35

SEPARATE OPINION OF JUDGE MBAYE
[Translation]

I have voted in favour of the operative part of the Judgment because I
consider, like the majority of the Members of the Court, that Italy’s
Application for permission to intervene “cannot be granted”. I also note
with satisfaction that the Judgment emphasizes the inviolability of the
principle of consensualism, while providing assurances for the intervening
party as to the safeguarding of its rights (para. 42). On this latter point,
however, I consider that the Judgment contains arguments which the
Court was not compelled to go into at this stage in the proceedings, but
which derive from its legitimate concern to exercise full justice, inasmuch
as those arguments may allay, if only to some extent, the concern of Italy
which is evident in its Application and in the oral arguments of its counsel
(paras. 41 and 43).

On the other hand, I do not share the Court’s opinion as regards the
reasoning on which the refusal to grant the Italian Application should be
based.

For the Court, Italy’s intervention “falls into a category which, on Italy’s
own showing, is one which cannot be accepted” (para. 38). In this wording,
and despite the caution shown by the Court in using it, I cannot but discern
a hint of the true reason for the refusal : “the absence of what the Court in
1981 called ‘a valid link of jurisdiction with the parties to the case’ (Z.CJ.
Reports 1981, p. 20, para. 36)” (para. 11), that is to say, in this instance,
between Italy on the one hand, and Libya and Malta on the other. This
unavowed reason makes its presence felt, in spite of the careful language
used by the Court, if the Judgment is read along with the whole range of
written and oral material produced in connection with the case.

My own view is that Italy has not proved that it has an “interest of a legal
nature which may be affected by the decision in the case”. In fact, I take
the view that the interest in question must not affect Italy and “other
States of the Mediterranean region” (para. 41). It must be an individual
direct and specific interest. However, in the present opinion I shall not
deal with this question. It has not been touched upon by the Court except
indirectly.

But this disparity of views as to the reasoning on which the refusal to
grant the Application is to be based is not the only point on which I differ
from the Judgment.

In fact, I consider that the Court should, without departing from those
considerations which are “necessary to the decision which it has to give”
(para. 28) take advantage of the excellent opportunity provided by the case
before it to breathe life into Article 62 of its Statute, and make a clear

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pronouncement on the very important question of the “jurisdictional link”
which may or may not be required between the intervening State and the
main parties, and in respect of which there are so many queries. The fact
that “from the 1922 discussions up to and including the hearings in the
present proceedings the arguments on this point have not advanced
beyond the stage they had reached 62 years ago” as the Court says (para.
45), does not justify leaving matters as they are. In this respect, I do
concede that the Court has dispelled “some of the doubts and uncertainties
which surround the exercise of the procedural faculty of intervention
under Article 62 of its Statute” (para. 46), particularly when it states that,
with regard to intervention, “the opposition of the parties to a case is,
though very important, no more than one element to be taken into account
by the Court” (para. 46). But was this sufficient ?

The manner in which Italy introduced and supported its application for
permission to intervene was unprecedented. For once, as far as the prob-
lem of the jurisdictional link is concerned, the Court found itself confron-
ted with a genuine intervention based on Article 62 of its Statute, since the
previous cases which it or its predecessor has had to deal with in the context
of Article 62 of the Statute were quite different in nature.

The S.S. “Wimbledon” case (Judgments, 1923, P.CI.J., Series A, No. 1),
submitted under Article 62 of the Statute, was finally admitted on the basis
of Article 63. As to the two cases based on Article 62 of the Statute which
were brought before the present Court, namely the application by Fiji for
permission to intervene in the Nuclear Tests cases, and by Malta in the case
of the Continental Shelf (Tunisia/ Libyan Arab Jamahiriya), they were quite
different from the present case.

In the Nuclear Tests cases, the Court did not decide on Firs application
for permission to intervene, due to the fact that having found that the
claims of the applicant States no longer had any object and that the Court
was therefore not called upon to give a decision (.C.J. Reports 1974,
pp. 253 and 457), there were no longer “any proceedings before the Court
to which the Application for permission to intervene could relate”. It then
declared that the application lapsed, and that no further action was called
for (ibid, pp. 530 and 535).

In the case of the Continental Shelf (Tunisia/ Libyan Arab Jamahiriya)
the Court, after analysing Malta’s Application for permission to intervene,
rejected it on the grounds that the nature of the object of the intervention
meant that the legal interest invoked by the applicant could not enable the
Court to authorize such an intervention under Article 62 of the Statute
(CJ. Reports 1981, p. 20, para. 35 ; see also p. 10, para. 34).

Thus in neither case did the Court have to consider the problem of
whether or not a jurisdictional link must exist between the intervening
State and the original States parties.

The position is quite different in the present case, where the instigator
(Italy) was inspired by past experience, especially by the Judgment of the
Court in 1981 in which it stated :

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CONTINENTAL SHELF (SEP. OP. MBAYE) 37

“If in the present Application Malta were seeking permission to
submit its own legal interest in the subject-matter of the case for
decision by the Court, and to become a party to the case, another
question would clearly call for the Court’s immediate consideration.
That is the question mentioned in the Nuclear Tests cases, whether a
link of jurisdiction with the Parties to the case is a necessary condition
of a grant of permission to intervene under Article 62 of the Statute.”
U.CJ. Reports 1981, pp. 18-19, para. 32.)

Italy seemed to be in the very situation envisaged by the Court in its
Judgment.

We can judge this by the following quotations from the Applica-
tion :

“Italy seeks to participate in the proceedings to the full extent
necessary to enable it to defend the rights which it claims over some of
the areas claimed by the Parties, and to specify the position of those
areas, taking into account the claims of the two principal Parties and
the arguments put forward in support of those claims, so that the
Court may be as fully informed as possible as to the nature and scope
of the rights of Italy in the areas of continental shelf concerned by the
delimitation, and may thus be in a position to take due account of
those rights in its decision.” (Application for Permission to Intervene
by the Government of Italy, para. 16.)

Paragraph 17 of the same Application states :

“Tt goes without saying — but it is better that it should be stated
expressly to avoid any ambiguity — that the Government of Italy,
once permitted to intervene, will submit to such decision as the Court
may make with regard to the rights claimed by Italy, in full conformity
with the terms of Article 59 of the Statute of the Court.”

In their oral arguments, moreover, particularly at the hearings of 25, 26 and
30 January 1984, counsel for Italy clearly stated that Italy intended to
become “an intervening party” with the legal consequences that that
implied. I shall return to this expression “intervening party”.

Thus in the present case, in my opinion, the Court had a duty to tackle
the question “whether a jurisdictional link with the parties to the case [was]
anecessary condition of a grant of permission to intervene under Article 62
of the Statute”. Nobody could reproach it for doing so. I personally regret
that it has not done so.

Moreover, I am not convinced that Italy’s intervention belongs to a
“category which... cannot be accepted” by the Court if regard is had
solely to the object of the Italian application and the requirements in this
case of the principle of consensualism, — which, once more, brings us back
to the “jurisdictional link” the absence of which is the very criticism made

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CONTINENTAL SHELF (SEP. OP. MBAYE) 38

of Italy. To reach its conclusion, the Court combed through the details of
the oral proceedings for anything which might seem like an attempt by
Italy to introduce a new dispute by the method of intervention (para. 33). It
then analysed Article 62 of its Statute and arrived at “two approaches”
both of which, according to the Court, “must result in the Court being
bound to refuse the permission to intervene requested by Italy” (paras. 34,
35, 36, 37 and 38).

On the basis of its interpretation of the statements by counsel for Italy
the Court considers that it is being asked to give a judgment on Italy’s
rights. In its view,

“While formally Italy requests the Court to safeguard its rights, it
appears to the Court that the unavoidable practical effect of its
request is that the Court will be called upon to recognize those rights,
and hence, for the purpose of being able to do so, to make a finding, at
least in part, on disputes between Italy and one or both of the Parties.”
(Para. 29.)

It decided that :

“if Italy were permitted to intervene in the present proceedings in
order to pursue the course it has itself indicated it wishes to pursue, the
Court would be called upon, in order to give effect to the intervention,
to determine a dispute, or some part of a dispute, between Italy and
one or both of the principal Parties” (para. 31).

According to the Court, “an additional dispute” cannot be brought before
it by way of intervention (para. 37 in fine). While fully endorsing this
statement, I doubt whether it applies to the present case or is justified by
Italy’s Application for permission to intervene.

In support of its position, the Court says that

“There is nothing in Article 62 to suggest that it was intended as an
alternative means of bringing a wider dispute as a case before the
Court — a matter dealt with in Article 40 of the Statute — or as a
method of asserting the individual rights of a State not a party to the
case.” (Para. 37.)

Thus it does not say that Article 62 forbids intervention by a “non-party”
State. For my part, I think that the article does permit it, and that in the
present case, Italy was in the position of a “non-party intervener”’.

In reaching this conclusion, I shall endeavour in my turn to interpret
Article 62 of the Statute of the Court, subsequently asking myself into
which “category” Italy’s intervention actually falls with respect to its
object.

While Article 62 does not constitute “an exception to the fundamental
principles underlying” the Court’s jurisdiction, “primarily the principle of
consent, but also the principles of reciprocity and equality of States” (para.
35), it nevertheless permits a limited intervention in the course of which the

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CONTINENTAL SHELF (SEP. OP. MBAYE) 39

intervener does not become a party, but merely informs the Court of its
interests of a legal nature in order that they may be safeguarded.

I believe that in its 1981 Judgment on Malta’s application for permission
to intervene, referred to above, the Court stated that, if the conditions
which it had laid down had been fulfilled, 1t would immediately have dealt
with the problem of the jurisdictional link ; which, in that instance, would
lead it to one of the three following conclusions :

— proof of the existence of a jurisdictional link is a condition for the
admissibility of the intervention ;

— proof of the existence of a jurisdictional link is not a condition for the
admissibility of the intervention ;

— proof of the existence of a jurisdictional link is a condition of admis-
sibility in certain cases.

To that I must add the following remark : in expressing itself in the terms
used in 1981, the Court was giving a pointer. The wording used in the 1981
Judgment would, in fact, only be meaningful if it signified that, in the
Court’s view, the problem of the jurisdictional link between an intervening
State and the main parties arises for the Court as soon as that State requests
permission to submit its legal interest to the Court’s decision, and becomes
a party.

What is meant by “becoming a party” ? Looking at the matter in the
context of intervention, J would say that, if the intervening State becomes a
party to the case, this means that it may press its demands or defend itself
against other States, and submit its claims to the Court with a view to a
decision which will have, in respect of that State and of the main parties,
the binding effect produced by Article 59 of the Statute. The “party-
intervener” is neither more nor less than a litigant vis-à-vis the main
parties. It introduces into the dispute a new dispute which is related to the
first one, but does not merge with it. In such a situation, it seems clear to me
that the essential condition for issue to be joined in international proceed-
ings, namely the consent of States to the settlement of their dispute by the
Court, must of necessity be fulfilled. This therefore means that the accep-
tance of the application of the “party-intervener” must be subject to the
existence of a jurisdictional link with the main parties. For how is it
conceivable that the Court would accept that a State may be in litigation
with another State (for that is what we are talking about, since the third
State may be either applicant or respondent, may submit its claims to the
Court for decision, and be bound by the Court’s decision) unless the
sacrosanct principle of the consent of States on which its jurisdiction is
founded is respected ? If the Court were to accept such a situation, it would
seriously undermine that principle. It has taken great care not to do so in
the past, and has frequently had to mention the point, for example in the
cases of Monetary Gold Removed from Rome in 1943 (I.C.J. Reports 1954,
p. 32) and the Aerial Incident of 27 July 1955 (Israel v. Bulgaria) U.C.J.
Reports 1959, p. 142). The present Judgment has wisely aligned itself with

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CONTINENTAL SHELF (SEP. OP. MBAYE) 40

this jurisprudence (para. 35), and I must applaud it for doing so, while
myself making special mention of the point in the opinion, — but with a
reservation so far as the application of the principle to the case of Italy is
concerned.

It is no answer to this point to argue, as has in fact been done, especially
during the oral proceedings, that in accepting the Court’s jurisdiction the
States which instituted proceedings also accept the Statute, and Article 62
in particular. This reasoning is open to criticism in more than one respect.

It may first be objected that the consent of States in international
proceedings must not be presumed. It must be quite unambiguous. The
Court has rightly recalled “the basic principle that the jurisdiction of the
Court to deal with and judge a dispute depends on the consent of the
parties thereto” (para. 34), and has stated that “Recognition of the com-
pulsory jurisdiction of the Court is an important aspect of the freedom and
equality of States in the choice of the means of peaceful settlement of their
disputes”, and that an exception to the fundamental principles underlying
its jurisdiction “is not to be presumed, and must be clearly and expressly
stated if it is to be admitted” (para. 35). But to say that the consent of the
main parties follows from Article 62 of the Statute is to presume that
consent, and allow doubt to persist in an area as crucial as that of con-
sensualism. In this case, it does not help to rely on the liberal interpretation
of Article 63 given by one party, and recalled by counsel for Italy in the
hearing of 25 January 1984 ; for Article 63 refers to a case where the State
concerned is not a party to the dispute. Indeed, it illustrates one of the
situations where the intervening State does not have to prove the existence
of a jurisdictional link. Its interest of a legal nature is presumed, and it is
not a party to the dispute because the Statute limits its intervention to
stating its own interpretation of the multilateral treaty in question. It
submits neither a claim nor a defence. It contents itself with providing
information to the Court. Thus it 1s not required that the existence of a
jurisdictional link with the parties be shown. In such a case, the Court does
not have to investigate whether or not the applicant State is exempt from
showing the existence of a jurisdictional link : but, in my view, this is not
the only possible case. Other similar instances may arise with the same
features, the only difference being the fact that it is not a question of
interpreting a convention. In such cases, contrary to the opinion of the
Court in the present Judgment (para. 37), Article 62 must enable a solution
to be found comparable to that contemplated by Article 63 of the Statute.
But, whereas in those cases to which Article 63 applies the interest of a legal
nature is presumed, resulting from the fact that the intervening State is a
party to /a participé à] the convention to be interpreted, in the other cases
the intervening State must furnish proof of its interest of a legal nature, and
it is for the Court to decide.

Secondly, the argument referred to above may be criticized on the
ground that it starts from a false premise : it presupposes that the existence
of Article 62 signifies that a jurisdictional link is not necessary, and that the

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CONTINENTAL SHELF (SEP. OP. MBAYE) 41

States know this at the time when they submit their application. Yet this is
precisely the point at issue.

Thus I fully share the opinion of the Court regarding the requirement
that an intervening State which introduces a dispute before the Court by
the method of Article 62 of its Statute must establish a title of jurisdiction.
But there must be an additional dispute.

On the basis of that observation, I shall now attempt to give my own
interpretation of Article 62 of the Statute, so as to shed some light on my
position in regard to the problem of whether the jurisdictional link must
exist as between the intervener and the Parties to the dispute in the present
instance. In so doing, I do not believe that an analysis of the 1920 and 1945
travaux préparatoires of the two Committees of Jurists who drafted the
Statutes of the two Courts can offer any decisive assistance. Like the Court
itself (para. 45), I even feel that “the arguments . . . have not advanced”. I
also share its view that it is of no practical use to examine the travaux
préparatoires of the Permanent Court of International Justice and the
International Court of Justice as regards the drafting or amendment of
their respective Rules of Court.

Thus, returning to Article 62, paragraph 2, of the Statute, I think that it
should be interpreted in the most straightforward way possible, in the
sense that : the Court decides questions of law submitted to it, in every
single case. Thus it seems to me that Article 62, paragraph 2, deals not with
the Court’s jurisdiction, but with its powers. In connection with Article 62
of the Statute, it is necessary to distinguish between three closely allied
concepts, which sometimes overlap, but which are distinct in the present
instance. These are the seising of the Court which is referred to in para-
graph 1 of Article 62, the powers of the Court, referred to in paragraph 2,
and the jurisdiction, which is not referred to in the provisions of this article,
because it belongs elsewhere.

The ordinary method of seising of the Court is governed by Article 40,

_ paragraph 1, of the Statute. In my view, Article 62, paragraph 1, is a
derogation from Article 40, paragraph 1, by providing for a special means
of seising it in the case of intervention, but goes no farther than that.

With regard to jurisdiction, Article 62 does not refer to it : it belongs in
Article 36 of the Statute. It is surely significant that if Italy, after being
granted permission to intervene, failed to appear /faisait défaut] (which in
theory is quite possible), and if Libya and Malta then asked the Court to
decide in favour of their claims, the Court would be obliged to satisfy itself
that it had jurisdiction in accordance with Articles 36 and 37. This is
required by Article 53 of the Statute, which states :

“1. Whenever one of the parties does not appear before the Court,
or fails to defend its case, the other party may call upon the Court to
decide in favour of its claim.

2. The Court must, before doing so, satisfy itself, not only that it
has jurisdiction in accordance with Articles 36 and 37, but also that
the claim is well-founded in fact and law.”

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CONTINENTAL SHELF (SEP. OP. MBAYE) 42

Since Article 53 refers only to Articles 36 and 37, how would the Court
have been able to extricate itself if it had previously decided that Italy
could be a “party intervener” without having to establish a jurisdictional
link with Libya and Malta ? Certainly not by referring to Article 62, since
Article 53 uses the expression “that it has jurisdiction in accordance with
Articles 36 and 37”, and does not mention Article 62.

Article 62 of the Statute does not state what the intervention which it
contemplates should be. In paragraph 2, it leaves the Court the power to
decide, not by “any general discretion to accept or reject a request for
permission to intervene for reasons simply of policy”, as the Court has said
(CJ. Reports 1981, p. 12, para. 17), and as it has now repeated (para. 12),
but on legal grounds. Thus it is for the Court to bestow a content on the
institution of intervention, while fully respecting its own Statute. For
reasons derived from the sound administration of justice, Article 62 en-
ables a State which fulfils the conditions set out therein to seise the Court
and to intervene in a case already begun. But such State itself determines its
status in the case: and the Court then has the power to draw the legal
consequences which arise. The Court makes it clear that :

“the scope of a decision of the Court is defined by the claim or
submissions of the parties before it ; and in the case of an intervention
it is thus by reference to the definition of its interest of a legal nature
and the object indicated by the State seeking to intervene that the
Court should judge whether or not the intervention is admissible”
(Judgment, para. 29).

Thus if the State seeks to enter into the case but refrains from submitting its
own claims to the Court, it deliberately places itself outside the scope of
Article 62. This is the conclusion the Court had to come to on the occasion
of Malta’s intervention in the case concerning the Continental Shelf (Tu-
nisia/ Libyan Arab Jamahiriya), Application by Malta for Permission to
Intervene, Judgment (I.C.J. Reports 1981, pp. 20-21, paras. 34-35). If, on the
other hand, the State seeks to make use of the procedure set out in Article
62 to have a dispute settled by the Court, it aspires to become a party to the
case, and may be required to furnish proof of the existence of a jurisdic-
tional link between itself and the main parties.

Between these two cases, there is room for an intermediate position,
where the intervener is not a party. There is nothing in the Statute, and
especially in Article 62, to exclude this interpretation of intervention. This
point of view, the distinction between “a request that the Court take
account of, or safeguard, its legal interests, and a request that the Court
recognize or define” the legal interests of the intervener “which would
amount to the introduction of a distinct dispute”, has, in the view of the
Court, no validity whatsoever “in the context of the task conferred on the
Court by the Special Agreement” in this case (para. 32). I shall return to
this point.

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CONTINENTAL SHELF (SEP. OP. MBAYE) 43

In my view, intervention is, above all, a rule deriving from the sound
administration of justice. It is part of the policy of throwing the maximum
light on the circumstances surrounding a case brought before the Court
under its contentious jurisdiction, or indeed in advisory proceedings, this
being reflected particularly in Articles 40 and 65 of the Statute. It enables
the Court to have a wider range of information pertinent to the problem
submitted to it, to reach its decision in the light of the fullest possible
information, and at the same time to avoid, to some extent, the inevitable
but unfortunate consequences of the relative authority of res judicata. This
was in fact its sole purpose before the adoption of the Statute of the
Permanent Court of International Justice (see in particular Article 64 of
the Convention of 18 October 1907 on the Pacific Settlement of Interna-
tional Disputes) : to supply the arbitrator with additional information
concerning the subject of the dispute. Subsequently (Article 62 of the
Statute), intervention made it possible to respond to claims not contained
in the document by which the proceedings were instituted. However, it was
required by the legislator that the information to be supplied by the
intervening State in this connection must be of a special kind. It must
consist of specifying an interest of a legal nature which is involved in the
dispute. This results from the wording of Article 62 of the Statute which in
my view requires, not for the submission of an intervention, but for it to be
admitted, that the State should demonstrate (subject to verification by the
Court) that in the dispute in progress, there is an “interest of a legal nature
which may be affected” /en cause]. Here again we find a difference with
Article 63, which presumes that the intervening State possesses an interest.
Thus intervention was first permitted in a case where the intervening State
has an obvious, and indeed presumed, interest, and is not a party. In sucha
case, it confines itself to giving the Court information, consisting of its own
interpretation of the multilateral convention to which it is a party, and
which is in question (Art. 63). Intervention was then extended to a case
where an interest must be proved (Art. 62). If such a proof is supplied, there
are then two possibilities :

(1) the intervening State wishes to be a party and formulates a claim. It
must be treated as a party and must prove the jurisdictional link with
the other parties ;

(2) the intervening State confines itself to informing the Court of its rights,
and here we find ourselves in the same position as in Article 63. It does
not have to prove the existence of a jurisdictional link with the par-
ties.

Thus, to my mind there are two categories of intervener : the party-
intervener and the non-party intervener. The same argument, differently
expressed, was advanced by Italy.

This interpretation of Article 62 of the Statute of the Court makes it
possible to give a better explanation of certain provisions of the Rules of
Court.

In the first place, on this interpretation Article 81, paragraph 2 (c), of the

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Rules of Court, according to which the application for permission to
intervene must specify “any basis of jurisdiction which is claimed to exist
as between the State applying to intervene and the parties to the case”,
becomes wholly compatible with the provisions of the Statute, and espe-
cially with Article 62. It has been argued that the Rules of Court could not
add to the Statute by imposing on the intervening State conditions which
are not provided for in the Statute itself, and this is quite correct. In the
light of the proposed interpretation, this objection falls, since the phrase :
“the application... shall set out : (c) any basis of jurisdiction } which is
claimed to exist as between the State applying to intervene and the parties
to the case” is to be understood as intended to enable the Court to verify,
where necessary, the existence of the basis of jurisdiction which there has to
be between the applicant for permission to intervene and the parties. This
indeed seems to be the case which the Court had in mind in 1981 when it
stated, in connection with the origin of Article 81, paragraph 2 fc), that
“this it did in order to ensure that, when the question did arise in a concrete
case, it would be in possession of all the elements which might be necessary
for its decision” U.C.J. Reports 1981, p. 16, para. 27).

Secondly, it appears that this interpretation enables us to explain both
the existence and the wording of paragraph 2 (c) of Article 81 of the Rules.
In fact, if one holds that the jurisdictional link is never necessary in order
for intervention to be permitted it is difficult to see what purpose is served
by Article 81, paragraph 2 (c). If, on the other hand, one asserts that a
jurisdictional link is always necessary for the grant of an application to
intervene, there is some difficulty in explaining the wording “any basis of
Jurisdiction |” used in the article, especially since Article 38 of the same
Rules, in dealing with the legal grounds on which the initial jurisdiction of
the Court is based, uses the term “the jurisdiction! of the Court”. To
maintain that this distinction between “any basis of jurisdiction” and “the
jurisdiction” is of no importance, or was unintentional, is hardly a con-
vincing position.

Thirdly, this interpretation justifies the existence of paragraph 2 (b) of
Article 81 of the Rules which, by requiring the intervener to state the object
of its application, enables the Court, in limine litis, to establish in what way
the intervening State intends to exercise its intervention (as a party or as a
non-party). There is a link between the requirement of a jurisdictional link
and the requirement to state the object of the intervention.

This interpretation also has the merit that it respects the principle of
optional jurisdiction, since, whenever the intervening State is a party to the
proceedings, i.e., when intervention gives rise to a dispute, it will, if its
intervention is to be admitted, have to furnish proof of the jurisdictional
link between itself and the main parties. On the other hand, when the
purpose of the intervention, voluntarily defined by the third State, is not to
give rise to a dispute, and to make the intervening State a party, proof of the

1 Emphasis added.

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CONTINENTAL SHELF (SEP. OP. MBAYE) 45

jurisdictional link is not necessary. In the latter case, the States parties have
no grounds for complaint, since they are not compelled to be in dispute
with another State, in the sense of Article 36 of the Statute. Thus the
principle of the consent of States is not infringed. The only obligation
imposed on the States parties would be (as in the case of Article 63) to
tolerate the presence of a third State ; this seems quite reasonable and
normal to me. States which have taken the initiative of bringing a case
before the Court with a view to a decision which may adversely affect the
interests of a third State (whether they do so wittingly or unwittingly makes
no difference), are no more deserving of protection against compulsory
jurisdiction than the third State itself. Moreover, the third State is not
present in the proceedings to formulate claims against the parties, but in
order to provide information for the Court, and to ensure that the latter, in
its decision, does not adversely affect its direct and specific individual
interests.

A final advantage of this interpretation is that it avoids distorting Article
62 of the Statute of the Court by lending it a meaning which, at the very
least, it does not clearly convey. It also enables us to dispense with the
argument whereby this provision is seen as conferring jurisdiction on the
Court, or as a derogation from the principle of consensualism. Thus the
true function of the article is restored, a procedural function consisting
solely of providing another means of seising the Court, namely by inter-
vention. The article should therefore be classified among the rules for the
seising of the Court, not the rules of jurisdiction. Other provisions of the
Statute, and the Court itself, can therefore be left to settle the problems
which are raised by the various aspects of the intervention procedure in
general, and in particular by the question of the jurisdictional link.

As I have already said, there would thus be two types of interveners : the
“party intervener” and the “non-party intervener”.

In both cases, the intervening State must demonstrate that it possesses
an interest of a legal nature, that this interest may be affected by the
decision, and that the source of its involvement is to be found within the
dispute (the Court being responsible for verifying whether these conditions
are fulfilled).

A State which is a “party intervener” must also furnish proof of the basis
of jurisdiction which exists between itself and the other parties, just as in an
ordinary case.

A State which is a “non-party intervener”, on the other hand, does not
have to supply such proof. Its aim, in co-operating to ensure the sound
administration of justice, is to inform the Court of the nature of the rights
which it claims to possess and which are at issue /en cause] in the dispute,
to such an extent that the decision to be made might adversely affect them.
But in so doing, the State concerned does not ask the Court to find that it
has any specific right : nor does it ask for a finding that the parties have a
particular obligation. The aim in view is simply that the Court, once in full
possession of the facts regarding the existence and the soundness of the
rights of this third State, should take account of them in the decision which

46
CONTINENTAL SHELF (SEP. OP. MBAYE) 46

it ultimately makes. In such a situation, the Court is by no means com-
pelled to recognize or reject the rights of the intervener, wholly or in part.
And there is nothing in the present case to prevent it from ensuring, were
the intervention to be permitted, that these rights were not affected. This is
however all on the understanding that any decision on the points raised by
the intervention is binding upon the intervener as in the circumstances set
out in Article 63 of the Statute.

In this light, as I have said, it is apparent that Article 63 is a privileged
case of intervention, in which the intervener is a “non-party” by virtue of
the Statute itself, and is exempt from furnishing proof of its interest, the
latter being a legal presumption. The intervener confines itself to inform-
ing the Court of its interpretation of the convention, and is not obliged to
furnish proof of the jurisdictional link between itself and the parties.

Of course, it might be objected that this proposed interpretation, recog-
nizing the existence of a form of intervention where the intervener is a
non-party, is pointless, since by virtue of Article 59 of the Statute, the
Court’s decision in respect of any third State, and specifically of Italy in the
present instance, is res inter alios acta. One counsel for Italy did not fail to
observe that

“if Article 59 always provides adequate protection for third States and
if the protection which it affords is such as to prevent the interest of
the third State from being genuinely affected in a pending case,
then .. . Article 62 no longer has any point whatsoever, nor any sphere
of application” (Hearing of 30 January 1984, morning).

There are three arguments which might be sustained against the objection
which minimizes the function of Article 62 because of the existence of
Article 59 of the Court’s Statute.

The first argument is that the objection tends to contradict the very
existence of Article 62 of the Statute, which is unacceptable.

Secondly, this objection cannot be reconciled with the existence of
Article 63 of the Statute, the scope of which seems to be beyond contro-
versy. In the cases envisaged by Article 63, it might also be argued that
Article 59 already offers sufficient protection for the interests of the
intervening State. Moreover, in the Convention of 18 October 1907 men-
tioned above, intervention seems to have been intended, at least in part, to
mitigate the impact of the relative authority of arbitral judgments, by
increasing the number of States bound by the decision.

The third argument is linked to the principle of the sound administration
of justice. When a third State takes no initiative, though well aware that its
interests are at issue /en cause] in a dispute; it is protected by Article 59.
But that does not deprive it of its right under Article 62 to intervene in
order to protect its rights. If these rights seem to it to be involved in the
dispute to such a degree that it must intervene to safeguard them, and if it
makes use of this option, its diligence cannot be the subject of criticism.
This is the general sense of the Court’s Judgment (para. 42). Moreover,
there may be a situation in which Article 59 of the Statute offers only an

47
CONTINENTAL SHELF (SEP. OP. MBAYE) 47

imperfect protection of the interests of the State, having regard to the
nature of the rights at issue and the possible consequences of the Court’s
decision ; for there are circumstances in which the Court’s decision might
cause irreparable harm to a third State. This, for example, would be the
case if the decision attributed specific rights to one or other of the par-
ties.

I have not myself taken up in this respect the argument which the Court
has borrowed from counsel for Italy, and apparently endorsed, that the
usefulness of Article 62 would lie in the fact, in particular, that an appli-
cation for permission to intervene makes possible a “procedural economy
of means” /moyens] (the expression is that of the Court — paragraph 42).
The reason is that, while I appreciate that, as emphasized by numerous
writers, intervention is in practice, in the internal procedural law of States,
a “procedural economy” to the extent that it makes it possible for a litigant
to adopt the contentions /moyens] of a party to the proceedings already on
foot, or for a plaintiff to sue several defendants employing the same
contentions /moyens] and in the same proceedings, I do on the other
hand find it difficult to see how in the procedure before the Court the sub-
mission of an application for permission to intervene is a “procedural
economy of means”. The State which intervenes either confines itself to
informing the Court as to its legal interests without becoming a party, or
brings a dispute before the Court and becomes a party. In the first case,
the procedure on the merits has to be broached, and in the second case the
intervener should institute proceedings against one or the other of the
main parties. The Court, without rejecting the distinction made by Italy
between

“a request that the Court take account of, or safeguard, its legal
interests, and a request that the Court recognize or define its legal
interests, which would amount to the introduction of a distinct dis-
pute”

considers that it is not valid “in the context of the task conferred on the
Court by the Special Agreement”. This is tantamount to saying that as a
result of the nature of the dispute submitted to the Court, any distinction
between a “party intervener” and a “non-party intervener” ceases to be
relevant. This is the conclusion derived from paragraph 32 of the Judg-
ment. The Court stipulates that if it is to fulfil the task entrusted to it by the
Special Agreement

“and at the same time to safeguard the legal interests of Italy (more
than would result automatically, as will be explained below, from the
operation of Article 59 of the Statute), then when giving any indica-
tion of how far the Parties may extend their purely bilateral delimi-
tation, it must take account, so far as appropriate, of the existence and
extent of Italian claims”.

It seems to me that this is indeed the purpose of the intervention of a
State which is not a party. It could hardly be better summarized, and I see

48
CONTINENTAL SHELF (SEP. OP. MBAYE) 48

nothing in the present case which could prevent the Court from applying
this formula.

Moreover, there was nothing to prevent the Court, having admitted the
Italian intervention, and once the latter had stated its claims and indicated
the reasons used to justify them, from giving a judgment which would not
recognize their validity, expressly or implicitly, but would in fact merely
limit itself to ensuring that they were not prejudiced.

In this instance the principle of consensualism would not be infringed,
and therefore I believe that the intervener could not be required to furnish
proof of a jurisdictional link between itself and the States parties to the
dispute.

Apart from certain legal writers who exclude a priori all possibility of
recourse to intervention in the context of proceedings on certain matters (a
view which, for my part, I do not share), it is in this way that Article 62 may
make it possible to safeguard, further than is guaranteed by Article 59, the
rights of a State which is not a party to the dispute constituting the
subject-matter of a case.

Italy, I consider, was in this very category of non-party States. Its
intervention was limited to the provision of information concerning its
rights.

Admittedly, Libya and Malta opposed the granting of the Italian appli-
cation, on the grounds of the absence of a jurisdictional link between Italy
and the original Parties.

But this opposition is not in itself decisive : it is not sufficient to render
the application inadmissible. It cannot, of course, be ignored ; but it must
merely serve to enable the Court to weigh up the circumstances of the case.
Other elements of the case might play the same role : indeed, this is what
the Court rightly says (para. 46).

In the present case, it was of the first necessity to focus, as the Court has
done, on the object of the application, in order to establish whether Italy
intended to submit the whole of its claims to the Court for decision and,
constituting itself as a party to the case, to accept the binding effects of that
decision. But I think that it must also be asked whether, on the contrary,
Italy, exercising its intervention as a non-party, merely hoped to inform the
Court of the existence of its rights, simply asking the Court, to refrain, in its
decision, from prejudicing them. The position of Italy has had to be
analyzed in a concrete manner, with reference both to its application and
to the oral proceedings, looking beyond the terminology employed, but
also, above all, without distorting the specific object of the application for
permission to intervene. The Court was in fact right to recall that it is its
duty, as it had previously had to state in the Nuclear Tests cases, to
ascertain the object of the application (para. 29). In this respect it does not
seem decisive to me that counsel for Italy stated that Italy is an “inter-
vening party”. I think that the distinction to be drawn lies within the
intervention itself, between the State party and the State not a party. I
prefer to speak here not of an “intervening party” and a “party”, but rather
of a “party intervener” and a “non-party intervener”’. The Italian position

49
CONTINENTAL SHELF (SEP. OP. MBAYE) 49

had thus to be interpreted with a view to establishing whether, in this
instance, the application could be admitted despite the absence of a
jurisdictional link.

To this end, it is relevant to compare the application by Malta for
permission to intervene in the case of the Continental Shelf (Tunisia/
Libyan Arab Jamahiriya) with the application giving rise to the present
proceedings. In its application, Malta contented itself, having emphasized
that “it... cannot be known whether any legal interest of Malta will in fact
be affected by [the] decision or not” (paragraph 4 of the Application), with
asking the Court to permit it to state “its views” on the theoretical issues
which would have to be raised in the course of the proceedings. It stipu-
lated that its object was not

“by way, or in the course, of intervention in the Tunisia/ Libya case, to
obtain any form of ruling or decision from the Court concerning its
continental shelf boundaries with either or both of those countries”
(ibid, para. 22).

But it went no further than that.

Faced with such an Application, in which the intervener invoked no
direct and specific individual interest, and where it simply sought to state
“its views” on principles and rules of international law such as those set out
in paragraph 13 of the said Application, the Court had no choice but to
state that the conditions of Article 62 of the Statute were not fulfilled.

To the foregoing must be added that in its Application, Malta had not
stated that it intended to subject itself to the binding effect of the decision
to be made, even though that deficiency was remedied during the oral
proceedings. It was in fact as though Malta’s proposal was to offer the
Court a series of hypothetical reflections by way of information, without
accepting that its position would be affected by the decision of the Court.
Thus it was quite correct, in my opinion, for the Court to reject its appli-
cation.

In the case of Italy’s application, it begins by agreeing to submit its legal
interests to the judgment of the Court in the light of Article 62 of its Statute
and Article 81 of its Rules. But it is stipulated in the Application, as in that
of Malta in 1981, that the intervener is not seeking to have the Court
proceed to delimit its continental shelf. This has been amply explained in
the course of the oral proceedings. And it is on this very point that I cannot
share the contrary opinion of the Court (para. 31). For Italy, the purpose of
its intervention was to ensure

“the defence before the Court of its interests of a legal nature, so that
those principles and rules and, in particular, the practical method of
applying them, are not determined by the Court without awareness of
that interest”.

Moreover, Italy states in its Application that it is asking

50
CONTINENTAL SHELF (SEP. OP. MBAYE) 50

“to participate in the proceedings to the full extent necessary to enable
it to defend the rights which it claims over some of the areas claimed
by the Parties, and to specify the position of those areas, taking into
account the claims of the two principal Parties and the arguments put
forward in support of those claims, so that the Court may be as fully
informed as possible as to the nature and scope of the rights of Italy in
the areas of continental shelf concerned by the delimitation, and may
thus be in a position to take due account of those rights in its decision”
(Application for Permission to Intervene by the Government of Italy,
para. 16).

And in paragraph 17 of that same Application, Italy emphasizes that
such decision as the Court may make with regard to the rights it claims will
be fully applicable to it, in conformity with the terms of Article 59 of the
Statute of the Court. These statements have been confirmed by the oral
arguments of counsel for Italy, who have specified on several occasions
that once the application for permission to intervene was granted, Italy
would become an “intervening party”.

Thus it is clear that there are fundamental differences between Malta’s
1981 application and the present application by Italy. Italy did intend to
submit specific claims to the Court and to accept, in respect of those
claims, the binding effect of the decision to be made.

The same could not be said of Malta in 1981. However, on close
examination of the Application, and after hearing the oral arguments of
counsel for Italy, it appears that Italy did not intend to be a party to the
proceedings in the sense of the Statute of the Court and in the sense to
which I have referred. It described itself as an “intervening party”, with the
power of making submissions. But Italy has clearly explained what it
understands the term “intervening party” to mean. It did not have the
intention of asserting its rights against Libya and Malta.

One counsel for Italy stated during the oral hearing of 30 January 1984
(afternoon) :

“In regard to sovereign rights over maritime areas, to assert rights
means to obtain recognition of those specific geographical sectors
over which these rights are exercised. Everyone knows that Italy has
sovereign rights over areas of continental shelf extending seaward of
its coast. No one contests this. What is at issue is the geographical
extension of those rights, the surfaces over which they are exercised ;
hence what delimits them.

Once again, Italy does not request a delimitation of the areas of
continental shelf appertaining to it. In the areas remaining outside the
delimitation determined by the Court between Malta and Libya, the
delimitation still remains to be established: by negotiation and
agreement, or by some other means agreed between the parties.”

One can hardly be clearer than Italy has been. It has requested, not a
delimitation of its continental shelf, like the main Parties or, more accu-

51
CONTINENTAL SHELF (SEP. OP. MBAYE) 51

rately, a statement of the principles and rules for such a delimitation, but
simply that it should be permitted to give the Court information concern-
ing the existence and substance of its rights over the areas concerned, so
that they may not be prejudiced in the decision to be made. It did not
formulate any claim against the Parties, nor raise any objection against
them. The only purpose of the oral arguments of counsel for Italy, includ-
ing the passages quoted by the Court, was to confirm this position, whether
more or less appositely.

The Court, has however interpreted some of those arguments as mean-
ing that Italy was in fact asking it to “recognize those rights, and hence, for
the purpose of being able to do so, to make a finding, at least in part, on
disputes between Italy and one or both of the Parties”. To support its
argument the Court refers, especially in paragraph 33 of its Judgment, to
the following passages from the oral arguments of counsel for Italy :

“Ttaly is asking the Court, when carrying out its task under the Special
Agreement, to

‘provide the two Parties with every needful indication fo ensure that
they do not', when they conclude their delimitation agreement
pursuant to the Court’s judgment, include any areas which, on
account of the existence of rights possessed by Italy, ought to be the
subject either of delimitation between Italy and Malta or of delim-
itation between Italy and Libya, or the delimitation agreement as
between all three countries.’ (Emphasis added.)”

“Italy desires nothing more than that which, through appropriate
procedures, will be recognized as its legal due.”

“the Court could decide that, in the areas within which it will be
indicating to the main Parties how they should proceed with the
delimitation, Italy is not entitled to claim any rights...”.

“If..., after hearing Italy’s presentation, the Court decides that
there are grounds for proceeding to a delimitation between Malta
and Libya, it will decide, implicitly or explicitly, that Italy has no
rights in the areas concerned, despite any claims which it may make
to the contrary.”

These quotations are far from convincing. One might produce numerous
others in support of the unambiguous drift of the application, showing that
Italy did not intend to submit a dispute to the Court, and was certainly not
asking for a judgment upon it. Let me quote just a few:

“Italy does not ask you to establish a delimitation between itself
and Malta or itself and Libya. Italy asks the Court not to reach a
decision on areas which would involve its legal interest. At the same
time, it considers itself bound, if admitted to the present proceedings,

1 My emphasis.
52
CONTINENTAL SHELF (SEP. OP. MBAYE) 52

to recognize fully the binding nature of the decision to be given by the
Court on all the points raised within the framework of its interven-
tion.” (Statement of Mr. Gaja, Agent of Italy, at the hearing of
25 January 1984, morning.)

“In so far as the Court will perform the task of delimiting submar-
ine areas in dispute between Libya and Malta, it will be bound to cut
through areas which Italy claims pertain to her by law. Italian rights
would thus be affected in the most direct and unique fashion by the
operative part of the decision. It follows, in so far as legal interests
may be affected, that Italy should not fail to be enabled to defend its
rights on the matter.” (Oral statement of Mr. Arangio-Ruiz during the
hearing of 25 January 1984, morning.)

“1. Italy is not requesting the Court to determine the course of the
delimitation line dividing the areas of continental shelf appertaining
to Italy from the areas appertaining respectively to Malta or
Libya.

2. Neither is Italy requesting the Court to indicate what are the
principles and rules of international law applicable to the delimitation
of the areas of continental shelf appertaining to Italy on the one hand
and the areas of continental shelf appertaining, on the other hand, to
the Republic of Malta and the Libyan Arab Jamahiriya respectively,
nor how, in practice, those principles and rules might be applied in the
present case in order that the Parties concerned may without difficulty
delimit those areas by agreement.

4. Italy, if its request for permission to intervene is granted by the
Court pursuant to Article 62, paragraph 2, of the Statute, that is to say
when it has been authorized to participate in the proceedings on the
merits, will give a more complete definition of the areas over which it
deems that it has rights and will enlarge upon the grounds of law and
fact upon which its claims are based.” (Oral statement of Mr. Monaco
during the hearing of 25 January 1984, afternoon.)

I will also quote the following passages from the oral statement of Mr.
‘rally during the hearing of 26 January 1984:

“even though it relates to concrete rights and not to the interpretation
of rules or principles . . . In other words, Italy is not pressing a claim
against the Parties in the proceedings, or against either one of them
separately.

The object of the Italian intervention is more limited. Italy is only
asking that the Court, when setting forth the principles and rules of
international law held to be applicable to the delimitation of the
respective areas of continental shelf appertaining to Malta and Libya,
and when indicating how these principles and rules can be applied in

53
CONTINENTAL SHELF (SEP. OP. MBAYE) 53

practice by the Parties in the present case so as to delimit those areas
without difficulty, should give all the indications needed to ensure
that this line is not drawn in such a way as to disregard Italy’s rights,
and does not include areas over which Italy has rights in the areas
falling to one or the other Party.

In other words, Italy requests that no delimitation should be
effected between Malta and Libya, pursuant to the decision of the
Court, in sectors where, legally, delimitation should take place as
between Italy and Malta, or as between Italy and Libya.”

And even in the passage of oral argument quoted by the Court in para-
graphs 17 and 33 of the Judgment, mentioned above, counsel for Italy was
careful to begin by saying that

“Italy is asking that the Court, when it accomplishes the mission
entrusted to it by the Special Agreement of 23 May 1976, that is to say,
when it answers the questions put to it in Article I of that Special
Agreement, to take into consideration the interests of a legal nature
which Italy possesses in relation to various areas claimed by the main
Parties, on certain parts of those areas, . . .”

before going on to add : “to provide the two Parties with every needful
indication to ensure that they do not... include...”, etc.

These long quotations clearly show that counsel for Italy simply tried to
remain within the limits of intervention. It seems to me that they can hardly
be reproached with having to introduce a dispute before the Court, and
having asked the latter to resolve it.

] am well aware that, as the Court has recalled, it has the “duty to isolate
the real issue in the case and to identify the object of the claim” (C.J.
Reports 1974, p. 262, para. 29, and paragraph 29 of the present Judgment)
and that “the Court must ascertain the true object and purpose of the
claim” (ibid, p. 263, para. 30, and paragraph 29 of the present Judgment).
But this power which it rightly claims is not a discretionary power. The
Court cannot, on this basis, make a State voice an opinion which it
obstinately refuses to express. Italy has repeatedly said that it was not
seeking a delimitation of its continental shelf. Nothing in the statements by
its counsel offers any clear and specific contradiction of this position.

It is true that intervention requires of a State which has recourse to it that
it furnish proof of its “interest of a legal nature”, viz., that it should show in
this instance that it possesses rights which are liable to be affected by the
Court’s decision. It is also required that the State concerned should
unambiguously show its intention of bowing to the Court’s decision to the
extent of the claims which it has stated. This is not the same as submitting a
dispute to the Court : it is compliance with the conditions required by the
intervention procedure.

Feeling that it might be reproached with having misconstrued the clearly
expressed intention of Italy, the Court states that “The fact that Italy has
disclaimed any intention of asking the Court to settle such a dispute is

54
CONTINENTAL SHELF (SEP. OP. MBAYE) 54

immaterial’ (para. 31). But J am not certain that the reasoning subse-
quently pursued by the Court (paras. 32-37), and the examples it chooses to
demonstrate the contrary, are sufficiently convincing.

In my view, the sole purpose of the arguments put forward by counsel for
Italy, and invoked by the Court as showing the intention of the intervener
to submit a dispute to the Court for settlement, was to defend Italy against
the argument that it lacked an interest of a legal nature. To judge by the
Court’s case-law in the matter, which fortunately is extremely limited,
those who institute intervention proceedings have to strike a very delicate
balance. If they specify rights proving that they possess an interest of a
legal nature, and ask that this interest should not be prejudiced, they may
be accused of submitting a dispute to the Court (as in the present instance).
If they refrain from so doing, it may be argued against them that they have
no interest of a legal nature (Malta’s intervention in 1981). Surely this is
tantamount to condemning the institution of intervention, provided for in
Article 62 of the Statute, to a wasting death ?

Having read and re-read Italy’s Application, and the oral arguments of
its counsel, I have formed the conviction that the purpose of the inter-
vention brought before the Court made Italy a “non-party intervener”.
Italy has specified the areas of continental shelf over which it considered
itself to possess sovereign rights, the preservation of which it was request-
ing, accepting in advance the effect of the decision which would be made
on the matter which it was “submitting” to the Court for information
purposes. It has not asked for the Court to delimit those areas, or to
recognize any rights which it might possess there. In so doing, did Italy
commit the error of envisaging now, on the supposition that the Court
acceded to its request, that in those areas which the Court would as a
consequence exclude from its decision, there would be a delimitation, by
treaty or by judicial means, between itself and one or both of the Parties ? I
do not think so. Moreover, does Article 62 of the Court’s Statute forbid
such a limited intervention ? Again, I do not think so.

In conclusion, I believe that Italy’s Application could not be admitted
for the reason which I gave at the beginning of this opinion. But I also
believe that in view of its object, it could not be rejected for the sole reason
that the consent of the Parties was lacking. The Court has given an opposite
opinion on this latter point. I regret that I do not share this view even
though I have endorsed the operative part of the Judgment.

(Signed) Kéba MBAYE.

55


98
ANNEX 2 a.
I.

THE VICE-CHANCELLOR OF AUSTRIA TO THE MINISTER
FOR FOREIGN AFFAIRS OF THE GERMAN REICH.

{Translated by the Registry]
Vienna, March roth, 1937.
Your Excellency,

As a result of our conversations early this month during
your visit to Vienna, I have the honour to inform. Your
Excellency that the Austrian Government has welcomed the
plan to assimilate the economic and tariff régimes of Austria
and Germany and has unanimously approved the Protocol as
annexed hereto, laying down the principles for the agreement -
to be concluded.

I have, etc.
(Signed) SCHOBER.

Ii.

THE MINISTER FOR FOREIGN AFFAIRS OF THE GERMAN
REICH TO THE VICE-CHANCELLOR OF AUSTRIA.

[Translated by the Registry.]
Berlin, March 1oth, 1931.

Your Excellency,

With reference to our conversations early in March, while I
was in Vienna, I have the honour to inform you that the
Government of the Reich has welcomed the plan for assimil--
ating the tariff and commercial régimes of Austria and Ger-
many and has unanimously approved the Protocol laying down
the principles of the treaty to be concluded, in the text
attached hereto.

‘I have, etc. :
(Signed) CURTIUS.

65
99

TEL.

AUSTRO-GERMAN PROTOCOL
OF MARCH roth, 1931.

[Translation]

In pursuance of the conversation which took place in
Vienna at the beginning of March, 1931, the German Govern-
ment and the Austrian Government have agreed to enter
forthwith into negotiations for a treaty to assimilate the
tariff and economic policies of their respective countries on the
basis and within the limits of the following principles.

LL.

(x) While completely maintaining the independence of the
two States and fully respecting the obligations undertaken by
them towards other States, the treaty is intended to initiate
a reorganization of European economic conditions by regional
agreements.

(2) More especially both Parties will, in the treaty, uncon-
ditionally declare their willingness to enter into negotiations for
a similar arrangement with any other country expressing such
a desire.

II.

(x) Germany and Austria will agree on a tariff law and a
customs tariff which shall be put into force in both customs
areas concurrently with the treaty and for the period of its
validity. .

(2) During the validity of the treaty, amendments to the
tariff law and the customs tariff may only be effected by
agreement between the two Parties.

IT.

(1} As long as the treaty remains in force, the exchange of
goods between the two countries shall not be subject to any
import or export duties.

(2) In the treaty the two Governments will come to an
agreement as to whether internal customs duties will be
necessary, and, if so, for what specified categories of goods and
for what period.

66
PROTOCOL OF MARCH Iogth, 1931 100

IV.

In the treaty the two Governments will reach an agreement
for a provisional arrangement regarding the turnover tax and
the exchange of those goods for which, at the present time,
monopolies or excise duties prevail in either of the two
countries,

V. :

(x) The Customs Administration of each of the two countries
shall be independent of that of the other and shall remain
under the exclusive control of its own Government. Further-
more, each country shall bear the expenses of its own Customs
Administration.

(2) Both Governments, whilst fully respecting the above.
principle, will enact special measures of a technical character
to provide for the uniform execution of the tariff law, the
customs tariff and the other tariff regulations.

VI.

(x) In the German customs area the customs duties shall be
levied by the German Customs authorities and in the Austrian
customs area by the Austrian Customs authorities. .

(2) After deducting the special expenses arising out of the
application of the treaty, the amount of the duties received
shall be apportioned between the two countries according to
a quota.

(3) In the agreements to be reached regarding this point,
care will be taken not to prejudice the liens on customs
revenues existing in either country.

VIT.

(x) No import, export or transit prohibitions shall exist as
between Germany and Austria. Such exceptions as may prove
to be requisite for reasons of public security, public health or
matters of a similar nature shall be specified in the treaty as
precisely as possible.

(2) In place of the Agreement on the Diseases of Animals
concluded between Germany and Austria on July 12th, 1924;
the two Governments will conclude and put into force as soon
as possible, and in any case not later than one year after
the entry into operation of the treaty, a fresh agreement
regulating the traffic in animals and animal products between

67
PROTOCOL OF MARCH IOth, 1931 I0I

Germany and Austria in accordance with the regulations which
govern internal traffic in Germany and Austria, the same
conditions being given.

VIII.

The rights appertaining to. individual and juridical persons
of the one Party in the territory of the other in respect of
domicile, industry, taxation, etc., shall be regulated in the
treaty on the basis of the relevant provisions of the Austro-
German Commercial Treaty now in force. On the same basis
regulations will also be agreed upon concerning railway and
shipping traffic between the two Parties.

IX.

(rt) Each of the two Governments, even after the entry into
operation of the treaty, shall retain in principle the right to
conclude commercial treaties with third States on their own
behalf.

(2) In the relevant negotiations with third States, the Ger-
man and the Austrian Governments will see that the interests
of the other contracting Party are not violated in contraven-
tion of the tenor and purpose of the treaty to be concluded.

(3) So far as it seems opportune and possible with a view
to effecting a simple, speedy and uniform settlement of the
commercial relations with third States, the German Govern-
ment and the Austrian Government will conduct joint negoti-
ations for the conclusion of commercial treaties with third
States. Even in this case, however, Germany and Austria
will each on its own behalf, sign and ratify a separate com-
mercial treaty and will only arrange for a simultaneous
exchange of the ratifications with the third State in question.

XxX.

The two Governments will, at a suitable time, take the
steps necessary to bring into accord with one another and
with the tenor and purpose of the treaty, to be concluded,
the existing commercial treaties concluded by Germany and
Austria with third States so far as they contain tariff rates
fixed by commercial treaties with other countries or so far
as they would. interfere with the execution of the existing
import and export prohibitions and other regulations for the
exchange of goods.

68
PROTOCOL OF MARCH 19th, 1931 102
XI.

(x) To ensure a smooth working of the treaty, an Arbitral
Committee composed of members of the two Parties on the
lines of complete parity shall be provided for. This Com-
mittee will have to deal with the following matters:

(a) settlement by arbitration of differences of opinion
arising between the two Parties as to the interpretation
and application of the treaty;

(0) to bring about a compromise in cases where the treaty
provides for a special agreement between the two Parties
or in which, according to the tenor of the treaty, the
realization of the intentions of the one Party depends upon
the consent of the other, provided that in such cases.
agreement cannot be reached between the two Parties.

(2) A decision of the Arbitral Committee in cases (a) and
(0) referred to above shall have binding effect on both
Parties, a majority of votes being sufficient. The President
of the Committee shall have a casting vote. Complete parity
in choosing the President shall be provided for in the treaty.

(3) Should either of the Governments be of the opinion
that a decision of the Arbitral Committee in any of the
cases mentioned under 1x (6) infringes its vital economic
interests, it shall be entitled to terminate the treaty at any
time on giving six months’ notice. Such notice of termination
may also be given during the first period of three years
mentioned under XII (2).

XII.

(x) The treaty to be concluded shall be ratified and shall
enter into operation at the end of a period to be fixed in
the treaty which extends from the date of the exchange of
ratifications.

(2) The treaty may be denounced at any time upon one
year’s notice, but not so as to terminate it before the end
of the third year after its entry into operation except in
the case mentioned under XI (3).

(3) Notice may only be given in virtue of a law of the
country denouncing the treaty.

69


468

            SEPARATE OPINION OF VICE-PRESIDENT
                      AL-KHASAWNEH

  Concurrence with result — Disagreement with reasoning — FRY lack of
access erroneous reasoning — Traceable to 2004 Judgment — Source of con-
fusion — Contradictions with 2007 not substantively resolved — Merely hidden
by res judicata — Majority forced to rely on novel interpretation of Mavrom-
matis — New reasoning leads nowhere — Crucial element in Mavrommatis
remains missing — Defect is not curable now because of loss of jurisdiction
ratione materiae.

   I concur with the majority opinion that the Court possesses jurisdic-
tion to decide the present case on the merits. I regret, however, that there
are elements in the Court’s reasoning with which I cannot agree. Believ-
ing those differences to be important enough to warrant an explanation,
I append this separate opinion.
   The Judgment is predicated on two premises neither of which I find
convincing : first, that the Federal Republic of Yugoslavia (FRY) had
no “access” to the Court from its inception on 27 April 1992 until its
admission as a new Member of the United Nations on 1 Novem-
ber 2000 ; and second, that this defect — fundamental in the eyes of
some — is nevertheless curable by the invocation of a somewhat unor-
thodox interpretation of the so-called Mavrommatis principle. The first
of these elements of the Court’s reasoning is not new. Its genesis is
located in the 2004 case concerning the Legality of Use of Force Judg-
ment(s) where the Court, departing from earlier closely-related juris-
prudence (Application of the Convention on the Prevention and Punish-
ment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia),
Provisional Measures, Order of 13 September 1993, I.C.J. Reports
1993; Application of the Convention on the Prevention and Punishment
of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia),
Preliminary Objections, Judgment, I.C.J. Reports 1996 (II) ; Applica-
tion for Revision of the Judgment of 11 July 1996 in the Case concerning
Application of the Convention on the Prevention and Punishment
of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia),
Preliminary Objections, (Yugoslavia v. Bosnia and Herzegovina), Judgment,
I.C.J. Reports 2003), drew, from the fact of the 2000 admission
of the FRY to the United Nations as a “new Member”, the inference
that that fact clarified retroactively the hitherto amorphous status of
FRY membership in the United Nations, revealing that it had not been

60

469 APPLICATION OF GENOCIDE CONVENTION (SEP. OP. AL-KHASAWNEH)

a United Nations Member in the period 1992-2000 and thus lacked the
capacity (access) to appear before the Court.

  I have already had occasion to discuss these jurisdictional issues in a
somewhat lengthy and detailed manner (see dissenting opinion of
Judge Al-Khasawneh (especially paras. 11-16) in the case concerning the
Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro),
Judgment, I.C.J. Reports 2007 (I), pp. 246-249), and no purpose would
be served by repeating those arguments. Suffice it to say that in my
respectful opinion the erroneous reasoning in the 2004 Judgment has
been the source of much confusion and contradictions in the Court’s
judgments dealing with the aftermath of the disintegration of the former
Socialist Republic of Yugoslavia (the SFRY).

   In the 2007 Genocide Judgment (ibid., pp. 96-101, paras. 129-138),
where the Court upheld its jurisdiction (for the second time, the first
being in 1996), the contradictions with the 2004 Judgment were not sub-
stantively resolved but merely obscured by the formalism of res judicata.
In the present judgment, in which the Applicant is different, the ghost of
the 2004 Judgment, freed from the shackles of res judicata, is back to
haunt us, and rather than putting it this time to rest beyond revivication,
the Court chose in fact to revive it, making it one of the premises on
which the present Judgment is constructed. This is regrettable as the
moral and logical implications of the collective disappearing act of the
FRY for eight full years, while some of the most horrible crimes occurred,
and in which its leaders were implicated, cannot represent a high point in
the history of this Court.

   Instead — and this leads me to the second premise on which this Judg-
ment is predicated — the majority embarked on a novel interpretation of
the so-called Mavrommatis principle (Mavrommatis Palestine Conces-
sions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, para. 34) accord-
ing to which the Court would not insist on a new application if, at the
time of institution of proceedings, a procedural defect curable by a sub-
sequent action of the applicant existed. Of course, no other option was
open to the majority given the inapplicability of res judicata and the
choice they made with regard to maintaining the 2004 Judgment. Unfor-
tunately, this new line of reasoning, based on Mavrommatis, was to
prove exceedingly arduous and ultimately, in my respectful opinion, to
lead nowhere.

  A brief recollection of pertinent developments is useful : Croatia insti-
tuted proceedings on 2 July 1999, i.e., in the period during which the
FRY was not, according to the logic of the 2004 Judgment and
the present one, a United Nations Member, and hence lacked access to

61

470 APPLICATION OF GENOCIDE CONVENTION (SEP. OP. AL-KHASAWNEH)

the Court1 ; in November 2000 the FRY was admitted as a new Member
to the United Nations thereby curing this lack of access and removing the
obstacle to jurisdiction ratione personae ; however a few months later, on
6 March 2001, the FRY undertook treaty action which included the
depositing with the Secretary-General of the United Nations of an “instru-
ment of accession” to the Genocide Convention. It has since maintained,
in a reversal of its earlier position based on continuity, that it only
became a party to that Convention by accession in June 2001. Jurisdic-
tion ratione materiae was now lost because the FRY “instrument of
accession” contained a reservation to the effect that the FRY “does not
consider itself bound by Article IX of the Convention” (Judgment,
para. 94). As the Judgment recalls in paragraph 94, Croatia objected on
the ground that the FRY “‘is already bound by the Convention since its
emergence as one of the five equal successor States’ of the former SFRY”.
It goes without saying that if the FRY was not a successor but a con-
tinuator of the SFRY the “accession” would be equally invalid. For its
part the Court, as recalled in paragraph 102 and as submitted by Croatia,
affirmed on six occasions that the FRY was bound by the Genocide Con-
vention in 1993 (twice), 1996, 1999, 2003, and 2007.

   Be that as it may, what is of direct interest now is that unless the res-
ervation pertaining ratione materiae to the Court’s jurisdiction is invalid,
it would not be possible by any stretch of the legal imagination to invoke
Mavrommatis. A crucial element in Mavrommatis, and in other cases
which follow that old case (Northern Cameroons (Cameroon v. United
Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1963 ;
Military and Paramilitary Activities in and against Nicaragua (Nicara-
gua v. United States of America), Jurisdiction and Admissibility, Judg-
ment, I.C.J. Reports 1984 ; Application of the Convention on the Preven-
tion and Punishment of the Crime of Genocide (Bosnia and Herzegovina
v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports
1996 (II)), is that a procedural defect is curable by subsequent action
which is nevertheless deemed unnecessary in view of considerations of
judicial economy. The situation in the present case is different. The res-
ervation to Article IX introduced by the FRY in 2001 will act to bar such
a subsequent action. Without the invalidation of the reservation to Arti-
cle IX which the Judgment avoids, I cannot see how the ratione materiae
element of the Court’s jurisdiction can be upheld on the basis of reason-
ing based on Mavrommatis.

  1 Access as a non-Member under Article 35 (2) was also blocked by the interpretation

given in 2004 to the phrase “treaties in force” (see pp. 318-324, paragraphs 99-114 of the
case concerning Legality of Use of Force (Serbia and Montenegro v. Belgium), Prelimi-
nary Objections, Judgment, I.C.J. Reports 2004 (I)).

62

471 APPLICATION OF GENOCIDE CONVENTION (SEP. OP. AL-KHASAWNEH)

   I continue to believe that the FRY was a continuator of the SFRY
until 2000 when, of its own volition, it became a successor State. I am
also of the opinion that the FRY was bound by the Genocide Conven-
tion, including Article IX, by virtue of the ratification by the SFRY of
the Convention, without reservation, on 29 August 1950. It is on these
bases that I joined the majority in upholding the Court’s jurisdiction
notwithstanding my respectful, but profound, disagreement with their
reasoning.

                                     (Signed) Awn AL-KHASAWNEH.

63


47 BARCELONA TRACTION (JUDGMENT)

For these reasons,

THE Court,

by twelve votes to four,
rejects the first Preliminary Objection ;

by ten votes to six,
rejects the second Preliminary Objection ;

by nine votes to seven,
joins the third Preliminary Objection to the merits ;

by ten votes to six,
joins the fourth Preliminary Objection to the merits.

Done in English and French, the English text being authoritative,
at the Peace Palace, The Hague, this twenty-fourth day of July, one
thousand nine hundred and sixty-four, in three copies, one of which
will be placed in the archives of the Court and the others transmitted
to the Government of the Kingdom of Belgium and to the Government
of the Spanish State respectively.

(Stgned) Percy C. SPENDER,
President.

( Signed ) GARNIER-COIGNET,
Registrar.

President Sir Percy SPENDER makes the following declaration :

I concur in the Judgment of the Court. I wish, however, to say a
few words on the second Preliminary Objection of the Government of
Spain.

Whilst the text of Article 37 of the Court’s Statute is quite different
to that of Article 36 (5), which was the subject of examination in
Israel v. Bulgaria, and its terms are, in my view, so clear as to admit
of no doubt as to their meaning, it is difficult to discern any decisive
distinction in principle between Article 36 (5) and Article 37 in relation
to the cardinal questions raised by the second Preliminary Objection.

For my part, for reasons which appear in the Joint Dissenting Opinion
in Israel v. Bulgaria, to which I continue to adhere, I would, apart
from other considerations. referred to in the Court’s Judgment, be
compelled to reject this Preliminary Objection.

45


1936.
Le 23 mai.
Rôle général

nos 65 et 66.

COUR PERMANENTE DE JUSTICE INTERNATIONALE

ORDONNANCE RENDUE LE 23 MAI 1936

ANNÉE JUDICIAIRE 1936

AFFAIRE PAJZS, CSAKY, ESTERHAZY
(EXCEPTION PRÉLIMINAIRE)

Présents : Sir CEciL Hurst, Président; M. GUERRERO, Vace-
Président ; le baron ROLIN-JAEQUEMYNS, le comte
Rosrworowski, MM. FROMAGEOT, DE BUSTAMANTE,
ALTAMIRA, ANZILOTTI, URRUTIA, NEGULESCO, Jhr.
VAN EYsINGA, M. NAGAOKA, juges ; MM. DE TOMCSANYI
et Zoriti¢, juges ad hoc.

La Cour permanente de Justice internationale,

ainsi composée,
aprés délibéré en Chambre du Conseil,

vu les articles 40 et 48 du Statut,
vu l’article 62 du Règlement,

Rend l'ordonnance suivante :

EN CE QUI CONCERNE L'ÉTAT DE LA PROCÉDURE :

Considérant que, par une requête en date du 1e décembre
1935, déposée et enregistrée au Greffe de la Cour le 6 décembre
suivant, le Gouvernement royal de Hongrie a introduit devant
la Cour permanente de Justice internationale une instance
contre le Gouvernement royal de Yougoslavie concernant trois
sentences respectivement rendues le 22 juillet 1935 par le
Tribunal arbitral mixte hungaro-yougoslave sous les no 749,

750 et 747;
4
5 A/B 66. — AFFAIRE PAJZS, CSÂKY, ESTERHAZY

Considérant que, dans sa requête, le Gouvernement hongrois
a invoqué dans la présente affaire en premier lieu l’article X de
l'Accord IT signé à Paris le 28 avril 1930 pour le « règlement
des questions relatives aux réformes agraires et aux tribunaux
arbitraux mixtes » notamment entre la Hongrie et la Yougo-
slavie, ainsi conçu :

« Article X, — Pour toutes les sentences de compétence ou
de fond rendues désormais par les tribunaux arbitraux mixtes
dans tous les procès autres que ceux visés par l’article premier
du présent Accord, la Roumanie, la Tchécoslovaquie et la
Vougoslavie, d’une part, et la Hongrie, d'autre part, conviennent
de reconnaître à la Cour permanente de Justice internationale,
sans qu’il y ait besoin de compromis spécial, compétence comme
instance d'appel.

Le droit d'appel pourra être exercé par voie de requête par
chacun des deux Gouvernements entre lesquels se trouve consti-
tué le Tribunal arbitral mixte, dans un délai de trois mois à
dater de la notification faite à son agent de la sentence dudit
Tribunal. »

Considérant qu’en second lieu le Gouvernement hongrois
invoque à l’appui de sa requête les articles XVII de l'Accord II
et 22- de l'Accord IIT de Paris, aux termes desquels :

Accord II. « Article XVII. — En cas de divergence sur
l'interprétation et Vapplication du présent Accord et à défaut
d'accord entre les Parties intéressées sur la désignation d’un
arbitre unique, tout État intéressé aura le droit de s'adresser par
voie de requête à la Cour permanente de Justice internationale,
sans qu'on puisse lui opposer une sentence du Tribunal arbitral
mixte en vertu de l’article premier du présent Accord. »

Accord III. « Article 22. — En cas de divergence sur l’inter-
prétation et l'application du présent Accord et à défaut d'accord
entre les Parties intéressées sur la désignation d’un arbitre unique,
tout Etat intéressé aura le droit de s'adresser par voie de requête
à la Cour permanente de Justice internationale. »

Considérant enfin que, dans sa requête, le Gouvernement
hongrois invoque très subsidiairement les déclarations d’accep-
tation par la Hongrie et par la Yougoslavie de la disposition
facultative de l’article 36 du Statut de la Cour;

Considérant à cet égard que, si la Hongrie a renouvelé le
30 mai 1934, pour une période de cinq ans, à dater du 13 août
1934, la déclaration d'acceptation qu’elle avait apposée à cette
disposition, la Yougoslavie n’y avait apposé, le 16 mai 1930,
qu’une déclaration d'acceptation valable pour une période de
cing ans à dater du 24 novembre 1930; que, cette déclaration
n'ayant pas été renouvelée, la Yougoslavie avait cessé d’être
liée par ladite disposition facultative le 6 décembre 1935, date

5
6 A/B 66. — AFFAIRE PAJZS, CSAKY, ESTERHAZY

de la présentation de la requête du Gouvernement hongrois ;
que les Parties sont d’accord à cet égard ;

Considérant que les délais pour la présentation des pièces de
la procédure écrite furent, après prolongations successives, fixés
de telle sorte que le délai imparti au Gouvernement hongrois
pour la présentation de son Mémoire expirait le 20 janvier 1936
et le délai imparti au Gouvernement yougoslave pour la présen-
tation de son Contre-Mémoire expirait le 5 mars 1936;

_ Considérant que, dans le Mémoire présenté dans le délai ainsi

fixé, le Gouvernement hongrois a formulé comme il suit ses

conclusions :

Plaise à la ‘Cour:

« A) 1° Accepter l’appel ;

2° Dire et juger, comme de droit, à la suite de l’appel accepté,
de préférence, réformer les trois sentences en question, en
déclarant le Tribunal arbitral mixte compétent pour juger
des requétes des ressortissants hongrois, en motivant ample-

ment son arrêt et obligeant le Tribunal arbitral mixte de se
conformer a ses considérants ;

B) Subsidiairement ou cumulativement, selon jugement de la
haute Cour:

1° Dire et juger, en général, quelle serait la juste interprétation
et la juste application des Accords II et III de Paris, et
remédier entièrement à l’attitude du Royaume de Yougo-
slavie qui, en ce moment, refuse — soit par sa législation
intérieure, ayant trouvé expression à l’article 11, alinéa 3,
de sa loi du 26 juin 1931, soit par l'interprétation erronée
de cette disposition législative par ses autorités adminis-
tratives, à quoi il dit, pourtant, avoir procédé par l’autori-
sation et en conformité des Accords II et III de Paris — à
tous les ressortissants hongrois, par un tout nouveau traite-
ment, différentiel et inattendu, imprévu dans les Accords II
et III de Paris, la reconnaissance de son obligation de payer
les sommes leur dues, par application à eux du traitement
national de ses lois intérieures pour des terres leur expro-
priées au cours de sa réforme agraire, au lieu de procéder
ainsi exclusivement dans les cas de ressortissants hongrois
ayant présenté des réclamations pour les mémes terres
devant le Tribunal arbitral mixte, et ayant été reco nnus
avec leurs réclamations par des sentences du Tribunal arbi-
tral mixte, aux termes des Accords IT et III de Paris, contre
le Fonds agraire ; :

2° Condamner, spécialement, le Royaume de Yougoslavie:

a) à tenir son attitude et ses procédés dans tous les cas en
stricte conformité a telle juste interprétation et application
7 A/B 66. — AFFAIRE PAJZS, CSAKY, ESTERHAZY

des Accords IT et III de Paris et aux droits qu'ils présup-
. posent ;

6) à réparer les dommages et rembourser les frais et débours
causés à des ressortissants hongrois par son attitude et ses
procédés actuels, injustifiés par lesdits Accords II et III
de Paris;

C) Dire et juger que le Royaume de Yougoslavie est obligé
@indemniser aussi le Gouvernement du Royaume de Hon-
grie de tous les frais et débours par celui-ci encourus en
vue de remédier à la situation de ses ressortissants, dont
le Royaume de Yougoslavie était, malgré avertissement, la
cause, y compris les frais et débours de la présente affaire
devant la haute Cour »;

Considérant que, dans le délai fixé pour la présentation de
son Contre-Mémoire, le Gouvernement yougoslave a déposé une
pièce intitulée : « Contre-Mémoire du Gouvernement yougoslave
contenant l’Acte introductif de Exception présenté à la Cour
dans laffaire de l’appel du Gouvernement hongrois contre les
trois sentences n°’ 747, 749 et 750 du Tribunal arbitral mixte
hungaro-yougoslave », et concluant 4 ce qu’il plaise 4 la Cour:

« 1. Dire et juger, avant tout examen de fond, que l’appel du
Gouvernement royal de Hongrie contre les trois sentences.
du Tribunal arbitral mixte hungaro-yougoslave est irrece-
vable et contraire à l’article X de l’Accord II de Paris;

2. Dire et juger, avant tout examen de fond, que la demande du
Gouvernement hongrois pour obtenir l’interprétation générale
des Accords II et III de Paris par la Cour est irrecevable,
par suite de l’inaccomplissement des conditions essentielles.
posées par l’article XVII de l’Accord II et l'article 22 de
l'Accord III;

3. Subsidiairement, dire et juger que l'appel du Gouvernement
hongrois en vertu de l'article X de l'Accord II est mal
fondé et confirmer les trois sentences du Tribunal arbitral
mixte hungaro-yougoslave ;

4. Subsidiairement, dire et juger que les trois sentences du
Tribunal arbitral mixte hungaro-yougoslave sont conformes à
la juste interprétation des Accords de Paris;

5. Condamner le Gouvernement royal de Hongrie à rembourser
au Gouvernement royal de Yougoslavie tous les frais et
dépens encourus dans le procès actuel »;

Considérant que, par Ordonnance du 10 mars 19361, rendue
conformément à l’article 38 de son Règlement alors en vigueur,
la Cour, relevant le caractère d'exception préliminaire des deux
premières conclusions du Gouvernement yougoslave, a fixé au
3 avril 1936 le délai imparti au Gouvernement hongrois pour
présenter un Exposé écrit contenant ses observations et conclu-

1 Le texte de cette ordonnance sera publié ultérieurement. [Note du Greffier.]

7
8 A/B 66. — AFFAIRE PAJZS, CSAKY, ESTERHAZY

tions sur lesdites exceptions; que, dans le délai ainsi fixé, le
Gouvernement hongrois a déposé un Exposé concluant a ce
qu'il plaise à la Cour:

« Rejeter les exceptions préliminaires de l’État défendeur ;

Se déclarer compétente ;
Ordonner la poursuite de la procédure sur le fond »;

Considérant que les deux Parties en cause se sont prévalues
du droit qui leur revient aux termes de l’article 31 du Statut
de désigner chacune un juge pour siéger dans la présente affaire;

Considérant que, les 29 et 30 avril et les rer, 4, 5 et 6 mai
1936, M. Stoykovitch, agent désigné en dernier lieu par le Gou-
vernement yougoslave, et M. Gajzago, agent désigné par le
Gouvernement hongrois, ont, en audiences publiques de la Cour,
présenté les observations orales respectives des Parties sur les
exceptions ci-dessus visées ; que, dans ses exposés oraux, l’agent
du Gouvernement hongrois a maintenu les conclusions sur les
exceptions, formulées dans l’Exposé écrit hongrois, ainsi que
les conclusions sur le fond formulées dans le Mémoire hongrois ;
que, de son côté, agent du Gouvernement yougoslave a égale-
ment maintenu telles quelles les deux conclusions formulées à
titre d'exception préliminaire par le Gouvernement yougoslave
dans son Contre-Mémoire contenant l’Acte introductif de l’excep-:
tion opposée à l'instance introduite par le Gouvernement hon-
grois ;

Considérant qu’en cet état il appartient à la Cour, aux termes
de l’article 62, alinéa 5, de son Règlement actuellement en
vigueur, soit de statuer sur l'exception soit de la joindre au
fond ;

EN CE QUI CONCERNE L’EXCEPTION PRÉLIMINAIRE :

Considérant qu'il résulte des exposés écrits et des explica-
tions verbales des Parties que la Cour se trouve en présence
des deux exceptions préliminaires suivantes :

1) l'appel du Gouvernement hongrois fondé sur l’article X
de l'Accord II de Paris serait irrecevable parce que, contraire-
ment aux allégations du Gouvernement hongrois, les procès,
objet des sentences dont est appel, ne constitueraient pas,
comme l’exige ledit article X, des procés autres que ceux visés
à l’article premier dudit Accord et parce que lesdites sentences
ne seraient pas des sentences de compétence ou de fond au
sens de l’article X ;

2) la demande en interprétation du Gouvernement hongrois
fondée sur les articles XVII de l'Accord II et 22 de l'Accord III
de Paris serait irrecevable parce que ce Gouvernement se serait
adressé à la Cour par voie de requête sans qu’un défaut d'accord

8
9 A/B 66. — AFFAIRE PAJZS, CSÂKY, ESTERHAZY

entre les Parties intéressées sur la désignation d’un arbitre
unique ait été préalablement constaté ;

Considérant qu'il existe entre les questions soulevées par la
première de ces exceptions et celles qui sont à la base de
la demande en appel formulée par les conclusions au fond
du Gouvernement hongrois des rapports trop étroits et une
connexité trop intime pour que la Cour puisse statuer sur les
unes et éviter de se prononcer sur les autres;

Considérant que la seconde exception du Gouvernement yougo-
slave a pour objet de paralyser une demande qui, par rapport
à l’« appel » fondé sur l’article X de l'Accord IT visé par la
première exception, est présentée « subsidiairement ou cumula-
tivement selon jugement de la Cour »; que, dans la mesure où
cette demande présente un caractère subsidiaire, l'exception
soulevée contre elle ne saurait être également envisagée que
subsidiairement ;

Considérant que le développement de la procédure sur le
fond, en permettant à la Cour de bien saisir la relation à établir
entre la demande en appel en vertu de l’article X de l’Accord II
et la demande en interprétation des Accords II et III en
vertu des articles XVII et 22 desdits Accords, ainsi que le sens
et la portée a donner aux conclusions présentées « subsidiaire-
ment ou cumulativement selon jugernent de la Cour », mettra.
la Cour a méme de statuer en meilleure connaissance de cause
sur la deuxième exception du Gouvernement yougoslave ; —

Considérant, dès lors, qu’il y a lieu de joindre les deux excep-
tions au fond, la Cour devant statuer à leur égard et, s’il y a
lieu, sur le fond, par un seul et même arrêt ;

EN CE QUI CONCERNE LA SUITE DE LA PROCÉDURE :
Considérant qu'aux termes de l’article 62, alinéa 5, du Règle-

ment actuellement en vigueur, il appartient à la Cour, lors-
qu'elle joint l'exception au fond, de fixer de nouveau les délais
pour la suite de l'instance ;

Considérant que, à la suite de la présentation par le Gou-
vernement yougoslave de son exception, la Cour a suspendu la
procédure sur le fond; que, toutefois, la pièce déposée au nom
du Gouvernement yougoslave dans le délai fixé pour la pré-
sentation de son Contre-Mémoire a constitué déjà, tant d’après
son intitulé que d’après son texte, un Contre-Mémoire sur le
fond’;

Considérant, en cet état et conformément à l’Ordonnance du
10 mars 1036, qu’il appartient actuellement à la Cour de fixer
seulement les délais pour la présentation des Réplique et Duplique
sur le fond;
Lo A/B 66. — AFFAIRE PAJZS, CSAKY, ESTERHAZY
La Cour

I) joint les exceptions opposées par le Gouvernement yougo-
slave au fond de l'instance introduite par la requête du
Gouvernement hongrois enregistrée au Greffe le 6 décembre
1935, pour être statué par un seul et même arrêt sur
lesdites exceptions et, éventuellement, sur le fond;

2) fixe comme suit les délais ultérieurs pour le dépôt des
pièces de la procédure écrite sur le fond:

a) pour la Réplique du Gouvernement hongrois: le
3 juillet 1936;

b) pour la Duplique du Gouvernement yougoslave : le
° I4 août 1936. |

Fait au Palais de la Paix, à La Haye, le vingt-trois mai mil
neuf. cent trente-six, en trois exemplaires, dont l’un restera
déposé aux archives de la Cour et dont les autres seront trans-
mis respectivement au Gouvernement hongrois _ et au Gouver-
nement yougoslave.

Le Président de la Cour:
(Signé) Ceci, J. B. Hurst.

Le Greffier de la Cour:

(Signé) À. HAMMARSKJOLD.

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