247

SEPARATE OPINION OF JUDGE BASTID
[Translation]
I

1. Approval must be given to the finding of inadmissibility reached in
respect of the request submitted by the Republic of Tunisia, under Article
61 of the Statute of the Court, for the revision of the Judgment given by the
Court on 24 February 1982.

This decision is based upon lengthy considerations (paras. 28 ff.). Fur-
thermore, as regards the subsidiary request for interpretation, the Court
has at certain points referred back to the reasoning concerning revision
(paras. 29 ff., 41, 45, 50 and 56). Certain observations are called for as
regards not only the Court’s findings on the inadmissibility of the request
for revision but also the rejection of the subsidiary request for interpre-
tation and that of the request for the correction of an error.

2. There is a clear distinction to be made as between revision and
interpretation in respect of the circumstances in which the Court may in
accordance with the Statute be induced to reconsider res judicata. Since the
inception of the Court, requests for interpretation have given rise to a
practice enabling one to discern the requisite conditions and the reper-
cussions on the text to be construed. On the other hand, no request for
revision had ever been submitted until the Application of 27 July 1984.
Whether in certain circumstances this form of challenge to res judicata had
ever been contemplated, and why, if it was, the idea was eventually
dropped, remain unknown.

The Statute of the Court, while laying down the conditions of admis-
sibility of an application for revision, is silent as to the effects of that
application if deemed admissible. What would it imply to reopen the
merits of a case, and to what extent should the case as a whole be reviewed ?
Such a situation would call for an examination of the very concept of
revision in the light of any existing practice of international tribunals and
the, at times, conflicting practice of the various municipal judiciaries. But
this question would not arise until after the delivery of a judgment declar-
ing an application admissible.

Considering the difficulty of the problems to which I have just alluded, it
will be realized that the conditions of admissibility are very important and
deserve particular scrutiny. The Rules of Court of 14 April 1978 set forth
the procedural requirements corresponding to the conditions the terms of
which, embodied in Article 61 of the Statute, are the same as have existed
ever since the Statute of the Permanent Court was drawn up.

3. Given the gravity of an application for revision, from the viewpoint

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APPLICATION FOR REVISION (SEP. OP. BASTID) 248

of the importance of its consequences, and having regard to the caution
exercised by international courts in the light of the parties’ situation as
sovereign States, it appears essential at the outset to make sure whether it
satisfies each of the conditions in question. Should any one of them not be
fulfilled, the application will be inadmissible, whatever conclusion may be
reached in regard to the others.

Strictness in weighing the question of admissibility is vital, otherwise,
under colour of an application for revision, the Court might in fact find
itself induced to rule upon considerations that would have belonged to the
merits and on modifications of res judicata that might have been envisaged
at that stage.

4. In the present case, the importance of the foregoing is evident not so
much from the final rejection of admissibility as from the care taken to
accumulate the various grounds of rejection on the basis of the require-
ments laid down in Article 61, and from the link with the subsidiary request
for interpretation. It is to be feared that in future there may be an
increasing number of applications for revision, whether alone or in con-
junction with requests for interpretation, and that they may provide an
opportunity for detailed commentaries, which may or may not be com-
plicated by intervening changes in the composition of the Court called
upon to pronounce on the revision.

5. That said, attention may be drawn to what was decisive, having
regard to the terms of the Statute and of the Rules of Court. The submis-
sions of Tunisia on 14 June 1985 refer to “a new fact of such a character as
to lay the Judgment open to revision within the meaning of Article 61 of the
Statute of the Court”. The new fact (the text of the resolution of 28 March
1968 of the Libyan Council of Ministers) is set forth in the Application, in
paragraph 50. In paragraph 51 the Application asserts that the new fact
was of such a nature as to be a decisive factor in the decision of the Court.
Each of these paragraphs contains a complex commentary on these points.
But the text of the resolution of the Libyan Council of Ministers, men-
tioned in paragraph 50, is not itself made the subject of any clarifica-
tion.

The provisions of Article 99, paragraph 1, of the Rules of Court should
be carefully examined so as to ascertain whether the application satisfies
the requisite conditions. The report of the independent expert appointed
by Tunisia is not presented as a new fact, whatever arguments may have
been drawn from it. If one reaches the conclusion that the application for
revision does not directly invoke any new fact which is clearly relevant as
such, there is no need to go any farther and the application must be
dismissed. Any further considerations would lead to an examination of the
merits of the application for revision.

6. Irrespective of the actual wording of the resolution of the Council of
Ministers, the real “new fact” relied upon by Tunisia is to be found in
Annex II to the Application under the title “Description of Concession
No. 137 as defined in the Resolution of the Council of Ministers of
28 March 1968”. Libya has not disputed this description.

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APPLICATION FOR REVISION (SEP. OP. BASTID) 249

The Parties argued at length as to whether Libya ought spontaneously to
have supplied Tunisia with this description, or whether Tunisia could have
obtained it without difficulty. There is no point in going into the details of
this controversy, which rather concerns another condition laid down by
Article 61, for there can be no doubt that Tunisia could have had some
general idea of the Libyan concession, even if most of the co-ordinates
were drawn to its attention only at the moment when the report of the
expert it had appointed came into its possession. On the other hand, so far
as the perimeter of the western part of the concession is concerned, it has
to be noted that the document presented as a “new fact” does not reveal
any fact of such a nature as to constitute a decisive factor. According
to this document, the concession is defined as “starting at the intersec-
tion of 12° 00’ longitude and 33° 55’ latitude” and finishing at “33° 10’
latitude [and] 11° 35’ longitude”, “thence northeastward in a straight
line till the point of origin”. But the Judgment of 1982, quoting para-
graph 36 of the Libyan Memorial, does in fact state (in para. 117) that in
1968 :

“Libya granted a concession (No. 137) ‘lying to the eastward of a
line running south/southwest from the point 33° 55’ N, 12° E to a
point about one nautical mile offshore’ the angle thereof viewed from
Ras Ajdir being 26° ; the western boundaries of subsequent Libyan
concessions followed the same line, which, Libya has explained, ‘fol-

EL

lowed the direction of the Tunisian concessions’.

True, no co-ordinates are given for the offshore point, but all that the
new document contributes is in fact that element, and so it is very much
open to question whether knowledge of it could have constituted a decisive
factor within the meaning of Article 61 of the Statute.

If the relationship with the Tunisian concession was erroneously pre-
sented in the passage of the Libyan Memorial quoted by the Court, that was
due to the absence of any precise outline of that concession. Admittedly,
the co-ordinates of the stepped line had been indicated (Tunisian Me-
morial, Ann. 1 ; Tunisian Reply, Ann. 4; decree of 1 January 1953, docu-
ment deposited with Tunisian Reply on 15 July 1981, table referred to in
Art. 37 ; cf. document No. 9 produced at the sitting of 13 June 1985). But it
was only in the plates prepared in 1984 by the Tunisian expert that the
respective positions of the concessions could be more clearly observed. For
the rest, the description of Concession No. 137 did not constitute a fact of
such a nature as to warrant the admission of the application for revi-
sion.

It is therefore apparent that the finding of non-admissibility of that
application could legitimately have been based upon the absence of a new
fact, without any consideration of the other elements stipulated by
Article 61 of the Statute of the Court in relation to the admissibility of an
application for revision.

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APPLICATION FOR REVISION (SEP. OP. BASTID) 250
Il

7. As for the subsidiary request for interpretation, the Judgment has
pronounced upon the Libyan contention that an objection to jurisdiction
can be derived from Article 3 of the Special Agreement. That Article pro-
vides for the possibility of both Parties returning to the Court together in
order to “request any explanations or clarifications which would facili-
tate the task of the two delegations to arrive at the line separating the two
areas”, while the Parties undertake to comply with the Judgment of the
Court and with “its explanations and clarifications”. The role conferred on
the Court is very specific ; account is taken of the fact that its task is to
define the “principles and rules of international law” and then to clarify
the practical method for the application of these principles and rules
(Special Agreement, Art. 1). The terms used by Article 3 of the Special
Agreement have no definite legal scope, but, considering that very specific
role, what they obviously contemplate, for practical purposes, is assistance
from the Court in solving difficulties of application.

In contrast, it is in “the event of dispute as to the meaning and scope of
the judgment” that the Court may be called upon to construe it, according
to Article 60 of the Statute and Articles 98 ff. of the Rules of Court. This
procedure must end in the delivery of a judgment.

The request for interpretation submitted by the Republic of Tunisia
under Article 60 of the Statute must be regarded as admissible so far as the
first sector is concerned. The Court’s dismissive findings regarding the
substantive meaning to be given to the interpretation are likewise to be
accepted. However its grounds therefor cannot be based on a link with the
application for revision (para. 29), and the “subsidiary” interpretation
cannot be understood according to paragraphs 32-39 of the present Judg-
ment.

8. The problem of interpretation must be examined in direct relation to
the precise request bearing upon the terms of part of the operative pro-
visions of the 1982 Judgment, namely paragraph 133 C (2):

“a bearing of approximately 26° east of north, corresponding to the
angle followed by the north-western boundary of Libyan petroleum
concessions numbers NC 76, 137, NC 41 and NC 53 which was
aligned on the south-eastern boundary of Tunisian petroleum con-
cession ‘Permis complémentaire offshore du Golfe de Gabés’
(21 October 1966)”.

This follows the indications given as regards the delimitation line, this
being a straight line passing through two defined points.
In its Application, Tunisia seeks

“to obtain some clarifications, notably as regards the hierarchy to be
established between the criteria adopted by the Court, having regard
to the impossibility of simultaneously applying these criteria to deter-

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APPLICATION FOR REVISION (SEP. OP. BASTID) 251

mine the starting-point of the delimitation line as well as the bearing
of that line from due north” (para. 55).

The Tunisian request seeks to reconcile the drawing of a given line and
its reference to the alignment between the Libyan and Tunisian conces-
sions. It winds up with an interpretation which in fact constitutes a new
text, conveyed in its submissions of 14 June 1985, the only logical place for
which would be in submissions on the merits of a claim for revision.

Limited to interpretation, the problem is to ascertain the meaning of the
reference to the north-western boundary of the Libyan concessions “which
was aligned on the south-eastern boundary of [the] Tunisian petroleum
concession”, and the logic of this wording in the operative provisions of the
1982 Judgment.

9. By “aligned” the drafters of that Judgment presumably understood
the situation of which they in fact had knowledge, i.e., “approximately
aligned” on the south-eastern boundary of the Tunisian permit and the
north-western boundary of the Libyan concessions.

The boundaries of the concessions, as outlined in the reasoning of the
1982 Judgment, do not indicate an “alignment” in the proper sense of the
term, i.e., an “identity of line”. However, the Court doubtless considered
that it would be useful to refer in subparagraph 133 C (2) to the concrete
practice of the Parties in the matter of concessions, for in subpara-
graphs 133 A and B it had not referred to it except — see 133 B (4) — in
conjunction with other factors (the perpendicular to the coast and the de
facto maritime boundary). It is understandable that in regard to the prac-
tical method for applying the principles and rules of international law the
Court, given the specific circumstances of the case, should where the first
sector was concerned have found it necessary to mention, without going
into detail, the relationship between the Libyan concessions and the
Tunisian permit.

The attention of the Parties was bound to be drawn by the last-men-
tioned lines of the operative provisions, for they expressly mention the
petroleum concessions the “great relevance” of which had been stressed by
the Court (para. 118). The operative provisions expressly refer again to
those the Judgment had already mentioned (para. 117).

But it is the bearing of “approximately” 26° that is associated with the
angle of the north-western boundary of the Libyan concessions, which is
aligned on the south-eastern boundary of the Tunisian permit. The oper-
ative part here makes use of the terms of paragraph 121, where the fol-
lowing reservation also appears : “On the information available to the
Court, that angle appears to be 26° ; it will, however, be for the experts of
the Parties to determine it with exactness.”

Clearly the Court was justified in recalling in the operative part the
consideration which had been uppermost in its reasoning, without seeking
to introduce a hierarchy of criteria. It was out of the question to alter the
operative provisions in respect of the starting-point of the delimitation line
under colour of an interpretation.

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APPLICATION FOR REVISION (SEP. OP. BASTID) 252

Ill

10. It must unreservedly be accepted that, as regards “the most westerly
point of the Gulf of Gabes”, the request for interpretation submitted by
the Republic of Tunisia under Article 60 of the Statute of the Court is
admissible.

By way of construing the Judgment of 24 February 1982, it is right to
stress the importance of the words in paragraph 124, “approximately
34° 10’ 30” N”, as well as of the role devolving upon the experts of the
Parties. It must also be accepted that the submission whereby the Republic
of Tunisia would have the most westerly point of the Gulf of Gabes fixed
on the latitude of 34° 05’ 20” N (Carthage) cannot be upheld. The sub-
mission, presented at the hearing by the Republic of Tunisia, to the effect
that there is cause for the Court to order an expert survey with a view to
determining the precise co-ordinates of this point, must be rejected. How-
ever, it would in my opinion have been useful to specify the legal sig-
nificance of the formula “shoreline (low-water mark)” which appears
in paragraph 124 and operative paragraph 133 C (2) of the 1982 Judgment.
The description of the task of the Parties’ experts should have included a
definition of that expression. Paragraph 63 of the present Judgment could
therefore have been drafted as follows :

“To sum up, the task of the experts of the Parties is, so far as
regards the determination of the latitude at which the bearing of the
delimitation line is to change, as follows. That latitude is, as made
clear in the 1982 Judgment, to be that of the most westerly point of the
shoreline (low-water mark) of the Gulf of Gabes. It has however also
to be borne in mind, first, that the working definition of the latitude in
question, though stated ‘approximately’, was the basis for the effect
given to the Kerkennah Islands in paragraph 133 C (3) of the Judg-
ment ; and, second, that the low-water mark is normally to be under-
stood as the line of low tide ‘along the coast as marked on large-scale
charts officially recognized by the coastal State’ (Convention on the
Territorial Sea and the Contiguous Zone of 29 April 1958, Art. 3 ;
Montego Bay Convention, Art. 5). Employing for the purpose what-
ever charts and maps they may consider appropriate, the experts
should therefore seek to define, on the low-water mark the most
westerly point of the Gulf of Gabes.”

11. Subject to the above observations concerning the method followed
by the Court in considering the Application of the Republic of Tunisia,
and, while regretting that the operative provisions, after finding admissible
the request for interpretation in regard to the first sector, should in sub-
paragraph B (2) have made reference, “by way of interpretation”, to
paragraphs 32-39 of the present Judgment, I concur in the findings of the
Court.

(Signed) Suzanne BASTID.

64


CAMEROUN SEPTENTRIONAL (ARRÊT DU 2 XII 63) 39

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

Le Président,
(Signé) B. WINIARSKI.

Le Greffier,
(Signé) GARNIER-COIGNET.

M. SPIROPOULOS, juge, fait la déclaration suivante:

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

M. KoRETSKY, juge, fait la déclaration suivante:

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

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

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

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CAMEROUN SEPTENTRIONAL (ARRÊT DU 2 XII 63) 40

Mais, dans la présente espèce, la Cour a dit, sans traiter de la
question de compétence, qu’un arrêt sur les demandes de la Répu-
blique du Cameroun «serait sans objet » — ce qui revient à dire
que la Cour a apprécié les demandes du Cameroun quant au fond.
Une telle appréciation ne pouvant se faire qu’à un stade postérieur
de la procédure (le fond), la Cour a, par cette opération, substitué
le stade du règlement quant au fond au stade de la décision sur les
exceptions préliminaires d’incompétence.

On ne saurait attribuer aux règles de procédure un caractère
purement technique. Elles fixent non seulement la manière de
procéder, mais aussi les droits procéduraux des parties. On peut
dire qu’il est encore plus important de les observer strictement à
la Cour internationale de Justice que dans les tribunaux nationaux.
La Cour ne saurait les modifier en passant, alors qu’elle tranche une
affaire donnée. La revision du Règlement de la Cour doit se faire
(si elle est nécessaire) régulièrement et, en tout cas, le Règlement
amendé doit être connu des parties à l’avance.

Par conséquent, la Cour aurait dû, conformément à son Règle-
ment, déterminer en premier lieu si elle avait — ou non — com-
pétence en l’affaire, sans préjuger sa décision éventuelle quant au
fond, et, dans le respect de son Règlement, elle aurait dû passer
alors au stade suivant de la procédure concernant l’examen au
fond des demandes de la République du Cameroun.

M. Jessup, juge, fait la déclaration suivante:

Eu égard aux motifs de l’arrêt de la Cour, auxquels je m’associe
entièrement, je ne crois pas nécessaire d'expliquer pourquoi je con-
sidère que, s’il était nécessaire de se prononcer sur les questions de
compétence qui ont été soulevées, le raisonnement développé aux
pages 422 à 436 de mon opinion individuelle dans les affaires du
Sud-Ouest africain (C.I.J. Recueil 1962, p. 319) serait également
valable dans la présente espéce.

M. WELLINGTON Koo, sir Percy SPENDER, sir Gerald Fitz-
MAURICE et M. MoRELLI, juges, joignent à l’arrêt les exposés de
leur opinion individuelle.

MM. Bapawi et BUSTAMANTE Y RIVERO, juges, et M. BEB a Don,
juge ad hoc, joignent à l’arrét les exposés de leur opinion dissidente.

(Paraphé) B. W.
(Paraphé) G.-C.

29