                                                                             903

            SEPARATE OPINION OF JUDGE ABRAHAM

[Translation]

   Agreement with the part of the Judgment dealing with the various aspects of
the dispute other than sovereignty over the three islands — Disagreement as to
this last aspect — Main difficulty in the case : drawing the line between those
issues appertaining to the preliminary phase and those which cannot be decided
until after the proceedings on the merits — Unusualness, in this regard, of the
provisions of the Pact of Bogotá — Date by reference to which it should be
determined whether the conditions in Article VI of the Pact have been fulfilled
— Question whether an invalid treaty can be regarded as being in force for pur-
poses of Article VI — Question of the validity of the 1928 Treaty creating dif-
ficulties which the Court was unable to address with all the necessary informa-
tion at the preliminary stage — Exclusiveness of the Pact of Bogotá in respect
of judicial settlement of disputes between States parties to the Pact — Impos-
sibility of asserting, without distorting the notion of dispute, that there is no
extant dispute between the Parties as to sovereignty over the three islands —
Need to avoid confusing the merits and jurisdiction.

   1. In this case the Applicant — Nicaragua — invoked two bases of
jurisdiction, each of which sufficient, in its view, to establish the jurisdic-
tion of the Court : Article XXXI of the Pact of Bogotá and the Parties’
optional declarations under Article 36 of the Statute of the Permanent
Court of International Justice. The Respondent — Colombia — disputed
both bases and asked the Court to find that it lacked jurisdiction.

   2. The Court considered this objection to jurisdiction first as asserted
against reliance on Article XXXI of the Pact of Bogotá (this is what the
Court has called, for the sake of convenience, the “first preliminary
objection”) and then as asserted against reliance on the optional clause
declarations (which it has called the “second preliminary objection”). The
Court examined each of the two objections (or prongs of a single objec-
tion) as thus defined by distinguishing, as indeed it needed to do, the vari-
ous subject-matters (or “aspects”, as they are called in the Judgment) of
the dispute. It is obvious that, when a claim dealing simultaneously with
a number of subjects is before the Court, the Court may very well have
jurisdiction over only some of them. It follows that, where the Court is
called upon to rule on a preliminary objection to jurisdiction in such a
case, it cannot limit itself to an examination in the aggregate but must
ascertain as to each subject-matter (or “aspect”) of the claim whether the
objection is well founded (and, correlatively, whether the Court’s juris-
diction has been established).
   3. This approach led the Court, rightly in my opinion, to distinguish

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three “aspects” of Nicaragua’s case capable of being dealt with separately
in respect of the jurisdictional issue : sovereignty over the three islands
named in Article I of the 1928 Treaty between the Parties (San Andrés,
Providencia and Santa Catalina) ; sovereignty over the other disputed
maritime features ; and, lastly, the maritime delimitation along the median
line between the coasts of the two States.

   In respect of the “first objection to jurisdiction”, the Court concluded
that Article XXXI of the Pact of Bogotá afforded it a title of jurisdiction
over the second and third aspects as thus distinguished — and that the
objection had to be rejected pro tanto ; but that the Article, in joint opera-
tion with the other relevant provisions of the Pact of Bogotá, did not pro-
vide a basis for the Court to entertain Nicaragua’s claim to the “three
islands” — and that the objection had to be upheld to this extent.

   In respect of the “second objection to jurisdiction”, the Court con-
cluded, first, that the optional clause declarations similarly failed to pro-
vide any basis for its jurisdiction to decide the issue of sovereignty over
the “three islands” and, second, that logic dictated that it need not exam-
ine this objection in respect of the other aspects of the dispute, as it had
already concluded that Article XXXI of the Pact of Bogotá conferred
upon it a sufficient title of jurisdiction over them.

   4. I concur both in the operative clause and in the core reasoning in
the Judgment in respect of those aspects of the dispute other than sov-
ereignty over the “three islands” : the Court has jurisdiction over them
pursuant to the Pact of Bogotá, and there was therefore no need to con-
sider whether it was afforded a further title of jurisdiction by the optional
clause declarations.
   On the other hand, I regret having to part ways with the Judgment in
respect of its treatment of Nicaragua’s claim to sovereignty over the
“three islands”. Indeed, I voted against subparagraph 1 (a) of the opera-
tive clause, upholding the objection to jurisdiction on this point, for I
believe that the Court should have declared that, in the circumstances of
the case, the objection did not possess an exclusively preliminary charac-
ter — in so far as it concerned this aspect of the dispute. And, while also
concluding that the Court lacks jurisdiction over that question under the
optional declarations (I voted in favour of subparagraph 2 (a) of the
operative clause), I do so for reasons completely different from those set
out in the Judgment, which strike me as juridically flimsy.

   5. Before going into my reasons in some detail, I wish to devote a few
words to describing the main difficulty encountered by the Court in this
case (at this stage in the proceedings), one which in my opinion it did not
resolve very successfully. That was to draw the line between issues falling
strictly within the ambit of preliminary objections, which the Court can
and must decide in the preliminary stage of the proceedings, and those

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involving the merits, which the Court must reserve for subsequent deci-
sion after the Parties have had the opportunity to plead their cases in
full.
   6. There is, of course, nothing new or unusual about this difficulty. It
is a known fact that jurisdictional issues, admissibility issues and substan-
tive issues are not hermetically separated categories and that, in answer-
ing an objection to jurisdiction or admissibility, the Court is sometimes
obliged to “touch upon” the merits of the dispute, as the Permanent
Court of International Justice recognized as early as 1925 (Certain Ger-
man Interests in Polish Upper Silesia, Jurisdiction, Judgment No. 6,
1925, P.C.I.J., Series A, No. 6, p. 15). The Court cannot shy away from
the occasional need to take up substantive points on which its jurisdiction
or the admissibility of an application may hinge, but it must at the same
time be careful to avoid deciding the dispute on the merits in the judg-
ment in which it is supposed to deal with objections to jurisdiction or
admissibility, the proceedings on the merits being suspended. Indeed, this
is why Article 79, paragraph 9, of the Rules of Court does not restrict the
Court to the binary choice of either upholding or rejecting a respondent’s
objection, but also gives it the option of declaring that the objection does
not possess an exclusively preliminary character, meaning that it can only
be decided after the proceedings on the merits. In general, the Court had,
until now, been adroit and judicious in applying these provisions.

  7. It has not been so in the present case. In my view, this is ascribable
primarily to the fact that the Court succumbed to the unfortunate influ-
ence of the unusual provisions it had to deal with.

   I am referring to Articles VI and XXXIV of the Pact of Bogotá read in
conjunction. Article VI provides that the procedures for judicial settle-
ment, which the Pact seeks to foster, may not be applied to, among other
things, “matters already settled by arrangement between the parties” or
“which are governed by agreements or treaties in force on the date of the
conclusion of the present Treaty”. Article XXXIV states that, in cases
described in Article VI, the International Court of Justice must declare
itself “to be without jurisdiction to hear the controversy”.
   8. In what way are these provisions unusual? Certainly not in express-
ing the desire on the part of the States having negotiated the Pact to pre-
vent the judicial procedures from being used to upset states of affairs
established by treaties in force. What State would accept seeing its rights
under a duly applicable treaty contested in legal proceedings ? And what
international court would agree to being asked to frustrate the principle
pacta sunt servanda ? To the best of our knowledge, the judicial settle-
ment procedures are aimed at giving full effect to treaties or agreements
in force between the Parties (in so far as the dispute lies within the scope
of the treaties or agreements), not at impeding their implementation.

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   The originality of the provisions in question thus does not lie in the
rejection which they articulate, and which would even be self-evident, of
any challenge to treaties concluded between the States parties to the Pact
— provided that those treaties are valid, a point to which I shall return.
It lies precisely in the following : the fact that the provisions of a treaty in
force defeat the claims made by a State before the Court is a ground,
under Article XXXIV of the Pact, for the Court’s lack of jurisdiction,
whereas under the general régime this fact would justify rejecting the
claims on the merits.
   In other words, in the special system established by the Pact, what
would be strictly a question on the merits under the general régime (for
example, where the Court is seised solely on the basis of optional clause
declarations), i.e., the question whether one State’s claim against another
accords or conflicts with treaty provisions in force in their relations, is
transmuted into a question of jurisdiction.
   9. Here, for example, the issues whether the 1928 Treaty awards
Colombia sovereignty over the islands and other maritime features
claimed by Nicaragua and whether the Treaty establishes the maritime
delimitation, as Colombia claims, along a dividing line different from
that advocated by Nicaragua would ordinarily be treated as substantive
questions, certainly not as questions pertaining to the jurisdiction of the
Court. But, seen through the prism of the Pact of Bogotá, they are (also)
jurisdictional issues, since they involve the question whether Nicaragua’s
claim concerns matters which have been “settled” or are “governed” by
treaties in force. Confusion between the merits and jurisdiction thus
becomes inevitable to some extent.

   10. The Court should not however have fallen prey to this confusion
to the degree that it did. Granted, it had to apply the relevant provisions
of the Pact of Bogotá in examining the Respondent’s objection to juris-
diction denying the Applicant’s claim that a title of jurisdiction existed
under the Pact. But it was also for the Court to ensure respect for the
fundamental principles governing procedure before it, as they derive
from its Statute and the Rules of Court, especially since the Pact of
Bogotá itself refers to the Statute of the Court (as rightly pointed out in
the Judgment, para. 59). Among these principles is the distinction to be
made between those matters which must be dealt with in the preliminary
examination of jurisdiction and admissibility and those which cannot be
decided until completion of the proceedings on the merits.
   11. The Court’s task was undeniably not an easy one, consisting as it
did in striking the right balance, the best possible reconciliation, between
the special provisions of the Pact of Bogotá and the fundamental princi-
ples governing procedure before the Court, when they seem, to say the
least, not readily in harmony.
   How did the Court acquit itself of its task ? Unsatisfactorily, in my
opinion. On a number of occasions in the Judgment, the Court needlessly
decides substantive questions which would more wisely have been reserved

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for the subsequent proceedings. Thus, it did not do its utmost to main-
tain the greatest possible separation between its examination of jurisdic-
tion and the judgment on the merits. The confusion culminates, in my
view, in the Court’s response to the second preliminary objection, where,
even though the Pact of Bogotá no longer forms the framework, the
Court relies in declining jurisdiction on reasoning going to the merits.

  I shall now take up these various points, along with a few others.

                     I. FIRST PRELIMINARY OBJECTION

   12. In its first preliminary objection (or the first prong of its single pre-
liminary objection, but no matter), Colombia denied that the Pact of
Bogotá furnished a basis for the Court’s jurisdiction in the present case,
arguing that the questions raised by Nicaragua in its claim had all been
settled by the 1928 Treaty and the 1930 Protocol (or rather, in the exact
words of Article VI of the Pact of Bogotá, that these matters were “gov-
erned” by the Treaty and Protocol, but I concur in the statement in para-
graph 39 of the Judgment that there is no difference for purposes of the
case between the terms “governed” and “settled”).

   13. As Article VI of the Pact bars the application of judicial settlement
procedures only to those matters governed (or settled) by “agreements or
treaties in force on the date of the conclusion of the present Treaty”, the
Court, in responding to this objection, needed to determine whether the
1928 Treaty was “in force” on the date referred to, i.e. 30 April 1948.
   But, in doing so, the Court’s obligations in respect of that part of the
claim relating to the three islands named in Article I of the 1928 Treaty
(San Andrés, Providencia and Santa Catalina) were different from those
in respect of the other aspects of the dispute — that is to say, all the rest.

   I shall begin with the “other aspects”, even though they are dealt with
in the Judgment after the question of the three islands. This is in no way
intended as criticism ; the order of treatment makes no difference.

A. Aspects of the Dispute other than Sovereignty over the Three Islands :
the Rest of the San Andrés Archipelago, the Cays of Roncador,
         Quitasueño and Serrana, the Maritime Delimitation
   14. In respect of these aspects of the dispute, I fully subscribe to the
finding made in the Judgment that, contrary to Colombia’s contention,
none of these matters can be deemed to have been “settled” or “gov-
erned” by the 1928 Treaty.
   15. One important consequence follows : in respect of these aspects of
the dispute, there was no need for the Court to decide whether the 1928
Treaty was “in force” in 1948, or, a fortiori, whether its validity might be

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         TERRITORIAL AND MARITIME DISPUTE (SEP. OP. ABRAHAM)               908

affected by the circumstances under which it was concluded. In order for
the Court’s jurisdiction to be excluded pursuant to the joint operation of
Articles VI and XXXIV of the Pact of Bogotá (in other words, in order
for the Court to uphold an objection to jurisdiction grounded on these
provisions), two conditions must both be met :

— the matter submitted to the Court by the Applicant State must be
  governed (or settled) by a treaty binding on the two Parties ; and
— the treaty must have been “in force” on the date the Pact was con-
  cluded, i.e. in 1948.
If the first of these two conditions is not satisfied, and it is not in respect
of any of the aspects of the dispute other than sovereignty over the three
named islands, there is no need to determine whether the second condi-
tion is met. Although the “question whether the 1928 Treaty was in force
in 1948” is examined in the Judgment — and answered in the affirmative
— before consideration is given to Nicaragua’s various claims (the claim
in respect of sovereignty over the “three islands” as well as the others), it
is patently clear that as to those other claims the answer given to the
question set out above is devoid of effect, since the Judgment goes on to
explain that the Treaty settles nothing in respect of them.
   I therefore agree with the Court’s conclusion on the “other aspects” of
the dispute, even though, as explained below, it is my opinion that the
Court should not have ruled at this time on the question whether the
1928 Treaty was “in force”.

   16. There is however one point which is not so certain.
   It is addressed at the beginning of the examination of the first prelimi-
nary objection (paras. 45-52), and in reality it bears on all the issues
argued under the first objection, that is to say the Court’s jurisdiction
over not only the matter of the “three islands” but also the “other
aspects” of the dispute. The point is whether Colombia’s first objection
possessed an exclusively preliminary character, and therefore whether a
definitive decision on it should have been made at this stage in the pro-
ceedings.
   17. To my thinking, the answer was not self-evident, even in regard to
the aspects of the dispute other than sovereignty over the “three islands”
(I shall return a bit later to the question in respect of this aspect).
   In finding that the 1928 Treaty did not settle any of the issues in ques-
tion (the rest of the archipelago, the three cays, the maritime delimita-
tion), the Court decides matters that not only are not extraneous to the
merits of the case but that even lie, at least in part, at the heart of the
arguments which the Parties are in all likelihood preparing to present to
the Court in the proceedings on the merits. For example, on the subject
of the maritime delimitation, Colombia’s position on the merits is based
to a significant degree on the 1928 Treaty and the 1930 Protocol, as the
Respondent interprets them (and I concur with the Court in finding that

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interpretation unpersuasive). In rejecting that interpretation, and doing
so categorically (para. 120), the Court clearly does more than “touch
upon” — to use the term employed in the classic jurisprudence — issues
on the merits.
   18. That said, I concur with the Judgment in the proposition that the
mere fact that the Court, in examining a jurisdictional objection, is
required to take a position on certain questions on the merits does not ipso
facto mean that it is prevented from ruling on the objection in the prelimi-
nary phase or that it must “join the objection to the merits” (as the Rules
of Court previously stated) or defer consideration of the objection until
the decision following the proceedings on the merits by declaring that it
does not possess an “exclusively preliminary” character (as now pro-
vided). The Court’s case law stands in clear opposition to such a restric-
tive approach to “preliminary objections”.
   19. The fact remains that the Court was once again confronted with
the issue of determining what it means for an objection “not [to] possess,
in the circumstances of the case, an exclusively preliminary character”,
within the meaning of Article 79, paragraph 9, of the Rules of Court.
   20. I subscribe by and large to the statement appearing in para-
graph 51 of the Judgment and distinguishing a principle and exceptions
to it.
   The principle holds that “a party raising preliminary objections is enti-
tled to have these objections answered at the preliminary stage of the pro-
ceedings”. Thus, it is only in special circumstances that the Court must
defer examining an objection to jurisdiction or admissibility until later
(after the proceedings on the merits).
   The Judgment then identifies two exceptions to this principle (in my
view, it is ill-advised to present them as exhaustive, as the Judgment does,
since the possibility of other special circumstances cannot be excluded ;
but these two are undoubtedly the most important). The first is where the
Court does not have before it all facts necessary to decide the questions
raised, in particular because it has not been sufficiently enlightened by the
debate between the Parties in the preliminary phase. In such a case,
sagacity calls for refraining from rashly settling issues which cannot be
appreciated in their entirety until after the Parties have been able to
present their full arguments on the merits. The second exception is where
answering the preliminary objection would determine the dispute (or
some elements of it) on the merits. In my view, this exception to the prin-
ciple applies even more forcefully where the Court is inclined to reject the
preliminary objection than where it is tempted to uphold it, because in the
first case the Court allows the continuation of proceedings the outcome
of which is in fact “prejudged” by the grounds for the preliminary judg-
ment (even though, formally, the operative clause of the preliminary
judgment confines itself to enabling the Court to proceed to considera-
tion of the merits) and either the subsequent proceedings are devoid of
practical significance — if the Court deems itself bound by the grounds
for its judgment on the objection — or it runs the risk of contradicting

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         TERRITORIAL AND MARITIME DISPUTE (SEP. OP. ABRAHAM)            910

itself — if it does not deem itself bound. This is obviously a very un-
desirable situation.

   21. Applying these criteria — which I believe to be correct — to the
first preliminary objection in so far as it concerns aspects of the dispute
other than sovereignty over the “three islands”, I think that the Court
was right to find that there was no special circumstance in the case jus-
tifying a refusal to answer the objection as of now by rejecting it.

   While the proceedings will admittedly continue on the merits, and the
Court has taken a position in its preliminary judgment on arguments
with a certain significance for the showing Colombia seeks to make in
proving its claims, it cannot be said that the outcome on the merits is
“predetermined” to such an extent that there is virtually nothing, or very
little, remaining to be genuinely debated.

   For example, once it has been said that the maritime delimitation does
not follow directly from the 1928 Treaty, the bases and processes for the
delimitation, that is to say the real crux of the dispute on this point,
remain to be determined. Nor do I believe that the situation here falls
within the other exception : the Court has been sufficiently enlightened by
the debates between the Parties to be able to conclude, on the basis of
solid reasoning, that these aspects of the dispute are not settled by the
1928 Treaty ; and the proceedings to come are unlikely to bring to light
information invalidating the Court’s conclusion in this respect.
   22. One question remains ; in my eyes, it is of major importance but
the Court refrains, rightly I believe, from deciding it in the Judgment.
This is the question whether and to what extent the parties, in later
pleading on the merits, and the Court itself, in its final Judgment, will be
bound by the positions on matters of substance which the Court has
taken in its reasoning (but not in the operative clause as constructed) in
the Judgment on preliminary objections.
   It is a thorny issue. There can be no doubt that, when the Court takes
a stance on substantive questions in a preliminary judgment, its positions
cannot fail to affect the approach subsequently taken by the parties in
arguing the merits. That does not however mean that the parties are nec-
essarily barred from re-opening (or pursuing) the debate on these sub-
stantive points in the final phase of the proceedings or that the Court is
precluded from changing its positions on them if it is given good reasons
for doing so.
   The question is a delicate one. The place for the Court to resolve it is
not in its judgment on jurisdiction, because it is of no help in deciding on
the preliminary objections. It is in the judgment on the merits that the
Court may be required — that is, if one of the Parties argues a substan-
tive point examined in the preliminary judgment — to rule on the author-
ity attaching to its earlier judgment. It is for this reason that I do not
wish to opine on this point right now.

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         TERRITORIAL AND MARITIME DISPUTE (SEP. OP. ABRAHAM)              911

B. The Part of the Dispute Concerning Sovereignty over the Three
        Islands : San Andrés, Providencia and Santa Catalina
   23. For this part of the dispute, it is clear that the question was “set-
tled”, or is “governed”, by the 1928 Treaty. Accordingly, the Court had
to determine whether the Treaty was “in force on the date of the conclu-
sion” of the Pact of Bogotá, within the meaning of Article VI of the Pact.
Two preliminary questions had to be resolved before that question could
be answered : first, as of what date(s) must it be determined whether or
not the condition laid down in Article VI had been satisfied ? Second, can
a treaty be regarded under this provision as being “in force” if it was con-
cluded subject to a defect likely to affect its validity ? If the second ques-
tion was answered in the negative, the Court was then required to con-
sider whether it should take a position already in the preliminary judgment
on Nicaragua’s arguments as to the invalidity of the Treaty.

1. As of what date(s) ?
  24. Paragraph 73 of the Judgment answers this question by observing
that Article VI refers to the “date of the conclusion of the Pact” and that
that occurred in 1948. Paragraph 81 is even more explicit : it states that
1948 is the “date by reference to which the Court must decide on the
applicability of the provisions of Article VI of the Pact of Bogotá setting
out an exception to the Court’s jurisdiction under Article XXXI thereof”.
That then allows the Court to add (para. 82 (2)) :
    “the question whether the Treaty was terminated in 1969 is not rele-
    vant to the question of [the Court’s] jurisdiction since what is
    determinative . . . is whether the 1928 Treaty was in force on the date
    of the conclusion of the Pact, i.e. in 1948, and not in 1969”.
   25. This reasoning is too hasty in my view. I believe that an absolutely
symmetrical interpretation of Article VI of the Pact of Bogotá in respect
of the relevant date is unreasonable; a distinction must be drawn between
two situations.
   If the Treaty invoked by the Party arguing against the jurisdiction of
the Court (the Respondent) was not in force in 1948, then the objection
should be rejected for that reason alone ; it makes no difference whether
the Treaty had been in force prior to (but not in) 1948 or was even con-
cluded after 1948 — but before proceedings were instituted before the
Court. While the latter situation would of course influence the resolution
of the dispute on the merits, it would create no bar to the Court’s juris-
diction.
   If, on the other hand, the Treaty was in force in 1948 (and does settle
the matter in dispute), my view is that the Court should declare itself to
be without jurisdiction only if the Treaty was still in force at the date the
proceedings were instituted. In this case, there is not only one operative
date, but two. The opposite interpretation — that which is adopted in the
Judgment and can be claimed to follow from a literal reading of Arti-

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cle VI — leads to unreasonable outcomes which the drafters of the Pact
of Bogotá cannot be assumed to have intended. It would mean that the
Court lacks jurisdiction over a dispute bearing on a matter settled by a
Treaty in force in 1948, even if the Treaty ceased to be in force (for exam-
ple, because the Parties agreed to abrogate it) between 1948 and the date
the Court was seised of the case. It truly strains belief to think that such
an odd outcome could have been intended by the States having entered
into the Pact of Bogotá with a view to fostering judicial settlement of
their disputes to the greatest extent possible. Thus, in my opinion, Arti-
cle VI must be read as a bar to the Court’s jurisdiction where the dis-
puted matter is governed by a Treaty which was in force in 1948 (as is
written), provided that the Treaty is still in force at the date the proceed-
ings are instituted (as is implied).

   26. Thus, I do not subscribe to the reasoning set out in paragraph 82 :
I think that the Court, in responding to the first preliminary objection in
respect of the “three islands” — which, in my opinion, it should have
refrained from doing, for the reasons set out in point 3 below —, should
not have confined itself to ascertaining whether the 1928 Treaty was in
force in 1948, while dismissing as beside the point Nicaragua’s argument
that the Treaty — if assumed to have been valid — was terminated in
1969.
   27. It would moreover appear that the Court itself was not really con-
vinced by its interpretation, because in paragraph 89 it does exactly what
in paragraph 82 it announced it would not do : it opines upon Nicara-
gua’s argument to the effect that the 1928 Treaty terminated as a result of
Colombia’s violation of it in 1969, setting that argument aside on the
ground that, even if true, it “would not affect the sovereignty of Colom-
bia over the [three] islands” — i.e., not only in 1948, the date of the Pact
of Bogotá, but even today. Yet, if it was true that 1948 was the only date
by reference to which the Court’s jurisdiction was to be determined and
that it was necessary to ascertain which matters had been settled at that
date by the Treaties in force, then why did the Court feel the need to add
the not insignificant assertion figuring in paragraph 89 ? Since the expla-
nation for this apparent contradiction cannot be a lack of consistency on
the part of my colleagues, I can only suppose that the Court simply
wished here to decide the merits of the dispute. In doing so, it has over-
stepped the role assigned to it at this stage in the proceedings.

2. Can an invalid treaty be regarded as “in force” in 1948 for purposes
   of Article VI of the Pact ?
  28. To counter Colombia’s objection based on Article VI of the
Pact, Nicaragua contended that the 1928 Treaty could not be
regarded as “in force” in 1948, and could not have settled any

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         TERRITORIAL AND MARITIME DISPUTE (SEP. OP. ABRAHAM)             913

matter, because it had been concluded under conditions rendering it
invalid.
   29. Nicaragua’s argument on this point can be effective only if it is
first accepted that a treaty which is invalid cannot have been “in force”
for purposes of Article VI ; in other words, it is not enough for the Treaty
to have been formally in force, i.e. for it to have come into force initially
in accordance with its terms and for it not to have been the object, as of
the relevant date (1948), of any process for abrogation, denunciation or
suspension.
   30. The issue is not dealt with expressly by the Court but is resolved
implicitly in the Judgment, because, after examining Nicaragua’s argu-
ment, the Court finds (para. 81) that “the 1928 Treaty was valid and in
force on the date of the conclusion of the Pact of Bogotá in 1948”. In
other words, the Court seems indeed to accept that, for purposes of Arti-
cle VI, a treaty cannot be in force at the relevant date if it was not valid
at that date.
   31. I agree with the Court’s position on the interpretation of the mean-
ing of “treaty in force”, although I regret that it did not make itself
clearer on this point.
   A treaty does not enter into force until it becomes capable of produc-
ing its full legal effects vis-à-vis the parties (or, conversely, it does not
produce its full legal effects until it enters into force). Now, under Arti-
cle 69, paragraph 1, of the Vienna Convention on the Law of Treaties,
which indisputably expresses customary law, “[t]he provisions of a void
treaty have no legal force”. Hence, a treaty which is invalid for one of the
reasons defined in the Vienna Convention — in so far as it codifies cus-
tom — cannot be regarded as “in force”, within the ordinary meaning of
the expression.

   32. The foregoing proposition may perhaps bear qualification in
respect of the causes of invalidity described in Articles 46 to 50 of the
Vienna Convention. These give rise to “relative” nullity : the treaty in
question can be acknowledged to be void only where the party having an
interest in invalidating it (the “injured” party) invokes the nullity in
accordance with the procedure described in Article 65. It might just be
possible to maintain that a treaty subject to one of these causes of inva-
lidity remains in force at least as long as the party entitled to invoke the
invalidating cause has not done so (which, moreover, it might never do).
But even this proposition is not certain, for once a treaty has been deter-
mined (judicially, for example) to be void, the effects are in principle, and
regardless of the cause of invalidity, retroactive ab initio, subject to the
qualifications set out in Article 69, paragraph 2, of the Vienna Conven-
tion.
   33. In any event, a treaty characterized by absolute nullity, which is
what Nicaragua maintains — rightly or wrongly, but wrongly according
to the Judgment — in respect of the 1928 Treaty, cannot, in my view, be
considered ever to have been “in force”.

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         TERRITORIAL AND MARITIME DISPUTE (SEP. OP. ABRAHAM)                914

   This interpretation could no doubt have been rejected, or refuted, had
there been serious reasons to ascribe a different meaning to the expres-
sion “treaties in force” in the specific context of Article VI of the Pact of
Bogotá, but the Court found none. For that, a showing would have had
to have been made that the States which drew up the Pact intended to
prevent States involved in judicial dispute resolution proceedings from
challenging the validity of any treaty formally in force in 1948. That
intention cannot be presumed and it was not demonstrated.

  34. That said, the Court, acting on the basis of its interpretation of the
meaning of “treaty in force”, examined Nicaragua’s argument alleging
the nullity (or invalidity, I see virtually no difference) of the 1928 Treaty.
That led it to find, without directly ruling on the two invalidating causes
invoked by the Applicant, that Nicaragua had consistently recognized
the validity of the Treaty over the 50 years following its conclusion and
that Nicaragua was therefore now precluded from claiming on any
ground that the Treaty was void (paras. 77-80).

  In thus proceeding, the Court has adopted a position on a very com-
plex question on the merits : I think that it would have been better
advised to refrain from doing so at this stage in the proceedings. This
brings me to the next point.

3. Should the Court take a position on the question of the validity of
   the 1928 Treaty already at the stage of the decision on the preliminary
   objections ?
   35. We return to the criteria for determining whether or not an objec-
tion possesses an exclusively preliminary character.
   36. In paragraph 51 of the Judgment, the Court, after describing the
two situations in which it must refrain from immediately deciding the
objection (i.e., where the Court does not have before it all the necessary
facts or where deciding would determine the dispute on the merits), adds
that it “finds itself in neither of these situations in the present case”.
   I believe, to the contrary, that the Court found itself in both of these
two situations in respect of the issue of the validity of the Treaty and its
effects on sovereignty over the “three islands”.
   37. In the first place, it is plain that, in ruling as it did, the Court set-
tled the dispute over the “three islands” definitively and on the merits.
What does the Judgment — supposed to pass only on the Court’s juris-
diction — tell us ? That the 1928 Treaty awarded Colombia sovereignty
over the three islands named in the first Article. That, even assuming that
a cause invalidating the Treaty could have been identified at the outset,
Nicaragua is precluded from invoking it now by its subsequent conduct
over many years. Lastly, that, even if the Treaty did terminate in 1969, as
Nicaragua contends, that would have no impact on the permanence of
the legal effects of its provisions granting Colombia sovereignty over the

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         TERRITORIAL AND MARITIME DISPUTE (SEP. OP. ABRAHAM)               915

“three islands”. And, accordingly, the Court will not concern itself any
further with that part of the dispute relating to the three islands.

  What more would be needed to conclude that “answering the prelimi-
nary objection . . . determine[s] the dispute, or some elements of it, on the
merits”, in the words describing one of the two situations in which, the
Court itself holds, it must refrain from ruling on the objection?

   38. To justify its choice, the Court observes in paragraph 51 that the
question of the validity of the Treaty “does not constitute the subject-
matter of the dispute on the merits” and “is rather a preliminary question
to be decided in order to ascertain whether the Court has jurisdiction” :
thus, there is, in its view, nothing in the grounds adopted by the Court
which impinges on the merits of the dispute. This reasoning is not very
convincing. Granted, I agree that the question of the validity of the
Treaty is not the actual subject-matter of the dispute ; on this point, I
subscribe to the reasoning in the Judgment and I am in agreement with
the first of the two propositions quoted above. But not with the second :
it is utterly incorrect to characterize the issue of the validity of the Treaty
as being strictly a question preliminary to determining the Court’s juris-
diction ; it is also, and principally, a question on which, in Nicaragua’s
view, the solution to the dispute hinges. And therefore, in deciding it, the
Court by necessity does more than rule on its jurisdiction.
   39. In reality, and in spite of the foregoing comments, I could have
come to accept the Court’s approach on this point, had the question of
the validity of the 1928 Treaty called for a simple response and had the
right solution been obvious.
   After all, as I have already said, the confusion which is to some extent
unavoidable between the merits and jurisdiction is created by the Pact of
Bogotá itself. And I have also stated above that I find it less objection-
able for the Court to rule on matters of substance in deciding a prelimi-
nary objection when it upholds the objection, because there the Judgment
puts an end to the proceedings (in respect of some or all of the questions
constituting the subject-matter of the dispute).
   40. But what is more serious is that the Court, in deciding the question
of the validity of the 1928 Treaty, had to take a position on highly com-
plex points of law and fact not yet sufficiently argued by the Parties at
this stage and in respect of which the Court consequently “d[id] not have
before it all facts necessary”. Thus, it also found itself in the other of the
two situations in which, by its own definition, it should refrain from
deciding an objection.
   41. In rejecting Nicaragua’s argument based on the invalidity of the
1928 Treaty, the Court begins by setting out a detailed review of Nica-
ragua’s conduct between 1928 and 1980, when it first officially asserted
that the Treaty was void (paras. 78 and 79).
   42. The Court then draws a conclusion of law in paragraph 80 : Nica-

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         TERRITORIAL AND MARITIME DISPUTE (SEP. OP. ABRAHAM)             916

ragua can therefore no longer rely on the invalidity of the 1928 Treaty to
claim that it was not in force in 1948. The Court is then able to find in
paragraph 81 that the Treaty “was valid and in force” in 1948.

   The Court clearly intended here to apply the rule that a State may no
longer invoke a ground for invalidating a treaty if, after becoming aware
of the ground — and having thus been in a position to give notice of its
existence —, the State must by reason of its subsequent conduct be con-
sidered as having acquiesced in the validity of the Treaty.
   43. I would find nothing objectionable about this reasoning if Nicara-
gua had confined itself to invoking, as the ground for invalidating the
1928 Treaty, the alleged violation of its own constitutional rules at the
time the Treaty was concluded. The solution would then be obvious.

   44. But Nicaragua also claimed that the Treaty was invalid owing to
the coercion it suffered in 1928 as a result of the occupation of part of its
territory by the armed forces of the United States and alleged that this
prevented it from exercising its free will.
   The reasoning in the Judgment raises a major difficulty in this connec-
tion.
   45. Under the Vienna Convention, which assuredly must be seen as
expressing the customary law of treaties as it now stands on this point,
the rule precluding a State from invoking an invalidating ground where
its subsequent conduct shows its acquiescence in the validity of the treaty
does not apply where the treaty is absolutely void for having been con-
cluded under coercion resulting from the threat or use of force in viola-
tion of the principles of international law embodied, today, in the Char-
ter of the United Nations. This is to be inferred from a joint reading of
Articles 45 and 52 of the Vienna Convention. The solution adopted by
the Court in the present case is thus inconsistent with the law of treaties
as it now stands.
   46. This does not however mean that this solution is necessarily wrong,
because neither the Vienna Convention nor the current customary law of
treaties applies in the present case, which involves determining the valid-
ity of a treaty concluded in 1928 and applied without challenge until
1980.
   It may be argued that coercion resulting from the threat or use of force
was not a ground for invalidating an international treaty in 1928. Even if
this view is rejected, it may also be contended (more cogently, I think)
that the customary law applicable at the time in question did not make
that invalidity absolute : it could be cured by the subsequent conduct of
the prejudiced State, which is no longer the case today.

   47. The problem is that none of this is explained in the Judgment,
largely because these points were not really debated at this stage in the
proceedings. Nicaragua, which raised the argument as to the invalidity of

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         TERRITORIAL AND MARITIME DISPUTE (SEP. OP. ABRAHAM)              917

the Treaty, expressly reserved the right to return to and expand upon it in
the proceedings on the merits. This, in my view, was neither reckless nor
unjustified on the part of Nicaragua, since, as noted earlier, the point
plainly bore at least as much upon the merits as upon jurisdiction.
   48. Accordingly, it is my opinion that, in view of the grounds for its
decision, the Court dealt rather lightly with an extremely difficult and
important subject, the international law of treaties, and did so without
adequately explaining the basis for the solution adopted and needlessly,
since it could very easily have reserved these questions for the subsequent
proceedings.
   49. I thus fear that on this point the Judgment, rather than clarifying
the applicable law, adds some confusion : that is not my conception of the
mission of the Court and that is why I did not join in the Judgment in
this respect.

                                   * * *

                   II. SECOND PRELIMINARY OBJECTION

   50. It was then only in regard to that part of the dispute concerning
sovereignty over the “three islands” that it made sense to examine the
“second preliminary objection”. As the Court found jurisdiction under
the Pact of Bogotá over the rest of the dispute, no useful purpose would
have been served in seeking to determine whether there might exist
another basis of jurisdiction — the optional declarations — which would
in any case have been superfluous : that is what paragraph 132 says, in
terms which I wholeheartedly approve.
   51. It would have been possible under one argument to uphold the sec-
ond objection without having to decide whether Nicaragua’s and Colom-
bia’s declarations were still in effect at the date the proceedings were
instituted or whether the reservation ratione temporis in Colombia’s dec-
laration applied in the present case : the argument based on the exclusiv-
ity of the Pact of Bogotá as the basis for the Court’s jurisdiction to
entertain disputes between the States parties to the Pact.
   I find this argument convincing. The Judgment sets it aside for the rea-
sons appearing in paragraphs 133 to 136, which strike me as especially
weak.
   52. Paragraph 133 is confined to observing that, in its 1988 Judgment
in the case concerning Border and Transborder Armed Actions (Nicara-
gua v. Honduras), Jurisdiction and Admissibility, the Court did not reject
the contention that optional declarations under Article 36 could form a
separate, sufficient basis for jurisdiction in disputes between States parties
to the Pact. That is wholly correct, which means that Colombia was mis-
taken in arguing to the contrary, stretching the meaning of the 1988
Judgment in doing so. But this is no argument in support of the conten-
tion which the Court in 1988 did not reject. Granted, it did not reject it,

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         TERRITORIAL AND MARITIME DISPUTE (SEP. OP. ABRAHAM)              918

but it did not uphold it either. Here then is a point of law on which the
earlier decision is silent (because the matter was reserved) and it would
therefore be necessary to explain why this issue should today be decided
one way rather than the other.

   53. The Judgment does not do this. Paragraph 134 says no more in
this respect than does paragraph 133. It merely repeats the notion, in a
different form, that the 1988 Judgment did not settle the issue in the way
advocated by Colombia. The reasons justifying a decision to the contrary
on the question remain unstated.
   54. Are they to be found in the following paragraph (this would be the
time, as this is the last paragraph before the conclusion) ?
   Not really : paragraph 135 does no more than quote the dictum, gen-
eral in nature, from the 1939 Judgment of the Permanent Court of Inter-
national Justice in the case concerning Electricity Company of Sofia and
Bulgaria, a case in which it would be futile to seek any connection with
the unusual provisions of the Pact of Bogotá. According to that dictum,
multiple agreements entered into by States accepting the Court’s compul-
sory jurisdiction must be seen as additional to each other, rather than as
cancelling each other out. This is undoubtedly correct as a general rule,
but it fails to take account of any of the distinctive characteristics of the
Pact of Bogotá. The Judgment thus provides no response to Colombia’s
arguments, notably those set out in paragraph 126, which I find cogent.

   55. In particular, the language specific to Article XXXIV of the Pact,
stating that, if the Court declares itself to be without jurisdiction to hear
a controversy for one of the reasons set out in Articles V, VI or VII, the
controversy “shall be declared ended”, seems to me clearly to preclude
submission of the same dispute to the Court on the basis of a different
title of jurisdiction after the Court has handed down a judgment declin-
ing jurisdiction under the Pact of Bogotá. I therefore believe that, logi-
cally, this provision also bars a State party to the Pact of Bogotá from
submitting to the Court a dispute with another State party on the basis of
a title of jurisdiction other than the Pact itself, or on the basis of, simul-
taneously, the Pact and another title of jurisdiction, as in the present
case.
   56. More broadly, in view of its special provisions and general struc-
ture, I see the Pact of Bogotá as having established machinery for the
judicial settlement in the International Court of Justice of disputes
between the States parties which is exclusive of all other mechanisms, in
both its scope and its limits, thus rendering inoperative in the relations
between States parties to the Pact (but only in those relations) any
optional declarations those States may have made pursuant to Article 36,
paragraph 2, of the Statute of the Court.

   57. The Judgment takes the opposite view. The Court does however
also come to the conclusion (which I share) that it lacks jurisdiction

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         TERRITORIAL AND MARITIME DISPUTE (SEP. OP. ABRAHAM)             919

under the optional clause declarations to entertain the question of sov-
ereignty over the “three islands”, but it does so on grounds which, I must
admit, leave me utterly perplexed.
   The reason, explains the Court in paragraph 138, is that there is no
extant dispute between the Parties as to sovereignty over the three
islands.
   58. Aside from the fact that this assertion seems to me to fly in the face
of the most basic common sense — admittedly, however, what is com-
mon sense to some is not necessarily so to others —, it rests on a total,
and alarming, distortion of the concept itself of “dispute”.
   59. Here, two States claiming sovereignty over the same islands appear
before the Court. One contends (legitimately, it would seem) that it has
had sovereignty ever since such was recognized in a treaty concluded by
the two States. The other responds (no doubt wrongly, but that is not the
question here) that the Treaty has been void since the outset and, in any
event, even if it was initially valid, it has in the meantime gone out of
force and can therefore no longer be relied upon against that State as a
title of sovereignty.
   Are these not all the characteristic elements of a dispute capable of
submission for judicial determination? No, responds the Court serenely :
there is no longer any dispute.
   60. The reason — and there is one — given in paragraph 138 is that
the dispute has ceased to exist because it was settled by the 1928 Treaty,
for the reasons set out in the examination of the first preliminary objec-
tion.
   Is it not obvious that there is complete confusion here between the
merits and jurisdiction?
   61. I shall leave aside the wholly secondary issue whether the absence
of a real, present dispute between the Parties causes the Court to lack
jurisdiction or the claim to be inadmissible ; in all honesty, that hardly
makes any difference.
   62. What the 1928 Treaty did settle — assuming that it did so validly
— was the dispute which then existed between the two States. But it did
not settle, and plainly could not settle, the dispute which presents itself
today to the Court and which is not to be confused with the earlier one.
Admittedly, the subject-matter is the same : sovereignty over the three
islands. But the cause is not : because today’s dispute came into being
when one of the two States party to the Treaty began to claim — granted,
rather belatedly — that its consent to be bound had been procured at the
time by coercion.
   63. In fact, what paragraph 138 really signifies is that it would serve no
purpose for the Court to find jurisdiction to decide this aspect of the case,
because the ultimate disposition the Court would favour is known in
advance, in view of the grounds on which it partially upheld the first pre-
liminary objection.
   True. But that in no way shows that the dispute between the Parties
has disappeared ; rather, it merely reinforces the feeling that it would

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         TERRITORIAL AND MARITIME DISPUTE (SEP. OP. ABRAHAM)             920

have been better for the Court to refrain from ruling as it did on the first
objection and to defer consideration of the disputed points until after the
proceedings on the merits.
   64. One final comment : had the Court examined the title of jurisdic-
tion based on the optional clause declarations first, it definitely would not
have been able to reject it on the grounds which it adopts here, entirely
drawn as they are from the Court’s response in relation to the Pact of
Bogotá. Until now, it has been thought that the order in which titles of
jurisdiction are examined was immaterial to the validity of each title.
Here, such is clearly not the case : is this not because something is amiss
in the reasoning of the Court ?
   65. It remains to be hoped that in the future certain respondent States
bound by optional clause declarations will not seize upon this unfortu-
nate decision as a pretext for using substantive arguments to raise pre-
liminary challenges to the Court’s jurisdiction, that the Court will suc-
ceed in confining the solution adopted in these proceedings to the specific
facts and circumstances of the case, and that, in short, the present Judg-
ment will not set a precedent on this point.

                                             (Signed) Ronny ABRAHAM.

                                                                          92


298

SEPARATE OPINION OF JUDGE PETREN
[Translation ]

If I have been able to vote for the Judgment, it is because its operative
paragraph finds that the claim is without object and that the Court is not
called upon to give a decision thereon. As my examination of the case has
led me to the same conclusion, but on grounds which do not coincide
with the reasoning of the Judgment, I append this separate opinion.

The case which the Judgment brings to an end has not advanced beyond

the preliminary stage in which the questions of the jurisdiction of the
Court and the admissibility of the Application fall to be resolved. Aus-
tralia’s request for the indication of interim measures of protection could
not have had the consequence of suspending the Court’s obligation to
consider the preliminary questions of jurisdiction and admissibility as
soon as possible. On the contrary, that request having been granted, it
was particularly urgent that the Court should decide whether it had been
validly seised of the case. Any delay in that respect meant the prolon-
gation, embarrassing to the Court and to the Parties, of uncertainty con-
cerning the fulfilment of an absolute condition for the justification of any
indication of interim measures of protection.

In this situation, it was highly imperative that the provisions of the
Rules of Court which were revised not so long ago for the purpose of
accelerating proceedings should be strictly applied. Only recently,
moreover, on 22 November 1974, the General Assembly of the United
Nations adopted, on the item concerning a review of the Court’s role,
resolution 3232 (XXIX), of which one preambular paragraph recalls how
the Court has amended its Rules in order to facilitate recourse to it for
the judicial settlement of disputes, inter alia, by reducing the likelihood
of delays. Among the reasons put forward by the Court itself to justify
revision of the Rules, there was the necessity of adapting its procedure
to the pace of world events (/.C.J. Yearbook 1967-1968, p. 87). Now if
ever, in this atomic age, there was a case which demanded to be settled in
accordance with the pace of world events, it is this one. The Court never-
theless, in its Order of 22 June 1973! indicating interim measures of
protection, deferred the continuance of its examination of the questions

1 Having voted against the resolution whereby the Court, on 24 March 1974,
decided to close the enquiry into the premature disclosure of its decision, as also of the
voting-figures, before the Order of 22 June 1973 was read at a public sitting, I wish to
state my opinion that the enquiry referred to was one of a judicial character and that its
continuance on the bases already acquired should have enabled the Court to get closer
to the truth. I did not agree with the decision whereby the Court excluded from publi-
cation, in the volume of Pleadings, Oral Arguments, Documents to be devoted to the
case, certain documents which to my mind are important for the comprehension of the
incident and the search for its origins.

49
NUCLEAR TESTS (SEP. OP. PETREN) 299

of jurisdiction and admissibility, concerning which it held, in one of the
consideranda to the Order, that it was necessary to resolve them as soon as
possible.

Despite the firmness of this finding, made in June 1973, it is very nearly
1975 and the preliminary questions referred to have remained unresolved.
Having voted against the Order of 22 June 1973 because I considered
that the questions of jurisdiction and admissibility could and should have
been resolved without postponement to a later session, | have a fortiori
been opposed to the delays which have characterized the continuance of
the proceedings and the upshot of which is that the Court has concluded
that Australia’s Application is without object now. I must here recall! the
circumstances in which certain time-limits were fixed, because it is in the
light of those circumstances that I have had to take up my position on
the suggestion that consideration of the admissibility of the Application
should be deferred until some later date.

When, in the Order of 22 June 1973, the Court invited the Parties to
produce written pleadings on the questions of its jurisdiction and the
admissibility of the Application, it fixed 21 September 1973 as the time-
limit for the filing of the Australian Government’s Memorial and 21 De-
cember 1973 as the time-limit for the filing of a Counter-Memorial by the
French Government. This decision was preceded by a conversation
between the Acting President and the Agent of Australia, who stated that
he could agree to a three-month time-limit for his own G 2vernment’s
pleading. No contact was sought with the French Government at that
same time. No reference is to be found in the Order to the application of
Article 40 of the Rules of Court or, consequently, to the consultation
which had taken place with the Agent of Australia. After the Order had
been made, the Co-Agent of Australia, on 25 June 1973, informed the
Acting President that his Government felt it would require something
in the nature of a three-month extension of time-limit on account of a
new element which was bound to have important consequences, namely
that the Memorial would now have to deal not only with jurisdiction but
also with admissibility. Although the Court remained in session until
13 July 1973, this information was not conveyed to it. On 10 August 1973
the Co-Agent was received by the President and formally requested on
behalf of his Government that the time-limit be extended to 21 December
1973, on the ground that questions of admissibility had not been foreseen
when the Agent had originally been asked to indicate how much time he
would require for the presentation of a Memorial on jurisdiction. Fol-
lowing this conversation the Co-Agent, by a letter of 13 August, requested
that the time-limit should be extended to 23 November. Contrary to what
had been done in June with regard to the fixing of the original time-
limits, the French Government was invited to make known its opinion.
Its reply was that, having denied the Court’s jurisdiction in the case, it
was unable to express any opinion. After he had consulted his colleagues
by correspondence on the subject of the time-limits and a majority had
expressed a favourable view, the President, by an Order of 28 August,

50
NUCLEAR TESTS (SEP. OP, PETREN) 300

extended the time-limit for the filing of the Australian Government’s
Memorial to 23 November 1973 and the time-limit for the filing of a
Counter-Memorial by the French Government to 19 April 1974.

The circumstances in which the written proceedings on the preliminary
questions were thus prolonged until 19 April 1974 warrant several ob-
servations. In the first place, it would have been more in conformity with
the Statute and the Rules of Court not to have consulted the Australian
Government until after the Order of 22 June 1973 had been made and to
proceed at the same time to consult the French Government. Let us
suppose that this new procedure were to be put into general practice and
it became normal, before the Court’s decision on a preliminary phase, to
consult the Agents of the Parties regarding the time-limits for the next
phase: any Agent who happened not to be consulted on a particular
occasion would not require supernatural perspicacity to realize that this
case was not going to continue.

To return to the present case, there is every reason to think that the
French Government, if it had been consulted immediately after the
making of the Order of 22 June 1973, would have given the same reply
as it did two months later. It would then have been clear at once that the
French Government had no intention of participating in the written
proceedings and that there would be no necessity to allocate it a three-
month period for the production of a Counter-Memorial. In that way
the case could have been ready for hearing by the end of the summer of
1973, which would have enabled the Court to give its judgment before
that year was out. After having deprived itself of the possibility of hold-
ing the oral proceedings during the autumn of 1973, the Court found
itself faced with a request for the extension of the time-limit for the filing
of the Memorial. It is to be regretted that this request, announced three
days after the reading of the Order of 22 June 1973, was not drawn to
the Court’s attention while it was yet sitting, which would have enabled
it to hold a regular deliberation on the question of extension. As it
happened, the Order of 28 August not only extended the time-limit fixed
for the filing of the Memorial of the Australian Government but also
accompanied this time-limit with a complementary time-limit of five
months for the filing of a Counter-Memorial which the French Govern-
ment had no intention of presenting. Those five months merely prolonged
the period during which the Australian Government was able to prepare
for the oral proceedings, which was another unjustified favour accorded
to that Government.

But that is not all: the Order of 28 August 1973 also had the result of
reversing the order in which the present case and the Fisheries Jurisdiction
cases should have become ready for hearing. In the latter cases, the Court,
after having indicated interim measures of protection by Orders of 17
August 1972, had found, by its Judgments of 2 February 1973, that it
possessed jurisdiction and, by Orders of 15 February 1973, had fixed the
time-limits for the filing of Memorials and Counter-Memorials at
1 August 1973 and 15 January 1974 respectively. If the Order of 28

51
NUCLEAR TESTS (SEP. OP. PETREN) 301

August 1973 extending the time-limits in the present case had not inter-
vened, this case would have been ready for hearing on 22 December 1973,
i.e., before the Fisheries Jurisdiction cases, and would have had priority
over them by virtue of Article 50, paragraph 1, of the 1972 Rules of
Court and Article 46, paragraph 1, of the 1946 Rules of Court which
were still applicable to the Fisheries Jurisdiction cases. After the Order of
28 August 1973 had prolonged the written proceedings in the present
case until 19 April 1974, it was the Fisheries Jurisdiction cases which
became entitled to priority on the basis of the above-mentioned provisions
of the Rules of Court in either of their versions. However, the Court
could have decided to restore the previous order of priority, a decision
which Article 50, paragraph 2, of the 1972 Rules, and Article 46, para-
graph 2, of the 1946 Rules, enabled it to take in special circumstances.
The unnecessary character of the time-limit fixed for the filing of a
Counter-Memorial by the French Government was in itself a special
circumstance, but there were others even more weighty. In the Fisheries
Jurisdiction cases, there was no longer any uncertainty concerning the
justification for the indication of interim measures of protection, inas-
much as the Court had found that it possessed jurisdiction, whereas in the
present case this uncertainty had persisted for many months. Yet France
had requested the removal of the case from the list and, supposing that
attitude were justified, had an interest in seeing the proceedings brought
to an end and, with them, the numerous criticisms levelled at it for not
applying interim measures presumed to have been indicated by a Court
possessing jurisdiction. Moreover, as France might during the summer of
1974 be carrying out a new series of atmospheric nuclear tests, Australia
possessed its own interest in having the Court’s jurisdiction confirmed
before then, inasmuch as that would have conferred greater authority on
the indication of interim measures.

For all those reasons, the Court could have been expected to decide
to take the present case before the Fisheries Jurisdiction cases. Neverthe-
less, on 12 March 1974, a proposal in that sense was rejected by 6 votes
to 2, with 6 abstentions. In that way the Court deprived itself of the
possibility of delivering a judgment in the present case before the end of
the critical period of 1974.

The proceedings having been drawn out until the end of 1974 by this
series of delays, the Court has now found that Australia’s Application is
without object and that it is therefore not called upon to give a decision
thereon.

It is not possible to take up any position vis-a-vis this Judgment with-
out being clear as to what it signifies in relation to the preliminary ques-
tions which, under the terms of the Order of 22 June 1973, were to be
considered by the Court in the present phase of the proceedings, namely
the jurisdiction of the Court to entertain the dispute and the admissibility
of the Application. As the Court has had frequent occasion to state,
these are questions between which it is not easy to distinguish. The ad-

52
NUCLEAR TESTS (SEP. OP. PETREN) 302

missibility of the Application may even be regarded as a precondition of
the Court’s jurisdiction. In Article 8 of Resolution concerning the Internal
Judicial Practice of the Court, competence and admissibility are placed
side by side as conditions to be satisfied before the Court may undertake
the consideration of the merits. It is on that basis that the Order of 22 June
1973 was drawn up. It emerges from its consideranda that the aspects of
competence which are to be examined include, on the one hand, the
effects of the reservation concerning activities connected with national
defence which France inserted when it renewed in 1966 its acceptance of
the Court’s jurisdiction and, on the other hand, the relations subsisting
between France and Australia by virtue of the General Act of 1928 for
the Pacific Settlement of International Disputes, supposing that instrument
to be still in force. However, the Order is not so precise regarding the
aspects of the question of the admissibility of the Application which are
to be explored. On the contrary, it specifies none, and it is therefore by a
wholly general enquiry that the Court has to determine whether it was
validly seised of the case. One of the very first prerequisites is that the
dispute should concern a matter governed by international law. If this
were not the case, the dispute would have no object falling within the
domain of the Court’s jurisdiction, inasmuch as the Court is only com-
petent to deal with disputes in international law.

The Judgment alludes in paragraph 24 to the jurisdiction of the Court
as viewed therein, i.e., as limited to problems related to the jurisdictional
provisions of the Statute of the Court and of the General Act of 1928.
In the words of the first sentence of that paragraph, “the Court has first
to examine a question which it finds to be essentially preliminary, namely
the existence of a dispute, for, whether or not the Court has jurisdiction
in the present case, the resolution of that question could exert a decisive
influence on the continuation of the proceedings”. In other words, the
Judgment, which makes no further reference to the question of juris-
diction, indicates that the Court did not find that there was any necessity
to consider or resolve it. Neither—though this it does not make so plain—
does it deal with the question of admissibility.

For my part, I do not believe that it is possible thus to set aside con-
sideration of all the preliminary questions indicated in the Order of
22 June 1973. More particularly, the Court ought in my view to have
formed an opinion from the outset as to the true character of the dispute
which was the subject of the Application; if the Court had found that the
dispute did not concern a point of international Jaw, it was for that
absolutely primordial reason that it should have removed the case from
its list, and not because the non-existence of the subject of the dispute
was ascertained after many months of proceedings.

It is from that angle that I believe | should consider the question of the
admissibility of Australia’s Application. It is still my view that, as I said
in the dissenting opinion which I appended to the Order of 22 June 1973,
what is first and foremost necessary is to ask oneself whether atmospheric
tests of nuclear weapons are, generally speaking, governed by norms of

53
NUCLEAR TESTS (SEP. OP. PETREN) 303

international law, or whether they belong to a highly political domain
where the international norms of legality or illegality are still at the
gestation stage. It is quite true that disputes concerning the interpretation
or application of rules of international law may possess great political
importance without thereby losing their inherent character of being legal
disputes. It is nonetheless necessary to distinguish between disputes
revolving on norms of international law and tensions between States
caused by measures taken in a domain not yet governed by international
law.

In that connection, I feel it may be useful to recall what has happened
in the domain of human rights. In the relatively recent past, it was
generally considered that the treatment given by a State to its own
subjects did not come within the purview of international law. Even the
most outrageous violations of human rights committed by a State to-
wards its own nationals could not have formed the subject of an appli-
cation by another State to an international judicial organ. Any such appli-
cation would have been declared inadmissible and could not have given
rise to any consideration of the truth of the facts alleged by the applicant
State. Such would have been the situation even in relations between
States having accepted without reservation the optional clause of Article
36 of the Statute of the Permanent Court of International Justice. The
mere discovery that the case concerned a matter not governed by inter-
national law would have been sufficient to prevent the Permanent Court
from adjudicating upon the claim. To use the terminology of the present
proceedings, that would have been a question concerning the admissi-
bility of the application and not the jurisdiction of the Court. It is only
an evolution subsequent to the Second World War which has made the
duty of States to respect the human rights of all, including their own
nationals, an obligation under international law towards all States mem-
bers of the international community. The Court alluded to this in its
Judgment in the case concerning the Barcelona Traction, Light and Power
Company, Limited (I.C.J. Reports 1970, p. 32). It is certainly to be
regretted that this universal recognition of human rights should not, up
to now, have been accompanied by a corresponding evolution in the
jurisdiction of international judicial organs. For want of a watertight
system of appropriate jurisdictional clauses, too many international dis-
putes involving the protection of human rights cannot be brought to
international adjudication. This the Court also recalled in the above-
mentioned Judgment (ibid., p. 47), thus somewhat reducing the impact of
its reference to human rights and thereby leaving the impression of a self-
contradiction which has not escaped the attention of writers.

We can see a similar evolution taking place today in an allied field,
that of the protection of the environment. Atmospheric nuclear tests,
envisaged as the bearers of a particularly serious risk of environmental
pollution, are a source of acute anxiety for present-day mankind, and it
is only natural that efforts should be made on the international plane to
erect legal barriers against that kind of test. In the present case, the ques-

54
NUCLEAR TESTS (SEP. OP. PETREN) 304

tion is whether such barriers existed at the time of the filing of the
Australian Application. That Application cannot be considered admissible
if, at the moment when it was filed, international law had not reached the
stage of applicability to the atmospheric testing of nuclear weapons. It
has been argued that it is sufficient for two parties to be in dispute over a
right for an application from one of them on that subject to be admissible.
Such would be the situation in the present case, but to my mind the ques-
tion of the admissibility of an application cannot be reduced to the ob-
servance of so simple a formula. It is still necessary that the right claimed
by the applicant party should belong to a domain governed by interna-
tional law. In the present case, the Application is based upon an allegation
that France’s nuclear tests in the Pacific have given rise to radio-active
fall-out on the territory of Australia. The Australian Government con-
siders that its sovereignty has thereby been infringed in a manner con-
trary to international law. As there is no treaty link between Australia
and France in the matter of nuclear tests, the Application presupposes
the existence of a rule of customary international law whereby States are
prohibited from causing, through atmospheric nuclear tests, the deposit
of radio-active fall-out on the territory of other States. It is therefore the
existence or non-existence of such a customary rule which has to be deter-
mined.

It was suggested in the course of the proceedings that the question of
the admissibility of the Application was not of an exclusively preliminary
character and that consideration of it could be deferred until the exami-
nation of the merits. This raises a question regarding the application of
Article 67 of the 1972 Rules of Court. The main motive for the revision
of the provisions of the Rules which are now to be found in that Article
was to avoid the situation in which the Court, having reserved its po-
sition with regard to a preliminary question, orders lengthy proceedings
on the substantive aspects of a case only to find at the end that the answer
to that preliminary question has rendered such proceedings superfluous.
It is true that Article 67 refers only to preliminary objections put forward
by the respondent, but it is obvious that the spirit of that Article ought
also to apply to the consideration of any questions touching the ad-
missibility of an application which the Court is to resolve ex officio. It is
also plainly incumbent upon the Court, under Article 53 of the Statute,
to take special care to see that the provisions of Article 67 of the Rules
are observed when the respondent is absent from the proceedings.

In sum, the Court, for the first time, has had occasion to apply the
provision of its revised Rules which replaced the former provisions
enabling preliminary objections to be joined to the merits. One may ask
where the real difference between the new rule and the old lies. For my
part, I consider that the new rule, like the old, bestows upon the Court a
discretionary power to decide whether, in the initial stage of a case, such
and such a preliminary question ought to be settled before anything else.
In exercising this discretionary power the Court ought, in my view, to
assess the degree of complexity of the preliminary question in relation to

55
NUCLEAR TESTS (SEP. OP. PETREN) 305

the whole of the questions going to the merits. If the preliminary question
is relatively simple, whereas consideration of the merits would give rise to
lengthy and complicated proceedings, the Court should settle the pre-
liminary question at once. That is what the spirit in which the new
Article 67 of the Rules was drafted requires. These considerations appear
to me to be applicable to the present case.

The Court would have done itself the greatest harm if, without resolving
the question of admissibility, it had ordered the commencement of pro-
ceedings on the merits in all their aspects, proceedings which would
necessarily have been lengthy and complicated if only because of the
scientific and medical problems involved. It should be recalled that, in the
preliminary stage from which they have not emerged, the proceedings had
already been subjected to considerable delays, which left the Australian
Government ample time to prepare its written pleadings and oral argu-
ments on all aspects of admissibility. How, in those circumstances,
could the consideration of the question have been postponed to some
later date?

As is clear from the foregoing, the admissibility of the Application
depends, in my view, on the existence of a rule of customary international
law which prohibits States from carrying out atmospheric tests of nuclear
weapons giving rise to radio-active fall-out on the territory of other States.
Now it is common knowledge, and is admitted by the Australian Govern-
ment itself, that any nuclear explosion in the atmosphere gives rise to
radio-active fall-out over the whole of the hemisphere where it takes
place. Australia, therefore, is only one of many States on whose territory
France’s atmospheric nuclear tests, and likewise those of other States,
have given rise to the deposit of radio-active fall-out. Since the Second
World War, certain States have conducted atmospheric nuclear tests for
the purpose of enabling them to pass from the atomic to the thermo-
nuclear stage in the field of armaments. The conduct of these States
proves that their Governments have not been of the opinion that custom-
ary international law forbade atmospheric nuclear tests. What is more,
the Treaty of 1963 whereby the first three States to have acquired nuclear
weapons mutually banned themselves from carrying out further atmos-
pheric tests can be denounced. By the provision in that sense the signa-
tories of the Treaty showed that they were still of the opinion that
customary international law did not prohibit atmospheric nuclear tests.

To ascertain whether a customary rule to that effect might have come
into being, it would appear more important to learn what attitude is
taken up by States which have not yet carried out the tests necessary for
reaching the nuclear stage. For such States the prohibition of atmospheric
nuclear tests could signify the division of the international community
into two groups: States possessing nuclear weapons and States not pos-
sessing them. If a State which does not possess nuclear arms refrains
from carrying out the atmospheric tests which would enable it to acquire
them and if that abstention is motivated not by political or economic
considerations but by a conviction that such tests are prohibited by

56
NUCLEAR TESTS (SEP. OP. PETREN) 306

customary international law, the attitude of that State would constitute
an element in the formation of such a custom. But where can one find
proof that a sufficient number of States, economically and technically
capable of manufacturing nuclear weapons, refrain from carrying out
atmospheric nuclear tests because they consider that customary inter-
national law forbids them to do so? The example recently given by
China when it exploded a very powerful bomb in the atmosphere is suffi-
cient to demolish the contention that there exists at present a rule of
customary international law prohibiting atmospheric nuclear tests. It
would be unrealistic to close one’s eyes to the attitude, in that respect,
of the State with the largest population in the world.

To complete this brief outline, one may ask what has been the attitude
of the numerous States on whose territory radio-active fall-out from the
atmospheric tests of the nuclear Powers has been deposited and continues
to be desposited. Have they, generally speaking, protested to these Powers,
pointing out that their tests were in breach of customary international
law? I do not observe that such has been the case. The resolutions passed
in the General Assembly of the United Nations cannot be regarded as
equivalent to legal protests made by one State to another and concerning
concrete instances. They indicate the existence of a strong current of
opinion in favour of proscribing atmospheric nuclear tests. That is a
political task of the highest urgency, but it is one which remains to be
accomplished. Thus the claim submitted to the Court by Australia
belongs to the political domain and is situated outside the framework of
international law as it exists today.

I consider, consequently, that the Application of Australia was, from
the very institution of proceedings, devoid of any object on which the
Court could give a decision, whereas the Judgment finds only that such
an object is lacking now. I concur with the Judgment so far as the out-
come to be given the proceedings is concerned, i.e., that the Court is not
called upon to give a decision, but that does not enable me to associate
myself with the grounds on which the Judgment is based. The fact that I
have nevertheless voted for it is explained by the following considerations.

The method whereby the judgments of the Court are traditionally
drafted implies that a judge can vote for a judgment if he is in agreement
with the essential content of the operative part, and that he can do so
even if he does not accept the grounds advanced, a fact which he normally
makes known by a separate opinion. It is true that this method of order-
ing the matter is open to criticism, more particularly because it does not
rule out the adoption of judgments whose reasoning is not accepted by
the majority of the judges voting in favour of them, but such is the prac-
tice of the Court. According to this practice, the reasoning, which re-
presents the fruit of the first and second readings in which all the judges
participate, precedes the operative part and can no longer be changed at
the moment when the vote is taken at the end of the second reading. This
vote concerns solely the operative part and is not followed by the indi-

57
NUCLEAR TESTS (SEP. OP. PETREN) 307

cation of the reasons upheld by each judge. In such circumstances, a
judge who disapproves of the reasoning of the judgment but is in favour
of the outcome achieved by the operative clause feels himself obliged,
in the interests of justice, to vote for the judgment, because if he voted the
other way he might frustrate the correct disposition of the case. The
present phase of the proceedings in this case was in reality dominated
by the question whether the Court could continue to deal with the case.
On that absolutely essential point ] reached the same conclusion as the
Judgment, even if my grounds for doing so were different.

I have therefore been obliged to vote for the Judgment, even though I
do not subscribe to any of its grounds. Had I voted otherwise I would
have run the risk of contributing to the creation of a situation which
would have been strange indeed for a Court whose jurisdiction is volun-
tary, a situation in which the merits of a case would have been considered
even though the majority of the judges considered that they ought not
to be. It is precisely that kind of situation which Article 8 of the Resolu-
tion concerning the Internal Judicial Practice of the Court is designed to
avoid.

I have still to explain my position with regard to the question of the
Court’s jurisdiction, in the sense given to that term by the Order of 22
June 1973. As the Judgment expressly states, this many-faceted question
is not examined therein. That being so, and as I personally do not feel
any need to examine it in order to conclude in favour of the disposition
of the case for which I have voted, I think that there is no place in this
separate opinion for any account of the ideas | have formed on the sub-
ject. A separate opinion, as I conceive it, ought not to broach any ques-
tions not deait with by the judgment, unless it is absolutely necessary
to do so in order to explain the author’s vote. I have therefore resisted the
temptation to engage in an exchange of views on jurisdiction with those
of my colleagues who have gone into this question in their dissenting
opinions. A debate between judges on matters not dealt with in the
judgment is not likely to add up to anything more than a series of unrelated
monologues—or choruses. For whatever purpose it may serve, however,
I must stress that my silence on the subject does not signify consent to
the proposition that the Court had jurisdiction.

(Signed) Sture PETREN.

58


                      COUR INTERNATIONALE DE JUSTICE

                          RECUEIL DES ARRÊTS,
                   AVIS CONSULTATIFS ET ORDONNANCES

                         AFFAIRE JADHAV
                           (INDE c. PAKISTAN)

                      ORDONNANCE DU 13 JUIN 2017

                             2017
                      INTERNATIONAL COURT OF JUSTICE

                        REPORTS OF JUDGMENTS,
                     ADVISORY OPINIONS AND ORDERS

                           JADHAV CASE
                           (INDIA v. PAKISTAN)

                         ORDER OF 13 JUNE 2017

1 CIJ1124.indb 1                                       27/03/18 16:26

                        Mode oﬃciel de citation :
                       Jadhav (Inde c. Pakistan),
          ordonnance du 13 juin 2017, C.I.J. Recueil 2017, p. 279

                             Oﬃcial citation :
                       Jadhav (India v. Pakistan),
            Order of 13 June 2017, I.C.J. Reports 2017, p. 279

                                             No de vente:
ISSN 0074-4441
ISBN 978-92-1-157322-0
                                             Sales number   1124

                                          13 JUIN 2017

                                         ORDONNANCE

                    AFFAIRE JADHAV
                   (INDE c. PAKISTAN)

                     JADHAV CASE
                   (INDIA v. PAKISTAN)

                                         13 JUNE 2017

                                           ORDER

1 CIJ1124.indb 3                                         27/03/18 16:26

               279

                              COUR INTERNATIONALE DE JUSTICE

                                              ANNÉE 2017
   2017
  13 juin
Rôle général                                    13 juin 2017
  no 168

                                      AFFAIRE JADHAV
                                         (INDE c. PAKISTAN)

                                            ORDONNANCE

                   Le président de la Cour internationale de Justice,
                  Vu l’article 48 du Statut de la Cour et les articles 44 et 45, paragraphe 1,
               de son Règlement,
                  Vu la requête enregistrée au Greﬀe de la Cour le 8 mai 2017, par
               laquelle la République de l’Inde a introduit une instance contre la Répu-
               blique islamique du Pakistan, au sujet de violations alléguées de la
               convention de Vienne sur les relations consulaires du 24 avril 1963 com-
               mises « dans le cadre de la détention et du procès d’un ressortissant indien,
               M. Kulbhushan Sudhir Jadhav », condamné à mort au Pakistan,
                  Vu la demande en indication de mesures conservatoires présentée par
               l’Inde le 8 mai 2017 et l’ordonnance par laquelle la Cour a indiqué des
               mesures conservatoires le 18 mai 2017 ;
                  Considérant que, au cours d’une réunion que le président de la Cour a
               tenue avec les agents des Parties le 8 juin 2017, en application de l’ar-
               ticle 31 du Règlement, l’agent de l’Inde a demandé que chacune des Par-
               ties se voie octroyer un délai de quatre mois pour la préparation de ses
               écritures ; et que l’agent du Pakistan a indiqué que des délais de deux mois
               seraient suﬃsants ;
                  Compte tenu des vues des Parties,
                 Fixe comme suit les dates d’expiration des délais pour le dépôt des
               pièces de la procédure écrite :
                 Pour le mémoire de l’Inde, le 13 septembre 2017 ;
                 Pour le contre-mémoire du Pakistan, le 13 décembre 2017 ;

               4

280                   jadhav (ordonnance 13 VI 17)

    Réserve la suite de la procédure.

   Fait en français et en anglais, le texte français faisant foi, au Palais de
la Paix, à La Haye, le treize juin deux mille dix-sept, en trois exemplaires,
dont l’un restera déposé aux archives de la Cour et les autres seront trans-
mis respectivement au Gouvernement de la République de l’Inde et au
Gouvernement de la République islamique du Pakistan.

                                                       Le président,
                                              (Signé) Ronny Abraham.
                                                          Le greﬃer,
                                             (Signé) Philippe Couvreur.

5

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