76

DISSENTING OPINION OF JUDGE ARMAND-UGON
[Translation]
As I am, to my regret, unable to concur entirely in the decision
of the Court on the merits, I feel called upon to explain the reason
for my dissenting opinion.

*
* *

The Portuguese Government asserts in the first of its final sub-
missions that it possessed a right of passage between Daman and
the enclaves of Dadra and Nagar-Aveli in July 1954.

That right, Portugal argues, is a right of transit the sole purpose
of which is to ensure continuous communication between the en-
claves themselves and between the enclaves and Daman. The
transit is between two pieces of Portuguese territory. It involves a
right of access to Portuguese territory enclaved within Indian
territory, not a right of access to the latter. Such a right must be
regulated to the extent essential for the exercise of Portuguese
sovereignty within the enclaves of Dadra and Nagar-Aveli. Sover-
eignty over the territory through which communication takes place
belongs exclusively to India, and this Portugal does not dispute;
that transit remains subject to Indian sovereignty, and no immunity
is claimed ; it is therefore for the Indian Government to regulate and
control this right of transit across its territory. This regulation and
control must be exercised in good faith and under the responsibility
of India; but that power of regulation is not a discretionary power
and the Indian Government cannot be allowed to prevent the
transit necessary for the exercise of Portuguese sovereignty within
the enclaves.

This first of the final submissions of the Portuguese Government
asks the Court to adjudge and declare:

“That the right of passage between the enclaves of Dadra and
Nagar-Aveli and between these enclaves and the coastal. district
of Daman, as defined above, is a right possessed by Portugal and
which must be respected by India.”

It is upon this basis that the Court has been asked to adjudicate,
and it must be taken as a whole, neither the Parties nor the Court
itself being permitted to make any alterations in it. The words
“‘finalement conclure” in the French text of Article 48 of the Statute
of the Court make it clear that such submissions are final and
unalterable and differ from the submissions referred to in Articles
42 and 43 of the Rules of Court, which, being preliminary submis-
sions, may be modified. It is evident therefore that, “though (the
Court) may construe the submissions of the Parties, it cannot

74
RIGHT OF PASSAGE (DISS. OPIN. OF JUDGE ARMAND-UGON) 77

substitute itself for them and formulate new submissions simply on
the basis of arguments and facts advanced” (Case concerning Certain
German interests, Series A, Judgment No. 7, p. 35, 1927). A final
submission cannot be divided into several separate submissions
based upon the elements and aspects it contains. ‘It is the duty
of the Court not only to reply to the questions as stated in the
final submissions of the Parties, but also to abstain from deciding
points not included in those submissions” (.C./. Reports 1950,
p. 402). The Court is required to decide upon the final submissions
of the Parties, not to revise them.

What Portugal claims is a right peculiar to itself. The right of
passage claimed forms a whole. It is always the same right. The
decision asked for is its establishment. The present case is entered
in the General List as “Right of Passage over Indian Territory”.

Counsel for Portugal, in particular, argued that: “The right, in
itself, remains unchanged, as a right of transit betweén Daman and
the enclaves to the extent necessary for the exercise of sovereignty
over those enclaves. What varies is the regulation of the right, forit
presents different aspects at different periods. But in the midst of
all these extrinsic transformations, which do not affect the sub-
stance of the right, that right remains unimpaired.” (Oral proceed-
ings, Vol. II, p. 67.)

The Court is asked for a declaratory judgment as to the existence
of the right of passage; provision is made for such a request in
Article 36 (2) fb) of the Statute of the Court.

It is not upon the breaking up and dismemberment of the content
and the elements of this right that the Court has to pass. The
conditions governing the execution of the right of passage are
within the jurisdiction of the Indian Government and none of the
submissions of the Parties touches upon them. The forms in which
the right of passage is exercised must not be confused with the
right itself. A decision on the right of passage cannot be based upon
the forms and conditions of its application without departing from
the specific terms of the final submissions of the Parties. The
Government of Portugal asks the Court to adjudicate upon “a right
of passage” and the Government of India asks the Court to hold
“that the claim is unfounded” ; the claims of the Parties are perfectly
clear. The Court is not requested to adjudicate upon the forms in
which the right of passage is to be exercised, that is something
which has not been asked.

Portugal claims to derive the right from the provisions of the
Treaty of 1779 from general and local custom and from certain
principles of international law.

The fact that Portugal claims this right for the purposes of access
to the enclaves makes it necessary to seek the legal foundation for
this claim. The road leading from Daman to the enclaves is Indian

75
RIGHT OF PASSAGE (DISS. OPIN. OF JUDGE ARMAND-UGON) 78

territory, and the right claimed by Portugal would restrict the
rights of India in this portion of territory. The judicial sanctioning
of a right of this nature must have a firm legal basis.

The passage with which we are concerned was exercised during
the Maratha, British and Indian periods. Those periods constitute
the period of its normal exercise; an abnormal period begins after
the events of July 1954 when the blockade of the enclaves by the
Indian Government was brought into effect.

*
* *

The Applicant places the origin of its right of passage at the
period when the villages of Nagar-Aveli and Dadra were ceded to
Portugal by the Maratha Government. That cession is said to have
resulted from the Treaty of 1779, the agreements of 1783 and 1785
and the subsequent sanads (decrees). There was a long discussion
between the Parties as to the existence of that Treaty and as to
the content of its Article 17.

There is no denying that at that time neither the Maratha Govern-
ment nor the Portuguese Government had any doubt that the said
Treaty had in fact been concluded and was valid. The two Govern-
ments were agreed on that. There is therefore no purpose in pur-
suing the argument on a point they both accepted. We can rely
on their wisdom; their conduct should suffice to convince us that
a treaty was concluded in 1779 between the Maratha and Portu-
guese Governments. When a Government declares officially that a
treaty was concluded, the Court can hold that this declaration is
sufficient and it is not required to check its accuracy. It was
admitted by the Maratha Government.

The purport of Article 17 of this Treaty is disputed by the
Parties.

The Applicant alleges that certain territories were ceded in full
sovereignty, on the basis of their revenues. The Respondent claims
that there was only a jagir or saranjam, that is, a temporary and
revocable cession of the revenues of the villages of Nagar-Aveli and
Dadra.

In the support of its contention the Indian Government relies
solely upon the text of Article 17 in a Marathi translation of the
Portuguese text of 4 May 1779, which is said to have been registered
at Goa and signed by the Portuguese Viceroy. This translation of
Article 17 states that the Marathas granted a jagir. The three other
texts of this Treaty do not mention this word.

Assuming that a jagir or saranjam was provided for, it would
still remain to determine what form of that tenure was agreed
upon. Was it a temporary and revocable saranjam of revenues, or
was it a saranjam irrevocably and finally ceding villages and the
ground on which they stood? On this point neither the explanations

76
RIGHT OF PASSAGE (DISS. OPIN. OF JUDGE ARMAND-UGON) 79

furnished by the Parties nor the contradictory documents on the
record are fully conclusive. The use of the word jagir, as employed
in Article 17 in the Marathi translation of the Portuguese text,
does not indicate beyond dispute the legal character of the tenure
contemplated. The term had no single and legally precise meaning.

Our reasoning must proceed on the basis of the validity of the

argument in favour of full sovereignty and of that in favour of a
saranjam. In either case it is clear that the Portuguese authorities
must necessarily have had a right to pass through Maratha territory,
whether to exercise their sovereignty over the enclaves or to
administer and collect taxes from the villages. Whether the Marathas
ceded sovereignty or granted a saranjam, they were obliged to
allow the rights granted to the Portuguese over their territories to
be exercised. It would be inadmissible to grant sovereignty over.
certain territories or a saranjam of certain villages and then to set
up obstacles to the fulfilment of the obligations agreed upon. One
cannot accept an obligation and then withhold the means of
performing the obligation. There was thus an obligation binding
upon the Marathas based upon agreements which they had signed
and that obligation involved authorization of passage through their
territory for the Portuguese.
_ It may safely be asserted that during the Maratha period, a period
of 35 years, neither the Poona Government nor its principal officials
ever disavowed this obligation to allow the Portuguese to travel to
the enclaves.

One reason for the concession (in addition to grounds of friend-
ship) was to facilitate the supplying of Daman, and that would
have been impossible unless passage to the enclaves was recognized
and allowed. The importance of the right of passage had also an
economic basis. Numerous sanads referring to this concession
mention “villages adjoining Daman” (Annex C, Nos. 8, 9, Io, 14,
15 and 16). This implies the idea of contiguity, which in actual fact
was not achieved, and only thereafter were villages not adjoining
Daman considered. The lack of contiguity was to be made good
by passage.

To do away with this passage is to infringe either territorial
sovereignty or the saranjam. That is not the situation contemplated
in Article 17 and the supplementary agreements. This situation had
its origin in a treaty and the Maratha Government which agreed
to the conclusion of that treaty was obliged to accept all its conse-
quences, submitting to the restrictions it involved within its
territory.

Transit, or the fact of transit, during the Maratha period is a
definite right vested in the Portuguese State. It is an implied right,
to be inferred from the 1779 Treaty and from the supplementary
agreements in favour of the Portuguese State, even if it was not
specifically expressed. The obligations assumed by the Maratha

77
RIGHT OF PASSAGE (DISS. OPIN, OF JUDGE ARMAND-UGON) 80

Government must accord with the rights it recognized in the
Treaty. Portugal therefore acquired the powers necessary for
effective exercise of the powers and rights expressly granted. Those
powers imply recognition of a right of passage.

This right appears to be even more essential in the case of a
savanjam. How could the holder of such a tenure enjoy it if denied
the possibility of visiting the enclaves in order to collect the taxes
granted and to deal with matters of village administration? Such
communication is of the very essence of such a tenure, which would
otherwise be inconceivable. ;

The principle of implied powers was recognized by the Permanent
Court in the Memel Territory case (Series A/B, 1932, pp. 313-314),
which deduces from the sovereignty of Lithuania that Lithuania
possessed powers not set forth in the Memel Statute. In its Advisory
Opinion on Reparation for Injuries suffered in the Service of the
United Nations, the International Court of Justice also recognized
that the Organization enjoyed implied powers (.C./. Reports
1949, pp. 174, 178, 179, and 180).

The right of passage is essential to secure the rights of territorial
sovereignty or the saranjam rights possessed by Portugal. Mere
toleration of passage, or a temporary favour liable to withdrawal,
would fail to make possible enjoyment of the rights conferred by
the aforementioned Treaty and the agreements; they would be at
the mercy of the Maratha Government. But the rights granted to
Portugal by that Government were not of such a nature. If transit
-were merely tolerated, Portugal could not enjoy its rights in an
appropriate way. It is not to be supposed that the Maratha Govern-
ment decided to concede certain rights to Portugal, and at the
same time to reserve the power to adopt special measures to defeat
the purpose for which those rights had been granted.

me OT
This situation was respected and accepted by the British in 1818,
when the Maratha Empire and its territories came under their rule.

There is no doubt that at that time the British authorities care-
fully investigated Portugal’s position in the enclaves of Dadra and
Nagar-Aveli situated in their newly acquired territory. They could
ascertain the facts from the Maratha archives which were available
to them. They enquired into these with reference to a request by
the Portuguese authorities in 1818 for a customs exemption, but
Portuguese sovereignty was not questioned (Annex C, No. 35,
Document 4). During the period 1818 to 1947 the British enter-
tained no doubt as to Portugal’s sovereignty over these enclaves.

Accordingly, during the British period, no difficulty or obstacle
was raised concerning the existence of this obligation to allow

78
RIGHT OF PASSAGE (DISS. OPIN. OF JUDGE ARMAND-UGON) 81

passage. The British Government, when they succeeded to the
Maratha territory, recognized it.

In the Free Zones case, the Permanent Court implicitly recog-
nized the principle of the succession of local obligations of general
interest. France, ‘‘as Sardinia’s successor in the sovereignty over
the territory in question”, had to respect the system established
by the treaties of 1815-1816” (Series A/B, No. 46, p. 145).

The jurisdiction of the British authorities was confined in prac-
tice to regulating the exercise of this right. The application of the
right was controlled in various ways, but the existence of the right
was never disregarded. This power of regulation was founded upon
British sovereignty over the short distance between Daman and
the enclaves. It did not in principle include the power of absolutely
prohibiting the forms of passage necessary for the exercise of
sovereignty over the enclaves. The British always authorized in
that territory a usage adapted to the requirements of this passage.
It should be noted that passage was sometimes regulated by agree- :
ment with the Portuguese authorities, especially in the transit of
police forces (Treaty of 1878 and Agreements of 1913, 1920 and
1940). By this last agreement armed police not exceeding ten in
number could pass, provided intimation of their passage was given
by post to the British authorities within 24 hours of the passage.
If any number exceeding ten were required, the previous practice of
obtaining concurrence was to be followed (Indian Annex C, No. 57).

The regulations issued by the British Government were designed
to define passage, to govern the details of its exercise. Most of them
were police regulations laying down restrictions on, and, in excep-
tional cases, prohibitions of freedom of transit. During the whole
of the British period there were two prohibitions, in respect of salt
and alcohol. Such restrictions are common and frequent where
rights have to be regulated; it is not permissible to infer that this
governmental activity meant that the rights did not exist. The same
is true when this power of regulation is applied to the right of pas-
sage in its different forms, either for the purpose of maintaining
order or to improve financial administration. Such regulations, far
from constituting a denial of the right of passage, are strong con-
firmation of it and clearly define its sphere of application.

At one moment the British authorities even contemplated estab-
lishing a corridor between the two Portuguese territories, but the
plan was not ultimately adopted. The proposal, however, corro-
borated the view, often expressed in correspondence between the
British and Portuguese authorities, that the enclaves were in a
special position and that their communications required to be
assured and facilitated. This cession of territory, a British official
said, ““would give free access to the Portuguese pargana of Nagar-
Aveli” (Annex F, No. 58).

79
RIGHT OF PASSAGE (DISS. OPIN. OF JUDGE ARMAND-UGON) 82

Portugal’s contribution to the cost of repairing a section of the
road leading to the enclaves, on British territory, in 1900 and 1926
appears to confirm the necessity of this right of access to the en-
claves.

The Portuguese authorities had no need to be continually claim-
ing a right that was recognized as theirs. In his Note of 27 May
1892 (Annex C, No. 41) the Portuguese Governor asserts that
“transit (between Daman and Nagar-Aveli) was free while the
Treaty of 1878 was in force, and it was so before the Treaty’. He
adds that this was ‘‘the practice followed and observed formerly,
before the Treaty of 26 December 1878”. This Treaty, which
remained in force from 1879 until 1892, established a general regime
for the territories in India of the two contracting parties; it ratified
an already established right of passage for purposes of communi-
cation with the enclaves. When the Treaty of 1878 came to an end,
the right of passage continued to exist.

It is not disputed that throughout the British period passage to
the enclaves was maintained on the basis of the established regu-
lations. That situation continued peacefully and without interrup-
tion for 130 years. Throughout that long period the road between
Daman and the enclaves remained open; no disagreement arose
between the two Governments on that point.

All this time a deliberate intention was manifested, either im-
plicitly or expressly in agreements and regulations. This indicates
a common awareness reflecting the conviction of the two Govern-
ments as to the right of passage to the enclaves. It must be regarded
as evidence that the British authorities recognized that right.
What “is” becomes what “must be’.

The concept of effectiveness is of great importance in inter-
national law. In the present case the effectiveness of the fact of
passage should be regarded from the standpoint of its duration and
of its acceptance by the two Governments concerned. This effective
exercise of passage to the enclaves, regularly kept up, contributes
towards the establishment of a right.

This notion of effectiveness has been regarded as a decisive factor
in the solution of certain problems arising out of relations between
States. The Court relied upon it in the Nottebohm case (I.C.].
Reports 1955, pp. 56 et sqq., 62 and 299), and, at at an earlier date, in
the Minguiers and Ecrehos case (1.C.J. Reports 1953, pp. 60-66,
67-70).

Legal opinion is faithful to this concept.

The continual repetition of an act over a long period does not
weaken this usage; on the contrary, it strengthens it; a relation-
ship develops between the act and the will of the States which have
authorized'it. The recurrence of these acts over so long a period
engenders, both in the State which performs them and in the State
which suffers them, a belief in the respect due to this long-estab-
lished practice (Article 38 (1) (b) of the Statute of the Court).

80
RIGHT OF PASSAGE (DISS. OPIN. OF JUDGE ARMAND-UGON) 83

A right of passage, like territorial sovereignty, may be acquired
on the basis of an effective practice. A fact observed over a long
period of years, as in the present instance, acquires binding force
and assumes the character of a rule of law.

The Portuguese regularly travelled to and from the enclaves
without opposition for 170 consecutive years. The effectiveness of
access to the enclaves created a legal status guo which no State can
unilaterally infringe. This legal status quo is the work of States over
a long period of years and has the force of an agreement. A change
in the situation would alter a practice and a usage traditionally
admitted, accepted and tolerated. A certain order was established
in this matter and was recognized by the two States, its purpose
being to ensure certain relations between them in order to facilitate
the discharge of their governmental functions. A breach of that
order committed without a sound legal excuse creates an unlawful
state of affairs.

The Permanent Court of Arbitration in one of the grounds of its
Award given on 23 October 1909 in the Grisbadarna case said, in par-
ticular, that “it is a settled principle of the law of nations that a
state of things which actually exists and has existed for a long time
should be changed as little as possible” (English translation from
Scott, The Hague Court Reports, p. 130).

Passage is not a simple fact, but a legal fact, connected with a
legal order of things, established, moreover, in concrete form by
regulations issued by the State through the territory of which
passage is to be effected. Rights and obligations have been created
between the two States concerned. For the State which grants
passage there arises a legal obligation towards the State which
benefits therefrom; the latter State is therefore entitled to claim
a certain legal protection if it feels that the obligation has been
disregarded.

*
* ok

From the first day of India’s independence in 1947 until 1953,
the jus communicationts in respect of the enclaves was exercised
without impediment. Indeed India acknowledged Portuguese terri-
torial sovereignty within the enclaves. This is evidenced by the
Indian Government’s request in I950 and 1953 for the transfer of
the Portuguese territories. At the very beginning of this period
regulations were even passed to facilitate it: customs duties were
abolished and so was the salt ban.

The contribution by Goa towards the construction of the Lavacha
culverts, to avoid interruption of communications between Daman
and Silvassa, is confirmation that the two Governments shared the
view that these communications were necessary.

Even when relations between the two Governments became criti-
cal in 1953 and 1954, it was never suggested that the right of passage

8x
RIGHT OF PASSAGE (DISS. OPIN. OF JUDGE ARMAND-UGON) 84

did not exist. On 6 August 1954, when the Portuguese Government
explicitly claimed that right, the Indian Government made no
reservation. The measures then taken against passage were none
of them based upon legal arguments. India did not contend that
Portugal had no right of passage. That contention was put forward
for the first time in the present proceedings.

The Indian Government admits that it did not stand upon its
“strict legal rights’ in the matter of transit between Daman and
the enclaves until 1953. ‘These rights”, it adds, “had been well
recognized throughout the British period.” (Rejoinder, paragraph
417.) But these “strict legal rights” did recognize a certain, though
much restricted, right of passage.

It is impossible to imagine small enclaves like those of Dadra and
Nagar-Aveli, with an area of less than 500 square kilometres,
without communications along a road of 13 km. 200 m. through
the enclaving territory.

All existing enclaves known to history have always enjoyed a
right of passage, expressly or tacitly.. It would be impossible to
discover an enclave without that right. An enclave necessarily
presupposes a right of access to it for the exercise of governmental
functions on its territory.

If the principle of international freedom of transit scarcely
encounters any longer any prohibition of passage on the basis of
territorial sovereignty, still less can that sovereignty be adduced as
a reason for withdrawing a long-practised right of transit to an
enclave. The right of passage derived from the 1779 Treaty and
from more than a century of practice-has its foundation in local
custom; there is therefore no need to consider whether it finds
support in other sources such as general custom or the general
principles of law recognized by civilized nations.

Consequently, the first of the final submissions of the Portuguese
Government should be upheld.

The right of passage thus consistently recognized began to meet
with certain impediments, particularly as from the second half of
1953; this was when a crisis arose in the diplomatic relations
between India and Portugal due to the refusal of the Portuguese
Government to agree to the transfer of its Indian territories. The
formalities required for the exercise of passage were at that time
greatly increased. It is sufficient to mention this fact without giving
details.

After the closing of the Indian Legation in Lisbon on 11 June
1953 the Governor of Daman and European Portuguese officials.
were required to obtain passports and visas (Memorial, Annexes 35

82
RIGHT OF PASSAGE (DISS. OPIN. OF JUDGE ARMAND-UGON) 85

and 36), a change in the status quo ante against which the Portuguese
authorities protested (Memorial, Annexes 37 to 40).

On 17 July 1954 the Consul-General of India at Goa communi-
cated a number of changes “in the concessions hitherto granted to
the Portuguese Administration of Daman and Nagar-Aveli”; one
of these restrictions referred to the ban on the transit of firearms,
ammunition and military stores. The prohibition also covered the
passage of armed police and Portuguese military personnel. These
were departures from the established system of prior authorization
in this respect in each instance. The Indian Government thus
assumed over this form of passage a discretionary power which did
not previously exist. This innovation of the Indian Government
ignored the right of passage. There was no general prohibition in the
matter, which would have been a serious infringement of the right
of passage. This right was accepted but made subject to an authori-
zation not left to the unfettered discretion of the Indian Govern-
ment. The fact that the exercise of a right requires authorization
does not mean that the right is non-existent; on the contrary, it
often implies that it does exist. The permission does not create the
right, it simply enables it to be exercised. Authorization was re-
quired before the passage of armed forces could be exercised, in
order that consideration might be given to the conditions under
which such action was to take place. India was bound to settle each

request for authorization in good faith and with due regard to the
purpose of such passage, uninfluenced by considerations extraneous
to that purpose.

The formality of prior authorization is perfectly consistent with
the existence of a right of passage.

The Charter of the United Nations envisages a right of passage
for the armed forces of the Organization across the territories of its
Member States, in accordance with special agreements concluded
with the Security Council (Article 43, paras. 1 and 2). Those agree-
ments might establish the need for authorization by the State
through the territory of which passage is to be effected or for notifi-
cation to that State; but such a formality would not negative the
right.

That was the situation expressly provided for in Article XVIII,
paragraph 3, of the Treaty of 1878, which recognized the passage
of armed forces of the Contracting States across their respective
territories, subject to authorization. Both States had a right to this
authorization. If permission was granted, nothing stood in the way
of passage; if it was refused, the objections at that time to the
exercise of passage were pointed out. In both these situations
transit continued to be a right.

Similarly, the passage of warships through territorial waters which
constitute international routes is regarded as a right derived from
a customary rule of international law, and there is nothing to
prevent a riparian State, in the regulation of that right, from

83
RIGHT OF PASSAGE (DISS. OPIN. OF JUDGE ARMAND-UGON) 86

including in its regulations the requirement of prior notification
or authorization. The right of passage subsists none the less.

In the night of 21/22 July 1954 a number of persons entered the
Dadra enclave from Indian territory; the Portuguese authorities
were divested of their functions. In two Notes dated 24 and 26 July
the Portuguese Government requested the Indian Government to
permit the passage of the forces necessary to restore order; on
28 July the latter Government categorically rejected this request
for the transit of troops and police (Memorial, Annex 52).

On 29 July the enclave of Nagar-Aveli was entered in its turn;
there, too, the local authorities were deposed and rebel elements
occupied the enclave, which is still in their power.

No satisfaction was obtained from requests made by the Portu-
guese Government to the Indian Government for permission to send
delegates of the Governor of Daman and of third powers as impartial
investigators and observers. The two enclaves were thus left without
any contact with Daman. The exercise of the right of passage was
definitely suspended in both enclaves.

The Indian suspensions of passage thus preceded the events of
July 1954 and followed immediately thereon. The Government of
India therefore failed to comply with the obligations incumbent
upon it by virtue of Portugal’s right of passage.

In the third of its final submissions Portugal asks the Court:
“(a) to hold that the arguments of India set out above under A,
B and C are without foundation;
(b) as to the argument of India set out above under D:

1. If the Court is of opinion that the above-mentioned conditions
which must be satisfied to justify the suspension of the passage of
Portuguese armed forces are not fulfilled,

to adjudge and declare

that India must end the measures by which it opposes the exer-
cise of the right of passage of Portugal;

2. If the Court is of opinion that the above-mentioned conditions
which must be satisfied to justify the suspension of the passage of
Portuguese armed forces are fulfilled,

to adjudge and declare

that the said passage shall be temporarily suspended; but that
this suspension shall end as soon as the course of events discloses
that the justification for the suspension has disappeared ;

84
RIGHT OF PASSAGE (DISS, OPIN. OF JUDGE ARMAND-UGON) 87

that, during such suspension, India must abstain from any
measure which might strengthen the position of the adversaries of
the lawful Government in the enclaves and thus provoke the
aggravation or prolongation of the circumstances relied upon in
support of that suspension;

that there is no legitimate reason entitling India to ask that the
other forms of the exercise of the right of passage should likewise
be suspended.”

It is no part of the Court’s duty in the operative part of its.
Judgment to adjudicate upon the arguments referred to under
{a) and (b), which can only be considered, if this is necessary,
in the reasoning of the Court’s Judgment.

It is clear that this final submission of the Portuguese Govern-
ment includes two claims, I and 2. Both are conditioned by the
present state of affairs in the enclaves and relate to the passage of
Portuguese armed forces.

A preliminary observation is necessary with regard to the present
situation in the enclaves.

It is a fact which cannot be overlooked in these proceedings that
the population of the enclaves, in the month of December 1954
or perhaps before, set up for itself a free government in the territory
of the enclaves. This factual situation existed when, on 22 December
1955, the Application was submitted to the Court.

The right of passage regarded as a whole arose and was exercised
in normal periods when the enclaves were indubitably under
effective Portuguese sovereignty. This was the position from the
year 1783 until July 1954. This long practice was never disturbed
by facts putting Portuguese authority in issue. The right of passage,
in its different forms, was exercised in peaceful circumstances.

The right was not granted in the course of the long practice
referred to previously for a situation such as that which has arisen
in the enclaves. The existence of a de facto government there is a
contingency not contemplated and one which is new in the habitual
practice of the right of passage.

The changes which have occurred in the enclaves affect the causes
which gave rise to the right of passage and must naturally have
their effect on the right of passage itself or on the ways in which
it may be exercised. These new facts must lead to holding either
that the right which has been recognized must be suspended or
that it has become extinguished. In either case, it must be concluded
that the passage claimed must be regarded as incapable of exercise
the present situation. |

(Signed) ARMAND-UGOoN.

85


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DU DETROIT
DE CORFOU

ORDONNANCE DU 26 MARS 1948

1948

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

THE CORFU
CHANNEL CASE

ORDER OF MARCH 26th, 1948
La présente ordonnance doit être citée comme suit :

Affaire du détroit de Corfou, Ordonnance du 26 mars 1948:
C. I. J. Recueil 1948, p. 53. »

This Order should be cited as follows:

“Corfu Channel case, Order of March 26th, 1948:
I.C. J, Reports 1948, p. 53.”

No de vente:
Sales number 7

53

INTERNATIONAL COURT OF JUSTICE

YEAR 1948.

Order made on March 26th, 1948.

THE CORFU
CHANNEL CASE

The International Court of Justice,
After deliberation,
Having regard to Articles 40 and 48 of the Statute of the Court,

Makes the following Order :

Whereas by an Application dated May 22nd, 1947, under
Article 40, paragraph 1, of the Statute, and Article 32, paragraph 2,
of the Rules of Court, the Government of the United Kingdom of
Great Britain and Northern Ireland instituted proceedings before
the Court against the Government of the People’s Republic of
Albania. These proceedings concerned the incident which occurred
in the Corfu Channel on October 22nd, 1946, when two British
destroyers struck mines, the explosion of which caused damage
to the vessels and heavy loss of life ;

Whereas the United Kingdom Government on October Ist, 1947,
filed a Memorial with statements and submissions ;

Whereas, within the time-limit fixed for the presentation of the
Counter-Memorial, the Agent for the Albanian Government, by
a document dated December Ist, 1947, and filed in the Registry
on December oth, 1947, submitted a Preliminary Objection to the
Application on the ground of inadmissibility ;

Whereas by a Judgment dated March 25th, 1948, the Court
rejected the Preliminary Objection, decided that proceedings on
the merits should continue and fixed the time-limits for the filing
of subsequent pleadings as follows :

4

1948.
March 26th.
General List:

No. 1.
THE CORFU CHANNEL CASE 54

(a) for the Counter-Memorial of the Albanian Government,
Tuesday, June xr5th, 1948 ;

(6) for the Reply of the United Kingdom Government, Monday,
August 2nd, 1948 ;

(c) for the Rejoinder of the Albanian Government, Monday,
September 2oth, 1948 ;

Whereas after delivery of the Judgment the Court was notified
by the Agent of the Albanian Government and by the Agent of
the Government of the United Kingdom of the conclusion on
March 25th, 1948, of a Special Agreement ;

Whereas the Special Agreement in question is as follows :

“The Government of the People’s Republic of Albania,
represented by their Agent Mr. Kahreman Yili, Envoy Extra-
ordinary and Minister Plenipotentiary of Albania at Paris ;

and

the Government of the United Kingdom of Great Britain and
Northern Ireland, represented by their Agent Mr. W. E. Beckett,
C.M.G., K.C., Legal Adviser to the Foreign Office ;

Have accepted the present Special Agreement, which has been
drawn up as a result of the Resolution of the Security Council
of the 9th April, 1947, for the purpose of submitting to the Inter-
national Court of Justice for decision the following questions :—

(1) Is Albania responsible under international law for
the explosions which occurred on the 22nd October 1946 in
Albanian waters and for the damage and loss of human life
which resulted from them and is there any duty to pay
compensation ?

(2) Has the United Kingdom under international law
violated the sovereignty of the Albanian People’s Republic
by reason of the acts of the Royal Navy in Albanian waters
on the 22nd October and on the 12th and 13th November
1946 and is there any duty to give satisfaction ?

The Parties agree that the present Special Agreement shall
be notified to the International Court of Justice immediately
after the delivery on the 25th March of its judgment on the
question of jurisdiction.

The Parties request the Court, having regard to the present
Special Agreement, to make such orders with regard to procedure,
in conformity with the Statute and the Rules of the Court, as
the Court may deem fit, after having consulted the Agents of
the Parties.

In witness whereof the above-mentioned Agents, being duly
authorized by their Governments to this effect, have signed the
present Special Agreement.

Done this 25th day of March, 1948, at mid-day, at The Hague,
in English and French, both texts being equally authentic, in
a single copy which shall be deposited with the International
Court of Justice.”

5
THE CORFU CHANNEL CASE 55

Whereas this Special Agreement now forms the basis of further
proceedings before the Court in this case, and states the questions
which the Parties have agreed to submit to the Court for decision ;

Whereas the United Kingdom Government, on October rst, 1947,
that is within the time-limit fixed by the Court, filed a Memorial
with statements and submissions relating to the incident that
occurred on October 22nd, 1946;

Whereas the Agents for the Parties, having in view the filing of
the Memorial and having been consulted by the President, declared
in his presence that they agreed in requesting that the order and
time-limits for the filing of the subsequent pleadings as fixed by
the Judgment of March 25th, 1948, be maintained ;

THE COURT
confirms the time-limits for the filing of the subsequent plead-
ings as follows :
(a) for the Counter-Memorial of the Albanian Government,
Tuesday, June 15th, 1948 ;
(2) for the Reply of the United Kingdom Government, Monday,
August and, 1948 ;

(c) for the Rejoinder of the Albanian Government, Monday,
September 20th, 1948.

Done in English and French, the English text being authoritative,
at the Peace Palace, The Hague, this twenty-sixth day of March,
one thousand nine hundred and forty-eight, in three copies, of
which one will be placed in the archives of the Court and the others
will be transmitted to the Governments of the People’s Republic
of Albania and of the United Kingdom of Great Britain and
Northern Ireland respectively.

(Signed) J. G. GUERRERO,
President.

(Signed) E. HAMBRo,
Registrar.


                    374

                            Dissenting opinion of Judge Al‑Khasawneh

                       The test of the “interest of a legal nature which may be affected” under
                    Article 62 is a liberal one — The Court’s persistently restrictive approach to
                    Article 62 intervention — Protection of third State interests in maritime
                    delimitation cases — Protection of third State interests under Article 59 cannot
                    substitute for protection under Article 62 — The decision on intervention request
                    should be made on the basis of Article 62 and not on the basis of general policy
                    considerations or on the basis of the relative protection of Article 59 — Costa
                    Rica’s Application to intervene should have been granted — The concept of an
                    interest of a legal nature — There is no distinction between an “interest of a legal
                    nature” and a “right” for the purposes of intervention — The Court’s attempt to
                    define the concept of an “interest of a legal nature” is unnecessary in the present
                    case and does not bring clarity.

                      1. My purpose in appending this opinion is twofold : first, to set out
                    the reasons that led me — naturally with much regret — to dissent from
                    the Court’s finding that Costa Rica’s Application to intervene in the main
                    proceedings cannot be granted (Judgment, para. 91), and, separately from
                    this, to comment on paragraph 26 of the Judgment in which my learned
                    colleagues in the majority attempted, for no apparent need nor with much
                    success, in my respectful opinion, to define and clarify the elusive concept
                    of “an interest of a legal nature”.

                      2. These two issues will be dealt with in Parts I and II of the present
                    opinion, respectively.

                                       I. Why Costa Rica’s Request Should
                                               Have Been Granted

                                              (a) Some General Remarks
                       3. The municipal law institution of intervention was introduced for the
                    first time into international law in 1920 when the Advisory Committee of
                    Jurists — mandated by the League of Nations with drafting the Statute of
                    the Permanent Court of International Justice — agreed on a text on the
                    basis of which Article 62 of the PCIJ, and of the present Court, was adopted.
                       4. Article 62 reads :
                           “1. Should a State consider that it has an interest of a legal nature
                         which may be affected by the decision in the case, it may submit a
                         request to the Court to be permitted to intervene.
                           2. It shall be for the Court to decide upon this request.”

                    30

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                    375 	territorial and maritime dispute (diss. op. al-khasawneh)

                      5. This language is plainly liberal. The word “affected” is not qualified
                    by a requirement that the effect be of a serious or irreversible nature. The
                    word “interest” is likewise not qualified by any expression that suggests
                    that the interest be a crucial or even an important one for the requesting
                    State, all that is needed is that the interest be of a legal nature and not of
                    a political, economic, strategic, or other non‑legal nature. Finally the
                    word “may” is also permissive. There is no need that the interest “must”
                    or “shall” or is “likely to be” affected by the Court’s decision.

                       6. Notwithstanding this liberal language, the record of Article 62 over
                    the past 90 years or so since its inception must be judged to be dismal.
                    Out of the fifteen requests for intervention starting with the S.S. “Wim‑
                    bledon”, Judgments, 1923, P.C.I.J., Series A, No. 1, thirteen requests were
                    dismissed, readily disclosing a persistently restrictive approach by the
                    Court to grant requests for intervention. Two recent cases : the Land,
                    Island and Maritime Frontier Dispute (El Salvador/Honduras) and the
                    Land and Maritime Boundary between Cameroon and Nigeria, have given
                    some hope that the institution of intervention was not dead beyond reviv-
                    ification. In the first case, the Court granted Nicaragua’s request to inter-
                    vene only in as far as the status of the Gulf of Fonseca was concerned but
                    not with regard to maritime delimitation (Land, Island and Maritime
                    Frontier Dispute (El Salvador/Honduras), Application for Permission to
                    Intervene, Judgment, I.C.J. Reports 1990, pp. 120‑121, paras. 69‑72). In
                    the second case, it was the Court that had suggested that certain other
                    States may wish to intervene (Land and Maritime Boundary between Cam‑
                    eroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections, Judg‑
                    ment, I.C.J. Reports 1998, p. 324, para. 116). Equatorial Guinea requested
                    to intervene (while Sao Tome did not), and its request was unopposed
                    (Land and Maritime Boundary between Cameroon and Nigeria (Cameroon
                    v. Nigeria), Application for Permission to Intervene, Order of 21 October
                    1999, I.C.J. Reports 1999 (II), p. 1034, para. 12). Their paucity and spe-
                    cial features would however set those two precedents apart and preclude
                    the drawing of any inference that there exists another more expansive
                    trend to grant requests for intervention or that they herald such a trend.
                    At any rate the present Judgment would have the effect of dashing any
                    such hope and of signalling a reversion to the earlier more restrictive
                    jurisprudence of the admissibility of requests for intervention at least in
                    the field of maritime delimitation.
                       7. If the fault does not lie with the text of Article 62, where does it lie?
                    And why has the institution of intervention with its potential to avoid
                    repetitive litigation and to afford a fair hearing to those States whose
                    interest may be affected by the Court’s decision, and thus to ensure a better
                    administration of justice, been so peripheral as an institution of interna-
                    tional law?
                       8. The answer may be in part because, on the facts of some cases, the
                    would‑be intervener failed to persuade the Court that its interests of a

                    31

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                    376 	territorial and maritime dispute (diss. op. al-khasawneh)

                    legal nature may be affected even by the relatively low threshold of Arti-
                    cle 62. For example, in the El Salvador/Honduras case the Chamber stated
                    its reason for rejecting Nicaragua’s Application to intervene in the matter
                    of maritime delimitation as follows :

                         “the essential difficulty in which the Chamber finds itself, on this mat-
                         ter of a possible delimitation within the waters of the Gulf, is that
                         Nicaragua did not in its Application indicate any maritime spaces in
                         which Nicaragua might have a legal interest which could be said to
                         be affected by a possible delimitation line between El Salvador and
                         Honduras” (Judgment, I.C.J. Reports 1990, p. 125, para. 78).
                    It stands to reason that when an applicant for intervention in a maritime
                    delimitation does not indicate the areas where its interest comes into play,
                    it cannot ex hypothesi demonstrate that they may be affected.

                       9. In other instances a request may be rejected because to grant it
                    would be tantamount to involving the Court in pronouncing on the
                    would‑be intervener’s rights, and not merely that those may be affected,
                    as was the case with Italy’s Application to intervene in the Continental
                    Shelf case (Continental Shelf (Libyan Arab Jamahiriya/Malta), Applica‑
                    tion for Permission to Intervene, Judgment, I.C.J. Reports 1984, pp. 19‑22,
                    paras. 29‑33). Or, when the would-be intervener’s interest is simply in
                    ascertaining the impact of the Court’s pronouncement on the applicable
                    general principles and rules of international law (Continental Shelf (Tuni‑
                    sia/Libyan Arab Jamahiriya), Application for Permission to Intervene,
                    Judgment, I.C.J. Reports 1981, p. 17, para. 30), which is not a legal inter-
                    est but more of an academic interest, the request is also rejected.

                       10. Be all of this as it may, the almost total lack of success in invoking
                    Article 62 can be understood only when regard is had to a parallel devel-
                    opment in the Court’s practice relating to maritime delimitation. In this
                    field, the Court, whether responding to a request for intervention or when
                    it considers that its delimitations may have consequences for third States,
                    is careful not to tread on the rights and maritime entitlements of other
                    States. Where no request to intervene by potentially affected States has
                    been made, the Court is right in shielding the interests/rights of third
                    States by stopping its delimitation short of those areas where third States
                    have rights, and in indicating that by an arrow (Maritime Delimitation in
                    the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009,
                    p. 100, para. 112, p. 129, para. 209, and pp. 130‑131, para. 218 ; Maritime
                    Delimitation and Territorial Questions between Qatar and Bahrain, Merits,
                    Judgment, I.C.J. Reports 2001, p. 109, paras. 221‑222 and pp. 115‑116,
                    paras. 249‑250). Indeed the Court is required by the limits of its jurisdic-
                    tion to do so. On the other hand, where there has been a request to inter-
                    vene, i.e., to implement the specific procedure designed in the Statute to

                    32

7 CIJ1019.indb 60                                                                                13/06/13 16:02

                    377 	territorial and maritime dispute (diss. op. al-khasawneh)

                    safeguard the interests of a legal nature of third States, there is no justifi-
                    cation for falling back on the argument that as a matter of principle the
                    Court will protect the interests of third States even if the area where they
                    come into play is only roughly indicated.
                       11. The conflation of the protection under Article 59 — which can, at
                    the utmost, shield third States from the effects of res judicata — and the
                    protection under Article 62 — which operates before the merits and hopes
                    to give the potentially affected State a fair hearing so as to best ensure
                    that its interests are protected — has been responsible above any other
                    factor for the limited scope and impact of the institution of intervention.
                    This is regrettable, for the protection under Article 59 cannot substitute
                    for protection under Article 62. The protection under Article 62 is not
                    just quantitatively different from that afforded by Article 59 : it is of a dif-
                    ferent nature and operates in a different manner, giving the Court powers
                    of an essentially procedural and preventative nature.

                                            (b) Costa Rica’s Application
                       12. Both in its timing (coming after two cases where a breath of life
                    had been blown into the long moribund body of Article 62) and in rela-
                    tion to its facts (the two Parties’ recognition of the existence of a Costa
                    Rican interest of a legal nature in at least some areas claimed by the main
                    Parties) (Judgment, para. 65), the (hopeful) expectation was that this was
                    a perfect occasion to put Article 62 of the Statute into effect (ut res magis
                    valeat quam pereat). Instead, the Judgment declined to grant permission
                    to Costa Rica to intervene notwithstanding, as shall be instantly demon-
                    strated, that all the requisites of Article 62 have been met. The reasoning
                    deployed in the Judgment was premised on three contentions, none of
                    which stands scrutiny : (a) that Costa Rica had abandoned its earlier
                    claim that the 1977 Facio‑Fernández Treaty with Colombia and the
                    assumptions underlying it constitute its interests of a legal nature which
                    may be affected by the Court’s decision in the main case ; (b) that Costa
                    Rica should demonstrate that its interest of a legal nature “needs a pro-
                    tection that is not provided by the relative effect of decisions of the Court
                    under Article 59 of the Statute” (ibid., para. 87) ; and (c) that even with-
                    out defining with specificity the geographical limits of the area where the
                    interests may come into play, the Court will, as a matter of principle,
                    protect third‑party interests (ibid., para. 89).

                      13. With regard to Costa Rica’s interest of a legal nature (point (a)
                    above), the majority misses the point and mischaracterizes Costa Rica’s
                    arguments. Costa Rica never claimed — as far as I can ascertain — that
                    the 1977 Treaty and its underlying assumptions are, as such, its interest of

                    33

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                    378 	territorial and maritime dispute (diss. op. al-khasawneh)

                    a legal nature. That interest was clearly set out in its Application as “[a]n
                    interest of a legal nature which may be affected by the decision of the
                    Court” that is “Costa Rica’s interest in the exercise of its sovereign rights
                    and jurisdiction in the maritime area in the Caribbean Sea to which it is
                    entitled under international law by virtue of its coast facing on that sea”
                    (Judgment, para. 54). True, Costa Rica advanced arguments regarding
                    the 1977 Treaty and its underlying assumptions to demonstrate how its
                    interests, namely in the exercise of its rights and jurisdiction, would be
                    affected by a decision of the Court on the basis of more than one possible
                    scenario. For example, the enclaving of San Andrés as Nicaragua would
                    wish, while at the same time not giving them the full weight to which they
                    are at present entitled under the 1977 Treaty, would have ramifications
                    for Costa Rica’s entitlements in the same area. This is not the legal inter-
                    est itself but rather a demonstration of how the legal interest in the exer-
                    cise of sovereign rights may be affected.

                      14. Turning to point (b) above, namely that Costa Rica must show
                    that its interest of a legal nature needs protection beyond and above that
                    provided under Article 59, all I need to say — indeed reiterate since I
                    have already commented on this argument — is that this argument has no
                    foundation in law or in logic. Protection under Article 59, in the sense of
                    shielding a non‑intervening third party from the effects of res judicata,
                    and protection under Article 62, designed to give a would‑be intervener a
                    chance to be heard in order to protect an interest before the merits, are
                    entirely different provisions in their purpose and scope. In other words,
                    the differences between them are qualitative and not quantitative.

                       15. It is also somewhat ironic that the Judgment argues in para-
                    graph 26 for a less stringent test for what constitutes an interest of a legal
                    nature, but then in effect, requires a higher standard of proof than that
                    based on the adequacy of the protection provided under Article 59.
                       16. With regard to point (c) above, namely that the Court will, as a
                    matter of principle, always protect third State interests, all that needs to
                    be said is that when there is no request for intervention this policy consid-
                    eration (for it is nothing other than that) is commendable. However such
                    protection will of necessity be speculative, rough and negative since the
                    Court does not require that the geographical limits of an area where the
                    interest come into play be defined by it i.e., by the Court, with specificity
                    (Judgment, para. 86). Moreover, requests for intervention do not always
                    relate to maritime or spatial delimitation. In other areas such protection
                    will be even more difficult to speculate on.

                      17. For all these reasons, I regret that the Court has rejected Costa
                    Rica’s request to intervene since all the requisites for meeting the test set
                    out in Article 62 of the Statute have been met.

                    34

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                    379 	territorial and maritime dispute (diss. op. al-khasawneh)

                                        II. An Interest of a Legal Nature

                       18. In the present case, Costa Rica contended that the “interest of a
                    legal nature” that it sought to protect under Article 62 was nothing other
                    than its “interest in the exercise of its sovereign rights and jurisdiction in
                    the maritime area in the Caribbean Sea to which it is entitled under inter-
                    national law by virtue of its coast facing on that sea” (Judgment, para. 54).
                       19. Costa Rica’s use of the expression “rights and jurisdiction” and the
                    expression “to which it is entitled” is in line with similar expressions used
                    by the Parties and by the Court itself in previous jurisprudence dealing
                    with maritime delimitation. For example, Italy, in its Application to
                    intervene, in the Libya/Malta Continental Shelf case, defined the concept
                    of “an interest of a legal nature” as “an interest of the Applicant State
                    covered . . . by international legal rules or principles”, and specified its legal
                    interest in the case as “nothing less than respect for its sovereign rights
                    over certain areas of continental shelf in issue in the present case” (Conti‑
                    nental Shelf (Libyan Arab Jamahiriya/Malta), Application for Permission
                    to Intervene, Judgment, I.C.J. Reports 1984, pp. 10-11, para. 15 and
                    pp. 19-22, paras. 29-33 ; emphasis added). Similarly, Nicaragua in the
                    Land, Island and Maritime Dispute (El Salvador/Honduras) stated as the
                    two objects for its intervention pursuant to Article 62 :

                          “[f]irst, generally to protect the legal rights of the Republic of Nica-
                          ragua in the Gulf of Fonseca and the adjacent maritime areas by all
                          legal means available [and] [s]econdly, to intervene in the proceedings
                          in order to inform the Court of the nature of the legal rights of Nica
                          ragua which are in issue in the dispute” (Land, Island and Maritime
                          Frontier Dispute (El Salvador/Honduras), Application for Permission
                          to Intervene, Judgment, I.C.J. Reports 1990, p. 108, para. 38 ; empha-
                          sis added).
                    In the Sovereignty over Pulau Ligitan and Pulau Sipadan, the Philippines
                    likewise defined as the object of its intervention :

                          “[f]irst, to preserve and safeguard the historical and legal rights . . .
                          of the Philippines arising from its claim to dominion and sovereignty
                          over the territory of North Borneo, to the extent that these rights are
                          affected, or may be affected, by a determination of the Court of the
                          question of sovereignty over Pulau Ligitan and Pulau Sipadan”

                    and
                          “[s]econd, to intervene in the proceedings in order to inform the Hon-
                          ourable Court of the nature and extent of the historical and legal
                          rights of the Republic of the Philippines which may be affected by the

                    35

7 CIJ1019.indb 66                                                                                13/06/13 16:02

                    380 	territorial and maritime dispute (diss. op. al-khasawneh)

                         Court’s decision” (Sovereignty over Pulau Ligitan and Pulau Sipadan
                         (Indonesia/Malaysia), Application for Permission to Intervene, Judg‑
                         ment, I.C.J. Reports 2001, p. 604, para. 84 ; emphasis added).
                       20. What is of direct interest in the present case is that whilst there may
                    be distinctions at the theoretical level between interests of a legal nature
                    and rights, the issue simply does not arise here : Costa Rica is claiming
                    rights, jurisdiction, as well as entitlements. This therefore was the wrong
                    case to try to define the concept of a legal interest by distinguishing it from
                    the concept of a right. Moreover, while proposing such a distinction,
                    the majority did not follow it through. A lower threshold for proving
                    the existence of a legal interest than for a right leads one to believe
                    that this implies a greater readiness to grant permission to intervene, but
                    here the situation is otherwise : the lower threshold still leads to refusal to
                    grant permission. First of all, nothing turns on the distinction between
                    rights and legal interests, thus rendering such a distinction unnecessary.
                    Moreover, if this is going to be a model for future judgments in interven-
                    tion proceedings, the Court has inevitably placed itself, unnecessarily, in
                    a straightjacket of a lower threshold for proving that an interest of a legal
                    nature which may be affected existed and yet refused to grant permission
                    to intervene. Would it not have been preferable to have adhered to all the
                    elements of the test of Article 62, rather than try to clarify only one of its
                    elements, namely the phrase “an interest of a legal nature”?

                      21. The expression “an interest of a legal nature” was born out of a
                    compromise struck in the meetings of the Advisory Committee of Jurists
                    charged with the drafting of the Statute of the Permanent Court of Inter-
                    national Justice in 1920. The relevant parts of the discussion bear quoting :
                           “Lord Phillimore suggested the following wording :
                              ‘Should a third State consider that a dispute submitted to the
                            Court affects its interests, it may request to be allowed to inter-
                            vene ; the Court shall grant permission if it thinks fit.’

                            M. Fernandes agreed with Lord Phillimore on principle, but wished
                         to make the right of intervention dependent upon certain conditions ;
                         for instance, it should be stated that the interests affected must be
                         legitimate interests.
                            The President thought that the solution of the question of interven-
                         tion should be drawn from common law. He proposed a wording
                         based on this idea :
                               ‘Should a State consider that its rights may be affected by a
                            dispute, it may request the Court to grant it permission to inter-
                            vene, and the Court shall accord such permission.’

                    36

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                    381 	territorial and maritime dispute (diss. op. al-khasawneh)

                             M. Adatci suggested to amend the wording proposed by Mr. Loder,
                         by replacing the word ‘right’ by the word ‘interest.’
                         �����������������������������������������������������������������������������������������������������������������
                             The President proposed to following new wording :
                                ‘Should a State consider that it has an interest of a legal nature
                             which may be affected by the decision in the case, it may submit a
                             request to the Court to be permitted to intervene.’” (Procès-
                             Verbaux of the Proceedings of the Advisory Committee of Jurists
                              (1920), pp. 593‑594.)
                       22. It was not long after, that the incoherence apparent in this compro-
                    mise was noticed by Farag, the first commentator on the subject of inter-
                    vention who described the expression as “a monster that defies definition”
                    (W. M. Farag, L’intervention devant la Cour permanente de Justice inter‑
                    nationale (articles 62 et 63 du Statut de la Cour), Librairie générale de
                    droit et de jurisprudence, 1927, p. 59). It is apparent that the Committee
                    of Jurists was concerned with excluding any intervention of a political,
                    economic or strategic nature but, inopportune as the compromise was,
                    there is nothing in the travaux préparatoires to suggest that the Commit-
                    tee intended (nor logically could) create a third category, a hybrid which
                    is neither a right nor an interest.
                       23. It is remarkable that notwithstanding the inherent contradiction of
                    the phrase “an interest of a legal nature”, it nevertheless gained accep-
                    tance and currency in legal parlance relating to intervention and was
                    rarely commented on. A notable exception is however to be found in
                    Judge Roberto Ago’s dissenting opinion in Continental Shelf (Libyan
                    Arab Jamahiriya/Malta) :

                            “However, I feel it is being overlooked here that the fact of a third
                         State asserting the existence of a right of its own (an interest of a legal
                         nature being nothing other than a right) in a field constituting the
                         subject‑matter of a dispute between two other States, is the very
                         essence and raison d’être of the institution of intervention in its strict-
                         est and most uncontroversial sense. It was for the very purpose of
                         protecting the potential rights of third parties that the institution was
                         devised and enshrined in Article 62 of the Statute.” (Continental Shelf
                         (Libyan Arab Jamahiriya/Malta), Application for Permission to Inter‑
                         vene, Judgment, I.C.J. Reports 1984, dissenting opinion of Judge Ago,
                         p. 124, para. 16 ; emphasis added.)
                       24. Whilst it is true that it was only Judge Ago — as far as I could ascer-
                    tain — who addressed the question of legal interests being nothing other
                    than rights, this does not mean that there was general acceptance that they
                    are different from each other. On the contrary, any reading of the case law,
                    whether relating to intervention or whether dealing, more generally, with
                    the potential effects of the Court’s decisions on third States, reveals that the

                    37

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                    382 	territorial and maritime dispute (diss. op. al-khasawneh)

                    words “right”, “legal interests” and “entitlements” are used interchange-
                    ably (see for example, Maritime Delimitation in the Black Sea (Romania v.
                    Ukraine), Judgment, I.C.J. Reports 2009, pp. 128‑129, paras. 208‑209, and
                    pp. 130‑131, para. 218 ; Sovereignty over Pulau Ligitan and Pulau Sipadan
                    (Indonesia/Malaysia), Application for Permission to Intervene, Judgment,
                    I.C.J. Reports 2001, pp. 596‑597, paras. 49‑51 and p. 598, para. 60 ; Land
                    and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nige‑
                    ria : Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002, p. 421,
                    para. 238 and p. 432, para. 269 ; Land, Island and Maritime Frontier Dispute
                    (El Salvador/Honduras), Application for Permission to Intervene, Judgment,
                    I.C.J. Reports 1990, pp. 130‑131, paras. 89‑90 and 92).
                       25. This being the case with regard to the jurisprudence of the Court
                    what remains to be explored — briefly — is whether legal reasoning
                    admits of a hybrid category of legal interests that falls short of rights, or
                    to be more precise, of asserted rights. The concepts of rights and interests
                    are of course among the basic tools of lawyers and the Court had a
                    chance, in a celebrated passage in paragraph 46 of its Judgment in the
                    Barcelona Traction, to draw a distinction between the two concepts :
                    “[n]ot a mere interest affected, but solely a right infringed” (Barcelona
                    Traction, Light and Power Company, Limited, (Belgium v. Spain), Second
                    Phase, Judgment, I.C.J. Reports 1970, p. 36, para. 46). However when the
                    word “interest” is qualified by the adjective “legal”, we are of necessity
                    expressing the concept of “rights” through other words. Thus, if Costa
                    Rica’s interest is not to have Nicaragua as its neighbour in the maritime
                    area under consideration that would definitely be a strategic or a political
                    interest but not a legal interest. If Malta seeks to intervene simply on the
                    basis that it has “an interest” in the Court’s pronouncement in the case
                    regarding the applicable general principle and rules of international law
                    (Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application for Per‑
                    mission to Intervene, Judgment, I.C.J. Reports 1981, p. 17, para. 30), that
                    interest is an academic interest and it is significant that the Court referred
                    to this as “an interest” and not as a “legal interest”. To my mind a legal
                    interest cannot but be a right asserted.
                       26. Paragraph 26 of this Judgment in fact recognizes this, stating, inter
                    alia : “Article 62 requires the interest relied upon by the State seeking to
                    intervene to be of a legal nature, in the sense that this interest has to be
                    the object of a real and concrete claim of that State, based on law”.

                       27. If a real and concrete claim based on law is not an assertion of a
                    right or rights, what is? I also fail to discern the causal link between this
                    statement and the last paragraph of paragraph 26 which reads : “[a]ccord-
                    ingly, an interest of a legal nature within the meaning of Article 62 does
                    not benefit from the same protection as an established right and is not
                    subject to the same requirements in terms of proof”.

                      28. The contents of this sentence do not flow from the arguments
                    advanced in the first sentence, but even as a proposition standing on its

                    38

7 CIJ1019.indb 72                                                                                13/06/13 16:02

                    383 	territorial and maritime dispute (diss. op. al-khasawneh)

                    own, it is neither self‑evident nor does it say much. Thus, even if one were
                    to accept arguendo that a right and an interest of a legal nature can be
                    different, it does not follow that they will always be different. A right can
                    be seen as a form of a legal interest, namely, when a State claims that its
                    interest is to exercise a right in a maritime area.

                       29. Ultimately, the out‑of‑context elaboration of the expression “an
                    interest of a legal nature” does not bring one nearer to understanding that
                    concept nor will it be of help to counsel or to the Court. On the contrary,
                    this attempt seems to be terminally confused.

                                                   (Signed) Awn Shawkat Al‑Khasawneh.

                    39

7 CIJ1019.indb 74                                                                                13/06/13 16:02


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

AEGEAN SEA
CONTINENTAL SHELF CASE

(GREECE v. TURKEY)

ORDER OF 18 APRIL 1977

1977

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DU PLATEAU CONTINENTAL
DE LA MER EGEE
(GRECE c. TURQUIE)

ORDONNANCE DU 18 AVRIL 1977
Official citation:

Aegean Sea Continental Shelf,
Order of 18 April 1977, I.C.J. Reports 1977, p. 3.

Mode officiel de citation:

Plateau continental de la mer Egée,
ordonnance du 18 avril 1977, C.I.J. Recueil 1977, p. 3.

Sales number 4 3 1
N° de vente:

1977
18 April
General List
No. 62

INTERNATIONAL COURT OF JUSTICE

YEAR 1977

18 April 1977

AEGEAN SEA
CONTINENTAL SHELF CASE
(GREECE v. TURKEY)

ORDER

Present: President JIMENEZ DE ARECHAGA; Vice-President NAGENDRA
SINGH; Judges FORSTER, GROS, LACHS, DILLARD, DE CASTRO,
Morozov, Sir Humphrey WALDOCK, RUDA, Moster, ELIAS,
TARAZI; Registrar AQUARONE.

The International Court of Justice,

Composed as above,
After deliberation,

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

Having regard to the Order of 14 October 1976 fixing the time-limits
for the Memorial of the Government of Greece and the Counter-
Memorial of the Government of Turkey on the question of the Court’s
jurisdiction to entertain the dispute,

Makes the following Order:

Whereas, by a letter dated 17 March 1977, the Agent of Greece
requested that the time-limit for the Memorial be extended by three
months in order to facilitate to the fullest extent possible the negotiations

4
4 AEGEAN SEA (ORDER 18 IV 77)

in progress with Turkey on the subject of the delimitation of the continental
shelf between the two countries;

Whereas a copy of that communication was transmitted to the Govern-
ment of Turkey, which was invited to inform the Court of its views.
thereon;

Whereas on 30 March 1977 the Ambassador of Turkey to the Nether-
lands, in an oral communication, informed the Registrar of the Court
that, having regard to an agreement signed by Greece and Turkey on
11 November 1976 on the procedure to be followed during negotiations,
and the efforts made to implement that agreement and start meaningful
negotiations, the Turkish Government had no objection to Greece’s
request for an additional period, while indicating that his answer did not
imply any undertaking on the part of his Government;

Having regard to the negotiations referred to by Greece and by
Turkey in the above-mentioned communications,

THE Court

Extends to 18 July 1977 the time-limit for the Memorial of the Govern-
ment of Greece;

Extends to 24 April 1978 the time-limit for the Counter-Memorial of
the Government of Turkey;

And reserves the subsequent procedure for further decision.

Done in English and French, the English text being authoritative, at
the Peace Palace, The Hague, this eighteenth day of April, one thousand
nine hundred and seventy-seven, in three copies, of which one will be
placed in the archives of the Court and the others transmitted to the
Government of Greece and the Government of Turkey, respectively.

(Signed) E. JIMENEZ DE ARECHAGA,

President.

(Signed) S. AQUARONE,

Registrar.