting President.

(Signed) E. HAMBRO,
Registrar.


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DE LA FRONTIERE TERRESTRE
ET MARITIME ENTRE LE CAMEROUN
ET LE NIGERIA

(CAMEROUN c. NIGERIA; GUINEE ÉQUATORIALE (intervenant))

ORDONNANCE DU 20 FEVRIER 2001

2001

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING
THE LAND AND MARITIME BOUNDARY
BETWEEN CAMEROON AND NIGERIA

(CAMEROON ». NIGERIA: EQUATORIAL GUINEA intervening)

ORDER OF 20 FEBRUARY 2001
Mode officiel de citation:

Frontiére terrestre et maritime entre le Cameroun et le Nigéria
(Cameroun c. Nigéria; Guinée équatoriale (intervenant) ),
ordonnance du 20 février 2001, C.J. Recueil 2001, p. 9

Official citation:

Land and Maritime Boundary between Cameroon and Nigeria
(Cameroon v. Nigeria: Equatorial Guinea intervening),
Order of 20 February 2001, LC.J. Reports 2001, p. 9

N° de vente:
ISSN 0074-4441 Sales number 808

ISBN 92-1-070907-1

20 FEVRIER 2001

ORDONNANCE

FRONTIERE TERRESTRE ET MARITIME
ENTRE LE CAMEROUN ET LE NIGERIA

(CAMEROUN c. NIGERIA; GUINEE ÉQUATORIALE (intervenant))

LAND AND MARITIME BOUNDARY
BETWEEN CAMEROON AND NIGERIA

(CAMEROON ». NIGERIA: EQUATORIAL GUINEA intervening)

20 FEBRUARY 2001

ORDER
INTERNATIONAL COURT OF JUSTICE

YEAR 2001 2001
20 February
General List

20 February 2001 No. 94

CASE CONCERNING
THE LAND AND MARITIME BOUNDARY
BETWEEN CAMEROON AND NIGERIA

(CAMEROON Yr. NIGERIA: EQUATORIAL GUINEA intervening)

ORDER

Present: President GUILLAUME; Vice-President Sui; Judges Oba,
RANJEVA, HERCZEGH, FLEISCHHAUER, KOROMA, VERESHCHETIN,
HIGGINS, PARRA-ARANGUREN,  KOOIIMANS, REZEK, AL-
KHASAWNEH, BUERGENTHAL; Registrar COUVREUR.

The International Court of Justice,

Composed as above,
After deliberation,

Having regard to Article 48 of the Statute of the Court and to
Articles 44 and 80 of the Rules of Court,

Having regard to the Application filed by the Republic of Cameroon in
the Registry of the Court on 29 March 1994 instituting proceedings
against the Federal Republic of Nigeria in respect of a dispute described
as “relat[ing] essentially to the question of sovereignty over the Bakassi
Peninsula”, in which the Court was also requested “to determine the
course of the maritime boundary between the two States beyond the line
fixed in 1975”,

Having regard to the Additional Application submitted by Cameroon
on 6 June 1994,
LAND AND MARITIME BOUNDARY (ORDER 20 II 01) 10

Having regard to the Order of 16 June 1994, whereby the Court indi-
cated that it had no objection to the Additional Application being treated
as an amendment to the initial Application and fixed the time-limits for
the filing of the Memorial of Cameroon and the Counter-Memorial of
Nigeria, respectively,

Having regard to the Memorial filed by Cameroon and the preliminary
objections submitted by Nigeria within the time-limits thus fixed,

Having regard to the Judgment of 11 June 1998, whereby the Court
ruled on the preliminary objections raised by Nigeria,

Having regard to the Order of 30 June 1998, whereby the Court fixed
a new time-limit for the filing of the Counter-Memorial of Nigeria, and
to the Order of 3 March 1999, whereby it extended that time-limit,

Having regard to the Counter-Memorial filed by Nigeria within the
time-limit thus extended and to the counter-claims submitted therein,

Having regard to the Order of 30 June 1999, whereby the Court found
that the counter-claims submitted by Nigeria were admissible as such and
formed part of the current proceedings; decided that Cameroon should
submit a Reply and Nigeria should submit a Rejoinder, relating to the
claims of both Parties; and fixed 4 April 2000 and 4 January 2001 respec-
tively as the time-limits for the filing of those pleadings,

Having regard to the Reply filed by Cameroon and the Rejoinder filed
by Nigeria within the time-limits thus fixed;

Whereas, by a letter dated 24 January 2001 and received in the Regis-
try on the same day by facsimile, the Agent of Cameroon notified the
Court that his Government wished to submit an additional pleading “to
rectify a number of errors of fact or of law made by Nigeria in the
presentation of [its] counter-claims” and suggested that 4 July 2001
should be fixed as the time-limit for filing this additional pleading;

Whereas, by a letter dated 5 February 2001 and received in the Regis-
try on 6 February 2001 by facsimile, the Agent of Nigeria informed the
Court that his Government had no objection to Cameroon’s submission
of an additional pleading devoted to the counter-claims made by Nigeria;
whereas he stated that “Cameroon’s additional pleading will be confined
to responding to Nigeria’s Counterclaims” and that “Nigeria reserves the
right to request fair treatment in responding to any additional points” if
that pleading “were to exceed the scope of that limited response”; and
whereas the Agent added that Nigeria accepted the fixing of 4 July 2001
as the time-limit for the filing of Cameroon’s additional pleading;

Whereas, in its above-mentioned Order of 30 June 1999, the Court,

5
LAND AND MARITIME BOUNDARY (ORDER 20 II 01) 11

after indicating that it considered it necessary for Cameroon to file a
Reply and for Nigeria to file a Rejoinder, relating to the claims of both
Parties, added that:

“it is necessary moreover, in order to ensure equality between the
Parties, to reserve the right of Cameroon to present, within a
reasonable period of time, its views in writing a second time on
the Nigerian counter-claims, in an additional pleading which may be
the subject of a subsequent Order”,

Taking account of the agreement of the Parties,

Authorizes the submission by the Republic of Cameroon of an addi-
tional pleading relating solely to the counter-claims submitted by the
Federal Republic of Nigeria;

Fixes 4 July 2001 as the time-limit for the filing of that pleading; and
Reserves the subsequent procedure for further decision.

Done in French and in English, the French text being authoritative,
at the Peace Palace, The Hague, this twentieth day of February, two
thousand and one, in three copies, one of which will be placed in the
archives of the Court and the others transmitted to the Government
of the Republic of Cameroon and the Government of the Federal
Republic of Nigeria, respectively.

(Signed) Gilbert GUILLAUME,
President.

(Signed) Philippe COUVREUR,
Registrar.


500

DECLARATION OF JUDGE VERESHCHETIN

The extraordinary circumstances in which Yugoslavia made its request
for interim measures of protection imposed a need to react immediately.
The Court should have promptly expressed its profound concern over the
unfolding human misery, loss of life and serious violations of interna-
tional law which by the time of the request were already a matter of pub-
lic knowledge. It is unbecoming for the principal judicial organ of the
United Nations, whose very raison d’être is the peaceful resolution of
international disputes, to maintain silence in such a situation, Even if
ultimately the Court may come to the conclusion that, due to constraints
in its Statute, it cannot indicate fully fledged provisional measures in
accordance with Article 41 of the Statute in relation to one or another of
the respondent States, the Court is inherently empowered, at the very
least, immediately to call upon the Parties neither to aggravate nor to
extend the conflict and to act in accordance with their obligations under
the Charter of the United Nations. This power flows from its responsi-
bility for the safeguarding of international law and from major consid-
erations of public order. Such an authoritative appeal by the “World
Court”, which would also be consistent with Article 41 of its Statute and
Article 74, paragraph 4, and Article 75, paragraph 1, of its Rules, could
have a sobering effect on the Parties involved in the military conflict, un-
precedented in European history since the end of the Second World War.

The Court was urged to uphold the rule of law in the context of large-
scale gross violations of international law, including of the Charter of the
United Nations. Instead of acting expeditiously and, if necessary, proprio
motu, in its capacity as “the principal guardian of international law”, the
majority of the Court, more than one month after the requests were
made, rejected them in a sweeping way in relation to all the cases brought
before the Court, including those where, in my view, the prima facie juris-
diction of the Court could have been clearly established. Moreover, this
decision has been taken in a situation in which deliberate intensification
of bombardment of the most heavily populated areas is causing unabated
loss of life amongst non-combatants and physical and mental harm to the
population in all parts of Yugoslavia.

For the foregoing reasons, I cannot concur with the inaction of the
Court in this matter, although I concede that in some of the cases insti-

23
501 LEGALITY OF USE OF FORCE (DECL. VERESHCHETIN)

tuted by the Applicant the basis of the Court’s jurisdiction, at this stage
of the proceedings, is open to doubt, and in relation to Spain and the

United States is non-existent.

(Signed) Vladlen S. VERESHCHETIN.

24


                           COUR INTERNATIONALE DE JUSTICE

                               RECUEIL DES ARRÊTS,
                        AVIS CONSULTATIFS ET ORDONNANCES

                      APPLICATION DE LA CONVENTION
                   POUR LA PRÉVENTION ET LA RÉPRESSION
                          DU CRIME DE GÉNOCIDE
                                (CROATIE c. SERBIE)

                          ORDONNANCE DU 23 JANVIER 2012

                                  2012
                           INTERNATIONAL COURT OF JUSTICE

                             Reports of judgments,
                          ADVISORY OPINIONS AND ORDERS

                     Application of the convention
                   ON THE PREVENTION AND PUNISHMENT
                       OF THE CRIME OF GENOCIDE
                                (CROATIA v. SERBIA)

                             ORDER OF 23 JANUARY 2012

2 CIJ1028.indb 1                                            1/07/13 15:58

                                            Mode officiel de citation :
                         Application de la convention pour la prévention et la répression
                                   du crime de génocide (Croatie c. Serbie),
                           ordonnance du 23 janvier 2012, C.I.J. Recueil 2012, p. 3

                                                Official citation :
                         Application of the Convention on the Prevention and Punishment
                                  of the Crime of Genocide (Croatia v. Serbia),
                               Order of 23 January 2012, I.C.J. Reports 2012, p. 3

                                                                                1028
                                                                 No de vente:
                   ISSN 0074-4441                                Sales number
                   ISBN 978-92-1-071142-5

2 CIJ1028.indb 2                                                                            1/07/13 15:58

                                                         23 JANVIER 2012

                                                         ORDONNANCE

                   APPLICATION DE LA CONVENTION POUR LA PRÉVENTION
                         ET LA RÉPRESSION DU CRIME DE GÉNOCIDE
                                  (CROATIE c. SERBIE)

                   APPLICATION OF THE CONVENTION ON THE PREVENTION
                       AND PUNISHMENT OF THE CRIME OF GENOCIDE
                                  (CROATIA v. SERBIA)

                                                        23 JANUARY 2012

                                                            ORDER

2 CIJ1028.indb 3                                                           1/07/13 15:58

                                                                                3

                                 INTERNATIONAL COURT OF JUSTICE

                                                 YEAR 2012                                        2012
                                                                                23 January
                                                                                General List
                                               23 January 2012                                  No. 118

                       APPLICATION OF THE CONVENTION
                     ON THE PREVENTION AND PUNISHMENT
                          OF THE CRIME OF GENOCIDE
                                           (CROATIA v. SERBIA)

                                                   ORDER

                   Present : President Owada ; Vice-President Tomka ; Judges Koroma,
                              Simma, Abraham, Keith, Sepúlveda‑Amor, Bennouna,
                              Skotnikov, Cançado Trindade, Yusuf, Greenwood, Xue,
                               Donoghue ; Registrar Couvreur.

                     The International Court of Justice,
                      Composed as above,
                      After deliberation,
                      Having regard to Article 48 of the Statute of the Court and to Arti-
                   cles 31, 44 and 80 of the Rules of Court,
                      Having regard to the Application filed in the Registry of the Court on
                   2 July 1999, whereby the Republic of Croatia instituted proceedings
                   against the Federal Republic of Yugoslavia “for violations of the Con-
                   vention on the Prevention and Punishment of the Crime of Genocide”,
                      Having regard to the Order dated 14 September 1999, whereby the
                   Court fixed 14 March 2000 and 14 September 2000 respectively as the
                   time‑limits for the filing of the Memorial of the Republic of Croatia and
                   the Counter‑Memorial of the Federal Republic of Yugoslavia,
                      Having regard to the Order dated 10 March 2000, whereby the Presi-
                   dent of the Court, at the request of Croatia, extended until 14 Septem-

                                                                                4

2 CIJ1028.indb 5                                                                                1/07/13 15:58

                            application of genocide convention (order 23 I 12)                4

                   ber 2000 and 14 September 2001 respectively the time‑limits for the filing
                   of the Memorial and the Counter‑Memorial, and to the Order dated
                   27 June 2000, whereby the Court, at the request of Croatia, extended
                   those time‑limits until 14 March 2001 and 16 September 2002 respect
                   ively,
                      Having regard to the Memorial of Croatia, filed within the time‑limit
                   as extended,
                      Having regard to the preliminary objections to the jurisdiction of the
                   Court and the admissibility of the Application which were submitted by
                   the Federal Republic of Yugoslavia within the time‑limit fixed for the fil-
                   ing of the Counter‑Memorial, as extended,
                      Having regard to the Judgment of 18 November 2008, whereby the
                   Court ruled on the preliminary objections raised by the Respondent,
                      Having regard to the Order dated 20 January 2009, whereby the Court
                   fixed 22 March 2010 as the new time‑limit for the filing of the Counter‑
                   Memorial of Serbia,
                      Having regard to the Counter‑Memorial of Serbia, filed on 4 Janu-
                   ary 2010, and to the counter-claims submitted therein,
                      Having regard to the Order dated 4 February 2010, in which the Court
                   stated that in these proceedings, and taking account of the absence
                   of objections by Croatia to the admissibility of the above‑mentioned
                   counter‑claims, it did not consider that it was required to rule definitively
                   at that stage on the question of whether the said claims fulfil the condi-
                   tions set forth in Article 80, paragraph 1, of the Rules of Court,
                      Having regard to that same Order of 4 February 2010, whereby the
                   Court directed Croatia to submit a Reply and Serbia to submit a Rejoin-
                   der relating to the claims of both Parties in the current proceedings, stated
                   that
                       “it is also appropriate, in order to ensure strict equality between
                       the Parties, to reserve the right for Croatia to express its views for a
                       second time in writing within a reasonable time‑limit on Serbia’s
                       counter-claims, in an additional pleading whose submission may be
                       dealt with in a subsequent Order”,
                    and fixed 20 December 2010 and 4 November 2011 respectively, as the
                    time-limits for the filing of the Reply and the Rejoinder ;
                       Having regard to the Reply filed by Croatia and the Rejoinder filed by
                    Serbia within the time-limits thus fixed ;
                       Whereas, at a meeting held by the President of the Court with the
                   representatives of the Parties on 16 January 2012, H.E. Ms Andreja

                   Metelko‑Zgombić, Co‑Agent of Croatia, indicated that her Government
                   wished to present its views in writing a second time on the Serbian
                   counter‑claims, in an additional pleading, and requested a time‑limit of
                    eleven months from the date of the filing of the Rejoinder for the filing of

                                                                                5

2 CIJ1028.indb 7                                                                                1/07/13 15:58

                            application of genocide convention (order 23 I 12)             5

                   that additional pleading ; whereas Mr. Saša Obradović, Agent of Serbia,
                   indicated inter alia that his Government had no objection to Croatia’s
                   request to be permitted to file an additional pleading but considered that
                   a time‑limit of eight months would be sufficient to allow Croatia to pre-
                   pare the said pleading ;
                     Taking account of the views of the Parties,
                     Authorizes the submission by the Republic of Croatia of an additional
                   pleading relating solely to the counter‑claims submitted by the Republic
                   of Serbia ;
                     Fixes 30 August 2012 as the time-limit for the filing of that pleading ;
                   and
                     Reserves the subsequent procedure for further decision.

                     Done in French and in English, the French text being authoritative, at
                   the Peace Palace, The Hague, this twenty‑third day of January, two thou-
                   sand and twelve, in three copies, one of which will be placed in the
                   archives of the Court and the others transmitted to the Government of
                   the Republic of Croatia and the Government of the Republic of Serbia,
                   respectively.

                                                              (Signed) Hisashi Owada,
                                                                          President.
                                                            (Signed) Philippe Couvreur,
                                                                           Registrar.

                                                                                6

2 CIJ1028.indb 9                                                                                1/07/13 15:58

2 CIJ1028.indb 11   1/07/13 15:58


- INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING THE
AERIAL INCIDENT OF 3 JULY 1988

(ISLAMIC REPUBLIC OF IRAN v. UNITED STATES
OF AMERICA)

ORDER OF 12 JUNE 1990

1990

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DE L’INCIDENT AERIEN
DU 3 JUILLET 1988

(RÉPUBLIQUE ISLAMIQUE D’IRAN c. ÉTATS-UNIS
D’AMERIQUE)

ORDONNANCE DU 12 JUIN 1990
Official citation:
Aerial Incident of 3 July 1988 (Islamic Republic of Iran

v. United States of America), Order of 12 June 1990,
CJ. Reports 1990, p. 86

Mode officiel de citation: |

Incident aérien du 3 juillet 1988 (République islamique d’Iran
c. Etats-Unis d’Amérique), ordonnance du 12 juin 1990,
C.LJ. Recueil 1990, p. 86

Sales number 5 7 8
N° de vente :

1990
12 June
General List
No. 79

86

INTERNATIONAL COURT OF JUSTICE
YEAR 1990

12 June 1990

CASE CONCERNING THE
AERIAL INCIDENT OF 3 JULY 1988

(ISLAMIC REPUBLIC OF IRAN y. UNITED STATES
OF AMERICA)

ORDER

The President of the International Court of Justice,

Having regard to Article 48 of the Statute of the Court and to Article 44
of the Rules of Court, |

Having regard to the Application filed by the Islamic Republic of Iran
in the Registry of the Court on 17 May 1989 instituting proceedings
against the United States of America,

Having regard to the Order made by the Court on 13 December 1989
fixing 12 June 1990 as time-limit for the Memorial of the Islamic Republic
of Iran and 10 December 1990 for the Counter-Memorial of the
United States of America; and

Whereas by a letter dated 11 June 1990 and received in the Registry the
same day the Agent of Iran requested that the time-limit for the filing of
the Memorial be extended by six weeks; and whereas a copy of that letter
was immediately transmitted by the Registrar to the Agent of the
United States;

Whereas the Agent of the United States, by a facsimile message dated
12 June 1990, indicated that his Government had no objection to the
extension requested by the Agent of Iran on the understanding that the
United States would receive a similar extension in the date for filing of the
Counter-Memorial;

4
87 AERIAL INCIDENT OF 3 VII 88 (ORDER 12 VI 90)

Extends to 24 July 1990 the time-limit for the filing of the Memorial of
the Islamic Republic of Iran;

Extends to 4 March 1991 the time-limit for the filing of the Counter-
Memorial of the United States of America;

And reserves the subsequent procedure for further decision.

Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this twelfth day of June, one thousand nine
hundred and ninety, in three copies, one of which will be placed in the
archives of the Court and the others transmitted to the Government of the
Islamic Republic of Iran and the Government of the United States of
America, respectively.

(Signed) José Maria Rupa,
President.

(Signed) Eduardo VALENCIA-OSPINA,
Registrar.


                     168

                                   SEPARATE OPINION OF JUDGE OWADA

                        1. I voted in favour of the Judgment as a whole, including subpara-
                     graphs (2) and (3) of the operative paragraph (para. 524), which con-
                     cluded that both the principal claim of Croatia and the counter‑claim of
                     Serbia, respectively alleging that the other Party had violated the Conven-
                     tion on the Prevention and Punishment of the Crime of Genocide, have
                     not been established, but voted against subparagraph (1) of the operative
                     paragraph of the Judgment, which rejects the ratione temporis jurisdic-
                     tional objection raised by Serbia in the present case.
                        2. It is to be recalled that in its earlier Judgment in the present case
                     concerning Application of the Convention on the Prevention and Punish‑
                     ment of the Crime of Genocide (Croatia v. Serbia) (I.C.J. Reports 2008,
                     p. 412) at its preliminary objections phase in 2008 (hereinafter “2008 Judg-
                     ment”), the Court, while rejecting the first preliminary objection submit-
                     ted by Serbia, as well as the third preliminary objection submitted by
                     Serbia, found that “the second preliminary objection submitted by the
                     Republic of Serbia does not, in the circumstances of the case, possess an
                     exclusively preliminary character” (ibid., p. 466, para. 146). This latter
                     finding of the Court in subparagraph (4) of the operative paragraph 146
                     was made in accordance with paragraph 7 of Article 79 of the Rules of
                     Court, amended in 1978 (which corresponds to the present Article 79,
                     paragraph 9, of the current Rules of Court), and applicable to the present
                     case at the time of the filing of the Application by Croatia in 1999.
                        3. The language employed in this finding of the 2008 Judgment is taken
                     from the provisions of Article 79, paragraph 7, of the 1978 Rules of Court,
                     which were first introduced in the Rules of Court in 1972 when a major revi-
                     sion of the Rules of Court was effected. This revision of 1972 replaced the
                     language of the original provision of Article 62, paragraph 5, in the old Rules
                     of Court. (The revised language of the 1972 revision had subsequently been
                     retained unchanged at the time of the 1978 revision of the Rules of Court as
                     its Article 79, paragraph 7, which was applicable to the present case.)
                        4. The original Article 62, paragraph 5, which had been consistently
                     maintained since the days of the Permanent Court of International Jus-
                     tice, provided as follows :
                             “After hearing the parties the Court shall give its decision on the
                           objection or shall join the objection to the merits. If the Court over-
                           rules the objection or joins it to the merits, it shall once more fix
                           time‑limits for the further proceedings.”
                       5. The legal effects of the change in the 1972 revision on the language of
                     the provision in question are not so apparent from the language intro-

                     169

7 CIJ1077.indb 334                                                                                18/04/16 08:54

                     169 	 application of genocide convention (sep. op. owada)

                     duced, especially in terms of whether it was meant to effect a substantive
                     modification of the procedure to be followed by the Court or whether it
                     was meant to be a purely drafting change without affecting the procedure
                     to be followed. A careful examination of the circumstances surrounding
                     this change, especially of the lively discussions that ensued on this issue of
                     the joinder of the preliminary objections at the time of the Judgment in the
                     Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain)
                     case at its Second Phase in 1970 (see, e.g., opinions attached to that Judg-
                     ment by Judges Morelli, Tanaka, and Fitzmaurice) together with the
                     examination of the unpublished travaux preparatoires of the 1972 revision
                     of the Rules of Court, leads me to the conclusion that it was those discus-
                     sions which triggered this change and that the change was designed with a
                     view to giving the Court a greater degree of flexibility in dealing with the
                     issue of preliminary objections than had hitherto been the case, in the face
                     of conflicting positions expressed within the membership of the Court on
                     how to deal with the issue of the joinder of preliminary objections to the
                     merits. As one learned author suggested, the use of the new formula “the
                     objection does not possess, in the circumstances of the case, an exclusively
                     preliminary character” (current Rules of Court, Art. 79, para. 9)
                           “[was an attempt] to satisfy those [judges] who felt that certain objec-
                           tions [to jurisdiction and to admissibility] do possess, at least in prin-
                           ciple, an intrinsically preliminary character” (Shabtai Rosenne, The
                           Law and Practice of the International Court, 1920-2005, Vol. II,
                           p. 889).
                     However, the issue of the legal effect of the solution adopted upon
                     the Court’s procedure at the merits stage has been left unresolved as a
                     “puzzle” not spelled out in the revised formulation of the Rule :
                              “The puzzle which the new Rule sets is whether the effect of the
                           new formulation is to abolish completely the option of joining an
                           objection to the merits, in that way wiping out a virtually consistent
                           case law itself corresponding to a widely felt need, or whether the
                           holding in a judgment that the objection does not, in the circum-
                           stances possess an exclusively preliminary character simply means
                           that at that stage it is not accepted as a preliminary objection. In that
                           event such a finding could be the equivalent of joining it to the merits,
                           perhaps in the technical sense of a plea in bar, if the party raising that
                           objection were to be so minded, and requiring the Court to reach a
                           decision on it before discussing the merits, which nonetheless would
                           have been fully aired in the written pleadings.” (Ibid., pp. 889-890.)

                        6. An authoritative interpretation given by the Court on this point in
                     subsequent decisions involving this issue came with the case concerning
                     Military and Paramilitary Activities in and against Nicaragua (Nicaragua
                     v. United States of America) (I.C.J. Reports 1986, p. 14), and the case

                     170

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                     170 	 application of genocide convention (sep. op. owada)

                     concerning Land and Maritime Boundary between Cameroon and Nigeria
                     (Cameroon v. Nigeria) (I.C.J. Reports 1998, p. 275). The Judgment in the
                     former case summarizes the rationale of the change in the new Rule on
                     this point as follows :
                           “in particular where the Court, if it were to decide on the objection,
                           ‘would run the risk of adjudicating on questions which appertain to
                           the merits of the case or of prejudging their solution’ [Panevezys‑
                           Saldutiskis Railway, P.C.I.J., Series A/B, No. 75, p. 56]. If this power
                           was exercised, there was always a risk, namely that the Court would
                           ultimately decide the case on the preliminary objection, after requir-
                           ing the parties fully to plead the merits, — and this did in fact occur
                           (Barcelona Traction, Light and Power Company, Limited, Second
                           Phase, I.C.J. Reports 1970, p. 3). The result was regarded in some
                           quarters as an unnecessary prolongation of an expensive and time‑
                           consuming procedure.
                           �����������������������������������������������������������������������������������������������������������������
                               The solution of considering all preliminary objections immediately
                           and rejecting all possibility of a joinder to the merits had many advo-
                           cates and presented many advantages. In the Panevezys‑Saldutiskis
                           Railway case, the Permanent Court defined a preliminary objection
                           as one ‘submitted for the purpose of excluding an examination by the
                           Court of the merits of the case, and being one upon which the Court
                           can give a decision without in any way adjudicating upon the merits’
                           (P.C.I.J., Series A/B, No. 76, p. 22). If this view is accepted then of
                           course every preliminary objection should be dealt with immediately
                           without touching the merits, or involving parties in argument of the
                           merits of the case . . . However that does not solve all questions of
                           preliminary objections, which may, as experience has shown, be to
                           some extent bound up with the merits. The final solution [was thus]
                           adopted in 1972, and maintained in the 1978 Rules . . .” (Military and
                           Paramilitary Activities in and against Nicaragua (Nicaragua v. United
                           States of America), Merits, Judgment, I.C.J. Reports 1986, p. 30,
                           paras. 39‑40.)

                        7. Although this explanation of the rationale for the change would
                     seem to fall short of giving a complete answer to the “puzzle”, it is my
                     considered view that what all this amounts to in the context of the present
                     case is that under the new 1978 Rule of Article 79, paragraph 7 (currently
                     Article 79, paragraph 9), the Court, by declaring in the operative part of
                     its 2008 Judgment with its binding force upon the Parties that “the second
                     preliminary objection submitted by the Republic of Serbia does not, in
                     the circumstances of the case, possess an exclusively preliminary charac-
                     ter” (2008 Judgment, p. 466, para. 146, subpara. (4)), is in effect making
                     a decision binding on the Parties, as well as on the Court itself, that
                     “because [the issues raised in the preliminary objection in question] con-

                     171

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                     171 	 application of genocide convention (sep. op. owada)

                     tain both preliminary aspects and other aspects relating to the merits,
                     they will have to be dealt with at the stage of the merits” (Military and
                     Paramilitary Activities in and against Nicaragua (Nicaragua v. United
                     States of America), Merits, Judgment, I.C.J. Reports 1986, p. 31, para. 41).

                      8. More specifically in the context of the present case, the 2008 Judg-
                     ment explains the reasons for this decision as follows :
                              “As set out above, Serbia’s preliminary objection, as stated in its
                           final submission 2 (a), is presented as relating both to the jurisdiction
                           of the Court and to the admissibility of the claim. The title of juris-
                           diction relied on by Croatia is Article IX of the Genocide Convention,
                           and the Court has established above that Croatia and Serbia were
                           both parties to that Convention on the date on which proceedings
                           were instituted (2 July 1999). Serbia’s contention is however that the
                           Court has no jurisdiction under Article IX, or that jurisdiction cannot
                           be exercised, so far as the claim of Croatia concerns ‘acts and omis-
                           sions that took place prior to 27 April 1992’, i.e., that the Court’s
                           jurisdiction is limited ratione temporis. Serbia advanced two reasons
                           for this : first, because the earliest possible point in time at which the
                           Convention could be found to have entered into force between the
                           FRY and Croatia was 27 April 1992 ; and secondly, because ‘the Gen-
                           ocide Convention including the jurisdictional clause contained in its
                           Article IX cannot be applied with regard to acts that occurred before
                           Serbia came into existence as a State’, and could thus not have become
                           binding upon it. Serbia therefore contended that acts or omissions
                           which took place before the FRY came into existence cannot possibly
                           be attributed to the FRY.” (2008 Judgment, p. 457, para. 121 ; empha-
                           sis in the original.)

                        9. Among the reasons for the decision of the Court on this point,
                     though the 2008 Judgment (paras. 120 et seq.) does not exhaustively refer
                     to all the elements raised by the Parties in the context of the second pre-
                     liminary objection of Serbia, it specifies, referring to one of the relevant
                     elements, as follows :
                              “In its preliminary objections Serbia contended that ‘[a]cts or omis-
                           sions which took place before the FRY came into existence cannot
                           possibly be attributed to the FRY’ ; it denies that Croatia has been
                           able to demonstrate that the FRY was a State in statu nascendi, and
                           argues that that concept is ‘evidently not appropriate for this case’.
                           At the hearings it argued that the requirements of Article 10, para-
                           graph 2, of the ILC Articles on State Responsibility are not fulfilled
                           in respect of the claims made by Croatia against Serbia in the present
                           case. It contended that Croatia has been unable to specify an identi-
                           fiable ‘insurrectional or other movement’ in the territory of the SFRY

                     172

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                     172 	 application of genocide convention (sep. op. owada)

                           as one that established the FRY which would fall within the definition
                           of that Article.

                              In so far as Article 10, paragraph 2, of the ILC Articles on State
                           Responsibility reflects customary international law on the subject, it
                           would necessarily require the Court, in order to determine if that rule
                           is applicable to the present case and for purposes of a possible applica‑
                           tion, to enter into an examination of factual issues concerning the events
                           leading up to the dissolution of the SFRY and the establishment of the
                           FRY. The Court notes further that for it to determine whether, prior
                           to 27 April 1992, the FRY was a State in statu nascendi for purposes
                           of the rule invoked would similarly involve enquiry into disputed mat-
                           ters of fact. It would thus be impossible to determine the questions raised
                           by the objection without to some degree determining issues properly
                           pertaining to the merits.” (2008 Judgment, p. 459, paras. 126‑127 ;
                           emphasis added.)
                       10. It is based on these reasonings that the 2008 Judgment concludes :

                           “[i]n order to be in a position to make any findings on each of these
                           issues [of the Court’s jurisdiction to determine whether breaches of
                           the Genocide Convention were committed in the light of the facts that
                           occurred prior to the date on which the FRY came into existence as
                           a separate State and of admissibility of the claim in relation to those
                           facts], the Court will need to have more elements before it” (ibid.,
                           p. 460, para. 129 ; emphasis added).
                        11. In view of these circumstances, it is my opinion that the present
                     Judgment has failed to carry out the task assigned to the Court by this
                     instruction of the 2008 Judgment. While the Judgment expends more
                     than 40 paragraphs in this section on jurisdiction and admissibility, much
                     of it dealing with an extensive discussion on what Article IX is not about,
                     such as the general issue of genocide under general international law,
                     which obviously cannot confer title to jurisdiction under the Convention
                     upon the Court, it has not addressed in substance all the issues that it
                     should be concerned with, such as the analysis from the legal and factual
                     points of view, of the doctrine of State succession in respect of interna-
                     tional responsibility as argued by the Parties in support of or against the
                     exercise of jurisdiction ratione temporis by the Court within the scope of
                     the compromissory provision of Article IX of the Convention. These are
                     the issues that the Court declared that it could not go into at the stage of
                     preliminary objections but which should be examined in the context of
                     the merits of the case, to the extent necessary for the purpose of determin-
                     ing the scope of the jurisdiction ratione temporis conferred by the Parties
                     upon the Court under Article IX. In my view, this examination is the sole
                     relevant point that has been assigned to the Court to examine at this
                     stage, in order to ascertain the legal basis for the existence vel non of the

                     173

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                     173 	 application of genocide convention (sep. op. owada)

                     consent of the parties under the Convention, which alone constitutes the
                     basis for conferring jurisdiction on the Court in relation to this second
                     objection of the Respondent.

                         12. In dealing with those core issues of jurisdiction ratione temporis
                      raised by the Respondent in its second preliminary objection, the present
                      Judgment refers to three distinct arguments advanced by the Applicant at
                      the merits phase of the present case. They are (a) the contention that the
                      Genocide Convention, providing for erga omnes obligations, has retro
                     active effect ; (b) the contention that what came to emerge as the Federal
                      Republic of Yugoslavia (hereinafter “FRY”) during the period 1991‑1992
                      was an entity in statu nascendi born out of the then existing Socialist
                     Federal Republic of Yugoslavia (hereinafter “SFRY”) in the sense of Arti-
                      cle 10, paragraph 2, of the ILC Articles on the Responsibility of States for
                      Internationally Wrongful Acts (hereinafter “ILC Articles on State
                      Responsibility”) ; and, (c) as an alternative to (b) above, the contention
                      that the law of State succession in respect of international responsibility is
                      applicable under the specific circumstances of the situation surrounding
                      the SFRY and the FRY, where a special link existed between the SFRY
                      and the FRY.
                         13. With respect to the arguments advanced by the Applicant in its
                      contentions (a) and (b), the Judgment offers a careful analysis in sub-
                      stance, and has come out with the conclusion that there is no valid basis,
                      as a matter of law, that can provide the Court with jurisdiction rati‑
                      one temporis to entertain the present case, in so far as it relates to acts
                      that took place before 27 April 1992, the date on which the Respondent
                     declared its independence to become a party to the Genocide Convention.
                     It must be noted that these conclusions of the Court have been reached as
                     a matter of a legal analysis of the claimed principles of law applicable to
                     the present case, without going into a detailed analysis of the surrounding
                     facts relating to the alleged events as claimed by the Applicant.
                         14. With regard to arguments advanced by the Applicant in its conten-
                     tion (c), by contrast, the Judgment has refrained from engaging in a par-
                      allel legal analysis into the validity in international law of the claimed
                      principles as a source of the applicable law.
                         15. It is interesting to observe that the substantive examination of the
                      facts surrounding the events which took place during the period prior to
                      27 April 1992 reveals, subsequently in a section which follows the section
                      on jurisdiction and admissibility where the Judgment has somewhat cate-
                      gorically concluded without any examination of these facts and therefore in
                      my view without offering any factual or legal basis for so concluding, that
                      “to the extent that the dispute concerns acts said to have occurred before
                      [27 April 1992], it also falls within the scope of Article IX” (Judgment,
                      para. 117). It seems surprising that the Judgment came to this conclusion
                      without even a preliminary examination of “the facts that occurred prior to
                      the date on which the FRY came into existence as a separate State”, as
                      prescribed by the 2008 Judgment (2008 Judgment, p. 460, para. 129).

                     174

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                     174 	 application of genocide convention (sep. op. owada)

                        16. Indeed, even a cursory examination of the material contained in
                     Section V of the Judgment dealing with the “Consideration of the Merits
                     of the Principal Claim” persuades us that all of the requirements men-
                     tioned in the three‑stage process listed in paragraph 112 have to be exam-
                     ined in order for the Court to be able to decide on the applicability vel non
                     of the law of State succession in respect of international responsibility as
                     a plausible basis for establishing the jurisdiction of the Court to deter-
                     mine whether Serbia is responsible for violations of the Convention. If
                     one examines each of these requirements in the context of the facts of the
                     case, it seems clear that the attempt of the Applicant has to fail at the first
                     stage of this process, to the extent that the acts relied on by Croatia, even
                     assuming that they were committed by the SFRY, were found not to fall
                     within the category of acts contrary to the Convention. As this is the legal
                     basis on which the Judgment has come to its final conclusion on the mer-
                     its of this case, it can only do so after it has satisfied itself that it has
                     jurisdiction on the basis of an examination of all relevant facts and law
                     raised by the Respondent in its second preliminary objection. Neverthe-
                     less, the Judgment came to this final decision on the merits after declar-
                     ing, ex cathedra, that it has jurisdiction ratione temporis on the ground
                     that “to the extent that the dispute concerns acts said to have occurred
                     before [27 April 1992], it also falls within the scope of Article IX and . . .
                     the Court therefore has jurisdiction to rule upon the entirety of Croatia’s
                     claim” (Judgment, para. 117).
                        17. In justification of this conclusion of the Court on the jurisdictional
                     objection ratione temporis raised by Serbia, the Judgment makes a reference
                     to the doctrine of State succession in respect of international responsibility
                     as relevant (ibid., paras. 106 et seq.). It is true that the Judgment tries to
                     disassociate itself from any position that might look like an endorsement of
                     this doctrine, even on a prima facie basis or on the basis of plausibility.
                     Moreover, the Judgment continues to base its whole argument on a highly
                     debatable position of the Court in its earlier Judgment on preliminary
                     objections relating to the scope and the legal implications of the declaration
                     made by the FRY on 27 April 1992. This is an issue in respect of which I
                     hold a dissenting view to the position taken by the Court in its 2008 Judg-
                     ment (2008 Judgment, p. 451, para. 111) and confirmed in the present Judg-
                     ment (para. 76) as it is in contradiction with the jurisprudence established
                     by the Court in the cases concerning the Legality of Use of Force (see, for
                     example, Legality of Use of Force (Serbia and Montenegro v. Belgium),
                     Preliminary Objections, Judgment, I.C.J. Reports 2004 (I), p. 279).
                        In spite of the Judgment’s seemingly careful approach to the question
                     of the doctrine of State succession in respect of international responsibil-
                     ity and in spite of its formal disclaimer, it would seem difficult to interpret
                     the following thesis that lies crucially at the heart of the logic of the Judg-
                     ment as anything else than an effort to link the logic of the Judgment, in
                     whatever neutral a manner as it may be, with this doctrine, as a factor
                     relevant for providing the Court with the jurisdiction stricto sensu under
                     the Convention by consent, either through some consent, implied, of the

                     175

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                     175 	 application of genocide convention (sep. op. owada)

                     Parties, or through the operation of rules of general international law
                     under Article IX. After an examination of the current state of the law of
                     State succession in respect of international responsibility, the Judgment
                     goes on to say that :
                              “It is true that whether or not the Respondent State succeeds, as
                           Croatia contends, to the responsibility of its predecessor State for
                           violations of the Convention is governed not by the terms of the Con-
                           vention but by rules of general international law. However, that does
                           not take the dispute regarding the third issue outside the scope of Arti‑
                           cle IX. As the Court explained in its 2007 Judgment in the Bosnia and
                           Herzegovina v. Serbia and Montenegro case,
                               ‘[t]he jurisdiction of the Court is founded on Article IX of the
                               Genocide Convention, and the disputes subject to that jurisdic-
                               tion are those ‘relating to the interpretation, application or ful
                              filment’ of the Convention, but it does not follow that the
                              Convention stands alone. In order to determine whether the
                              Respondent breached its obligations under the Convention, as
                               claimed by the Applicant, and, if a breach was committed,
                               to determine its legal consequences, the Court will have recourse
                               not only to the Convention itself, but also to the rules of general
                               international law on treaty interpretation and on responsi
                               bility of States for internationally wrongful acts.’ (I.C.J. Reports
                               2007 (I), p. 105, para. 149.)
                              The Court considers that the rules on succession that may come
                           into play in the present case fall into the same category as those on
                           treaty interpretation and responsibility of States referred to in the
                           passage just quoted.” (Judgment, para. 115 ; emphasis added.)
                        18. This statement, however, is in conflict with the following statement
                     in the 2008 Judgment which explains why the Court in that case decided
                     that :
                              “In so far as Article 10, paragraph 2, of the ILC Articles on State
                           Responsibility reflects customary international law on the subject, it
                           would necessarily require the Court, in order to determine if that rule
                           is applicable to the present case and for purposes of a possible appli-
                           cation, to enter into an examination of factual issues concerning the
                           events leading up to the dissolution of the SFRY and the establishment
                           of the FRY. The Court notes further that for it to determine whether,
                           prior to 27 April 1992, the FRY was a State in statu nascendi for pur-
                           poses of the rule invoked would similarly involve enquiry into disputed
                           matters of fact. It would thus be impossible to determine the questions
                           raised by the objection without to some degree determining issues
                           properly pertaining to the merits.” (2008 Judgment, p. 459, para. 127.)
                        While this passage is referring more specifically to the issue of Arti-
                     cle 10, paragraph 2, of the ILC Articles on State Responsibility, and not

                     176

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                     176 	 application of genocide convention (sep. op. owada)

                     to the issue of State succession in respect of international responsibility,
                     nevertheless the same logic should apply to the examination of the paral-
                     lel contentions raised by Croatia in defence of its claim for jurisdiction
                     and admissibility in relation to the events prior to 27 April 1992, the date
                     on which the Respondent became bound by the Genocide Convention as
                     a party to it. The Court in that 2008 Judgment clearly states that “for [the
                     Court] to determine whether, prior to 27 April 1992, the FRY was a State
                     in statu nascendi for purposes of the rule invoked would similarly involve
                     enquiry into disputed matters of fact” and that “[i]t would thus be impos‑
                     sible to determine the questions raised by the objection without to some
                     degree determining issues properly pertaining to the merits” (ibid. ; empha-
                     sis added).
                        19. I have no disagreement of substance with the general statement in
                     the 2007 Judgment as quoted above (para. 17). However, it is abundantly
                     clear from the context of that passage that the purpose of this statement
                     is totally different from what the present Judgment is trying to argue in
                     the paragraph in question (Judgment, para. 115). The intent and purpose
                     of the passage in the 2007 Judgment is to restrictively define the scope of
                     the jurisdiction conferred by the consent of the parties under Article IX
                     of the Convention. The intent of the present paragraph would appear to
                     be to expand the scope of the jurisdiction of the Court conferred by the
                     consent of the parties under Article IX of the Convention, which is con-
                     fined to “[d]isputes . . . relating to the interpretation, application or fulfil-
                     ment” of the Convention, to something which is not expressly stated by
                     arguing that claimed rules of general international law—which the Judg-
                     ment would seem to imply could cover the law of State succession in
                     respect of international responsibility—could be relevant to, and form an
                     essential part of the argument of the Applicant on, the “interpretation,
                     application or fulfilment” of the Convention for the purposes of deter-
                     mining the scope of jurisdiction.
                        20. I could only accept such logic, if the validity of the doctrine in
                     question under general international law were fully examined by the
                     Judgment in the section on jurisdiction and its veracity — or at any rate
                     its plausibility — established. Otherwise, this doctrine would be no more
                     than an argument advanced by one of the Parties to the dispute, just as is
                     the argument, again advanced by the same Party in the present case and
                     rejected by the present Judgment, on the validity of the doctrine based on
                     Article 10, paragraph 2, of the ILC Articles on State Responsibility (a
                     provision relating to the issue of responsibility of States in statu nascendi).
                     On this latter issue the Judgment expends detailed discussion, arriving at
                     the conclusion that this argument of Croatia cannot provide a basis for
                     jurisdiction of the Court within the scope of Article IX of the Convention
                     (Judgment, para. 105).
                        21. It is thus my position that the conclusion of the present Judgment
                     should have been based on an approach to pursue the path prescribed by
                     the 2008 Judgment and examine to the extent necessary the relevant
                     aspects, both of facts and law, of the merits of the case before arriving at

                     177

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                     177 	 application of genocide convention (sep. op. owada)

                     the conclusion that the claim of the Applicant cannot be upheld on the
                     merits. If the present Judgment were to follow the present structure of the
                     Judgment of treating the jurisdictional issues first before treating any
                     aspect of the merits, the Court can only do so after satisfying itself that it
                     has the necessary jurisdiction on the basis of the consent of the Parties.
                     This would have required the Court to examine the legal validity of all the
                     alleged rules of international law advanced by the Applicant, including
                     those relating to State succession in respect of international responsibil-
                     ity, as a means to establish the legal basis for enabling the Court to exer-
                     cise jurisdiction with regard to the merits. In my submission, the present
                     Judgment has failed to do that.

                     (Signed) Hisashi Owada.

                     178

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INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING THE
CONTINENTAL SHELF

(TUNISIA/LIBYAN ARAB JAMAHIRIYA)

ORDER OF 16 APRIL 1981

1981

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRÊTS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DU PLATEAU CONTINENTAL
(TUNISIE/JAMAHIRIYA ARABE LIBYENNE)

ORDONNANCE DU 16 AVRIL 1981
Official citation:

Continental Shelf (Tunisia/Libyan Arab Jamahiriya),
Order of 16 April 1981, I.C.J. Reports 1981, p. 42.

Mode officiel de citation:

Plateau continental (Tunisie/Jamahiriya arabe libyenne),
ordonnance du 16 avril 1981, C.I.J. Recueil 1981, p. 42.

Sales number: 459
N° de vente:

16 APRIL 1981

ORDER

CASE CONCERNING THE CONTINENTAL SHELF
(TUNISIA/LIBYAN ARAB JAMAHIRIYA)

AFFAIRE DU PLATEAU CONTINENTAL
(TUNISIE/JAMAHIRIYA ARABE LIBYENNE)

16 AVRIL 1981

ORDONNANCE
1981
16 April

42

INTERNATIONAL COURT OF JUSTICE
YEAR 1981

General List

No. 63

16 April 1981

CASE CONCERNING THECONTINENTAL SHELF

(TUNISIA/LIBYAN ARAB JAMAHIRIYA)

ORDER

The President of the international Court of Justice,

Having regara to Article 48 of the Statute and to Articles 44, 46 and 49,
paragraph 3, of the Rules of Court,

Having regard to the Speciai Agieernent, concluded on 10 June 1977
between the Republic of Tunisia and the Socialist People’s Libyan Arab
Jamahiriya, concerning the continental shelf, which was notified to the
Court on 1 December 1978,

Having regard to the Order of 3 June 1980 fixing 1 Decernber 1980 as the
time-limnit for the filing of the Counter-Mernorial of Tunisia and 2 Feb-
ruaiy 1981 as the tirne-limnit for the filing of the Counter-Mernorial of the
Libyan Arab jamaniriya ;

Whereas the Counier-Mernoriai of Tunisia and the Counier-Mernorial
of the Libyan Arab Jamahiriya were each filed within the prescribed
tinie-limnit and, pursuant to Article 43, paragraphs 3 and 4, of the Statute of
the Court and Article 4 of the Special Agreernent, a certified copy of each
was communicated to the Agent of the other Party at a meeting with the
President of the Court held at the Peace Palace, The Hague, on 2 February
1981 ;

Whereas Article 4 of the Special Agreernent of 10 June 1977 provides
inier alia tnat, if necessary, additional written pleadings are to be suomit-
ted to tne Court and exchanged within periods to be fixed by the Court at
the request of either Party ;

Whereas at meetings with the President of the Court on 15 and 16 April
1981 the Agent of each of the two Parties informed him of his Govern-

4
43 CONTINENTAL SHELF (ORDER 16 IV 81)

ment’s desire to submit an additional written pleading, to be filed within
approximately three months ;

Fixes 15 July 1981 as the time-limit for the filing of the Reply of the
Republic of Tunisia and for the filing of the Reply of the Socialist People’s
Libyan Arab Jamahiriya.

Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this sixteenth day of April one thousand nine
hundred and eighty-one, in three copies, of which one will be placed in the
archives of the Court and the others transmitted to the Government of the
Republic of Tunisia and to the Government of the Socialist People’s
Libyan Arab Jamahiriya, respectively.

(Signed) Humphrey WALDOCK,
President.

(Signed) Santiago TORRES BERNARDEZ,
Registrar.
PRINTED IN THE NETHERLANDS