42 AVIS CONSULTATIF N° 17
ANNEXE 2
I. — PIÈCES TRANSMISES PAR LE SECRÉTARIAT DE LA SOCIÉTÉ DES NATIONS :

Convention entre la Grèce et la Bulgarie, relative à l'émigra-
tion réciproque (Neuilly-sur-Seine, 27 novembre 1919).

Règlement sur l’émigration réciproque et volontaire des minorités
grecques et bulgares (Athènes, 6 mars 1922).

Extraits des procès-verbaux de la cinquante-huitième Session du
Conseil de la Société des Nations (7me séance, 16 janvier 1930).

Lettre du président de la Commission mixte d’émigration gréco-
turque au Secrétaire général de la Société des Nations (5 mars 1930).

Annexe :
Décisions prises par la Commission mixte gréco-turque et se
rapportant aux communautés :
Décision XVIII (4 avril 1924).
» XIX (> » » ).
» XXIII (27 mai » ).
» XLV (26 juillet 1928).

Lettre du président de la Commission mixte d’émigration gréco-
bulgare au Secrétaire général de la Société des Nations (6 mars
1930).

Lettre du Secrétaire général de la Société des Nations au Greffier
de la Cour (17 mars 1930).

II. — EXTRAITS DES PROCES-VERBAUX DE LA COMMISSION MIXTE ET DE SES
| SOUS-COMMISSIONS.

(Transmis soit par le Secrétariat de la Société des Nations, soit
par le Gouvernement bulgare ou le Gouvernement hellénique, soit
par la Commission mixte. — Outre ces extraits, cette dernière a
fait parvenir à la Cour la série complète de ses procès-verbaux.)

Séances de la Commission : Transmis par:
N° 48 (Décision 33 B. 2) S. d. N. C.M. Grèce
» 81 C. M.
» 86 C. M.
» 88 C. M.
» 93 (avec annexes) C. M.
» 95 C. M.
» 96 C. M.
» 142 (Décision 108 L. 1) S. d. N. C. M. Grèce
» 148 S. d. N. C. M.
» 150 S. d.N.
» 187 (Décision 153 L. 2) S. d. N. C. M.
» 235
» 283 (Décision 427 G. 86) Bulg.
» 283 ( » 483 G.. 86 bis) Bulg.
» 286 ( » 432 G. 87) | S.d.N. C.M. Bulg.
» 287 ( » 433 G. 88) Bulg.
» 287 ( » 439 G. 88 bis) Bulg.
» 290 ( » 444 G. 6) S. 4. N. C. M. Grèce
» 304 ( » 515 L. 8) S. d. N. C. M.
» 334 ( » 674 G. 221) Bulg.
» 334 ( » » » 222) Bulg.
» 336 ( » » » 222 bis) Bulg
43 AVIS CONSULTATIF N° 17
Séances de la Commission : Transmis par:
N° 357 (Décision 797 L. 9) S. d. N. C. M.
» 367 (- » 817 L. ro) S.d.N. C. M.
» 374 S. d. N.
» 381 S. d. N. C. M.
» 382 S. d. N. C. M.
» 385 (Décision 843 B. 78) S. d. N. C. M.
» 415 (Interprétation de la
Décision 5. 87) Bulg.
» 432 (avec annexes) S. d. N.
» 436 ( » » ) S. d. N.
» 438 Bulg.
» 476 (Décision 1027 G. 366) Bulg.
» 492 ( » ' 1088 G. 390) Bulg.
» 504 ~ $.d.N
» 505 S.d.N
» 506 S.d.N
» 519 S. d. N
» 525 S. d. N.
» 535 Grèce
Séances des sous-commissions :
N° I 4 S.d.N
695 S. d. N
710 S.d.N
711 S. d. N
» ITT 345 S. d. N. .
» IV 5264 Bulg.
527 @ Bulg.
Décision (Naméche ) de
février 1930 Buig.
» VI 208 © S.d.N.
219 S.d. N.
» VIT Annexe à Décision 367 ; C. M.
III. — Prices TRANSMISES PAR LE PRESIDENT DE LA COMMISSION MIXTE :

Lettre du président de la Commission mixte d’émigration gréco-
bulgare au Greffier de la Cour (6 mars 1930).

Exposé des circonstances de fait et de droit ayant donné naissance
au désir de la Commission mixte d'obtenir l'avis de la Cour (4 mars

1930).
Série de volumes des décisions de la Commission mixte :
Vol. I A — E.
‘» II F—G.
» III H — Z.
Exposé sur la mission et les travaux de la Commission mixte (mai
1929).

Interprétation de l’article 12 de la Convention, mémoire du comman-
dant de Roover (6 juin 1921).
Mémoires nos 1, 2, 3 et 4:

1. Interprétation de l’article 12 de la Convention gréco-bulgare
6 juin 1921). -

2. Mémoire relatif au sort des biens abandonnés par les Bulgares
en Thrace orientale ou par les Turcs dans les nouveaux terri-
toires bulgares (21 septembre 1921). |

3. La restitution des propriétés immobilières aux réfugiés bulgares
et le droit pour ceux-ci de se prévaloir éventuellement du
Traité des Minorités (22 décembre 1921).
44 AVIS CONSULTATIF N° 17

4. Mémoire relatif au droit des émigrants à l'évaluation de leurs
biens par la Commission mixte en connexité avec le droit
d’expropriation des gouvernements (12 avril 1923).

Rapport du commandant de Roover sur sa mission en Bulgarie
(23 février 1922).

Nouvelle méthode de travail (18 octobre 1926).

Dossier contenant divers formulaires {1 A, 2 A, 3 A, 1 B, 2 B,
3 B, 4, 5).

IV. — PIÈCES TRANSMISES PAR LE GOUVERNEMENT BULGARE :

Exposé du Gouvernement bulgare (12 mars 1930).
Observations du Gouvernement bulgare (17 avril 1930).

Annexes :

Note sur la jurisprudence bulgare et sur le droit canonique
orthodoxe.

Extrait de: Droit canonique orthodoxe (1904), par le Dr Nico-
dime Milas, évêque de Dalmatie et d'Istrie.

Protocole signé à Genève le 29 septembre 1924 entre le repré-
sentant du Gouvernement hellénique et le président du Conseil de
la Société des Nations.

Idem, avec le ministre des Affaires étrangères de Bulgarie.

Constatations des membres de la Commission mixte nommés par
le Conseil de la Société des Nations, relatives à la situation des
émigrants en Grèce et en Bulgarie (2 mars 1925).

Enquéte sur les événements de Tarlis (1924).

Documents concernant le caractére de la communauté religieuse
de Varna:

Message du Patriarche de Constantinople de l’an 1865, concernant
la nomination de l'évêque Ioachim de Varna, adressé aux chrétiens
orthodoxes de Varna, par lequel ces derniers sont priés de vou-
loir bien recevoir l’évêque, de lui obéir, etc. Ce message est rédigé
en bulgare et en grec.

Copie de la lettre, datée le 28 février 1867, adressée par le méme
évêque au Patriarche de Constantinople, par laquelle l'évêque se
plaint que de go villages entrant dans son diocése, une dizaine
à peine avec population grecque lui sont soumis.

Lettre du ‘même métropolite Ioachim, datée du 3 avril 1866,
adressée à la population de Baltchik et Mangalia, par laquelle il
se plaint qu’on ne le paie pas — écrite en bulgare et en grec.

Lettre du même métropolite, datée du 16 mars 1865, adressée à
la population de Baltchik, écrite en bulgare et en grec, concernant
la révocation d’un prêtre et la nomination d’un autre.

Documents concernant certaines églises sises à Plovdiv (Philippo-
poli) : |

Photographies (deux) des pages 11 et 12 du codex de la Métro-
polie de Plovdiv, sub 14, datant de février 1783, concernant le
règlement des comptes pour la construction de l'église Sainte-
Marina.

Le codex est signé par les notables de Plovdiv, dans leur majorité
bulgares, et approuvé par l'évêque Cyrillus.

Photographie de trois feuilles’ de collecte du 15 mars 1837,
concernant la construction de l’église Sainte-Paraskeva, d’où on voit
que les donateurs, sauf deux exceptions, sont des Bulgares et que
parmi les donateurs figurent des villages purement bulgares (Avra-
dala [Koprivchtiza], Dervent, Adjar).
45 AVIS CONSULTATIF N° 17

Documents concernant le monastère de Saint-Vratch, sis au nord
du village de Kouklen, et celui de Batchkovo, arrondissement de
Stanimaka. (Région de Plovdiv.)

Une partie de la façade principale de l'église du couvent de

Saint-Vratch.

La même façade agrandie, où on voit clairement les inscriptions
bulgares. .

Photographie d’une plaque en marbre rédigée en bulgare, de
1606, certifiant la construction de la fontaine du monastère.

Sept photographies de livres saints du même monastère rédigés
en bulgare, datant du XIVme siècle, sauf un dé l'an 1695, se
trouvant à la Bibliothèque nationale de Plovdiv.

Extrait-traduction du chapitre 24 des statuts (Typicon) pour la
fondation et l'administration du couvent de Batchkovo, dont

. Poriginal se trouve à la Bibliothèque de l’Université de Bucarest
(Roumanie).

Extrait-traduction de l'Histoire des Bulgares, par Const. Iretchek,
chap. XXIX.

Liasse de sept lettres (en traduction) écrites par Naiden Guéroff,
de Philippopoli (Plovdiv), ou adressées à lui et se trouvant dans
les archives de ce dernier, édition en deux volumes de l’Académie
des Sciences à Sofia.

Extrait de cinq exemplaires du manuscrit de Constantin Moura-
venoff, écrit en 1870, qui se trouve à la Bibliothèque nationale de
Sofia.

Procès-verbaux noS 526 a et 527 a de la Sous-Commission
Namèche. | .

Gazette officielle bulgare, 23 juin 1922 (Règlement de la Com-
mission mixte).

Gazette officielle bulgare, 2 mai 1928 (loi portant ratification de
Vaccord Molloff-Caphandaris).

V. -— PIÈCES TRANSMISES PAR LE GOUVERNEMENT HELLÉNIQUE :

Mémoire du Gouvernement hellénique (10 mars 1930).

Annexes :

Projet d’accord relatif à l’émigration réciproque dans les Balkans,
soumis le 24 octobre 1919 à la Commission des nouveaux États et
de la protection des minorités par M. N. Politis, ministre des
Affaires étrangères de Grèce.

Interpellation de M. Karandzoulof à la séance du 22 mars 1927.

Communiqué du ministère des Affaires étrangères de Bulgarie
sur un appel du Comité national macédonien.

Extraits du Times (14 et 18 avril 1927).

Extraits du journal Macédoine, de Sofia, organe du Comité
révolutionnaire macédonien (18 et 20 avril 1927}.

Observations du Gouvernement hellénique (23 avril 1930).

‘Annexe:

Lettre de la délégation hellénique à la Commission mixte d’émi-
gration gréco-bulgare (14 février 1930).

Quatre lettres de l’agent diplomatique bulgare à Constantinople
adressées & Sa Sainteté le Patriarche cecuménique.
Lettre sub n° 43 du 13/25 janvier 18go.
» » » 278 du 6 mars I891.
» » » 1059 du 13/25 août 1891.
» » ww» 2224 du 9/21 octobre 1896.
46

AVIS CONSULTATIF N° 17
Titres de propriétés :

a) Titre de propriété sub n° o482 en date du 28 mars 1884, au
nom de la communauté religieuse grecque de Philippopoli (avec
traduction en français).

b) Titre de propriété sub n° 1 du 3 janvier 1903 au nom de la
communauté religieuse grecque de Bourgas, représentée par le
métropolite -d'Anchialos, Mgt Vassilios, et Kyriazi Thanassof
(avec traduction en français). |

Un reçu de paiement d'impôt sub n° 49917 délivré par l'agent
percepteur Thodoroff au nom de la communauté religieuse de Varna
(avec traduction en français).

Procès-verbaux sténographiés de la 2rme session du Sobranié, où, à
la page 1187, se trouve le discours de M. Bouroff, ministre des Affaires
étrangères de Bulgarie.

Trois numéros du journal bulgare Makedonia (nos 1080, ro81 et
1082, du 22, du 23 et du 26 mai 1930), contenant trois articles de
M. Roumenoff.

Copie authentique d'un jugement du Tribunal civil de Varna,
sub n° 237, en date du 4 octobre 1879.

Déclaration en original, en date du 12 mars 1884, concernant la
délimitation des biens cédés par la communauté de Varna a S. A. le
prince de Bulgarie.

Pian de paiement du 8 décembre 1922.

Accord Molloff-Caphandaris du g décembre 1927.

Rapport de la Commission d’enquéte sur les incidents de frontière
entre la Bulgarie et la Gréce (Genéve, 1925).


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING TRIAL OF PAKISTANI
PRISONERS OF WAR

(PAKISTAN v. INDIA)

REQUEST FOR THE INDICATION OF INTERIM MEASURES
OF PROTECTION

ORDER OF 13 JULY 1973

1973

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRÊTS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE AU PROCÈS DE
PRISONNIERS DE GUERRE PAKISTANAIS

(PAKISTAN c. INDE)

DEMANDE EN INDICATION DE MESURES
CONSERVATOIRES

ORDONNANCE DU 13 JUILLET 1973
Official citation:

Trial of Pakistani Prisoners of War, Interim Protection,
Order of 13 July 1973, LCA. Reports 1973, p. 328.

Mode officiel de citation:

Procés de prisonniers de guerre pakistanais, mesures conservatoires,
ordonnance du 13 juiller 1973, C.J. Recueil 1973, p. 328,

Sales number 386
N° de vente:

13 JULY 1973

ORDER

CASE CONCERNING TRIAL OF PAKISTANI
PRISONERS OF WAR

(PAKISTAN v. INDIA)

REQUEST FOR THE INDICATION OF INTERIM
MEASURES OF PROTECTION

AFFAIRE RELATLVE AU PROCES DE PRISONNIERS
DE GUERRE PAKISTANAIS

(PAKISTAN c. INDE)

DEMANDE EN INDICATION DE MESURES
CONSERVATOIRES

13 JUILLET 1973

ORDONNANCE
328

INTERNATIONAL COURT OF JUSTICE

1973 YEAR 1973
13 July
General List
No. 60 13 July 1973

CASE CONCERNING TRIAL OF PAKISTANI

PRISONERS OF WAR
(PAKISTAN ». INDIA)

REQUEST FOR THE INDICATION OF INTERIM
MEASURES OF PROTECTION

ORDER

Present: President LACHS; Judges FORSTER, GROS, BENGZON, PETREN,
ONYEAMA, IGNACIO-PINTO, MOROZOV, JIMENEZ DE ARECHAGA,
Sir Humphrey WALDOCK, NAGENDRA SINGH, RUDA; Registrar
AQUARONE.

The International Court of Justice,

Composed as above,

After deliberation,

Having regard to Articles 41 and 48 of the Statute of the Court,
Having regard to Article 66 of the Rules of Court,

Having regard to the Application by Pakistan filed in the Registry of
the Court on 11 May 1973, instituting proceedings against India in
respect of a dispute concerning charges of genocide against 195 Pakistani
nationals, prisoners of war or civilian internees, in Indian custody,

Makes the following Order:

1. Having regard to the request dated 11 May 1973 and filed in the
Registry the same day, whereby the Government of Pakistan, relying on

4
329 PAKISTANI PRISONERS OF WAR (ORDER 13 VII 73)

Article 41 of the Statute and Article 66 of the Rules of Court, asks the
Court to indicate, pending the final decision in the case brought before it
by the Application of the same date, the following interim measures of
protection:

“(1) That the process of repatriation of prisoners of war and civilian
internees in accordance with international law, which has al-
ready begun, should not be interrupted by virtue of charges of
genocide against a certain number of individuals detained in
India.

(2) That such individuals, as are in the custody of India and are
charged with alleged acts of genocide, should not be transferred
to ‘Bangla Desh’ for trial till such time as Pakistan’s claim to
exclusive jurisdiction and the lack of jurisdiction of any other
Government or authority in this respect has been adjudged b.
the Court;”

2. Whereas the Government of India was notified by telegram the same
day of the filing of the Application and request for indication of interim
measures of protection, and of the precise measures requested, and copies
of the Application and the request were at the same time transmitted to it
by air mail;

3. Whereas, pursuant to Article 40, paragraph 3, of the Statute and
Article 37, paragraph 2, of the Rules of Court, copies of the Application
were transmitted to Members of the United Nations through the Sec-
retary-General and to other States entitled to appear before the Court:

4. Whereas, pursuant to Article 31, paragraph 2, of the Statute, the
Government of Pakistan chose Sir Muhammad Zafrulla Khan to sit as
judge ad hoc, and he sat in the case until 2 July 1973;

5. Whereas the Governments of Pakistan and India were informed by
communications of 14 May 1973 that the Court would in due course hold
public hearings to afford the parties the opportunity of presenting their
observations on the request by Pakistan for the indication of interim
measures of protection, and the opening of such hearings was sub-
sequently fixed for 29 May 1973;

6. Whereas on 28 May 1973, as a result of communications received
from the Governments of Pakistan and India, the Court decided to post-
pone the opening of the public hearings, and subsequently fixed 4 June
1973 as the date for such opening;

7. Whereas by a letter dated 23 May 1973 from the Ambassador of
India to the Netherlands, received in the Registry on 24 May 1973, the
Government of India declined to consent to the jurisdiction of the Court
in the case, and claimed that without such consent the Court could not
properly be seised of the case and could not proceed with it, and that
there was no legal basis whatever for the jurisdiction of the Court in the
case; and whereas in two statements transmitted to the Court with letters

5
330 PAKISTANI PRISONERS OF WAR (ORDER 13 VII 73)

from the Ambassador of India to the Netherlands dated 28 May and
4 June 1973 the Government of India presented a further reasoned
statement that the Court had no jurisdiction in the case;

8. Whereas at the opening of the public hearings, which were held on
4, 5 and 26 June 1973, there were present in Court the Agent, Deputy-
Agent and counsel of the Government of Pakistan;

9. Having heard the observations on the request for interim measures
on behalf of the Government of Pakistan, and the replies on behalf of
that Government to questions put by Members of the Court, submitted by
His Excellency Mr. J. G. Kharas and Mr. Yahya Bakhtiar, Attorney-
General of Pakistan;

10. Whereas in a letter of 11 July 1973 the Agent for Pakistan informed
the Court of its expectation that negotiations will take place between
Pakistan and India in the near future in which the issues which are the
subject of its Application will be under discussion; and whereas in that
letter the Government of Pakistan asks the Court to postpone further
consideration of its request for interim measures in order to facilitate
those negotiations;

11. Whereas in the same letter the Government of Pakistan further
asks the Court to fix time-limits for the filing of written pleadings in the
case;

12. Considering that it is Pakistan which requested the Court to in-
dicate interim measures of protection on the basis that the circumstances
of the case so required;

13. Whereas it is of the essence of a request for interim measures of
protection that it asks for a decision by the Court as a matter of urgency,
as it is expressly recognized by the Court in Article 66, paragraph 2, of
the Rules of Court;

14. Whereas the fact that the Government of Pakistan now asks the
Court to postpone further consideration of its request for the indication
of interim measures signifies that the Court no longer has before it a
request for interim measures which is to be treated as a matter of urgency;
and whereas the Court is not therefore called upon to pronounce upon the
said request;

15. Having regard to Article 66, paragraph 1, of the Rules of Court
which provides that a request for the indication of interim measures of
protection may be made at any time during the proceedings in the case in
connection with which it is made;

16. Whereas in the circumstances of the present case the Court must
first of all satisfy itself that it has jurisdiction to entertain the dispute;

Accordingly,
THE Court,
by 8 votes to 4,

Decides that the written proceedings shall first be addressed to the
question of the jurisdiction of the Court to entertain the dispute;

6
ak PARISUANL BRISGNELRS a a Ab ee, ous

Fixes as follows the ume-limits for the written prow. cdings:
1 October 1973 for the Memorial of the Gieverrunent of Pakistan.

15 December 1973 for the Counter-Menicrial of ihe Government of
India;

Aud reserves the subsequent procedure for further decision,

Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this thirteenth dar ef July one thousand
nine hundred and seventy-three. in four capac, one of which wih be
placed in the archives of the Court, and the others dansiutted sespec liven
to the Government of Pakistan, to the Government of India, and to the
Secretary-General of the United Nations for transmission to the Security
Council.

Noe J Mfardeed LACHS.
President.

(Signed) S, AQUARONE,
Registrar.

Judge NAGENDRA SINGH appends a separate opinion to the Order of the

Court.

Judge PETREN appends a dissenting opinion to the Order of the Court.

(Initialled; MX.
(Initialled) S.A.


1214

SEPARATE OPINION OF JUDGE HIGGINS

Removal from the List other than for reasons of discontinuance — Inherent
powers of the Court — Inherent powers not limited to two existing examples —
Reasons why this case should have been removed from the List — Inappropriate
for Judgment to have pronounced on Article 35, paragraph 2, of Statute.

1. The Court in its Judgment finds that the Observations of Serbia and
Montenegro have not had the legal effect of discontinuance of proceed-
ings under the Rules (para. 31). I agree. It is clear that the Applicant has
declined to “discontinue”, and that “discontinuance” as envisaged in the
Rules is dependent on the consent of the Parties.

2. The Court further observes that:

“Prior to the adoption of Article 38, paragraph 5, of the Rules of
Court, in a number of cases in which the application disclosed no
subsisting title of jurisdiction, but merely an invitation to the State
named as respondent to accept jurisdiction for the purposes of the
case, the Court removed the cases from the List by order. By Orders
of 2 June 1999, it removed from the List two cases brought by Serbia
and Montenegro concerning Legality of the Use of Force against
Spain and the United States of America, on the ground that the
Court ‘manifestly lack[ed] jurisdiction’ (Z C.J. Reports 1999, pp. 773
and 925).” (Judgment, para. 32.)

3. The Court then observes that “[t]he present case does not however
fall into either of these categories”. The Court thus appears to regard
these as a closed list of categories for the removal of cases from the List
(other than where discontinuance has occurred), and to suggest that no
removal from the List was open to the Court in the present case as the
facts do not fall within the existing two examples.

4. A case may be discontinued by the applicant alone and an order
issued to remove it from the List (Denunciation of the Treaty of 2 Novem-
ber 1865 between China and Belgium, Order of 25 May 1929, P.C.LJ.,
Series A, No. 18; Legal Status of the South-Eastern Territory of Green-
land, Order of 11 May 1933, P.C.I.J., Series AIB, No. 55, p. 157; Protec-
tion of French Nationals and Protected Persons in Egypt, Order of
29 March 1950, I. C.J. Reports 1950, p. 59; Electricité de Beyrouth Com-
pany, Order of 29 July 1954, I. C.J. Reports 1954, p. 107; Aerial Incident
of 27 July 1955 (United Kingdom v. Bulgaria), Order of 3 August 1959,

58
1215 LEGALITY OF USE OF FORCE (SEP. OP. HIGGINS)

LC.J. Reports 1959, p. 264; Aerial Incident of 27 July 1955 (United
States of America v. Bulgaria), Order of 30 May 1960, I.C.J. Reports
1960, p. 146; Barcelona Traction, Light and Power Company, Limited,
Order of 10 April 1961, I.C.J. Reports 1961, p. 9; Trial of Pakistani Pris-
oners of War, Order of 15 December 1973, I.C.J. Reports 1973, p. 347;
Border and Transborder Armed Actions (Nicaragua v. Costa Rica),
Order of 19 August 1987, I.C.J. Reports 1987, p. 182; Military and Para-
military Activities in and against Nicaragua (Nicaragua v. United States
of America), Order of 26 September 1991, I C.J. Reports 1991, p. 47;
Border and Transborder Armed Actions (Nicaragua v. Honduras), Order
of 27 May 1992, L. C.J. Reports 1992, p. 222; Passage through the Great
Belt (Finland v. Denmark), Order of 10 September 1992, I. C.J. Reports
1992, p. 348; Maritime Delimitation between Guinea-Bissau and Senegal,
Order of 8 November 1995, I.C.J. Reports 1995, p. 423; Vienna Conven-
tion on Consular Relations (Paraguay v. United States of America),
Order of 10 November 1998, I.C.J. Reports 1998, p. 426; Armed Activi-
ties on the Territory of the Congo (Democratic Republic of the Congo v.
Burundi), Order of 30 January 2001, I. C.J. Reports 2001, p. 3; Armed
Activities on the Territory of the Congo (Democratic Republic of
the Congo v. Rwanda), Order of 30 January 2001, I.C.J. Reports 2001,
p. 6).

5. There is a comparable, and analogous, practice relating to discon-
tinuance upon the agreement of the parties, removal from the List being
effected by order. Among the many examples are Delimitation of the Ter-
ritorial Waters between the Island of Castellorizo and the Coasts of Ana-
tolia, Order of 26 January 1933, P.C.I.J., Series AIB, No. 51, p. 4;
Compagnie du Port, des Quais et des Entrepôts de Beyrouth and Société
Radio-Orient, Order of 31 August 1960, I.C.J. Reports 1960, p. 186; Cer-
tain Phosphate Lands in Nauru (Nauru v. Australia), Order of 13 Sep-
tember 1993, I.C.J. Reports 1993, p. 322; Questions of Interpretation and
Application of the 1971 Montreal Convention arising from the Aerial
Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom),
Order of 10 September 2003, I.C.J. Reports 2003, p. 149; Questions of
Interpretation and Application of the 1971 Montreal Convention arising
from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United
States of America), Order of 10 September 2003, I.C.J. Reports 2003,
p. 152.

6. The Court has also declined to proceed with cases in circumstances
other than discontinuance under the Rules. The Permanent Court termi-
nated interim measures proceedings in the Prince von Pless Administra-
tion case, on the grounds that the request made by Germany in its Appli-
cation had ceased to have any object (Order of 11 May 1933, P.C.LJ.,
Series AIB, No. 54, p. 150). And in the Northern Cameroons case, the
Court declined to proceed further with a case for what it saw as reasons
of judicial propriety (Preliminary Objections, Judgment, CJ.
Reports 1963, p. 29). In the Nuclear Tests cases, the Court did not
regard itself as constrained by the fact that Australia and New Zealand

59
1216 LEGALITY OF USE OF FORCE (SEP. OP. HIGGINS)

had not, after the French announcement of the conclusion of its testing,
discontinued the proceedings under Article 74 of the 1972 Rules. The
Court stated that “this does not prevent the Court from making its own
independent finding” (Nuclear Tests (Australia v. France), Judgment,
ICI. Reports 1974, p. 270, para. 54; Nuclear Tests (New Zealand v.
France), Judgment, I.C.J. Reports 1974, p. 476, para. 57) and it deter-
mined that “the object of the claim has been achieved by other means”
— i.e., means other than litigation (Nuclear Tests (Australia v. France),
Judgment, I.C.J. Reports 1974, p. 271, para. 55; Nuclear Tests (New
Zealand v. France), Judgment, I.C.J. Reports 1974, p. 476, para. 58).

7. In a pertinent dictum the Court stated that it saw:

“no reason to allow the continuance of proceedings which it knows
are bound to be fruitless. While judicial settlement may provide a
path to international harmony in circumstances of conflict, it is none
the less true that the needless continuance of litigation is an obstacle
to such harmony.” (Nuclear Tests (Australia v. France), Judgment,
C.J. Reports 1974, p. 271, para. 58; Nuclear Tests (New Zea-
land v. France), Judgment, I.C.J. Reports 1974, p. 477, para. 61.)

In both the Northern Cameroons and Nuclear Tests cases, the Court
decided not to adjudicate further and did not issue a formal order.

8. In its Orders of 2 June 1999 (Legality of Use of Force ( Yugosla-
via v. United States of America), Provisional Measures, Order of
2 June 1999, C.J. Reports 1999, p. 916; Legality of Use of Force
(Yugoslavia v. Spain), Provisional Measures, Order of 2 June 1999,
1 C.J. Reports 1999, p. 761) the Court had removed the cases from the
List after hearings on provisional measures, on the grounds that the
Court manifestly lacked jurisdiction. And, as was recognized in the Judg-
ment at paragraph 32, prior to the formulation of Article 38, para-
graph 5, of the Rules of Court, there were cases removed from the List
because the application was merely an invitation to the respondent.

9. These were actions by the Court in the exercise of its inherent
powers. The precedents on removal from the List cited by the Court
— where from the outset no subsisting title of jurisdiction has been
disclosed, or where the Court manifestly lacked jurisdiction — do not
constitute two exclusive categories within which the Court has to fall if it
wishes to exercise its inherent powers in the absence of discontinuance.
There is nothing in the case law that so suggests. Indeed, it is hard to
know what might be the legal source of a right to remove cases from the
List provided only that this would be limited to these two examples.

10. The Court’s inherent jurisdiction derives from its judicial character
and the need for powers to regulate matters connected with the adminis-

60
1217 LEGALITY OF USE OF FORCE (SEP. OP. HIGGINS)

tration of justice, not every aspect of which may have been foreseen in
the Rules. It was on such a basis that the Permanent Court had admitted
the filing of preliminary objections to jurisdiction even before this possi-
bility was regulated by the Rules of Court. The Court stated that it was
“at liberty to adopt the principle which it considers best calculated to
ensure the administration of justice” (Mavrommatis Palestine Conces-
sions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 16). The power
of the Court to identify remedies for any breach of a treaty, in a case
where jurisdiction was based solely upon the treaty concerned, has been
regarded as within the Court’s inherent powers in the Corfu Channel case
(Assessment of Amount of Compensation, Judgment, I. C.J. Reports 1949,
p. 244) and in the LaGrand (Germany v. United States of America) case
(Memorial of the Federal Republic of Germany, Vol. I, 16 Septem-
ber 1999, para. 3.60).

11. The very occasional need to exercise inherent powers may arise as
a matter in limine litis, or as a decision by the Court not to exercise a
jurisdiction it has, or in connection with the conduct or the merits of a
case. The judges who jointly dissented in the Nuclear Tests cases did not
challenge the existence of such inherent powers. They asserted that their
use “must be considered as highly exceptional and a step to be taken only
when the most cogent considerations of judicial propriety so require”
(Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974,
p. 322, para. 22, joint dissenting opinion). Understandably, these judges
were particularly concerned that the exercise of the power to decide pro-
prio motu should not be exercised without affording an applicant the
opportunity to submit counter arguments, as this was not consonant with
the due administration of justice. In the present instance, the issue of
whether the case should be removed from the List was fully canvassed
before the Court.

12. Thus the real question is not whether the Applicant has or has not
“discontinued” the case, nor whether the present circumstances are exactly
identical to the few examples where the Court itself has removed a case
from the List (examples which will, in their turn, have been “new” at the
relevant time and not falling into any previously established category).
The question is whether the circumstances are such that it is reasonable,
necessary and appropriate for the Court to strike the case off the List
as an exercise of inherent power to protect the integrity of the judicial
process.

I believe the answer is in the affirmative.

13. The starting point for discontinuance is Article 38, paragraph 2, of
the Rules of Court, whereby the applicant “shall specify as far as possible
the legal grounds upon which the jurisdiction of the Court is said to be
based”. The Court may, in certain circumstances, allow these grounds of
jurisdiction to be enlarged, and it may also occur that an applicant later
prefers to proceed on the basis of one specified ground rather than
another. Nonetheless, for all the flexibility built in to Article 38, para-

61
1218 LEGALITY OF USE OF FORCE (SEP. OP. HIGGINS)

graph 2, of the Rules, the obligation contained in it is a continuing one.
An applicant which on Monday specifies two bases of jurisdiction for the
case it wishes the Court to decide, and on Thursday informs the Court
that these are not, after all, grounds on which it relies, cannot be said on
Saturday to be in conformity with Article 38, paragraph 2. It has put
itself out of conformity with Article 38, paragraph 2, and the fact that it
at the same time declines to “discontinue” the case under Article 88 or 89
of the Rules is irrelevant to that fact.

14. No more is the position of the Applicant who resiled from speci-
fied heads of jurisdiction without proffering others rendered in compli-
ance with the Rules by virtue of asking the Court “to decide on its
jurisdiction” in the light of these changes of position (Judgment, para. 28).
Such a request is totally outside of the contemplation of the Rules. Yet
this is what has occurred in this case. On 24 April 1999 the then Federal
Republic of Yugoslavia filed its Application instituting proceedings
against various States, invoking as the basis of the Court’s jurisdiction
Article 36, paragraph 2, of the Statute of the Court, as well as Article IX
of the Convention on the Prevention and Punishment of the Crime of
Genocide. On 20 December 2002, Serbia and Montenegro formally stipu-
lated that it was not a party to the Statute of the Court before 1 Novem-
ber 2000 — and that at the time of its initial Application, it was not
bound by the Genocide Convention.

15. Having thus put itself in a position incompatible with Article 38,
paragraph 2, of the Rules, Serbia and Montenegro did not inform the
Court it was discontinuing the case under Article 89 of the Rules, but
rather “asked the Court to decide on its jurisdiction”. It was in fact in no
position to make such a request of the Court, and these events alone are
sufficient, in my view, for the Court to have used its inherent powers to
ensure orderly conduct of its judicial function, and to have removed the
cases from the List.

16. In the event, the disorderly nature of the course now being fol-
lowed by Serbia and Montenegro was compounded. In response to its
initial claims on the merits against the various respondent States, in the
eight cases allowed to proceed by the Court beyond the initial hearings
on provisional measures, preliminary objections were lodged. For the
ensuing three years no response was made to these objections — and
indeed, when extremely brief Written Observations were eventually made,
they did not even attempt to counter or otherwise respond to the sub-
stantive arguments contained in the preliminary objections of the Respon-
dents. Instead, the Applicant resiled from its previously stated grounds of
jurisdiction and simply suggested that “the Court decide”. This incoher-
ent manner of proceeding is not, in my view, compatible with sound judi-
cial procedures, which are designed to be fair to all parties concerned,
and it provided further grounds for which the appropriate response of
the Court would have been to remove the cases from the List.

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1219 LEGALITY OF USE OF FORCE (SEP. OP. HIGGINS)

17. The regrettable history of events in this case falls within the
circumstances described by the Court in the Northern Cameroons
(Cameroon v. United Kingdom) case:

“There are inherent limitations on the exercise of the judicial func-
tion which the Court, as a court of justice, can never ignore. There
may thus be an incompatibility between the desires of an applicant,
or, indeed, of both parties to a case, on the one hand, and on the
other hand the duty of the Court to maintain its judicial character.
The Court itself, and not the parties, must be the guardian of the
Court’s judicial integrity.” (Preliminary Objections, Judgment, I. C.J.
Reports 1963, p. 29.)

x * +

18. In paragraph 39 of the Judgment, the Court states that it “cannot
decline to entertain a case simply because of a suggestion as to the
motives of one of the parties or because its judgment may have implica-
tions in another case”. Some observations in response to this statement
have been made in paragraph 12 of the joint declaration of seven judges.
In that context it is also necessary to make some observations on the
remarkable attention given by the Court to Article 35, paragraph 2, of
the Statute. This provision had, of course, never been invoked by the
Applicant during the period when it relied on its original grounds of
jurisdiction. The Applicant’s irregular request of 20 December 2002 to
the Court was “to decide on its jurisdiction considering the pleadings
formulated in these Written Observations”. These Written Observations
contained no invocation of Article 35, paragraph 2, as an alternative
ground of jurisdiction — yet, going beyond what the Applicant requested
in the present case, the Court has devoted some 23 paragraphs to laying
the grounds for a finding that Article 35, paragraph 2, of the Statute
could not have been an alternative basis for allowing access to the Court
in respect of the Genocide Convention so far as Serbia and Montenegro
is concerned. This exercise was clearly unnecessary for the present case.
Its relevance can lie, and only lie, in another pending case. I believe the
Court should not have entered at all upon this ground in the present case.

x * +

19. Because I am of the firm view that grounds ratione personae
should not have been chosen for the disposition of this case (for reasons
elaborated in the joint declaration of seven judges), it is not my intention
here to offer my own views as to the arguments that the Court advances
to support its findings on this ground. It suffices to say that, while
General Assembly resolution 55/12 of 1 November 2000, admitting the

63
1220 LEGALITY OF USE OF FORCE (SEP. OP. HIGGINS)

Federal Republic of Yugoslavia as a new State, necessarily clarifies the
legal situation thereafter, it remains debatable whether “from the van-
tage point from which the Court now looks at the legal situation”, the
“new development in 2000 . . . has clarified the thus far amorphous legal
situation concerning the status of the Federal Republic of Yugoslavia
vis-a-vis the United Nations” at the relevant time (Judgment, para. 78).

20. It was said by Judge Lachs in 1992 that, while the various major
organs of the United Nations do each have their various roles to play in
a situation or dispute, they should act

“in harmony — though not, of course, in concert — and that each
should perform its functions with respect to a situation or dispute,
different aspects of which appear on the agenda of each, without
prejudicing the exercise of the other’s powers” (Questions of Inter-
pretation and Application of the 1971 Montreal Convention arising
from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v.
United Kingdom), Provisional Measures, Order of 14 April 1992,
LC.J. Reports 1992, p. 27, separate opinion of Judge Lachs).

The Court, in purporting to find an ex post facto clarification of the
situation as it was in 1992-2000, notwithstanding that the General Assem-
bly and Security Council had in all deliberation felt the objectives of the
United Nations were best met by legal ambiguity, seems to have ignored
that wise dictum.

(Signed) Rosalyn HIGGINS.

64


42

SEPARATE OPINION OF JUDGE SCHWEBEL

[have voted in favour of the Court’s Advisory Opinion because I think
that its essential conclusion — that there is a dispute between the United
Nations and the United States over the interpretation or application of the
Headquarters Agreement — is tenable. In my view, however, the question
put to the Court admits of more than one answer. The answer given by the
Court is not the answer which I believe in all respects to be required.

As the Court records in paragraph 1 of its Opinion, the General Assem-
bly, in requesting the Court’s advisory opinion as to whether the United
States is under an obligation to enter into arbitration in accordance with
section 21 of the Headquarters Agreement, affirmed the position of the
Secretary-General “that a dispute exists between the United Nations and
the host country concerning the interpretation or application of the
Agreement . . .” (resolution 42/229B). In its companion resolution
42/229A, also adopted on 2 March 1988, the General Assembly con-
sidered

“that a dispute exists between the United Nations and the United
States . .. concerning the interpretation or application of the Head-
quarters Agreement, and that the dispute settlement procedure set
out in section 21 of the Agreement should be set in operation”.

That is to say, the General Assembly, after twice answering the question
on which it seeks the advice of the Court, the principal judicial organ of
the United Nations, requested the Court’s opinion on that question.
Thereafter, on 23 March 1988, while proceedings in the Court were pend-
ing, the General Assembly reaffirmed its answer by holding

“that a dispute exists between the United Nations and the United
States ... concerning the interpretation or application of the Head-
quarters Agreement, and that the dispute settlement procedure
provided for under section 21 of the Agreement . . . should be set in
operation . . .” (resolution 42/230).

In responding to the General Assembly’s question posed in this
fashion, the Court makes holdings of unchallengeable cogency. It is axio-
matic that, on the international legal plane, national law cannot derogate
from international law, that a State cannot avoid its international respon-
sibility by the enactment of domestic legislation which conflicts with its
international obligations. It is evident that a party to an agreement con-
taining an obligation to arbitrate any dispute over its interpretation or
application cannot legally avoid that obligation by denying the existence
of a dispute or by maintaining that arbitration of it would not serve a useful
purpose. Itis accepted that a provision of a treaty (or a contract) prescribing

34
43 HEADQUARTERS AGREEMENT (SEP. OP. SCHWEBEL)

the international arbitration of any dispute arising thereunder does not
require, as a prerequisite for its implementation, the exhaustion of local
remedies. I agree not only with these restatements of legal principle but
also with the findings in this case that the dispute between the United
Nations and the United States has not been settled by such negotiation as
has taken place, and that the parties have not agreed upon a mode of settle-
ment other than arbitration.

My difference of perspective with the Court turns on whether the dis-
pute between the United Nations and the United States at this juncture
concerns “the interpretation or application” of the Headquarters Agree-
ment. The nub of my appreciation of the facts of the case is that there is
essential agreement between the United Nations and the United States on
the interpretation of the Headquarters Agreement. Whether there cur-
rently is a dispute over its application is not so clear.

It can be concluded, as the Court concludes, that, by the course of con-
duct which the Government of the United States has followed with respect
to the continued functioning of the office in New York City of the Obser-
ver Mission to the United Nations of the Palestine Liberation Organiza-
tion, a dispute has arisen between the United Nations and the United
States “concerning the ... application of this Agreement .. .”. But, in my
view, the facts of the case alternatively allow the conclusion that, since the
effective application of the United States Act at issue — the Anti-Terror-
ism Act — to the PLO’s New York office has been deferred pending the
outcome of litigation now in progress in the United States District Court
for the Southern District of New York, a dispute over the application of
the Headquarters Agreement will arise if and when the result of that litiga-
tion is effectively to apply that Act to the PLO’s office. Explanation of this
alternative conclusion, as well as of the parties’ coincidence of views on
the interpretation of the Headquarters Agreement, requires an exposition
of some salient facts of the case.

The Anti-Terrorism Act of 1987, in addition to the central provisions
quoted by the Court in paragraph 9 of its Opinion, contains “findings” of
the United States Congress about activities of the PLO and “determina-
tions” that the PLO is a “terrorist organization” which “should not benefit
from operating in the United States” ; directs the Attorney General to take
the necessary steps and institute the necessary legal action to “effectuate”
the Act; and gives appropriate courts of the United States authority, at the
Attorney General’s instance, to “enforce” the Act.

When legislation of this substance was initially introduced, Secretary of
State Shultz on 29 January 1987 wrote Senator Dole that:

“The PLO Observer Mission in New York was established as a

consequence of General Assembly resolution 3237 (XXIX) of

35
44 HEADQUARTERS AGREEMENT (SEP. OP. SCHWEBEL)

November 22, 1974, which invited the PLO to participate as an ob-
server in the sessions and work at the General Assembly. The PLO
Observer Mission represents the PLO in the UN; it is in no sense ac-
credited to the US. The US has made clear that PLO Observer Mission
personnel are present in the United States solely in their capacity as
‘invitees’ of the United Nations within the meaning of the Headquar-
ters Agreement ... we therefore are under an obligation to permit
PLO Observer Mission personnel to enter and remain in the United
States to carry out their official functions at UN headquarters . . .”
(Congressional Record, Vol. 133, No. 78, 14 May 1987, p. S6449).

At the 126th meeting of the United Nations Committee on Relations
with the Host Country, on 14 October 1987, the Observer for the PLO
drew attention to an amendment to the State Department authorization
bill containing provisions later to be reflected in the Anti-Terrorism Act.
He quoted the letter of the Secretary of State of 29 January. The represen-
tative of the United States responded that, “in the opinion of the Execu-
tive Branch, closing of the PLO Mission would not be consistent with the
host country’s obligations under the Headquarters Agreement”. The
Legal Counsel of the United Nations then declared that “the Organiza-
tion shared the legal opinion expressed in the letter of Secretary of State
Shultz of 29 January 1987” (A/42/26, pp. 11-12).

Senator Dole did not agree with the position of the Secretary of State,
and opinion in the Senate and House was divided. When a conference
report on the Foreign Relations Authorization Act was introduced to the
Senate, containing the title embodying the Anti-Terrorism Act, the Chair-
man of the Committee on Foreign Relations, Senator Pell, declared:

“the administration has expressed concern that the language on the
PLO might require the closing of the Observer Mission to the United
Nations in violation of US obligations under international law. The
bill language, as I read it, does not necessarily require the closure of
the PLO Observer Mission to the United Nations, since it is an estab-
lished rule of statutory interpretation that US courts will construe
congressional statutes as consistent with US obligations under inter-
national law, if such construction is at all plausible.

The proponents of closing the PLO mission argue that the United
States is under no legal obligation to host observer missions. If they
are right as a matter of international law, then the language in this bill
would require the closure of the PLO Observer Mission.

36
45

HEADQUARTERS AGREEMENT (SEP. OP. SCHWEBEL)

On the other hand, if the United States is under a legal obligation
as the host country of the United Nations to allow observer missions
recognized by the General Assembly, then the language in this bill
cannot be construed, in my opinion, as requiring the closure of the
PLO Observer Mission. The bill makes no mention of the PLO
Mission to the United Nations and the proponents never indicated
an intent to violate US obligations under international law. Rather,
they asserted that closure of the New York PLO office was not a
violation of international law and that they were proceeding on
this basis.” (Congressional Record, Vol. 133, No. 200, 16 December
1987, pp. S18185-S18186.)

Before developments had reached this stage, the Secretary-General on

13 October 1987 wrote to the Permanent Representative of the United
States expressing his serious concern at the adoption by the Senate of an
amendment which sought to make unlawful the maintenance within the
United States of any office of the PLO. He recalled the terms of the letter
of 29 January 1987 of the Secretary of State, and declared that, “I am
in agreement with the views expressed by the Secretary of State in this
matter...”

On 7 December 1987, the Secretary-General wrote to Ambassador

Walters in the following terms:

37

“it is the legal position of the United Nations that the members of the
PLO Observer Mission are, by virtue of General Assembly resolution
3237 (XXIX), invitees to the United Nations and that the United
States is under an obligation to permit PLO personnel to enter and
remain in the United States to carry out their official functions at the
United Nations under the Headquarters Agreement. This position
... coincides with the position taken by the United States Adminis-
tration in the letter. . .by the Secretary of State on 29 January 1987...

Even at this late stage, I very much hope that it will be possible for
the Administration, in line with its own legal position, to act to pre-
vent the adoption of this legislation. However, I would be grateful if
you could confirm that even if this proposed legislation becomes law,
the present arrangements for the PLO Observer Mission would not
be curtailed or otherwise affected. Without such assurance, a dispute
between the United Nations and the United States concerning the
interpretation or application of the Headquarters Agreement would
exist and I would be obliged to enter into the dispute settlement
procedure foreseen under section 21 of the UN Headquarters Agree-
ment...”

The legislation nevertheless having been adopted, and, having been
46 HEADQUARTERS AGREEMENT (SEP. OP. SCHWEBEL)

made part of the State Department’s authorization to expend funds,
signed into law by the President, the Acting Permanent Representative of
the United States, Ambassador Okun, wrote to the Secretary-General on
5 January 1988:

“The legislation to which your letters refer is part of the ‘Foreign
Relations Authorization Act, Fiscal Years 1988 and 1989’, signed by
President Reagan on December 22. Section 1003 of this law, relating
to the Palestine Liberation Organization (PLO), is to take effect
ninety days after that date. Because the provisions concerning the
PLO Observer Mission may infringe on the President’s constitu-
tional authority and, if implemented, would be contrary to our inter-
national legal obligations under the United Nations Headquarters
Agreement, the Administration intends, during the ninety-day
period before this provision is to take effect, to engage in consulta-
ions with the Congress in an effort to resolve this matter.”

On 14 January 1988, the Secretary-General wrote to Ambassador
Walters restating terms of previous exchanges and stating:

“I, of course, welcome the intentions of the US Administration to
make use of the 90-day period in the way described by Ambassador
Okun, and explained in greater detail by the Legal Adviser of the
State Department, Judge Sofaer, in his meeting with the Legal Coun-
sel on 12 January. Nevertheless, neither the letter of Ambassador
Okun nor the statements made by Judge Sofaer constitute the assur-
ance J had sought in my letter of 7 December 1987 nor do they ensure
that full respect for the Headquarters Agreement can be assumed.
Under these circumstances, a dispute exists between the Organiza-
tion and the United States concerning the interpretation and applica-
tion of the Headquarters Agreement and I hereby invoke the dispute
settlement procedure set out in section 21 of the said Agreement.”

On 2 February 1988, the Secretary-General wrote again to Ambas-
sador Walters, in the terms set out in paragraph 19 of the Court’s Opinion.

On 11 February 1988, the Legal Counsel of the United Nations,
* Mr. Fleischhauer, wrote to Judge Sofaer, informing him that the United
Nations had chosen Eduardo Jiménez de Aréchaga, former President and
Judge of the International Court of Justice, to be its arbitrator “in the
event of arbitration under section 21...” and, in view of the governing
time constraints, urged that the United States inform the United Nations
as soon as possible of its choice of an arbitrator.

Resolution 42/229 B was adopted by a vote of 143 to none. The United
States did not participate in the vote. Ambassador Okun gave the explana-
tion which is quoted in paragraph 22 of the Court’s Opinion.

38
47 HEADQUARTERS AGREEMENT (SEP. OP. SCHWEBEL)

On 4 March 1988, following the adoption of resolutions 42/229 A and
42/229 B, the Secretary-General wrote to Ambassador Walters observing
that he had not received an official response to his letters in which he had
sought

“assurances regarding the non-application or the deferral of the
application of the Anti-Terrorism Act of 1987 to the PLO Observer
Mission nor. ..aresponse. . . regarding the choice of an arbitrator by
the United States”. ;

He continued that

“it is my hope that it will still prove possible for the United States to
reconcile its domestic legislation with its international obligations.
Should this not be the case then I trust that the United States will
recognize the existence of a dispute and agree to the utilization of the
dispute settlement procedure provided for in section 21 of the Head-
quarters Agreement, and that in the interim period the status quo will
be maintained.”

On 11 March 1988, Ambassador Okun wrote to the Secretary-General
in the terms quoted in paragraph 24 of the Court’s Opinion. The Secre-
tary-General protested Ambassor Okun’s letter of 11 March 1988 and by
letter of 15 March replied in the following terms:

“in the view of the United Nations the decision taken by the United
States Government as outlined in the letter is a clear violation of the
Headquarters Agreement between the United Nations and the
United States. In particular, I cannot accept the statement contained
in the letter that the United States may act irrespective of its obliga-
tions under the Headquarters Agreement, and I would ask you to
reconsider the serious implications of this statement given the respon-
sibilities of the United States as the host country.

I must also take issue with the conclusion reached in your letter
that the United States believes that submission of this matter to arbi-
tration would not serve a useful purpose. The United Nations conti-
nues to believe that the machinery provided for in the Headquarters
Agreement is the proper framework for the settlement of this dispute
and I cannot agree that arbitration would serve no useful purpose.
On the contrary, in the present case, it would serve the very purpose
for which the provisions of section 21 were included in the Agree-
ment, namely the settlement of a dispute arising from the interpreta-
tion or application of the Agreement.”

The Attorney General of the United States wrote the Permanent Obser-
ver of the PLO Mission to the United Nations on 11 March 1988 in the
terms set out in paragraph 25 of the Court’s Opinion. The PLO Observer

39
48 HEADQUARTERS AGREEMENT (SEP. OP. SCHWEBEL)

replied on 14 March in the terms contained in paragraph 27 of the Court’s
Opinion. Attorney General Meese responded by letter of 21 March as
quoted in paragraph 27 of the Court’s Opinion.

In its written statement submitted to the Court in the current proceed-
ings, the United States repeated the substance of Ambassador Okun’s
letter of 11 March. It observed that, since the PLO Mission had not com-
plied with the Attorney General’s order, a lawsuit had been filed to
compel compliance. The statement continued:

“That litigation will afford an opportunity for the PLO and other
interested parties to raise legal challenges to enforcement of the Act
against the PLO Mission. The United States will take no action to
close the Mission pending a decision in that litigation. Since the
matter is still pending in our courts, we do not believe arbitration
would be appropriate or timely.”

In the written statement of the Secretary-General, the Secretary-Gen-
eral, in recounting the factual history of the matter, recalled the terms of
his letter of 7 December 1987 and stated that

“a dispute would only exist if the United States Government would
fail to provide an assurance that the existing arrangements for
the PLO Observer Mission would not be curtailed or otherwise
affected . . .”.

Once the Act had become law, the written statement continued,

“In the view of the Secretary-General, in the absence of any assur-
ance as to the maintenance of the existing arrangements for the PLO
Observer Mission, the incompatibility of this Act with the obligations
of the host country under the Headquarters Agreement created a dis-
pute within the meaning of section 21 of the Agreement.”

The Secretary-General further argued that:

“The automaticity of the process of bringing the ATA [Anti-
Terrorism Act] into force which was initiated with the signing of the
ATA into law, objectively constitutes an immediate threat to bring
about the closure of the facility from which PLO representation to
the United Nations is accomplished, and this immediate threat is
itself... sufficient to create a dispute in the absence of an assurance
from the Executive Branch that the legislation will not be enforced
or that the existing arrangements for the PLO Observer Mission in
New York will not be affected or otherwise curtailed.”

The Secretary-General at the same time concluded:

“the United Nations believes that a dispute has existed between the

40
49 HEADQUARTERS AGREEMENT (SEP. OP. SCHWEBEL)

United Nations and the United States from the moment of the sign-
ing into law of the ATA. Nor can there be any doubt that this dispute
concerns the interpretation or application of the Headquarters
Agreement. The Secretary of State of the United States and various
representatives of the United States in the Host Country Committee
and the General Assembly have clearly and consistently recognized
that the PLO Observer Mission personnel are present in the United
States in their capacity as invitees of the United Nations within the
meaning of the Headquarters Agreement, and the Secretary-General
has repeatedly taken the position that the ATA is inconsistent with
the Headquarters Agreement. Thus, the formal conditions for invok-
ing section 21 of the Headquarters Agreement are clearly established
and the procedural obligations of the parties, therefore, have become
effective.”

On the basis of this record, what conclusions may be drawn as to the
current existence of a dispute between the United Nations and the United
States over the interpretation or application of the Headquarters Agree-
ment?

As the Court rightly emphasizes in its Opinion, whether there exists an
international dispute is a matter for objective determination. The mere
assertion or denial of the existence of a dispute by one (or both) sides is not
dispositive. The Court also recalls its classic definition of a dispute as “a
disagreement on a point of law, a conflict of legal views or interests be-
tween two persons”. Is there such disagreement or conflict in this case
over the interpretation of the Headquarters Agreement?

I do not believe so. On the contrary, throughout there has been and
remains a striking concordance of view between the authorized represen-
tatives of the United Nations and the United States on the interpretation
of the Headquarters Agreement. Thus the Secretary of State at the outset
declared that the United States is under “an obligation to permit PLO Ob-
server Mission personnel to enter and remain in the United States to carry
out their official functions at United Nations headquarters ...”. The
Legal Counsel of the United Nations announced that “The Organi-
zation shared” that “legal opinion ...”. The Secretary-General then
declared that, “I am in agreement with the views expressed by the Secretary
of State in this matter. . .”. He subsequently specified that the position of
the United Nations “coincides with the position taken by the United
States ...”. For its part, the United States, after the signing into law of the
Act, reiterated that, “if implemented,” the Act “would be contrary to
our international legal obligations under the United Nations Head-
quarters Agreement . . .”.

The United States has not retreated from that position nor, of course,
has the United Nations. This is not my singular conclusion; it is one which

41
50 HEADQUARTERS AGREEMENT (SEP. OP. SCHWEBEL)

has been widely and recurrently affirmed in the course of General Assem-
bly debate of the matter, and as recently as 23 March 1988.

Thus on 29 February 1988, the representative of Zimbabwe declared
that, “The legal opinion expressed in the letter from Mr. Shultz was shared
by the Secretary-General and the United Nations Legal Counsel .. .”
(A/42/PV.101, p. 33). The representative of the Federal Republic of
Germany, speaking on behalf of the 12 States members of the European
Community, stated that

“they fully share the views already expressed by both the Secretary-
General of the United Nations and the United States Secretary of
State... to the effect that the United States is under an obligation to
permit PLO Observer Mission personnel to enter and remain in the
United States to carry out their official functions at United Nations
Headquarters” (ibid., pp. 51-52).

The representative of Czechoslovakia, using virtually identical language,
recalled that “those facts were recognized unreservedly . . . by
Mr. George Shultz, Secretary of State...” (ibid., p. 82). The representative
of Denmark, speaking on behalf of the five Nordic countries, declared
that “The Nordic countries fully share the views on this question already
expressed by both the Secretary-General and the Secretary of State ...”
(ibid., p. 101).
Similarly, on 4 March 1988, the representative of Austria declared:

“It is our understanding from the discussion of the matter during
the work of the Sixth Committee that the applicability of the relevant
provisions of the Headquarters Agreement to the PLO Observer
Mission and its personnel is not being disputed by any delegation,
including the delegation of the host country.”

The representative of Bangladesh the day before put it in the following
terms:

“The Secretary of State of the United States, in a letter to the
Senate, stated as early as 29 January 1987 that the host country was

‘under an obligation to permit PLO Observer Mission personnel to
enter and remain in the United States to carry out their official
functions at United Nations Headquarters’.

That view is shared by 145 Members of the United Nations, which
voted in favour of General Assembly resolution 43/210B, which was
adopted on 17 December 1987 — with the sole exception of a single
Member State. Such unanimity of opinion on the interpretation of a
legal provision is truly unprecedented.” (A/42/PV.102, p. 68.)

Finally, on 23 March 1988, at the last resumed session of the General
Assembly, the representative of Burma concluded that:

42
31 HEADQUARTERS AGREEMENT (SEP. OP. SCHWEBEL)

“The subject under dispute cannot be seen as relating to the sub-
stantive interpretation of this issue in respect of the Headquarters
Agreement, for it is evident from what has been expressed by the rele-
vant authorities of the United States Administration that it cannot be
said that there is a controversy over such an interpretation between
the position taken by them and the views of the Secretary-General
and the virtually unanimous views expressed by Member States.”
(A/42/PV.107, pp. 28-30.)

In view of the demonstrated consistency of the views of the United
Nations and the United States on the interpretation of the Headquarters
Agreement, I am unpersuaded by the Court’s conclusion that “the oppos-
ing attitudes of the parties” give rise to a dispute “concerning the inter-
pretation or application” of the Headquarters Agreement. In so far as that
conclusion relates to application, it is not without force; in so far as it
relates to interpretation, the above recitation of the facts of the case in
my view demonstrates that it is not wholly convincing.

It is of course true that, where the breach by a State of its obligations
under a treaty is manifest and undenied, such breach does not escape a
jurisdictional clause which affords a court — such as this Court — the
authority to decide disputes over that treaty’s interpretation or applica-
tion. Counsel for the United States so argued in the case of United States
Diplomatic and Consular Staff in Tehran (I.C.J. Pleadings, p. 279), and that
argument, apparently accepted by the Court, remains persuasive. But it
does not follow that, in a particular case, the existence or non-existence of
a dispute over the interpretation of a treaty is unaffected by the articulated
concordance of views of the parties concerning its interpretation.
In the case before the Court, if the question of application of the Head-
quarters Agreement is for purposes of analysis put aside, it does appear
that the views of the parties on its interpretation “coincide” (to use the
term employed by the Secretary-General).

That being said, I nevertheless recognize that there is logic in and
authority for the position that every allegation by a party of a breach of
a treaty provision — however manifest and admitted by the other party —
necessarily entails elements of interpretation (by the parties and by any
court adjudging them), because an application or misapplication of a
treaty, however clear, is rooted in an interpretation of it. But when a party
actually alleges, if not in form then in substance, only a failure to apply the
treaty, and makes clear that there is no dispute over its interpretation, is
there, for purposes of dispute settlement, a dispute over the treaty’s inter-
pretation? I have my doubts. :

The essential question at issue in this case is whether there is a dispute
over the application of the Headquarters Agreement. The Court acknow-

43
52 HEADQUARTERS AGREEMENT (SEP. OP. SCHWEBEL)

ledges that there may be question about whether the Anti-Terrorism Act
has been applied or whether the Act will only have received effective ap-
plication when or if, on completion of current United States judicial pro-
ceedings, the PLO Mission is in fact closed. It maintains, however, that
this is not decisive as regards section 21 of the Headquarters Agreement,
since that Agreement refers to any dispute concerning its interpretation or
application and not the application of measures taken in the municipal
law of the United States.

The Court is of course correct in pointing out that the issue before the
Court is that of the application of the Headquarters Agreement and not
that of the application of the Anti-Terrorism Act. But if the Act is not
effectively applied to the PLO Observer Mission, what content is there
to a dispute over the application of the Headquarters Agreement?

It should be recalled that the Secretary-General did not consistently
treat the signing into law of the Act as giving rise of itself to a dispute over
the application of the Headquarters Agreement. This is made clear by the
terms of his letter of 7 December 1987, in which he requested of the United
States confirmation that, even if the then proposed legislation were to
become law,

“the present arrangements for the PLO Observer Mission would not
be curtailed or otherwise affected. Without such assurance, a dispute
between the United Nations and the United States concerning the
interpretation or application of the Headquarters Agreement would
exist...”

Thereafter, finding statements made by the United States not to constitute
the assurances which he had sought, on 14 January 1988 he declared a
dispute to exist. However, on 2 February, the Secretary-General wrote
that:

“since the United States so far has not been in a position to give ap-
propriate assurances regarding the deferral of the application of the
law to the PLO Observer Mission, the time is rapidly approaching
when I will have no alternative but to proceed either together with
the United States within the framework of section 21 of the Head-
quarters Agreement or by informing the General Assembly of the im-
passe that has been reached”.

Even after the General Assembly requested an advisory opinion of the
Court, the Secretary-General on 4 March 1988 referred to “assurances
regarding the non-application or deferral of application” of the Act, and
trusted that the United States would recognize the existence of a dispute
should it not prove possible for the United States to reconcile its domestic
legislation with its international obligations. In his written statement
submitted to this Court, the Secretary-General contended that there is a
dispute within the meaning of section 21 of the Headquarters Agreement
“in the absence of any assurance as to the maintenance of the existing
arrangements for the PLO Observer Mission”. The Secretary-General

44
53 HEADQUARTERS AGREEMENT (SEP. OP. SCHWEBEL)

maintained in his written statement that a threat to close the PLO
Mission created a dispute

“in the absence of an assurance from the Executive Branch that the
legislation will not be enforced or that existing arrangements for the
PLO Observer Mission in New York will not be affected or otherwise
curtailed”.

For its part, after the Act became law, the United States initially ob-
served that it had not yet taken action affecting the functioning of the PLO
Mission. Once the Attorney General had determined that he was required
by the Act to close the New York office of the PLO Observer Mission, and
instituted action in the District Court, he declared that: “The United
States will take no action to close the Mission pending a decision in that
litigation.” This position was reiterated by the United States more than
once.

Thus it is clear that the Secretary-General repeatedly indicated that, if
the United States were to provide assurances that current arrangements
for the PLO Mission would be “maintained” and that application to it of
the Act would be “deferred”, a dispute over the interpretation and appli-
cation of the Headquarters Agreement would not arise. The United States
has provided assurances in this vein, though only “Until the United States
courts have determined” whether that Act “requires closure of the PLO
Observer Mission”.

However important that condition is, it does not vitiate the utility of
these assurances. It is not clear why these assurances of the United States
may not be treated as sufficient assurances of the maintenance of existing
arrangements for the PLO Observer Mission, pending the outcome of liti-
gation in United States courts. Naturally it is for the Secretary-General to
decide whether assurances which he seeks are sufficient or insufficient.
Nevertheless, the assurances of the United States bear upon an objective
determination of whether, now, a dispute exists over the application of the
Headquarters Agreement.

The fact is that the PLO Observer Mission to the United Nations func-
tions. It has not been closed; its activities give no sign of having been “af-
fected or otherwise curtailed”. It is true that it has the burden of defending
itself in United Nations fora and in the United States District Court
against the threat of closure. But an objective appraisal of the matter
surely sustains the conclusion that the PLO, in the opinion of the members
of the United Nations and in public opinion, has not been adversely
affected by the enactment of the Anti-Terrorism Act and action in pur-
suance of it. On the contrary, it appears to have significantly benefited.

45
54 HEADQUARTERS AGREEMENT (SEP. OP. SCHWEBEL)

If the PLO had closed down its office in New York City in response to
the Attorney General’s determination, a dispute over the application of
the Headquarters Agreement undoubtedly would have existed from the
time of that closure. As it is, the issue of whether the PLO actually will be
required to close its New York office has not been definitively determined
by the Attorney General; that issue rather is before the District Court for
the Southern District of New York.

In oral proceedings before this Court, the Legal Counsel of the United
Nations took the position in answer to a question that, if United States
courts were to hold that the Anti-Terrorism Act cannot lawfully be en-
forced against the PLO Observer Mission, that would not mean that the
dispute had never existed but would merely put an end to the dispute. That
is a reasonable interpretation of the facts and one which leads me to con-
clude that the Court’s Opinion is tenable. But it is not a necessary interpre-
tation, particularly in view of the Secretary-General having repeatedly
conditioned the existence of a dispute upon the absence of assurances
from the United States of the maintenance of existing arrangements for
the functioning of the PLO Observer Mission.

The question in the end comes to whether the United States now is
bound to arbitrate the dispute, or whether it will only be so bound in the
event that the District Court should order that the Act be enforced against
the PLO Observer Mission. Should proceedings before the District Court
and any appeals therefrom be maintained, the possibilities of municipal
judgment are several. It could be held that the Act applies to the PLO Ob-
server Mission, in which event the United States has inferred that it then
will regard arbitration of the resultant dispute as “timely and appropri-
ate”. Alternatively, having regard to the reasoning of Senator Pell set out
above or on other grounds, it could be held that the Act does not apply to
the PLO Observer Mission, in which event, if a dispute requiring arbitra-
tion ever existed, it no longer will. Or it could be held that, in view of
the Advisory Opinion of this Court, and in view of the fact that the Anti-
Terrorism Act does not mention, and accordingly cannot be interpreted
as derogating from, arbitral obligations of the United States under the
Headquarters Agreement, in any event the United States is bound to
arbitrate the dispute. There may be other possibilities as well.

A possible interpretation of section 21 of the Headquarters Agreement
which I do not find sustainable is that, because it contains what in arbitra-
tion circles is characterized as an imperfect or incomplete clause, that
clause permits a party not to appoint an arbitrator if it so chooses.
Section 21, paragraph (a), provides:

“Any dispute between the United Nations and the United States
concerning the interpretation or application of this agreement ...
which is not settled by negotiation or other agreed mode of settle-

46
55 HEADQUARTERS AGREEMENT (SEP. OP. SCHWEBEL)

ment, shall be referred for final decision to a tribunal of three arbitra-
tors, one to be named by the Secretary-General, one to be named by
the Secretary of State of the United States, and the third to be chosen
by the two, or, if they should fail to agree upon a third, then by the
President of the International Court of Justice.”

The clause is incomplete in that, while it contains provision for appoint-
ment of a third arbitrator by an appointing authority, it contains no provi-
sion for an appointing authority to appoint an arbitrator whom a party has
failed to appoint. Arbitration clauses which are more prudently crafted
characteristically do contain such provision.

The International Law Commission of the United Nations in its early
years made a vigorous and searching effort to block loopholes in the pro-
cess of international arbitration. The absence of provision for appoint-
ment by an appointing authority of an arbitrator whom a party has failed
to appoint was seen as a large loophole. Despite the progressive character
and technical excellence of the draft prepared by the Commission at the
instance of its special rapporteur, Professor Georges Scelle, the General
Assembly’s majority proved in large measure unwilling to accept the
Commission’s work; it preferred to keep loopholes open, to maintain the
diplomatic flexibility of interpretation and action which often has de-
tracted from the judicial character of the processes of international arbi-
tration. Bearing in mind this history, it might be argued that the arbitration
provisions of the Headquarters Agreement were deliberately drafted so as
to omit provision for third-party appointment of an arbitrator whom a
party failed to appoint in order to afford the parties an ultimate exit from
an obligation which in a particular case one or the other might find
exigent.

I do not believe that such a contention would be correct in the current
case, not because the Headquarters Agreement was concluded before the
General Assembly reacted as described to the Commission’s draft, but
because the Court has decisively and soundly rejected it in analogous
circumstances.

In its advisory proceedings on the Interpretation of Peace Treaties with
Bulgaria, Hungary and Romania, the arbitration clause before the Court
was in pertinent part essentially the same as that of the Headquarters
Agreement. That is to say, while it provided for an appointing authority
(in that case, the Secretary-General) to appoint the third member should
the two parties fail to agree upon him, it contained no provision for the
appointment by an appointing authority of an arbitrator who in the first
place was to be named by a party.

In disputes between Bulgaria, Hungary and Romania on the one hand,
and certain Allied and Associated Powers signatories to the Treaties of

47
56 HEADQUARTERS AGREEMENT (SEP. OP. SCHWEBEL)

Peace on the other, the Governments of Bulgaria, Hungary and Romania
refused to appoint arbitrators in pursuance of the arbitration clause of
the Treaties. The Court held that “all the conditions required for the
commencement of the stage of the settlement of disputes” by the arbitral
commissions “have been fulfilled”, and concluded:

“In view of the fact that the Treaties provide that any dispute shall
be referred to a Commission ‘at the request of either party’, it follows
that either party is obligated, at the request of the other party, to co-
operate in constituting the Commission, in particular by appointing
its representative. Otherwise the method of settlement by Commis-
sions provided for in the Treaties would completely fail in its pur-
pose.” U.C.J. Reports 1950, p. 77.)

(Signed) Stephen M. SCHWEBEL.

48


87

DECLARATION OF JUDGE RANJEVA

[Translation]

I have voted in favour of the operative part of the Judgment and sub-
scribe to the arguments on which it is based. in my opinion, the solution
adopted by the Court constitutes an equitable result, which pays due
regard to the interests at stake. I would nevertheless have wished the
Court to be more explicit in stating its reasons for drawing the delimita-
tion line adopted. To be sure, like any judicial organ required to pro-
nounce on a dispute such as the one it has adjudicated, the Court had
available a margin of discretionary power to rule on the relevance of the
circumstances of the case and on the equitable nature of the result of the
delimitation. But the exercise of this discretionary power required the
Court to be more specific in setting forth its grounds for proceeding as it
did. The Parties were entitled to expect fuller explanations regarding the
elements of the decision arrived at. But that is not all. In accordance with
Article 59 of the Statute, the Judgment delivered by the Court “has no
binding force except between the parties and in respect of that particular
case”. Nevertheless, in view of the solution adopted, the Judgment in this
case is such that it may well influence case-law in the sphere of maritime
delimitation. The authority of a decision of the Court cannot but be re-
inforced whenever, in stating the reasons for its judgment, it reveals the
factors which shed light on the operative provisions, i.e., criteria, methods,
rules of law, etc. True, the Court may not create law; but it must specify the
law it applies. The proper administration of justice, as well as the legal
security to which States aspire, depends, to a very considerable extent, on
the certainty of the legal rule (la certezza del diritto, to use the phraseology
of Italian legal theory).

Moreover, the reference in paragraph 39 of the Judgment to the posi-
tions taken by the two Parties at the Third United Nations Conference on
the Law of the Sea does not, in my view, take due account of the procedu-
ral rules applied by that conference. The wording used in the present
Judgment should be compared with the text adopted in 1982 in the case
concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya):

“the Court notes that Libya, while emphasizing that the de facto line
between the concessions was ‘at no time accepted by Libya as the
legal line of delimitation’, observed that it was one that did ‘suggest
the kinds of lines that, in the context of negotiations, might have
been put forward for discussion’ . . .” (C.J. Reports 1982, p. 84,
para. 118.)

Thus, in 1982, the Court was unable to remain indifferent to the
positions stated by the parties in a bilateral negotiation. At the Third

53
MARITIME DELIMITATION (DECL. RANJEVA) 88

United Nations Conference on the Law of the Sea, questions of delimita-
tion were dealt with by the Negotiating Group 7. Under the procedural
rules adopted, which were of an exceptional nature for the purposes of
this important negotiation, proposals or draft provisions were regarded as
unofficial and entirely non-committing. It was only on 28 August 1981
that, pursuant to the decision taken by the Conference, official status was
acquired by a text concerning delimitation (of the continental shelf). (Cf.
Continental Shelf (Tunisia/Libyan Arab Jamahiriya), L-CJ. Reports 1982,
p. 49, para. 49.) The Court was therefore wrong to take document NG 7/2
into account in substance. At all events, in the circumstances of this case
the Court had no need to explore the legal scope of statements made by a
State at the Third United Nations Conference on the Law of the Sea. This
criticism, however, is entirely without prejudice to the proposition that the
law of delimitation rests on the rule combining equidistance and special
circumstances.

Lastly, I regret that paragraph 55 should have been limited to a mere
description of the relation between “special circumstances” and “rele-
vant circumstances”, without managing to pinpoint their precise mean-
ing, which would have brought out their inherent unity. For it is important
to specify that it is in relation to the rights of the Parties over their maritime
spaces that these circumstances can — or, sometimes, should — be taken
into account in a delimitation operation. Hence, special or relevant cir-
cumstances appear as facts which affect the rights of States over their
maritime spaces as recognized in positive law, either in their entirety or
in the exercise of the powers relating thereto.

(Signed) Raymond RANJEVA.

54