       COUR INTERNATIONALE DE JUSTICE

           RECUEIL DES ARRE| TS,
    AVIS CONSULTATIFS ET ORDONNANCES

QUESTIONS CONCERNANT L’OBLIGATION
   DE POURSUIVRE OU D’EXTRADER
          (BELGIQUE c. SE
                        u NE
                           u GAL)

         DEMANDE EN INDICATION
       DE MESURES CONSERVATOIRES

        ORDONNANCE DU 28 MAI 2009

              2009
       INTERNATIONAL COURT OF JUSTICE

         REPORTS OF JUDGMENTS,
      ADVISORY OPINIONS AND ORDERS

UESTIONS RELATING TO THE OBLIGATION
    TO PROSECUTE OR EXTRADITE
          (BELGIUM v. SENEGAL)

       REQUEST FOR THE INDICATION
        OF PROVISIONAL MEASURES

           ORDER OF 28 MAY 2009

                      Mode officiel de citation :
   Questions concernant l’obligation de poursuivre ou d’extrader
elgique c. Sénégal), mesures conservatoires, ordonnance du 28 mai 2009,
                     C.I.J. Recueil 2009, p. 139

                         Official citation :
  Questions relating to the Obligation to Prosecute or Extradite
Belgium v. Senegal), Provisional Measures, Order of 28 May 2009,
                   I.C.J. Reports 2009, p. 139

                                           No de vente :
SN 0074-4441
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                                           Sales number    954

                                      28 MAI 2009

                                     ORDONNANCE

 QUESTIONS CONCERNANT L’OBLIGATION
    DE POURSUIVRE OU D’EXTRADER
        (BELGIQUE c. SE
                      u NE
                         u GAL)

          DEMANDE EN INDICATION
        DE MESURES CONSERVATOIRES

QUESTIONS RELATING TO THE OBLIGATION
     TO PROSECUTE OR EXTRADITE
        (BELGIUM v. SENEGAL)

        REQUEST FOR THE INDICATION
         OF PROVISIONAL MEASURES

                                       28 MAY 2009

                                         ORDER

           INTERNATIONAL COURT OF JUSTICE

                            YEAR 2009                                        2009
                                                                           28 May
                                                                          General List
                           28 May 2009                                     No. 144

UESTIONS RELATING TO THE OBLIGATION
    TO PROSECUTE OR EXTRADITE
                    (BELGIUM v. SENEGAL)
            REQUEST FOR THE INDICATION OF
                PROVISIONAL MEASURES

                              ORDER

esent : President OWADA ; Judges SHI, KOROMA, AL-KHASAWNEH,
        SIMMA, ABRAHAM, SEPÚLVEDA-AMOR, BENNOUNA, SKOTNIKOV,
        CANÇADO TRINDADE, YUSUF, GREENWOOD ; Judges ad hoc SUR,
        KIRSCH ; Registrar COUVREUR.

The International Court of Justice,
Composed as above,
After deliberation,
Having regard to Articles 41 and 48 of the Statute of the Court and
ticles 73 and 74 of the Rules of Court,
Makes the following Order :
1. Whereas, by an Application filed in the Registry of the Court on
 February 2009, the Government of the Kingdom of Belgium (herein-
 er “Belgium”) instituted proceedings against the Republic of Senegal
ereinafter “Senegal”) in respect of a dispute concerning “Senegal’s
mpliance with its obligation to prosecute Mr. H. Habré [former Presi-
nt of Chad] or to extradite him to Belgium for the purposes of criminal
oceedings” ; whereas Belgium bases its claims on the United Nations

                                                                     4

onvention against Torture and Other Cruel, Inhuman or Degrading
 eatment or Punishment of 10 December 1984 (hereinafter “the Con-
ntion against Torture”), as well as on customary international law ;

 2. Whereas in its Application, as a basis for the jurisdiction of the
ourt, Belgium refers to the declarations made under Article 36, para-
aph 2, of the Statute, by Belgium on 17 June 1958 and by Senegal on
December 1985, and to Article 30, paragraph 1, of the Convention
 ainst Torture ;
 3. Whereas, in this Application, Belgium maintains that Senegal, where
r. Habré has resided since 1990, has taken no action on its repeated
quests to see the former President of Chad prosecuted in Senegal, fail-
g his extradition to Belgium, for acts characterized as including crimes
 torture and crimes against humanity, allegedly perpetrated during his
esidency between 7 June 1982 and 1 December 1990 ; and whereas it
plains that, following the complaints filed in Senegal in 2000 against
r. Habré by seven natural persons and one legal person, he was
dicted for complicity in “crimes against humanity, acts of torture and
 rbarity” by the senior investigating judge of the Dakar Tribunal
gional hors classe and placed under house arrest, but that those com-
aints were dismissed by the Chambre d’accusation of the Dakar Court
 Appeal on 4 July 2000 on the grounds that “crimes against humanity”
d not form part of Senegalese criminal law and, with regard to the
 me of torture, that Senegalese law did not allow a Senegalese court to
ercise jurisdiction in respect of acts committed abroad by an alien ;

4. Whereas in the said Application Belgium also states that, between
 November 2000 and 11 December 2001, a Belgian national of Chadian
 gin and certain Chadian nationals filed criminal complaints with civil-
rty applications with the Belgian judicial authorities against Mr. Habré
r crimes under international humanitarian law ; and whereas it adds
at, following the filing of those complaints, acting on the basis of
ssive personal jurisdiction as recognized by the Belgian courts, the
vestigating judge responsible for the case issued an international arrest
 rrant against Mr. Habré on 19 September 2005 ;

 5. Whereas Belgium states that the said arrest warrant, in which spe-
fic reference is made to the lifting by Chad on 7 October 2002 of any
 munities which Mr. Habré might have claimed, was transmitted to
 negal on 19 September 2005 with a view to obtaining his extradition ;
 d whereas it further states that the Chambre d’accusation of the Dakar
ourt of Appeal found, on 25 November 2005, that it could not act on
  s warrant because it concerned acts committed by a Head of State “in
 e exercise of his functions” ;
 6. Whereas Belgium states moreover that the case was passed on to the
 rican Union by Senegal on 7 December 2005 ; and whereas it adds that,
  lowing a decision taken at Banjul (Gambia) on 2 July 2006 by the

                                                                       5

mmit of African Union Heads of State and Government, Senegal amend-
 its Penal Code to include the offences of genocide, war crimes and crimes
ainst humanity and also its Code of Criminal Procedure to enable Sene-
lese courts to exercise universal jurisdiction ;

 7. Whereas Belgium complains that Senegal, referring to financial dif-
ulties which prevent it from organizing the trial, has not brought any
 minal proceedings against Mr. Habré ;
 8. Whereas Belgium, in its Application, contends that Senegal’s failure
 prosecute Mr. Habré, if he is not extradited to Belgium to answer for
e acts of torture that are alleged against him, violates the Convention
 ainst Torture, in particular Article 5, paragraph 2, Article 7, para-
aph 1, Article 8, paragraph 2, and Article 9, paragraph 1, of that
 trument ; and whereas it adds that this failure also violates the obligation
 der customary international law to punish crimes under international
 manitarian law which is to be found in numerous acts emanating
om international organizations and is established in treaty law ;

9. Whereas Belgium maintains that a dispute thus exists between itself
d Senegal over the interpretation and application of the Convention
ainst Torture and of the customary law relating to the punishment of
mes against humanity ;
10. Whereas, at the end of its Application, Belgium presents the fol-
wing submissions :
     “Belgium respectfully requests the Court to adjudge and declare
   that :
   — the Court has jurisdiction to entertain the dispute between the
       Kingdom of Belgium and the Republic of Senegal regarding
       Senegal’s compliance with its obligation to prosecute Mr. H.
       Habré or to extradite him to Belgium for the purposes of criminal
       proceedings ;
   — Belgium’s claim is admissible ;
   — the Republic of Senegal is obliged to bring criminal proceedings
       against Mr. H. Habré for acts including crimes of torture and
       crimes against humanity which are alleged against him as
       perpetrator, co-perpetrator or accomplice ;
   — failing the prosecution of Mr. H. Habré, the Republic of Senegal
       is obliged to extradite him to the Kingdom of Belgium so that he
       can answer for these crimes before the Belgian courts” ;
 d whereas it reserves the right to revise or supplement the terms of the
pplication ;
11. Whereas on 19 February 2009, having filed its Application, Bel-
um submitted a Request for the indication of provisional measures,
voking Article 41 of the Statute of the Court and Articles 73 to 75 of
e Rules of Court ;
12. Whereas, in its Request for the indication of provisional measures,

                                                                           6

lgium refers to the same bases of jurisdiction of the Court relied on in
 Application (see paragraph 2 above) ;
13. Whereas, in this Request for the indication of provisional meas-
es, Belgium states that
   “[a]t present, Mr. H. Habré is under house arrest in Dakar, but it
   transpires from an interview which the President of Senegal,
   A. Wade, gave to Radio France Internationale that Senegal could
   lift his house arrest if it fails to find the budget which it regards as
   necessary in order to hold the trial of Mr. H. Habré” ;

 d whereas, according to Belgium, in such an event, it would be easy for
r. Habré to leave Senegal and avoid any prosecution ;
 14. Whereas, in the said Request for the indication of provisional
easures, Belgium argues that if Mr. Habré were to leave the territory of
negal, that would cause irreparable prejudice to the right conferred on
 lgium by international law to bring criminal proceedings against him ;
hereas it further maintains that this would violate Senegal’s obligation
 prosecute Mr. Habré for the crimes under international law which are
 eged against him, failing his extradition ;

15. Whereas, at the end of its Request for provisional measures, Bel-
um asks the Court
   “to indicate, pending a final judgment on the merits, provisional
   measures requiring Senegal to take all the steps within its power
   to keep Mr. H. Habré under the control and surveillance of the
   judicial authorities of Senegal so that the rules of international
   law with which Belgium requests compliance may be correctly
   applied” ;
 16. Whereas on 19 February 2009, the date on which the Application
 d the Request for the indication of provisional measures were filed in
e Registry, the Registrar informed the Senegalese Government of the
 ng of these documents and transmitted certified copies of them to it
rthwith, in accordance with Article 40, paragraph 2, of the Statute and
 ticle 38, paragraph 4, and Article 73, paragraph 2, of the Rules of
ourt ; and whereas the Registrar also notified the Secretary-General of
e United Nations of this filing ;

17. Whereas on 23 February 2009, the Registrar informed the Parties
at the President of the Court, in accordance with Article 74, para-
aph 3, of the Rules of Court, had fixed 6, 7 and 8 April 2009 as the
tes for the oral proceedings on the Request for the indication of pro-
 ional measures ;
18. Whereas, pending the notification provided for by Article 40, para-
aph 3, of the Statute and Article 42 of the Rules of Court by transmis-
 n of the printed bilingual text of the Application to the Members of

                                                                         7

e United Nations, the Registrar informed those States on 24 Febru-
y 2009 of the filing of the Application and its subject, and of the filing
 the Request for the indication of provisional measures ;
 19. Whereas, on 2 April 2009, Senegal transmitted to the Court the
 cuments on which it wished to rely during the hearings ; and whereas
pies of those documents were immediately communicated to Belgium ;
hereas, on 3 April 2009, Belgium in turn transmitted to the Court the
 cuments on which it wished to rely during the hearings ; and whereas
pies of those documents were immediately communicated to Senegal ;

20. Whereas, since the Court includes upon the Bench no judge of the
tionality of the Parties, each of them proceeded, in exercise of the right
nferred by Article 31, paragraph 3, of the Statute, to choose a judge
 hoc in the case ; for this purpose Belgium chose Mr. Philippe Kirsch,
d Senegal chose Mr. Serge Sur ;
21. Whereas, at the public hearings held on 6, 7 and 8 April 2009, in
cordance with Article 74, paragraph 3, of the Rules of Court, oral
servations on the Request for the indication of provisional measures
re presented by the following representatives of the Parties :
n behalf of Belgium : Mr. Paul Rietjens, Agent,
                      Mr. Gérard Dive, Co-Agent,
                      Mr. Eric David,
                      Sir Michael Wood ;
n behalf of Senegal : H.E. Mr. Cheikh Tidiane Thiam, Agent,
                      Mr. Demba Kandji, Co-Agent,
                      Mr. Ndiaw Diouf,
                      Mr. Alioune Sall,
                      Mr. Oumar Gaye,
                      Mr. Abdoulaye Dianko ;
d whereas, during the hearings, questions were put by certain Members
the Court, to which replies were given orally and in writing ;

                                 * * *
22. Whereas, in its first round of oral observations, Belgium reiterated
e arguments developed in its Application and its Request for the indi-
tion of provisional measures, and argued that the conditions necessary
r the Court to indicate the requested measures had been fulfilled ;

23. Whereas Belgium reaffirmed that, in respect of Mr. Habré, a dis-
te existed between itself and Senegal over the interpretation and appli-
tion of the obligation to extradite or prosecute the perpetrators of
mes of torture and crimes against humanity, as set forth in conven-
 nal international law, in particular Article 7 of the Convention against
 rture, and customary international law ; whereas it contended that

                                                                        8

negal could not divest itself of the said obligation by handing Mr. Habré
 er to an international organization or to a State which had not sought
  extradition for the purposes of prosecution ;
24. Whereas Belgium also referred to certain recent statements made
  Mr. Abdoulaye Wade, President of the Republic of Senegal, which,
cording to Belgium, indicated that if Senegal did not have available to
the funds required to organize the trial of Mr. Habré, it could at any
me abandon its prosecution of the person in question, cease monitoring
m or transfer him to another State ; and whereas Belgium concluded
at there was consequently a real and imminent risk of irreparable preju-
ce to the rights which formed the subject of its Application ;

                                    *
25. Whereas, in its first round of oral observations, Senegal asserted
at, since 2005, it had been willing, as declared by President Wade to try
r. Habré in the Senegalese courts and thus to comply with its obliga-
 ns under international law ; whereas it maintained that, as the condi-
 ns required for the indication of provisional measures were not
 filled in the present case, Belgium’s request for such measures to be
dicated was unfounded; and whereas it added that the indication of the
easures sought by Belgium would prejudge the merits and deprive Sen-
al of the rights it held under international rules, in particular the Con-
ntion against Torture ;
26. Whereas Senegal stated that, following Belgium’s request for the
tradition of Mr. Habré, the latter had been arrested and placed in cus-
dy on 15 November 2005 pending extradition ; whereas it confirmed
at, by a judgment dated 25 November 2005, the Chambre d’accusation
 the Dakar Court of Appeal had held that it was without jurisdiction
 er the request for Mr. Habré’s extradition, on the grounds that he
joyed immunity from jurisdiction by virtue of having been Head of
ate at the time the acts occurred (see paragraph 5 above) ; and whereas
negal stated that on 23 December 2005 it had informed Belgium of this
cision, which put an end to the extradition proceedings ;

 27. Whereas Senegal explained that, in these circumstances, it had
ught the support of the African Union, and seised it of the matter ;
hereas it confirmed that, on 2 July 2006, the Heads of State and
overnment of the African Union had given Senegal a mandate to pro-
cute and try Mr. Habré ; and whereas it also confirmed that sub-
quently it had taken a number of measures with a view to the holding
 Mr. Habré’s trial in Senegal, in particular the introduction of offences
 ked to international crimes into its criminal legislation, the broad-
ing of the jurisdiction of the Senegalese courts and the search for the
 ancial resources needed for the organization of such a trial (see para-
aph 6 above) ;
 28. Whereas Senegal, in the light of the facts as thus restated, maintained

                                                                          9

at no legal dispute existed between the Parties on the interpretation or
plication of an international legal rule and, in particular, of the rules
  forth in the Convention against Torture ; whereas it contended that
e Court’s prima facie jurisdiction had consequently not been estab-
hed ; and whereas Senegal argued, moreover, that Belgium’s Request
 s inadmissible since the procedural conditions laid down by Article 30
 the Convention against Torture had not been fulfilled ;

 29. Whereas Senegal also pointed out that the interview given to
adio France Internationale by President Wade on 2 February 2009, to
hich Belgium had referred, confirmed that Senegal was willing to pur-
e the process under way, that Mr. Habré was being kept under surveil-
nce, a situation which Senegal did not envisage ending, and that the
 ernational negotiations aimed at obtaining the necessary support to
ganize his trial were following their course ; whereas this led Senegal to
nclude that no urgency existed which might justify the indication by
e Court of the provisional measures requested by Belgium ; and whereas
negal further argued that Belgium had not identified the rights it
shed to see protected, nor the irreparable prejudice which might be
used to those rights without the indication of provisional measures ;

30. Whereas Senegal concluded from the foregoing that the Request
r the indication of provisional measures submitted by Belgium should
 rejected ;

                                   *
31. Whereas, in its second round of oral observations, Belgium
affirmed that Mr. Habré should be prosecuted and tried in Senegal, and
at only if it failed to prosecute him should Senegal extradite Mr. Habré
 Belgium to answer for the acts alleged against him ;

32. Whereas Belgium stated that the dispute between itself and
negal concerned, first, the question of whether the obligation
 try Mr. Habré derived from the mandate given to Senegal by the
rican Union and, secondly, whether Senegal had already fulfilled its
ligations under the provisions of the Convention against Torture by
ssing on the case to the African Union ; whereas Belgium also comp-
ned that Senegal was systematically bringing up financial reasons
 justify its incapacity and failure to fulfil its conventional or custom-
y obligations ; and whereas Belgium added that the proceedings
 tituted in respect of Mr. Habré before the Court of Justice of the
onomic Community of West African States (ECOWAS) and the Afri-
n Court of Human Rights raised concerns that one of these regional
urts might render an order liable to prejudice Belgium’s rights in the
rrent proceedings ;

                                                                       10

33. Whereas, in response to a question put by a Member of the Court
 the hearings, Belgium indicated that a solemn declaration made before
e Court by the Agent of Senegal, in the name of his Government, could
  sufficient for Belgium to consider that its Request for the indication of
ovisional measures had no further raison d’être, provided that such a
claration would be clear and unconditional, and that it would guaran-
   that all the necessary measures would be taken by Senegal to ensure
at Mr. Habré did not leave Senegalese territory before the Court deliv-
ed its final Judgment ; and whereas Belgium expressed the wish that, if
ch a declaration were made, the Court should include it in the opera-
 e part of its Order ;
34. Whereas, at the end of its second round of oral arguments,
 lgium presented the following submissions :
      “Belgium respectfully asks the Court to indicate the following
   provisional measures : the Republic of Senegal is requested to take
   all the steps within its power to keep Mr. Hissène Habré under the
   control and surveillance of the Senegalese authorities so that the
   rules of international law with which Belgium requests compliance
   may be correctly applied” ;

                                   *
 35. Whereas, in its second round of oral observations, Senegal re-
firmed that the judgment of the Chambre d’accusation of the Dakar
ourt of Appeal had put a definitive end to the extradition proceedings
 tiated by Belgium ;
 36. Whereas Senegal maintained that its obligation to prosecute
 r. Habré derived from the provisions of the Convention against Tor-
re and that it had always referred to that Convention to justify the
easures taken with a view to the trial ; whereas Senegal stated that it
 d seised the African Union in order to obtain the financial support and
utual judicial assistance required for the organization of the trial, but
at at no point had it based its obligation to prosecute Mr. Habré on a
  olution of that organization ; and whereas Senegal concluded that the
  k of a dispute between the Parties was therefore manifest ;
 37. Whereas Senegal further pointed out that the statements made to
e media by President Wade did not demonstrate the existence of any
al or serious risk that Mr. Habré might evade Senegalese justice ; and
hereas it added that, in any event, any possible prejudice to Belgium’s
 hts, despite the surveillance measures put in place by Senegal in respect
  Mr. Habré, could not be described as irreparable since the obligation
  extradite or prosecute was, according to Belgium, a customary norm
 d therefore enforceable by Belgium against any State where Mr. Habré
 ght happen to be ;
 38. Whereas, in response to the question put by a Member of the
  urt at the hearings, referred to in paragraph 33 above, Senegal solemnly

                                                                        11

clared that it would not allow Mr. Habré to leave its territory while the
esent case was pending before the Court ;
 39. Whereas at the end of its second round of oral observations Sen-
al presented the following submissions : “Senegal respectfully asks the
ourt to reject the provisional measures requested by Belgium on 7 April
 09” ;

                                 * * *

                      PRIMA FACIE JURISDICTION

 40. Whereas, when dealing with a request for the indication of provi-
 nal measures, there is no need for the Court, before deciding whether
  not to indicate such measures, to satisfy itself in a definitive manner
at it has jurisdiction as regards the merits of the case ; but whereas it
ay only indicate those measures if the provisions relied on by the Appli-
nt appear, prima facie, to afford a basis on which its jurisdiction could
  founded ;
 41. Whereas Belgium is seeking to found the jurisdiction of the Court
  Article 30 of the Convention against Torture and on the basis of the
clarations made by the two States pursuant to Article 36, paragraph 2,
 the Statute ; and whereas the Court must now endeavour to establish
hether the compromissory clause under the convention, or the declara-
 ns relied upon do indeed confer upon it prima facie jurisdiction to rule
  the merits, enabling it to indicate provisional measures if it considers
at the circumstances so require ;

                                 * *
42. Whereas Article 30, paragraph 1, of the Convention against Tor-
re reads as follows :
      “Any dispute between two or more States Parties concerning the
   interpretation or application of this Convention which cannot be
   settled through negotiation shall, at the request of one of them, be
   submitted to arbitration. If within six months from the date of the
   request for arbitration the Parties are unable to agree on the organi-
   zation of the arbitration, any one of those Parties may refer the dis-
   pute to the International Court of Justice by request in conformity
   with the Statute of the Court.” ;
 43. Whereas both Belgium and Senegal are parties to the Convention
 ainst Torture ; whereas Senegal ratified that Convention on 21 August
 86 without entering any reservation as to Article 30, paragraph 1 ; and
hereas Belgium did likewise on 25 June 1999 ;
 44. Whereas Belgium contends that a dispute exists between the Parties
  the interpretation and application of the said Convention, and that by

                                                                       12

 ling to prosecute Mr. Habré, in default of extraditing him to Belgium
 answer for the acts of torture that are alleged against him, Senegal has
olated the Convention against Torture, in particular Article 5, para-
aph 2, Article 7, paragraph 1, Article 8, paragraph 2, and Article 9,
 ragraph 1 ; whereas Belgium maintains that negotiations on this sub-
 t began between the Parties in 2005 and that those negotiations, in
hich Belgium expressly referred to the provisions of the Convention
 ainst Torture, did not allow the dispute to be settled, as it observed
rmally in its Note Verbale to Senegal of 20 June 2006 ; whereas Belgium
rther maintains that it suggested recourse to arbitration to Senegal the
me day, a proposal to which the Senegalese authorities did not respond,
 her within six months or thereafter, while Belgium reiterated its pro-
 sal of recourse to arbitration in a Note Verbale dated 8 May 2007, and
nfirmed the continuation of the dispute by a Note Verbale of 2 Decem-
r 2008 ; whereas Belgium concludes from the foregoing that the condi-
 ns to which Article 30 of the Convention against Torture subjects the
 isdiction of the Court have been fulfilled ;

 45. Whereas Senegal takes the view that there is manifestly no dispute
 er the interpretation or application of the Convention, since it follows
om the terms of the Application that Belgium is requesting the Court to
 judge and declare that Senegal is under an obligation to prosecute
r. Habré ; whereas Senegal emphasizes that it has already taken appro-
  ate steps to comply with that obligation ; whereas Senegal further
aintains that Belgium’s Application is inadmissible because the pro-
dural conditions specified in Article 30 of the Convention against Torture
 ve not been fulfilled ; whereas Senegal contends that Belgium merely
quested information from the Senegalese authorities on the status of
e proceedings, which cannot be regarded as real negotiations ; and
hereas it claims that the Note Verbale dated 20 June 2006 to which Bel-
um refers, and which is said to contain its offer of recourse to arbitra-
 n, cannot be found in Senegal’s archives ; whereas Senegal concludes
om the foregoing that Article 30 of the Convention against Torture
nnot found the jurisdiction of the Court in the present case ;

                                 * *
 46. Whereas Article 30 of the Convention against Torture makes the
ourt’s jurisdiction conditional on the existence of a “dispute between
 o or more States Parties concerning the interpretation or application of
 s Convention” ; whereas, at this stage of the proceedings, the Court
ust begin by establishing whether, prima facie, such a dispute existed on
e date the Application was filed, since, as a general rule, it is on that
 te, according to the Court’s jurisprudence, that its jurisdiction must be
nsidered (see South West Africa (Ethiopia v. South Africa ; Liberia v.
 uth Africa), Preliminary Objections, Judgment, I.C.J. Reports 1962,

                                                                       13

  344 ; Border and Transborder Armed Actions (Nicaragua v. Hondu-
s), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p. 95,
 ra. 66 ; Questions of Interpretation and Application of the 1971 Mon-
 al Convention arising from the Aerial Incident at Lockerbie (Libyan
 ab Jamahiriya v. United States of America), Preliminary Objections,
dgment, I.C.J. Reports 1998, p. 130, para. 43) ;
47. Whereas, following the judgment of the Dakar Court of Appeal
 nging to an end the proceedings on Mr. Habré’s extradition to Bel-
um, Senegal seised the African Union and informed Belgium of this in
Note Verbale dated 23 December 2005 ; whereas, in a Note Verbale of
  January 2006, Belgium disputed whether Senegal could comply with
e obligation set forth in Article 7 of the Convention against Torture by
 erring a matter covered by that Convention to an international organi-
tion ; whereas Belgium argued that Senegal was not fulfilling its obli-
tions under the Convention against Torture, in particular Article 7
ereof ; whereas Senegal considered that it has taken measures in order
 fulfill the said obligations and that it reaffirmed its will to continue the
 going process, in which it intends to assume in full its obligations as a
ate party to the Convention against Torture ; whereas, in view of the
regoing, it appears prima facie that a dispute as to the interpretation
 d application of the Convention existed between the Parties on the
 te the Application was filed ;
48. Whereas the Court will next consider whether such a dispute con-
 ues, prima facie, to exist in the light of the way in which the Parties
plained their positions at the hearings ; whereas Senegal has affirmed
at its obligations do not derive from the mandate given by the African
nion in 2006 and that a State party to the Convention against Torture
nnot fulfil the obligations under Article 7 thereof by the mere act of
 erring the matter to an international organization ; whereas the Parties
 netheless seem to continue to differ on other questions relating to the
 erpretation or application of the Convention against Torture, such as
at of the time frame within which the obligations provided for in Arti-
   7 must be fulfilled or that of the circumstances (financial, legal or
her difficulties) which might be relevant in considering whether or not
 ailure to fulfil those obligations has occurred ; whereas, moreover, the
 rties seem to continue to hold differing views as to how Senegal should
 fil its treaty obligations ; and whereas in consequence it appears that
 ma facie a dispute of the kind contemplated by Article 30 of the Con-
ntion against Torture continues to exist between the Parties, even if the
ope of that dispute may have changed since the Application was filed ;

                                    *
49. Whereas the Court will now consider whether the procedural con-
 ions laid down by Article 30 of the said Convention have been ful-
ed ; whereas that provision requires, first, that any dispute submitted to
e Court should be such as “cannot be settled through negotiation” ;

                                                                          14

hereas Belgium maintains that, it had attempted unsuccessfully to
  olve the dispute by negotiations with Senegal (see paragraph 44 above) ;
hereas Senegal takes the view, on the contrary, that the diplomatic cor-
  pondence relied on by Belgium cannot be regarded as amounting to
 gotiations (see paragraph 45 above) ; and, further, that that correspon-
 nce does not justify the conclusion that the supposed negotiations had
 led ;
 50. Whereas, at the stage of considering prima facie jurisdiction, it is
fficient for the Court to note that an attempt has been made by Bel-
um to negotiate ; whereas, it considers that the diplomatic correspon-
 nce, in particular the Note Verbale of 11 January 2006, whereby
 lgium wished to submit certain clarifications to the Government of Senegal
  ithin the framework of the negotiation procedure covered by Arti-
    30 of the Convention against Torture . . .”, shows that Belgium
 empted to resolve the said dispute by negotiation and that it cannot be
 ncluded that the negotiations thus proposed had the effect of resolving
e dispute ; and whereas the Court thus concludes that the requirement
at the dispute is one which “cannot be settled through negotiation”
ust be regarded as having been satisfied prima facie ;
 51. Whereas Article 30 of the Convention against Torture provides,
condly, that a dispute between States parties which has not been
  tled through negotiation shall, at the request of one of them, be
 bmitted to arbitration, and that it may be referred to the Court
 ly if the parties are unable to agree on the organization of such
bitration within six months from the date when it was requested ;
hereas Belgium has indicated that Senegal did not respond to the
rmal proposal for recourse to arbitration made in its Note Verbale
   20 June 2006, and pointed out that this proposal was reiterated
   its Note Verbale of 8 May 2007 ; and whereas Senegal states
at the Belgian Note Verbale of 20 June 2006 cannot be found and
at the proposal allegedly reiterated was at the very least
mbiguous ;

52. Whereas, in the view of the Court, the Note Verbale of 20 June 2006
ntains an explicit offer from Belgium to Senegal to have recourse to
bitration, pursuant to Article 30, paragraph 1, of the Convention
ainst Torture, in order to settle the dispute concerning the application
 the Convention in the case of Mr. Habré ; whereas, at this stage of the
oceedings, it is sufficient for the Court to note that, even supposing
at the said Note Verbale never reached its addressee, the Note Verbale
 8 May 2007 explicitly refers to it ; and whereas it has been confirmed
at this second Note was communicated to Senegal and received by it
ore than six months before the date of referral to the Court, i.e.,
 February 2009 ;

                                  * *
                                                                        15

53. Whereas, in the light of the foregoing, the Court considers that it
s prima facie jurisdiction under Article 30 of the Convention against
 rture to entertain the case ;
54. Whereas, moreover, the prima facie jurisdiction which the Court
rives from the Convention against Torture is sufficient to enable it, if
e circumstances so require, to indicate the provisional measures
quested by Belgium ; and whereas consequently there is no need to
certain, at this stage of the proceedings, whether the declarations made
 the Parties pursuant to Article 36, paragraph 2, of the Statute might
 o, prima facie, afford a basis on which the Court’s jurisdiction could
 founded ;

                                 * *
55. Whereas, in the light of the findings it has reached in paragraphs 53
d 54 above, the Court may examine the Request for the indication of
ovisional measures ;

                                * * *

LINK BETWEEN THE RIGHT PROTECTED AND THE MEASURES REQUESTED

 56. Whereas the power of the Court to indicate provisional measures
 der Article 41 of the Statute has as its object the preservation of the
 pective rights of the parties pending its decision ; whereas it follows
at the Court must be concerned to preserve by such measures the rights
hich may subsequently be adjudged by the Court to belong either to the
pplicant or to the Respondent (Application of the Convention on the
 evention and Punishment of the Crime of Genocide (Bosnia and Herze-
 vina v. Yugoslavia (Serbia and Montenegro)), Provisional Measures,
 der of 8 April 1993, I.C.J. Reports 1993, p. 19, para. 34 ; Land and
 aritime Boundary between Cameroon and Nigeria (Cameroon v.
 geria), Provisional Measures, Order of 15 March 1996, I.C.J. Reports
 96 (I), p. 22, para. 35; Application of the International Convention on
e Elimination of All Forms of Racial Discrimination (Georgia v. Rus-
 n Federation), Provisional Measures, Order of 15 October 2008, I.C.J.
 ports 2008, pp. 388-389, para. 118) ; whereas a link must therefore be
 ablished between the provisional measures requested and the rights
hich are the subject of the proceedings before the Court as to the merits
 the case ;
 57. Whereas the power of the Court to indicate provisional measures
ould be exercised only if the Court is satisfied that the rights asserted
  a party are at least plausible ;

                                 * *
                                                                      16

 58. Whereas Belgium points out that its request is intended to protect
  right to see Senegal prosecute Mr. Habré directly or, failing that, the
 ht to obtain his extradition ; whereas Belgium maintains that the Con-
ntion against Torture confers upon all the States parties the right to
 tain compliance by Senegal with the provisions of the Convention ; and
hereas Belgium states that its request for the extradition of Mr. Habré,
 ulting from the proceedings brought in Belgium by victims of Belgian
 tionality, confers a specific right upon it to see Senegal prosecute
r. Habré or, failing that, to obtain his extradition in accordance with
 ticle 7 of the said Convention ;
 59. Whereas Senegal argues that the only right which might be attrib-
ed to States parties to the Convention against Torture is the right to
quire another State party to try the perpetrator of an act of torture who
 present in its territory or, failing that, to request his extradition ; and
at, consequently, if it is considered that Article 5, paragraph 2, and
 ticle 7, paragraph 1, of the Convention create a right for a State party,
 can only be the right to demand extradition, which cannot however
evail over the right of a State which takes on its obligation to hold a
al ;

                                  * *
 60. Whereas at this stage of the proceedings the Court does not need
 establish definitively the existence of the rights claimed by Belgium or
 consider Belgium’s capacity to assert such rights before the Court ; and
hereas the rights asserted by Belgium, being grounded in a possible
 erpretation of the Convention against Torture, therefore appear to be
ausible ;
 61. Whereas the provisional measures requested in the current pro-
edings are aimed at ensuring that Senegal takes all necessary measures
 its power to keep Mr. Habré under the surveillance and control of the
negalese authorities until the Court has given its final decision ; whereas
e possible departure of Mr. Habré from Senegalese territory would be
 ely to affect the rights which might be adjudged to belong to Belgium
  the merits, even as qualified by Senegal ; whereas, therefore, in view of
e subject-matter of the proceedings, the provisional measures requested
ay be indicated if the circumstances so require ;

                                 * * *

           RISK OF IRREPARABLE PREJUDICE AND URGENCY
62. Whereas however the power of the Court to indicate provisional
easures will be exercised only if there is urgency, in the sense that there
a real and imminent risk that irreparable prejudice may be caused to
e rights in dispute before the Court has given its final decision (see, for
ample, Passage through the Great Belt (Finland v. Denmark), Provi-

                                                                         17

 nal Measures, Order of 29 July 1991, I.C.J. Reports 1991, p. 17,
 ra. 23 ; Certain Criminal Proceedings in France (Republic of the Congo
 France), Provisional Measure, Order of 17 June 2003, I.C.J. Reports
 03, p. 107, para. 22 ; Pulp Mills on the River Uruguay (Argentina v.
 uguay), Provisional Measures, Order of 23 January 2007, I.C.J.
 ports 2007 (I), p. 11, para. 32 ; Application of the International Con-
ntion on the Elimination of All Forms of Racial Discrimination (Georgia
  Russian Federation), Provisional Measures, Order of 15 Octo-
r 2008, I.C.J. Reports 2008, pp. 392-393, para. 129) ; and whereas the
ourt must therefore consider whether such urgency exists in these pro-
edings ;

                                  * *
 63. Whereas Belgium, in its Request for the indication of provisional
easures, makes reference to an interview given on 2 February 2009 to
adio France Internationale by President Wade (see paragraph 13
 ove) ; whereas Belgium also referred at the hearings to interviews given
  President Wade to the Spanish newspaper Público, the French news-
 per La Croix and Agence France Presse on 14 October 2008, 18 Decem-
r 2008 and 3 February 2009 respectively, in which the organization of
e trial of Mr. Habré and its funding were discussed ; whereas Belgium
 ints out that at different junctures on these various occasions, the
esident of Senegal said that he was not going to keep Mr. Habré in
negal indefinitely, that he would make the latter leave Senegal, even
ough he did not know where Mr. Habré would go, that he was willing
 try him but that he had to be given the resources, and that, if the trial
 s not held, he would either send Mr. Habré back home or transfer him
 the Chairperson of the African Union ; whereas, according to Belgium,
follows from this that Senegal could lift the house arrest imposed on
r. Habré if the funding needed for the organization of his trial were not
ovided ;
 64. Whereas Belgium infers from this, in the first instance, that there is
real risk of Senegal causing irreparable prejudice to the rights of Bel-
um ; whereas Belgium asserts that, should Mr. Habré receive permis-
 n to leave Senegalese territory, he might evade any prosecution and it
ould become impossible for Senegal to comply, in particular, with the
 ligations laid down by the Convention against Torture ; and whereas it
 ds that the violation of the obligation to prosecute or extradite thus
used could not be redressed by other means, in particular by monetary
mpensation ;
 65. Whereas Belgium points out, moreover, that the statements con-
rning Mr. Habré leaving Senegalese territory were made recently by the
ghest State authority ; whereas it infers from this that the risk of preju-
ce must be regarded as imminent ;
 66. Whereas Senegal argues that it does not follow from the comments
   President Wade that irreparable prejudice might be caused to the

                                                                        18

 hts which Belgium claims to hold under the Convention against Tor-
re ; whereas it affirms that it has no intention of lifting the effective con-
ol and surveillance measures imposed on Mr. Habré ; whereas it states
 particular that Mr. Habré does not possess a valid travel document
 d that his surveillance is carried out by an elite unit of the Senegalese
 litary forces ; whereas it further points out that the measures which it
 s already implemented are consistent with the provisions of the Con-
ntion and identical to the provisional measures requested by Belgium ;
 67. Whereas Senegal maintains, moreover, that the statement made by
esident Wade to Radio France Internationale, on the basis of which
 lgium requests provisional measures, has been taken out of context
 d “has been attributed a meaning . . . which it manifestly did not
 ve” ; whereas it contends that, on the contrary, the said statement dem-
 strates Senegal’s willingness to hold a trial, with regard to the funding
 which President Wade specified the following :
     “[After all the promises of support that were made], as it was
   taking a little too much time, I said ‘[the promised financial support]
   will actually have to be available . . . It was in order to push a bit to
   speed things up . . . As soon as we have the funding, the trial will
   begin. There is absolutely no doubt about it.’” [Translation by the
   Registry] ;
hereas it states that the negotiations with the European Union and the
 rican Union aimed at obtaining the funds needed for the prosecution
  Mr. Habré are proceeding well ; whereas Senegal considers that the
easures taken by the Senegalese authorities show that they are perform-
g in good faith their obligations under the Convention against Torture ;
 d whereas, according to Senegal, it follows from this that there is no
 minent risk to justify the indication of provisional measures ;
 68. Whereas, as has been indicated above (see paragraphs 29 and 66),
negal asserted on several occasions at the hearings that it is not con-
mplating lifting the surveillance and control imposed on the person of
r. Habré either before or after the funds pledged by the international
mmunity are made available to it for the organization of the judicial
oceedings ; whereas the Co-Agent of Senegal, at the end of the hear-
gs, solemnly declared, in response to a question put by a Member of the
ourt, the following :
      “Senegal will not allow Mr. Habré to leave Senegal while the
   present case is pending before the Court. Senegal has not the inten-
   tion to allow Mr. Habré to leave the territory while the present case
   is pending before the Court.”

                                                                           19

69. Whereas the Co-Agent of Belgium, making clear that he spoke in
e name of his Government, asserted at the hearings, in response to a
 estion put by a Member of the Court, that such a solemn declaration
ven by the Agent of Senegal, in the name of his Government, to the
 ect that the latter would not allow Mr. Habré to leave Senegalese
 ritory while the present case was pending before the Court,
uld be sufficient for Belgium to consider that its Request for
e indication of provisional measures no longer had any object,
ovided that certain conditions were fulfilled (see paragraph 33 above) ;

                                 * *

70. Whereas the statements concerning the possibility of Mr. Habré
 ving Senegal were made by the Senegalese Head of State and could
erefore have given rise to some concern on the part of Belgium as to
r. Habré’s possible departure ; whereas the Court nonetheless observes
at those statements, made in interviews given to the press, were clarified
bsequently by other statements emanating from the Head of State (see
ragraph 67 above) ;
71. Whereas the Court further notes that Senegal, both proprio motu
d in response to a question put by a Member of the Court, gave a for-
al assurance on several occasions during the hearings that it will not
ow Mr. Habré to leave its territory before the Court has given its final
cision ;
72. Whereas, as the Court has recalled above, the indication of provi-
 nal measures is only justified if there is urgency ; whereas the Court,
king note of the assurances given by Senegal, finds that, the risk of
eparable prejudice to the rights claimed by Belgium is not apparent on
e date of this Order ;

73. Whereas the Court concludes from the foregoing that there does
 t exist, in the circumstances of the present case, any urgency to justify
e indication of provisional measures by the Court ;

                                * * *

74. Whereas the decision given in the present proceedings in no way
ejudges the question of the jurisdiction of the Court to deal with the
erits of the case or any questions relating to the admissibility of the
pplication, or relating to the merits themselves ; and whereas it leaves
 affected the right of the Governments of Belgium and Senegal to sub-
 t arguments in respect of those questions ;
75. Whereas the present decision also leaves unaffected Belgium’s
 ht to submit in future a fresh request for the indication of provisional

                                                                       20

easures, under Article 75, paragraph 3, of the Rules of Court, based on
w facts ;

                                * * *
76. For these reasons,
THE COURT,
By thirteen votes to one,
 Finds that the circumstances, as they now present themselves to the
ourt, are not such as to require the exercise of its power under Arti-
  41 of the Statute to indicate provisional measures.
 N FAVOUR : President Owada ; Judges Shi, Koroma, Al-Khasawneh, Simma,
  Abraham, Sepúlveda-Amor, Bennouna, Skotnikov, Yusuf, Greenwood ;
  Judges ad hoc Sur, Kirsch ;
AGAINST : Judge Cançado Trindade.

Done in French and in English, the French text being authoritative, at
e Peace Palace, The Hague, this twenty-eighth day of May, two thou-
nd and nine, in three copies, one of which will be placed in the archives
 the Court and the others transmitted to the Government of the King-
 m of Belgium and the Government of the Republic of Senegal, respec-
ely.

igned) President.                        (Signed) Hisashi OWADA,
                                                     President.
                                        (Signed) Philippe COUVREUR,
                                                      Registrar.

Judges KOROMA and YUSUF append a joint declaration to the Order of
e Court ; Judges AL-KHASAWNEH and SKOTNIKOV append a joint sepa-
 e opinion to the Order of the Court ; Judge CANÇADO TRINDADE
pends a dissenting opinion to the Order of the Court ; Judge ad hoc SUR
pends a separate opinion to the Order of the Court.

                                                   (Initialled) H.O.
                                                   (Initialled) Ph.C.

                                                                      21


           SEPARATE OPINION OF JUDGE GREENWOOD

  Procedural obligations under the Statute of the River Uruguay — Whether
Uruguay has violated those obligations — Duty to inform CARU of proposed
works — Duty to notify Argentina — Duty to negotiate in good faith —
Whether steps taken or authorized by Uruguay violate those obligations — Evi-
dence before the Court — Burden of proof — Standard of proof — Relationship
between experts, witnesses and counsel — Continuing obligations of the Parties.

                              TABLE OF CONTENTS

                                                                    Paragraphs

A. URUGUAY’S BREACH OF THE PROCEDURAL OBLIGATIONS UNDER
   THE STATUTE                                                            2-23
      1. The procedure created by Articles 7 to 12 of the Statute          2-9
      2. Uruguay’s failure to comply with Article 7                      10-12
      3. The absence of any other procedural violation                   13-23

B. EVIDENTIAL ISSUES                                                     24-28
      1. Standard of proof                                               25-26
      2. The distinction between experts, witnesses and counsel          27-28
C. THE CONTINUING OBLIGATIONS OF THE PARTIES                                29

211

   1. I agree with most of the Judgment in the present case, in particular,
with its treatment of what I regard as the most important issue before the
Court, namely, whether Uruguay has violated its substantive obligations
under the Statute of the River Uruguay. I agree that, on the evidence
before the Court, Argentina has not established that there has been such
a violation and I concur in the Court’s reasoning on this issue. I also
agree that Uruguay has violated its procedural obligations under the
Statute. Nevertheless, while I have voted for operative paragraph 1 of the
Judgment, I consider that the violation is not as extensive as that set out
 n the reasoning of the Court. In this separate opinion, I wish briefly to
explain why I consider that Uruguay’s procedural breach is more limited.
I also wish to add a few remarks concerning the evidence which the
Parties have placed before the Court, the treatment of that evidence by
 he Court and the continuing nature of the obligations of the Parties
under the Statute.

       A. URUGUAY’S BREACH OF THE PROCEDURAL OBLIGATIONS
                      UNDER THE STATUTE

      1. The Procedure Created by Articles 7 to 12 of the Statute
   2. Articles 7 to 12 of the Statute create a machinery of notification and
consultation which must be followed in respect of “any works which are
 iable to affect navigation, the régime of the river or the quality of its
waters”. That machinery operates in four stages. First, the party propos-
 ng to carry out or authorize the works must inform CARU, which has to
 ake a decision on a preliminary basis as to whether or not the works
might cause significant damage to the other party. If CARU decides that
 hey will not cause such damage, then it is implicit in Article 7 that the
procedure comes to an end and the party concerned may proceed with
 he works. This capacity to give a favourable preliminary decision is the
only sense in which CARU may be said to “authorize” works (although
 he Statute does not describe CARU’s role in those terms).
   3. Secondly, if CARU does not take a favourable decision under Arti-
cle 7 (either because its preliminary conclusion is that the works might
cause significant damage, or because CARU is unable to reach a decision
at all), then Article 7 (2) requires the party proposing the works to notify
 he other party of its plans through CARU. Article 7 (3) stipulates what
 nformation must be supplied. Under Article 8, the other party then has
180 days in which to acquiesce in, or object to, the proposed works. That
period may be extended by CARU. Under Article 9, if the notified party
has not objected by the end of this period, then the notifying party may
carry out or authorize the works planned. On the other hand, if the noti-
fied party does object within this period, then the parties must move to
 he third stage of the procedure.

212

   4. Thirdly, if the notified party does object within the 180 days allowed
 n the second stage of the procedure, then Articles 11 and 12 provide that
 he parties have another 180 days in which to try to reach agreement. It
 s implicit in the Statute that, during this third stage, each party is under
an obligation to negotiate in good faith in an attempt to reach such an
agreement.

   5. Lastly, if the parties fail to reach agreement during the 180 days of
 he third stage, Article 12 provides that the “procedure indicated in Chap-
 er XV shall be followed”. This last provision is not entirely straight-
 orward. Chapter XV contains only one provision — Article 60 — which
gives jurisdiction to the Court in respect of disputes concerning the inter-
pretation or application of the Statute. It is plain, therefore, that, if the
parties are unable to agree, the matter can be referred to the Court. Arti-
cle 60, however, gives the Court jurisdiction only to resolve disputes
regarding the interpretation or application of the Statute and the earlier
Treaty of 1973. Consequently, where a party commences proceedings
 ollowing a failure to agree during the third stage of the procedure, the
Court has to determine whether the proposed works will, if carried out,
contravene any of the substantive obligations in the Statute. It is here
 hat the procedural obligations under Articles 7 to 12 are clearly linked to
 he substantive standards in other provisions (most noticeably Arti-
cle 41 (a)).

   6. Two further observations need to be made. The first is that the pro-
cedure is essentially designed to achieve agreement between the two
parties. The role of CARU is secondary. Although CARU supplies the
mechanism through which the notification and provision of information
 s to take place, its decision-making role is limited to taking a preliminary
decision under Article 7. If that preliminary decision is negative, then the
second stage of the procedure comes into operation and the matter is one
 or bilateral dealings between the parties. In the second stage of the pro-
cedure, CARU’s role is merely to provide a channel for communication
and to take decisions on whether or not to grant an extension of time
under Article 8 (4). Similarly, in the third stage, it is for the parties to
negotiate directly with one another.
   7. Only if CARU takes a favourable preliminary decision (i.e., if it
decides that the proposed works will not cause significant damage to the
other party) will its decision have a substantive effect. In such a case,
 he effect of the CARU decision is to terminate the procedure and leave
 he notifying party free to proceed with the works. Even in that case,
however, it needs to be remembered that CARU works on the basis of a
consensus between the two parties. Under Article 55 of the Statute, each
of the delegations of Argentina and Uruguay has one vote. Since there is
no mechanism for breaking a deadlock, CARU can take a decision only
 f the two delegations (and thus the two States) are agreed. It follows that

213

CARU cannot take a favourable preliminary decision on a party’s pro-
posed works if the other party objects. The procedure for consent and
negotiation created by Articles 7 to 12 is thus essentially bilateral, rather
 han institutional (although other aspects of CARU’s role — in particu-
ar, in relation to monitoring — have more of an institutional character).

   8. The second consideration is that the procedural obligations in Arti-
cles 7 to 12 do not give either party a power of veto. If the party wishing
 o carry out the works cannot secure the agreement (or, at least, the
acquiescence) of the other party (either through the summary first stage
procedure in Article 7 or at either of the second or third procedural
stages), then it may nevertheless proceed with the works. If it does so, it
will not be violating the procedural provisions, although it runs the risk
 hat the other party will refer the matter to the Court under Article 60
and that the Court will hold that the works violate the substantive pro-
visions of the Statute and require it either to restore the status quo or to
pay damages.

   9. The characterization of these provisions as procedural should not
be taken as in any way minimizing their importance. On the contrary,
 hey are an important feature of the system for ensuring the optimum
and rational utilization of the resources of the river through co-operation
between the parties. It follows that a breach of these procedural obliga-
 ions is a serious matter. Moreover, while the parties can agree to depart
 rom all or part of the procedures laid down in Articles 7 to 12, it is not
open to either party unilaterally to bypass those procedures or to declare
 hem inapplicable.

             2. Uruguay’s Failure to Comply with Article 7
   10. In the present case, I agree with the Court that Uruguay failed to
 nform CARU of the proposed works at the time when it was required by
Article 7 (1) of the Statute to do so. In my opinion, a party is obliged to
 nform CARU of proposed works once two conditions are met. First,
 hat party must have in its possession the information necessary to enable
CARU to make the preliminary assessment provided for in Article 7 (1).
That assessment is far more limited than the assessment envisaged in
Article 7 (3). Whereas Article 7 (3) speaks of an assessment of the prob-
able impact of the proposed works, Article 7 (1) envisages only an assess-
ment of whether those works “might cause significant damage to the
other party”, i.e., it is concerned only with the possible impact of the
works. Moreover, the assessment envisaged by Article 7 (1) is to be car-
ried out within a period of only thirty days. Accordingly, less information
 s required for the Article 7 (1) assessment than for that under Arti-
cle 7 (3), and it is likely to be available at an earlier stage in the planning

214

process. Secondly, a party cannot be under an obligation to notify
CARU of proposed works until that party plans to carry out those
works ; in other words it must have formed an intention, however provi-
sional, that the work should proceed beyond the drawing board. Once
 hose two conditions are met, the party concerned is obliged to inform
CARU of the plans in accordance with Article 7 (1).

   11. I agree that that stage was reached in the case of both the CMB
 ENCE) and Orion (Botnia) proposals before there was any agreement
between Argentina and Uruguay to engage in bilateral discussions
and that Uruguay nevertheless did not inform CARU. Uruguay was,
 herefore, in breach of its obligations under Article 7 (1) of the
Statute.
   12. I also agree that Uruguay was in breach of its obligations to notify
Argentina under Articles 7 (2) and (3). The Judgment concludes, in para-
graph 121, that Uruguay violated these provisions because, in each case,
 t issued the initial environmental authorization before it supplied Argen-
 ina with the information required by Article 7 (3). In the case of the
Orion (Botnia) mill, the initial environmental authorization was granted
some six months before Uruguay began to transmit the required infor-
mation. The grant of an initial environmental authorization presupposes, if
 he State concerned is conscientious in its application of the requirements
of the Statute, that it has at that stage the information necessary to make
an assessment of the probable environmental impact of the proposed
works. The duty to notify the other party is, therefore, applicable no later
 han this stage.

           3. The Absence of any other Procedural Violation
   13. I do not agree, however, with the conclusion, in paragraphs 143 to
150 of the Judgment, that Uruguay violated its obligations under the
Statute by the steps which it took to authorize work on the two mills
before the end of the third, negotiation, stage of the procedure in Arti-
cles 7 to 12. There is no doubt that the Statute limits what steps a party
may lawfully take in respect of proposed works during that stage. First,
Article 9 provides that “[i]f the notified party raises no objections or does
not respond within the period established in Article 8, the other party
may carry out or authorize the work planned”. It is implicit in that provi-
sion that the party may not carry out or authorize the work planned dur-
 ng the period established in Article 8 (the second stage) or, if the notified
party does object within that period, during the period reserved for nego-
 iations under Articles 11 and 12 (the third stage). Secondly, as the Court
points out, the parties have a duty to negotiate in good faith during the
 hird stage of the procedure and for one party to take steps to carry out

215

or authorize the carrying out of the proposed works while the negotia-
 ions of which those works are the subject are taking place may be con-
 rary to that duty. I will consider each of those limitations in turn.

   14. In order to understand the scope of the implied prohibition in
Article 9, it is necessary to consider the purpose of the procedures estab-
 ished by Articles 8 to 12. These are designed to ensure that one party to
 he Statute does not carry out works the probable impact of which will be
 o cause significant adverse effects (as defined elsewhere in the Statute)
upon navigation, the régime of the river or the quality of its waters with-
out first engaging in the information and negotiation process prescribed
by the Statute. It would defeat that purpose if that party were to take
steps which themselves had such a probable impact while the process was
still running its course. The implied restriction in Article 9 is designed to
prevent that from occurring. However, engaging in preliminary steps
such as clearing vegetation from a proposed site, levelling the land or pre-
paring foundations is unlikely in itself to have any adverse impact on
navigation, the régime of the river or the quality of its waters and, if it
does not do so, then I cannot see how it would run counter to the pur-
pose of this part of the Statute. Nor would taking such steps naturally be
considered as “carrying out” the proposed works, since that term sug-
gests a far more extensive and complete operation. Of course, the party
which takes such preliminary steps runs the risk that they may prove to
have been wasted if the proposed works are not, in the end, carried out,
but that does not mean that the taking of those steps is itself a violation
of the Statute.
   15. The implied requirement not to “authorize the work planned”
must, in my view, be read in the same way. As the history of the Orion
 Botnia) mill demonstrates, the process of authorization will frequently
have many different steps. What Article 9 seems to me to prohibit, during
 he second and third stages of the procedure laid down by the Statute, is
granting the authorization actually to carry out the work planned. That,
again, would exclude the authorization of preparatory steps, provided
 hat those steps did not themselves involve the risk of one or more of the
effects described in the Statute.

   16. Secondly, the duty to negotiate in good faith, as paragraphs 145
and 146 of the Judgment point out, is firmly rooted in general interna-
 ional law. While that duty does not amount to a requirement that the
negotiations lead to any particular outcome, it does require that the
parties to the negotiations must conduct themselves in such a way that
 he negotiations are meaningful (North Sea Continental Shelf (Federal
Republic of Germany/Denmark ; Federal Republic of Germany/Nether-
 ands), Judgment, I.C.J. Reports 1969, p. 47, para. 85). In the context of

216

negotiations under Article 12 of the Statute, I agree with what is said in
paragraph 147 of the Judgment, that
      “there would be no point to the co-operation mechanism provided
      for by Articles 7 to 12 of the 1975 Statute if the party initiating the
      planned activity were to authorize or implement it without waiting
      for that mechanism to be brought to a conclusion. Indeed, if that
      were the case, the consultations and negotiations between the parties
      would no longer have any purpose.”
   However, I do not agree that taking preparatory steps, such as clearing
vegetation from the proposed site of a mill, amounts to the “implementa-
 ion” of the planned activity. The conclusion, in paragraph 148 of the
Judgment, that such preparatory action constitutes “an integral part of
 he construction of the planned mills” and therefore must necessarily be
seen as incompatible with the duty to negotiate in good faith is unjusti-
fied. If both parties are negotiating in good faith, the outcome may well
be an agreement that the proposed works can proceed (albeit, perhaps,
with modifications). Moreover, if the negotiations do not result in agree-
ment within the prescribed 180-day period, then, as paragraphs 151 to
158 of the Judgment make clear, the party which has proposed those
works may proceed subject to the risk that the other party may bring the
matter to the Court which may conclude that the works contravene
 he substantive provisions of the Statute. In my opinion, a party can
engage in good faith in negotiations which are meaningful while still
 aking preparatory steps to ensure that it is ready to proceed with the
works if the negotiations result in agreement that they may be carried
out, or if no agreement is reached within the prescribed period. To
 ake such steps is not, in itself, contrary to the duty to negotiate in
good faith. Only if the negotiating record as a whole shows that the
party concerned did not intend to engage in meaningful negotiations
would the Court be justified in concluding that that duty had been
breached.

   17. The question, therefore, is whether the steps which Uruguay
authorized before the end of the period for negotiation contravened the
prohibition implicit in Article 9 or the duty to negotiate in good faith. In
my opinion, they did not.
   18. In the case of the CMB (ENCE) mill, construction never took
place. Neither the initial environmental authorization, issued on 9 Octo-
ber 2003, nor the environmental management plan approval, granted on
28 November 2005, was an authorization to “carry out” the project. The
 nitial environmental authorization did not permit construction of the mill.
Further permits were required before that could be done. The lengthy
process followed in the case of the Orion (Botnia) mill, which —
unlike CMB (ENCE) — was completed, is a reminder of how many
 urther authorizations were required by Uruguay before construction of
 he mill itself could begin. The 28 November 2005 approval was limited

217

 o clearing the ground of vegetation and did not permit construction (as
paragraph 36 of the Judgment makes clear). In my opinion, the steps
authorized by Uruguay were too limited in scope to amount to a breach
of Article 9 or to demonstrate that Uruguay was not negotiating in good
 aith.

   19. In the case of the Orion (Botnia) mill, the picture is more
complicated. I agree with paragraphs 138 to 141 of the Judgment that the
agreement between Argentina and Uruguay to establish the High-Level
Technical Group, known as the GTAN, was an agreement to create a
mechanism to enable the negotiations required by Article 12 of the Stat-
ute to take place. It follows that the subsequent exchanges within the
GTAN constituted the third stage of the procedure outlined in para-
graph 4 above. I also agree that by establishing this mechanism Argen-
 ina neither consented to the construction of the mill nor waived its other
procedural rights under the Statute. However, I do not agree that the
steps which Uruguay took regarding the Orion (Botnia) mill during the
period of negotiations in GTAN amounted to a violation of Article 9 or
 he duty to negotiate in good faith under Article 12 of the Statute.

  20. The initial environmental authorization for the mill, granted on
14 February 2005, was not an authorization to construct and pre-dated
 he establishment of the GTAN. Since Argentina was well aware of this
authorization when it agreed to the establishment of the GTAN, it evi-
dently did not consider that the granting of the authorization precluded
meaningful negotiation. Similarly, the environmental management plan
approval, given on 12 April 2005, was for preliminary work only and
again predated the agreement to establish the GTAN negotiating
mechanism.

   21. There followed two more significant steps. On 5 July 2005 Uru-
guay gave authorization for the construction of a port adjacent to the
proposed site of the mill. This step occurred after the establishment of the
GTAN but before the first of the twelve meetings held as part of the
GTAN process took place on 3 August 2005. This action on Uruguay’s
part scarcely provided an auspicious start to the GTAN meetings but it
was the mill, not the port, which was the subject of controversy and I do
not think this step constituted a violation of Article 9 or of the duty to
negotiate in good faith. More important was the approval, on
22 August 2005, of the construction of a chimney and concrete founda-
 ions for the mill. This measure permitted Botnia to take an important
step towards the construction of the mill but it still fell far short of
authorization to carry out the works as a whole. Even after everything
approved by this measure was complete, most of the work of construc-
 ion remained and several more authorizations still had to be obtained.

218

Nor did the actions approved on 22 August 2005 themselves create a risk
of damage to the aquatic environment.

   22. Uruguay’s approval for the construction of the mill itself, given
on 18 January 2006, is of an entirely different character and would be
capable of violating Article 9 and the duty to negotiate in good faith
had it occurred while the 180-day period for negotiations had not yet
expired. In fact, it did not do so. It is true that, as Argentina has
argued, the first GTAN meeting occurred only on 3 August 2005, so
 hat, if the 180-day period prescribed by Article 12 of the Statute
started to run only on that date, it would have ended on 30 January
2006 (the day on which the final GTAN meeting was held). However,
 he GTAN process was actually established by the two Foreign
Ministries on 31 May 2005 (following an agreement in principle
between the two Presidents on 3 May 2005). The press release issued
by the foreign ministries on 31 May 2005 recording their agreement
expressly stated that the GTAN was to produce its report within
180 days (the period stipulated in Article 12 of the Statute), which
strongly suggests that the 180-day period was to run from the date of
 he agreement, not the (then unknown) date of the first GTAN
meeting. If the 180-day period is measured from the date of the
establishment of GTAN, then it had already come to an end before the
authorization to construct the mill was given. Moreover, even if that
 nterpretation is incorrect, on 14 December 2005 the Foreign Ministry
of Argentina handed a Diplomatic Note to the Ambassador
of Uruguay in which it stated that the negotiations having failed to
produce an agreement, a dispute existed between the two States,
 hus paving the way for the process in Article 60 of the Statute
 i.e., reference to the Court). In the light of this communication, it is
clear that Argentina regarded the negotiations as having reached an
 mpasse. Uruguay’s authorization of construction on 18 January 2006
cannot, therefore, be seen as undermining a negotiating process
which its negotiating partner had already declared to have been
unsuccessful.

   23. In these circumstances, I cannot agree with the Court’s conclusion
 at paragraph 149 of the Judgment) that “by authorizing the construction
of the mills and the port terminal at Fray Bentos before the expiration of
 he period of negotiation, Uruguay failed to comply with the obligation
 o negotiate laid down by Article 12 of the Statute”.

                          B. EVIDENTIAL ISSUES

   24. I agree with the Court’s finding that the evidence before it does not
establish that Uruguay has violated the substantive provisions of the

219

Statute. I also agree with the Court’s reasoning regarding the burden
of proof. The nature of the case and of the obligations under the
Statute does not alter the fundamental principle that, in proceedings
before the Court, the burden of proving any given fact rests on the party
asserting that fact. I am also in full agreement with the Court’s analysis
of the evidence before it and the way in which it went about the assess-
ment of that evidence. On that last matter, I share the views expressed by
Judge Keith in his separate opinion. I want only to add two brief com-
ments regarding evidential issues.

                            1. Standard of Proof
   25. First, while I agree with what the Court has said about the burden
of proof, I think it is also important to have regard to the standard of
proof, i.e., what a party must do in order to discharge the burden of
proof when that burden rests upon it. International courts and tribunals
have avoided the distinction between criminal and civil standards of
proof familiar to common law (which requires proof beyond reasonable
doubt in criminal cases and proof only on a balance of probabilities in
civil cases). The Court has, however, indicated in Application of the Con-
vention on the Prevention and Punishment of the Crime of Genocide (Bos-
nia and Herzegovina v. Serbia and Montenegro) (Judgment, I.C.J.
Reports 2007 (I), pp. 129-130, paras. 208-210) that charges of conduct as
grave as genocide require “proof at a high level of certainty appropriate
 o the seriousness of the allegation” (ibid., para. 210). It is implicit in that
statement that a lower standard of proof is acceptable in the case of
other, less grave, allegations.

  26. The present case seems to me to fall squarely within the category
of cases which calls for a lower standard of proof. While allegations that
a State has violated environmental obligations under a treaty concerning
a shared watercourse are undoubtedly serious, they are not of the same
character as the allegations in the Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herze-
govina v. Serbia and Montenegro) case. Moreover, the nature of envi-
ronmental disputes is such that the application of the higher standard of
proof would have the effect of making it all but impossible for a State to
discharge the burden of proof. Accordingly, I believe that Argentina was
required to establish the facts which it asserted only on the balance of
probabilities (sometimes described as the balance of the evidence). I
agree, however, that it has not done so.

220

      2. The Distinction between Experts, Witnesses and Counsel

  27. Secondly, I wish to record my strong agreement with the Court’s
remarks, at paragraph 167 of the Judgment, regarding the practice of
having persons who provide evidence before the Court (based, in this
case, upon their research, observations and scientific expertise) address
 he Court as counsel. The distinction between the evidence of a witness or
expert and the advocacy of counsel is fundamental to the proper conduct
of litigation before the Court (as it is before other courts and tribunals).
A witness or expert owes a duty to the Court which is reflected in the
declaration required by Article 64 of the Rules of Court. The duties of
someone appearing as counsel are quite different. Moreover, a person
who testifies, whether as an expert, a witness or in both capacities, can be
questioned by the other party and by the Court. For a person who is
going to speak of facts within his own knowledge or to offer his expert
opinion on scientific data to address the Court as counsel is to circum-
vent these provisions of the Rules and, in the words of the late Sir Arthur
Watts, unacceptably to blur the distinction between evidence and
advocacy (Arthur Watts, “Enhancing the Effectiveness of Procedures of
International Dispute Settlement” in : J. A. Frowein and R. Wolfrum
 eds.), Max Planck Yearbook of United Nations Law, Vol. 5, 2001,
pp. 29-30). The problem is particularly acute where, as in the present
case, some of those who addressed the Court as counsel had been
actively and closely involved in the preparation of scientific reports
which were part of the evidence before the Court. For those persons
 o address the Court as counsel, rather than giving evidence as
witnesses or experts, was both unhelpful to the Court and unfair to the
other Party.

  28. In the present case, any unfairness was mitigated by the fact that
both Parties engaged in the same practice. The issue of principle, how-
ever, remains and I am pleased that the Court has unequivocally indi-
cated that such a practice should not be repeated in future cases.

           C. THE CONTINUING OBLIGATIONS OF THE PARTIES

   29. Courts and tribunals are necessarily required to focus for most of
 he time upon the events of the past. In the present case, the Court has
concluded that Uruguay’s conduct to date has violated its procedural
obligations under the Statute but has not violated its substantive obliga-
 ions and that the declaration of a procedural breach is the only remedy
which it is appropriate for the Court to grant. It should, however, be
clearly understood that the Court is not saying that this is the end of the
matter. The Statute imposes upon both Parties important obligations of a

221

continuing character (to which the Court has drawn attention in para-
graph 266 of the Judgment). Uruguay has a continuing obligation, under
Article 41 of the Statute, to prevent pollution in the River Uruguay and
 hus to maintain a system of monitoring and strict controls in respect of
any discharges from the Orion (Botnia) plant. Both Parties have a duty
 o co-operate, within the framework of CARU, and CARU itself has an
 mportant role to play both in setting standards and in monitoring. The
Statute which the Parties agreed upon in 1975 was a remarkably forward-
 ooking instrument. In several respects it was ahead of its time and
 s a tribute to the determination of the two States to protect an aquatic
environment of great importance to them both. As the Court has
remarked, in paragraph 281 of the Judgment, until the present case the
machinery created by the Statute had worked well without any need to
refer matters to the Court. The Parties have a duty to co-operate to
ensure that that machinery continues to work well in the future.

                                  (Signed) Christopher GREENWOOD.

222


845

DÉCLARATION DE M. KOROMA
[Traduction]

En lespéce, la Cour est peut-être saisie des affaires les plus graves dont
elle ait eu à connaître aux fins de prononcer une ordonnance de ne pas
faire. En vertu de l’article 41 du Statut de la Cour, une demande en indi-
cation de mesures conservatoires a obligatoirement pour objet de dire
quelles mesures conservatoires du droit de chacun doivent être prises
dans l'attente de la décision définitive de la Cour. Dans la pratique, ces
mesures sont adoptées pour empêcher la violence, l'emploi de la force,
pour préserver la paix, de même qu'elles constituent un aspect important
du processus de règlement des différends qu’envisage la Charte. Quand il
est censé exister un risque de préjudice irréparable, ou que la poursuite de
Paction pourrait aggraver ou étendre le différend, Vindication des me-
sures demandées est d’autant plus indispensable. Il s’agit donc là de l’une
des fonctions les plus importantes de la Cour.

La Cour ne peut toutefois indiquer ces mesures que conformément à
son Statut. À cet égard, la Cour en est venue à considérer que le critère de
jugement est pour elle d'établir si elle est compétente prima facie et
quand, à son avis, elle estime n’étre pas compétente en l’espèce ou que
d’autres circonstances prennent pour elle le pas, la Cour a pour jurispru-
dence de ne pas indiquer les mesures conservatoires demandées.

En revanche, la conclusion qu’énonce la Cour quand elle dit que le dif-
férend entre la Yougoslavie et certains des Etats défendeurs a surgi avant
le 25 avril 1999 et qu’en conséquence, il n'entre pas dans le champ de la
compétence obligatoire de la Cour telle que la Yougoslavie l’a acceptée
aux termes de sa déclaration ne nous paraît pas exacte, moins encore
défendable sur le plan juridique. La position qu'il faut adopter du point
de vue juridique, à mon sens, est celle qu’adopte la Commission du droit
international à l’article 25 de son projet d’articles sur la responsabilité des
Etats. L’article en question se lit comme suit:

«La violation d’une obligation internationale par un fait de l'Etat
composé d’une série d’actions ou omissions relatives à des cas dis-
tincts se produit au moment de la réalisation de celle des actions ou
omissions de la série qui établit existence du fait composé. Toute-
fois, le temps de perpétration de la violation s’étend sur la période
entière à partir de la première des actions ou omissions dont l’en-
semble constitue le fait composé non conforme a Pobligation inter-
nationale et autant que ces actions ou omissions se répétent.»
(Annuaire de la Commission du droit international, 1978, vol. II,
deuxiéme partie, art. 25, p. 101.)

Autrement dit, et comme il est indiqué du reste dans le commentaire de

23
LICÉITÉ DE L'EMPLOI DE LA FORCE (DECL. KOROMA) 846

l’article, le moment où la violation est commise n’est pas limité au
moment où l’action commence, il s'étend sur toute la période pendant
laquelle l’action est réalisée et continue d’exister contrairement aux pres-
criptions de l'obligation internationale. Par conséquent, quand elle estime
que la Yougoslavie n’a pas établi l'existence d’un différend précis qui se
distingue du précédent et a surgi postérieurement au 25 avril 1999, la
conclusion de la Cour ne me paraît pas justifiée en droit.

Néanmoins, en sa qualité d’organe judiciaire principal des Nations
Unies dont la raison d’être demeure au premier chef de préserver la paix
et la sécurité internationales, la Cour a l'obligation concrète de favoriser
le maintien de la paix et de la sécurité internationales et de proposer un
cadre judiciaire aux fins de la solution d’un différend d’ordre juridique,
surtout quand il s’agit d’un différend qui non seulement menace la paix et
la sécurité internationales mais cause également de terribles souffrances
et, constamment, des pertes en vies humaines ainsi que la désintégration
de toute vie collective normale. Ces circonstances prenant le pas sur tout
le reste dans le cas du présent différend, la Cour a eu raison, à mon
avis, de décider de ne pas rester silencieuse. J’ai donc, comme d’autres
membres de la Cour, souscrit à un appel au règlement pacifique de
ce litige, conformément à l’article 33 de la Charte, et prié les Parties de
veiller à ne pas aggraver ni étendre le différend, de veiller à respecter le
droit international, y compris le droit humanitaire ainsi que les droits
de Phomme dont jouissent tous les ressortissants yougoslaves.

(Signé) Abdul G. KOROMA.

24


69

       DECLARATION OF JUDGE AD HOC FLEISCHHAUER

   1 agree with the Court's decision to uphold the second prelîminary
objection of Germany and with the Court's reasoning that led to this
decision, as expressed in paragraphs 28 to 52 of the Judgment. Having
upheld Germany's second preliminary objection, it follows logically that
the Court is not required to consider Germany's third, fourth, firth and
sixth prelîminary objections "and that it cannot rule on Liechtenstein's
daims on the merits" (Judgment, para. 53).
   1 have, however, sorne remarks to make on the considerations which
brought the Court to the conclusion that "there is a legal dispute"
between Liechtenstein and Germany (Judgment, para. 25). Here 1 would
lîke to state that the finding of the Court that there is a legal dispute
between Liechtenstein and Germany does not of course imply that Liech-
tenstein's position in this dispute is in any way better than Germany's
position. This does not follow From the text of the decision and was not
a point ta be decided at the present stage of the proceedings.

     Moreover, 1 cannat follow the Court where it says that it
       "further notes that Germany's position taken in the course of bi-
       lateral consultations and in the letter by the Minister for Foreign
       Affairs of 20 January 2000 has evidentiary value in support of the
       proposition that Liechtenstein's daims were positively opposed by
       Germany and Ihat this was recognized by the latter" (ibid.).

1 think that these words would reveal themselves as introducing too low
a standard into the determination of the existence of a dispute and there-
fore have negative effects on the readiness of States ta engage in attempts
at peaceful settlements of disputes.

                                  (Signed) Carl-August FLEISCHHAUER.

67