            JOINT DISSENTING OPINION OF JUDGES
                 OWADA, TOMKA AND KEITH

   1. To our great regret we find ourselves unable to support the Order
 or provisional measures adopted by the Court (para. 80 II (a)). Humani-
 arian considerations which clearly underlie the decision cannot override
 he legal requirements of the Statute of the Court. In our view Mexico
has not demonstrated in its Application for interpretation that there is “a
difference of opinion between the Parties as to those points in question in
 he judgment in question which have been decided with binding force”
 Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów), Judg-
ment No. 11, 1927, P.C.I.J., Series A, No. 13, p. 11).
   2. The Order of the Court of today adds no additional protection,
additional to that already provided by the Court in its 2004 Avena Judg-
ment to those Mexican nationals whose rights under Article 36 (1) of the
Vienna Convention on Consular Relations were breached by the United
States and who are thus entitled to receive review and reconsideration of
 heir convictions and sentences.

   3. There can be no doubt that if any of the 51 Mexican nationals, men-
 ioned in the Avena Judgment, is executed without receiving the review
and reconsideration of his conviction and sentence, the United States will
be in breach of its international obligation as determined by this Court in
paragraph 153 (9) of its Judgment.

                                    *
 4. The Court in its Judgment in Avena and Other Mexican Nationals
(Mexico v. United States of America), ruled
     “that the appropriate reparation in this case consists in the obliga-
     tion of the United States of America to provide, by means of its own
     choosing, review and reconsideration of the convictions and sen-
     tences of the Mexican nationals referred to in subparagraphs (4), (5),
     (6) and (7) above, by taking account both of the violation of the
     rights set forth in Article 36 of the [Vienna] Convention [on Consu-
     lar Relations] and of paragraphs 138 to 141 of this Judgment”
     (I.C.J. Reports 2004 (I), p. 72, para. 153 (9)).
In those paragraphs the Court, among other things, emphasizes that the
review and reconsideration should be effective and, accordingly, should
 ake account of the violation of the rights set forth in the Convention and

34

of the possible prejudice caused by the violation ; further, full weight
must be given to the violation of the treaty rights, whatever may be the
outcome of the review and reconsideration.
   5. The United States acknowledges without reservation the interna-
 ional obligation arising from the Judgment. The President of the United
States made that clear in his memorandum of 28 February 2005. He
“determined . . . that the United States will discharge its international
obligations under [the Avena Judgment] by having state courts give effect
 o the decision”. Before the Court, the Agent of the United States empha-
sized the obligation the United States has to comply with the Judgment.
   6. As the Agent also recognized, however, the efforts of the United
States Government to ensure compliance have so far not been successful,
except, as Mexico informed the Court, in the case of one of the 51 Mexi-
can nationals a state court concluded that the petitioner had been preju-
diced in the sentencing phase, but not at trial, by the lack of consular
notification, and the death penalty was commuted, and in the case of a
second, this time without court process, the state Governor commuted
 he death sentence in exchange for the offender’s agreement to waive his
right to review and reconsideration under the Avena Judgment. The
attempt to achieve compliance in respect of all the other Mexican nation-
als by way of the President’s determination was however found to be un-
successful by a decision of the Supreme Court of the United States given
on 25 March 2008 : it held that neither this Court’s Judgment nor the
President’s Memorandum constitutes directly enforceable federal law
overriding limitations imposed by state law (Medellín v. Texas, 128 S. Ct.
1346 (2008)).
   7. In the three months following the failure of that proposed means of
achieving compliance with the Judgment, the United States executive has
adopted a more specific approach, particularly to the Governor and Attor-
ney General of Texas, in respect both of Mr. Medellín, whose execution
has been set by a District Court in Texas for 5 August this year, and more
generally of other Mexican nationals. Two days before the hearing in the
current proceeding began, the Attorney General and the Secretary of State
of the United States sent a joint letter to the Governor of Texas in which
 hey say that “the United States seeks the help of the State of Texas” to
give effect to the Avena Judgment. The letter concludes as follows :

       “We continue to seek a practical and timely way to carry out our
     nation’s international legal obligation, a goal that the United States
     needs the assistance of Texas to achieve. In this connection, we
     respectfully request that Texas take the steps necessary to give effect
     to the Avena decision with respect to the convictions and sentences
     addressed therein. We would appreciate the opportunity to discuss
     possible mechanisms for compliance with the Avena decision with
     you or your representatives.”

35

The Agent of the United States assured the Court, at the hearing on
19 June 2008, that the discussions referred to in the last sentence had
already begun.
   8. It is clear that if those and other efforts to achieve an effective
means of review and reconsideration fail and one of the Mexican nation-
als is executed before that review and reconsideration is undertaken and
completed, the United States would be in breach of its international obli-
gation under the Avena Judgment. The Agent clearly acknowledged that
at the hearing.
   9. We too earnestly trust that effective ways of implementing the
Avena Judgment will be found by the federal and relevant state authori-
 ies of the United States with the result that the Mexican nationals
receive the effective review and reconsideration of their convictions and
sentences as required by the Judgment. In that we are completely at one
with all the other Members of the Court.

                                    *
   10. This request for the indication of provisional measures was filed by
Mexico along with its Application requesting interpretation of para-
graph 153 (9) (set out in paragraph 4 above) of the Judgment in the
Avena case. The provisional measures sought by Mexico and ordered by
 he Court have exactly the object we have just stated — that none of the
five Mexican nationals is to be put to his death unless his conviction and
sentence have been effectively reviewed and reconsidered as required by
 he 2004 Avena Judgment. The provisional measure indicated in the
Court’s Order reads as follows :
       “The United States of America shall take all measures necessary
     to ensure that Messrs. José Ernesto Medellín Rojas, César Roberto
     Fierro Reyna, Rubén Ramírez Cárdenas, Humberto Leal García,
     and Roberto Moreno Ramos are not executed pending judgment on
     the Request for interpretation submitted by the United Mexican
     States, unless and until these five Mexican nationals receive review
     and reconsideration consistent with paragraphs 138 to 141 of the
     Court’s Judgment delivered on 31 March 2004 in the case concern-
     ing Avena and Other Mexican Nationals (Mexico v. United States
     of America).” (Para. 80 II (a).)
   11. That Order is subject to a time-limit which is inherent in its pro-
visional character : the measures have effect only until the Court has
given its judgment on the Application for interpretation. The Order is
also limited to the five named Mexican nationals. The international obli-
gation arising from the Avena Judgment and set out in paragraph 1
above, by contrast, is not subject to either limit. It continues until the
convictions and sentences of all 51 Mexican nationals have been effec-
 ively reviewed and reconsidered.

36

   12. In our opinion, provisional measures are not available in this case
because we consider, for reasons we give later, that Mexico has not dem-
onstrated on any standard that its Application requesting interpretation
 s capable of falling within Article 60 of the Statute of the Court. It has
not demonstrated even on a provisional basis that there may be a dispute
about the meaning or scope of paragraph 153 (9) of the Judgment, the
subject of the Application for interpretation. Accordingly, the Applica-
 ion requesting interpretation should be dismissed at this stage as inadmis-
sible. There would then be no pending proceeding and no rights under
 hat proceeding to be preserved as required by Article 41 of the Statute,
and the request for provisional measures made under that provision
would as a consequence have to be dismissed.
   13. Article 60 provides as follows :
        “The judgment is final and without appeal. In the event of dispute
     as to the meaning or scope of the judgment, the Court shall construe
     it upon the request of any party.”
In its Application requesting interpretation, Mexico contends that a “dis-
pute” has arisen between it and the United States about whether the obli-
gation stated in paragraph 153 (9) of the Avena Judgment is an obliga-
 ion of result — as it, Mexico, contends — or an obligation of means,
which is how, in Mexico’s view, the United States understands the obli-
gation (Application, paras. 5, 52, 57 and 59). It is for the Applicant, in its
Application requesting interpretation, to indicate, in terms of Arti-
cle 98 (2) and (3) of the Rules of Court, “the precise point or points in
dispute as to the meaning or scope of the judgment” and its supporting
contentions. In its Application for interpretation, under the heading The
Interpretation Requested,
       “59. The Government of Mexico asks the Court to adjudge and
     declare that the obligation incumbent upon the United States under
     paragraph 153 (9) of the Avena Judgment constitutes an obligation
     of result as it is clearly stated in the Judgment by the indication that
     the United States must provide ‘review and reconsideration of the
     convictions and sentences’ but leaving it the ‘means of its own
     choosing’ ;
     and that, pursuant to the foregoing obligation of result,
     1. the United States must take any and all steps necessary to pro-
         vide the reparation of review and reconsideration mandated by
         the Avena Judgment ; and
     2. the United States must take any and all steps necessary to ensure
         that no Mexican national entitled to review and reconsideration
         under the Avena Judgment is executed unless and until that
         review and reconsideration is completed and it is determined that
         no prejudice resulted from the violation.”

That proposed interpretation, we observe, does not differ in any essential

37

element from what the Judgment expressly states as the obligation of the
United States in paragraph 153 (9) (para. 4 above).
   14. The obligation of result imposed by the Judgment, according to
Mexico, means that the United States must take any and all steps neces-
 ary to provide the review and reconsideration mandated by the Judgment.
The Agent and counsel of the United States made it clear before the Court
 hat the United States understands its obligation in exactly those terms,
and as an obligation of result. The correspondence before the Court, both
preceding and following the Application requesting interpretation, shows
 he United States as continuing to be engaged, as it was earlier when it
promulgated the President’s determination and participated in the related
court proceedings based on it in Texas and the United States Supreme
Court, in attempting to establish effective review and reconsideration. The
United States has not contested and does not contest in any way its obliga-
 ion to achieve that result of effective review and reconsideration. It is
plain that, the Presidential determination having failed to achieve the
 ntended result, the United States is obliged to continue to pursue other
possibilities. Mexico has proposed some possible methods but the decision
of the United States not to pursue those possibilities indicates no more
 han differences about methods of implementation. It is striking that the
correspondence between the Parties is all about various ways of imple-
menting or giving effect to the obligation. We cannot see any showing at
all in that correspondence or elsewhere that the Parties are in dispute over
 he meaning or scope of the obligation stated in paragraph 153 (9).
   15. In its Application, Mexico also calls attention to the failure of the
Texas courts to provide the required effective review and reconsideration.
That failure has culminated so far in the scheduling by a Texas court of
 he date and time for the putting to death of Mr. Medellín. According to
Mexico,
       “Texas, a constituent state of the United States, does not recog-
     nize that the obligation to comply subjects its own law to that of
     binding international law.”
In its oral submissions, Mexico, contending, by reference to Article 4 of
 he International Law Commission’s Draft Articles on State Responsibil-
 ty for Internationally Wrongful Acts that in international law the con-
duct of the Texas authorities was to be treated as an act of the United
States, stated as follows :
       “Texas is the United States. And by scheduling Mr. Medellín’s
     execution before he has received the remedy mandated by this Court
     in Avena, Texas has unmistakably communicated its disagreement
     with Mexico’s interpretation of the Judgment. Texas clearly does not
     believe that it has an obligation of result . . . ”

That amounts to a dispute, Mexico says, between it and the competent
organs and authorities in the State of Texas.

38

   16. The proposition of law on which Mexico relies is not relevant in
 his context. It helps to determine the existence or not of the international
responsibility of a State for a breach of international law when the breach
 s committed by an organ exercising public functions, whatever position
 hat organ holds in the organization of the State. Undoubtedly, as the
United States accepts, if the Texas authorities go ahead and put Mr.
Medellín to death before the required review and reconsideration is car-
ried out, the United States will be in breach of its international obliga-
 ions. But it does not follow that Mexico and the United States are in
dispute about the meaning or scope of the Avena Judgment simply
because the Texas authorities have so far not given effect to the obliga-
 ion of the United States under the 2004 Judgment.

  17. For the purposes of Article 60 of the Statute of the Court, as gen-
erally in international law and practice, it is the Executive of the State
 hat represents the State and speaks for it at the international level. Other
organs, whether part of the central government or of a territorial unit,
unless otherwise authorized, do not. Since Mexico must found its Appli-
cation on a dispute with the United States Executive about the scope or
meaning of the Judgment at the international level, it cannot depend in
 hat respect on any position taken by the authorities of Texas. It must
point to a dispute with the United States Executive and it has failed to do
 hat.

   18. The Court in its Order states that, while it seems that both Parties
regard paragraph 153 (9) of the Avena Judgment as an international obli-
gation of result, they nevertheless apparently hold differing views as to
 he meaning and scope of that obligation of result, namely, whether that
understanding is shared by all United States federal and state authorities
and whether that obligation falls upon those authorities (Order, para. 55).
We disagree with this finding, which appears to be essential to the reason-
 ng supporting the Order, for two reasons. First, whether the understand-
 ng is shared by all federal and state authorities is a matter of fact and
does not give rise to any matter of interpretation. Second, the issue
whether the obligation “falls upon those authorities” is not one of inter-
pretation which was raised by Mexico in exchanges with the United
States or in its Application ; it accordingly has not become the subject of
dispute with the United States. We would also note that the obligation
stated in paragraph 153 (9) is stated as “an obligation of the United
States of America”, completely in accordance with principle and consist-
ent practice, reflected for instance in subparagraphs (4), (5), (6), (7) and
 8) as well as (9) of paragraph 153.

  19. We turn to differences in the wording of provisions of the Statute
which in the English text uses the word “dispute”. The French text of
Articles 36 (6) and 60 of the Statute uses the word “contestation” while,

39

by contrast, Article 36 (2) about the jurisdiction of the Court and Article
38 about its function use “différend”, with the English text using “dis-
pute” in all four provisions. We note that “contestation” is also used in
Article 36 (6) concerning “disputes” (the word used in English) about
 urisdiction. The Spanish text uses three expressions, “las controversias”,
 n both Articles 36 (2) and 38, “disputa” in Article 36 (6) and “desac-
uerdo” in Article 60. The Chinese text uses the one word, “zhēngduān”,
meaning dispute in all four provisions. And the Russian text uses the one
word, “spor” meaning dispute, in all four. Given those differences between
 he equally authentic texts of the Statute we do not see the differences
between the particular English and French words as significant.

  20. We are however prepared to accept the argument that in the con-
 ext of Article 60 the requirement of “dispute [or “contestation”] as to the
meaning or scope of the judgment” as compared with “all legal disputes”
or “such disputes” in Articles 36 (2) and 38 has a wider connotation. As
 he Permanent Court of International Justice indicated in 1927, less may
be required by Article 60 in terms of any formal manifestation of the dis-
pute. But the Parties still in fact have to show themselves as holding
opposite views in regard to the meaning or scope of the Judgment of the
Court. Further, as the Permanent Court, reading Article 60 in the context
of Article 59, went on to say:

       “The natural inference to be drawn is that the second sentence of
     Article 60 was inserted in order, if necessary, to enable the Court to
     make quite clear the points which had been settled with binding
     force in a judgment, and, on the other hand, that a request which
     has not that object does not come within the terms of this provision.
     In order that a difference of opinion should become the subject of a
     request for an interpretation under Article 60 of the Statute, there
     must therefore exist a difference of opinion between the Parties as to
     those points in the judgment in question which have not been
     decided with binding force.” (Interpretation of Judgments Nos. 7 and
     8 (Factory at Chorzów), Judgment No. 11, 1927, P.C.I.J., Series A,
     No. 13, p.11, applied by the Court in Application for Revision and
     Interpretation of the Judgment of 24 February 1982 in the Case con-
     cerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya)
     (Tunisia v. Libyan Arab Jamahiriya), Judgment, I.C.J. Reports
     1985, pp. 217-218, para. 46.)
As this Court said in 1950, a dispute, in the sense of Article 60, “requires
a divergence of views between the parties on definite points” (Request for
Interpretation of the Judgment of 20 November 1950 in the Asylum Case,
Judgment, I.C.J. Reports 1950, p. 403). As those cases make clear and

40

principle dictates, it is for the Court, and not for one of the Parties, to
decide whether dispute or contestation exists ; see also e.g., Applicability
of the Obligation to Arbitrate under Section 21 of the United Nations
Headquarters Agreement of 26 June 1947, Advisory Opinion, I.C.J.
Reports 1988, p. 27. The Parties, in the circumstances of this case, cannot
on any basis be seen as “holding opposite views in regard to the meaning
or scope” of paragraph 153 (9) of the 2004 Judgment.

   21. We conclude that Mexico has not satisfied that requirement of
Article 60 of the Statute that it demonstrate the existence of a dispute
about the meaning or scope of the Judgment.
   22. It follows that in our opinion the Application requesting interpre-
 ation should be dismissed. As a consequence, the request for provisional
measures which is designed to protect rights asserted in that Application
would no longer have a purpose and should also be dismissed. We
accordingly voted against subparagraphs I and II (a) of the operative
clause of the Order (para. 80).
   23. We have voted in favour of subparagraphs II (b) and III, on the
basis that the Court has made the two primary decisions and the other
 wo are consequential on them.

                                     *
  24. We conclude with two comments. First, on the decision of Mexico
 o initiate these proceedings, we cannot fail to record our full understand-
 ng of the great concern of the Government of Mexico and the people it
represents, a concern manifested in its good faith attempts, including its
bringing of the proceedings, to protect its nationals.

   25. Second, we repeat our earnest trust that effective ways of imple-
menting the Avena Judgment will be found by the federal and relevant
state authorities of the United States with the result that the Mexican
nationals receive the effective review and reconsideration of their convic-
 ions and sentences as required by the Judgment.

                                             (Signed) Hisashi OWADA.
                                              (Signed) Peter TOMKA.
                                             (Signed) Kenneth KEITH.

41


68

DISSENTING OPINION BY JUDGE KRYLOV.
[Translation.]
I. <Albanta’s connivance has not been proved.

The Court has rightly rejected the allegation made by the United
Kingdom that the laying of mines in the North Corfu Channel was
effected with the connivance of Albania.

I agree with the opinion expressed in this part of the Judgment,
but I feel compelled to make the observations which follow.

In support of their contention the British alleged in their Reply
that the mines were laid near Saranda just before October 22nd,
1946, by the Yugoslav warships Mljet and Meljine. The British
submitted to the Court the affidavit of the witness Kovacic, a
deserter from the Yugoslav armed forces. This witness, giving
evidence before the Court, said that about October 18th, 1946,
in the port of Sibenik in Yugoslavia, he had seen German GY mines
loaded on the above-mentioned ships.

By way of strengthening Kovacic’s testimony, the British filed
with the Court an affidavit by a man named Pavlov, who had
deserted from a Yugoslav merchant ship. Pavlov stated in his
affidavit that during October, 1946, he had seen a warship of the
Mljet type at Boka Kotorska. Hence, the British drew the con-
clusion that the VWijet and Veljine had left the port of Sibenik and
paid a visit to Albanian waters.

After examining Pavlov’s affidavit, the Court considered that it
was unnecessary to hear his evidence at a public sitting.

As regards Kovacic’s testimony, it was found to be full of errors.
The visit paid by the Court’s Experts to Sibenik deprived it of any
value, as the Experts found that many of his categorical statements
about things he was said to have seen were materially impossible.

But there is more. Even if some part of Kovacic’s deposition
was true, his evidence is still not sufficient to prove that the mines
in question were laid by the Yugoslav ships. Kovacic alleged that
he had seen the Yugoslav ships loaded with German GY mines in
the port of Sibenik. He stated that he had heard a Yugoslav
officer (whose name he was unwilling to give) say that the mines
had been laid in Albanian waters ; he added that this officer had
not himself taken part in laying the mines but had merely been told
about it by another officer.

Kovacic’s statement is therefore nothing more than what the
British call ‘‘hearsay’’, indeed it is ‘‘hearsay in the second degree’.
Kovacic’s deposition does not, and cannot, afford any kind of proof
in the present case.

68
DISSENTING OPINION BY JUDGE KRYLOV 69

In the municipal law of several countries, indirect proof (circum-
stantial evidence) is sometimes considered adequate. The well-
known British author Wills has explained this point in regard to
“common law” in his book Principles of Circumstantial Evidence
(see the combined English and Indian edition, 1936).

However, I doubt whether, by founding oneself on indirect
evidence, it is possible to conclude that a State is responsible vis-a-
vis another State. I do not believe that international justice
could be content with indirect evidence of the sort that has been
produced in the present case, which affects the honour of a State,
a subject of international law, and its position in the community
of nations.

For these reasons, I cannot found my opinion on the deposition
of Kovacic, and I feel bound to declare that, up to the present, the
criminal who laid the mines in the Corfu Channel has not been
discovered.

It is not contested that Albania herself had no means of laying
the mines. Neither can it be affirmed that Albania was an
accomplice in the minelaying operation. The assertion of such
complicity would be a departure from juridical logic. If there is
no evidence to show who was guilty of laying the mines, how can
the Court find that Albania was an accomplice in the minelaying
operation ?

2. Albanta’s cognizance of the mines has not been proved.

The Court has accepted another of the subrnissions of the United
Kingdom : the alternative submission that Albania was cognizant
of the minelaying.

The two following arguments were presented in support of this
theory :

(a) In the first place, the Albanian Government’s attitude
before and after the explosion on October 22nd, 1946, and, in
particular, the alleged inaccuracies and contradictions in the Alba-
nian diplomatic correspondence. It must not however be forgotten
that in 1946 the Albanian Government was a new government
without experience in the conduct of international affairs and
without the assistance of experts in questions of international law.
It is therefore inequitable to found arguments leading to the conclu-
sion that Albania was cognizant of the minelaying, upon errors
in the Albanian diplomatic correspondence. This consequentia
non valet. Nor is there ground for asserting that Albania sought
to conceal the fact that she was cognizant of the minelaying.
Although she was not informed as to the events on October 22nd,
1946, she did not delay in addressing herself to the United Nations
and in asking them to have these events elucidated.

69
DISSENTING OPINION BY JUDGE KRYLOV 70

(6) The British have contended, in the second place, that the
Albanian local authorities must have seen and heard the minelaying
operation. However, this fact has certainly not been proved.
The Albanian witnesses described to the Court the organization
of the Albanian coastal guards in the Saranda district. In the
part of the Albanian coast with which we are concerned, there were
in 1946 three posts, namely at Cape Kiephali, at Saranda itself,
and at the San Giorgio Monastery. The commander of the coast
defences had also at his disposal a battery in the neighbourhood
of Saranda.

From a study of the map of this district and of the sketch
produced by the Court’s Experts on February 8th, 1949, it appears
that the Albanian coastal guards were in a position to exercise
the necessary vigilance over the whole of the Strait. But that in
no way excludes the possibility of a clandestine operation in the
waters of the Strait. For the watch kept by the coastal guards,
though adequate in normal weather conditions, could evidently
not be exercised with the same efficiency in unfavourable weather
conditions, for instance in rainy weather or on dark nights, etc.

In their first report on January 8th, 1949, the Court’s Experts
stated that the minelayers could have been observed, even by night,
with the aid of binoculars in the part of the coast between Denta
Point and the San Giorgio Monastery.

In regard to the possibility of hearing the laying of the mines,
the Experts stated, in the same report, that under favourable
conditions it would have been possible to hear the minelaying
operation from that part of the coast and from Limion Point. But,
they added, under less favourable conditions it would be impossible
to hear the operation from ali the points that had just been men-
tioned.

The statement of the Experts on this point was based on the
results of the test which they carried out under the conditions
described in their report. It must be noted, in this connexion,
that the Experts were on board a vessel, not on land, i.e., in cir-
cumstances which favoured audibility, as was quite correctly
pointed out by the Albanian Counsel at the Court’s sitting on Jan-
uary 2Ist, 1949.

The second report of the Experts, dated February 8th, 1949,
after their visit to Saranda, does not modify what they said in their
first report.

The visibility test was carried out by the Experts from the San
Giorgio Monastery during a very calm and clear night (slight
breeze from the North-East) by starlight. The Experts were on
the look-out, they knew the exact moment when the boat which
they were awaiting had left Saranda. They saw the boat when it
was 670-800 metres away. But the nearest mine to the Monastery
was 2,000 metres away.

The conclusion drawn by the Experts on the question of visibility
(they said that they did not carry out an audibility test at Saranda)

70
DISSENTING OPINION BY JUDGE KRYLOV qr

was as follows: the two Experts considered that, the minelaying
operation must have been observed from the coast if the weather
conditions had been normal {i.e., clouds 3-4/1oths, no fog or rainfall,
slight easterly breeze, visibility 20 miles), and 1/ look-out posts were
stationed at Cape Kiephali, San Giorgio Monastery and Denta
Point (in regard to the latter post, the Court does not find that its
existence was proved).

It need hardly be said that extremely favourable weather condi-
tions may not occur every day, and that the statement of the ~
Experts in regard to visibility must be understood as conditional.

It is quite evident that the Experts’ visit to the places in question
has not affected the substance of their replies. regarding the
possibility of seeing the minelaying operation. We still remain
in the sphere of possibilities and probabilities.

It must be added that, in his speech on January 17th, the United
Kingdom Counsel implicitly admitted that the mines might have
been laid without the operation having been seen or heard from
the coast.

Accordingly, I do not see any reason for asserting that Albania
had cognizance of the laying of the mines and still less for determ-
ining the exact moment at which she acquired such cognizance.

3. The culpa of Albania has not been proved.

But is it perhaps the case that the Albanian authorities ought
to have seen or heard the minelaying operation ?

To answer that question in the affirmative would, in my opinion,
be to found Albania’s responsibility on the notion of culpa.

I employ this term, subject to a reservation. I consider that
the terms of Roman law and of contemporary civil and criminal
law may be used in international law, but with a certain flexibility
and without making too subtle distinctions. There is no need to
transfer the distinctions which we sometimes meet in certain
systems of municipal law into the system of international law.

Is it then possible to found the international responsibility of
Albania on the notion of culpa ? Can it be argued that Albania
failed to exercise the diligence required by international law to
prevent the laying of mines in the Corfu Channel? Can it be
asserted that international law involves an obligation for a coastal
State to prevent the laying of mines in its territorial waters? I
do not think so. However perfectly the coastal watch of a
coastal State may be organized, the clandestine laying of mines
cannot be considered impossible, especially, one might add, in
peace time when the coastal guards are not in a state of instant
readiness, But the history of maritime war provides plenty of
examples of clandestine minelaying.

7i
DISSENTING OPINION BY JUDGE KRYLOV 72

Here I have an observation to make. The responsibility of a
State in consequence of an international delinquency presupposes,
at the very least, culpa on the part of that State. One cannot
found the international responsibility of a State on the argument
that the act of which the State is accused took place in its territory
—terrestrial, maritime, or aerial territory. One cannot transfer
the theory of risk, which is developed in the municipal law of some
States, into the domain of internationallaw. In order to found the
responsibility of the State recourse must be had to the notion of
culpa. I refer to the famous English author, Oppenheim. In
his work on international law, he writes that the conception of
international delinquency presumes that the State acted “wilfully
and maliciously”, or in cases of acts of omission ‘‘with culpable
negligence’ (Vol. I, para. 154). Mr. Lauterpacht, the editor of the
7th edition (1948), adds that one can discern among modern authors
a definite tendency to reject the theory of absolute responsibility and
to found the responsibility of States on the notion of culpa (p. 311).

As I have already stated, I cannot find in the organization and
functioning of the Albanian coastal watch—having regard to the
limited resources of that small country—such a lack of diligence
as might involve the responsibility of Albania. I do not find any
evidence of culpable negligence.

The confusion which prevails in regard to the facts in this case
is apparent in the circumstance that, on the one hand, the majority
declare that Albania was exercising special vigilance whereas, on
the other hand, some of the judges consider that Albania’s respon-
sibility actually results from her lack of vigilance ; the second pre-
sumption is diametrically opposed to the first.

Though there is no evidence to show that Albania was cognizant
of the minelaying or that she was guilty of culpa in not exercising
the requisite diligence through the action of her coastal watch, I
have still to examine the question whether Albania has incurred
responsibility Owing to her omission to warn the British ships of
their imminent danger on October z2nd, 1946. I will content
myself with saying that, even if Albania had known of the existence
of the minefield before October 22nd, 1946—and that has not been
proved—the Albanian coastal guard service could not have warned
the British ships of the fact on that day. Having regard to the
circumstances of the passage of the ships on that day, the coastal
guards had neither sufficient time nor the necessary technical means
for giving such a warning.

In view of the foregoing and owing to the inadequacy of the
evidence produced by the British, I am unable to reach the con-
clusion that Albania was responsible for the explosions which took
place on October 22nd, 1946, in Albanian waters. One cannot
condemn a State on the basis of probabilities. To establish
international responsibility, one must have clear and indisputable
facts. In the present case these facts are absent.

72
DISSENTING OPINION BY JUDGE KRYLOV 73

4. The Court has no jurisdiction to assess the amount of the
compensation.

I cannot align myself with the opinion of the majority to the
effect that the Court has jurisdiction to determine the amount
of the compensation to be paid by Albania.

The text of the Special Agreement signed by Albania and Great
Britain on March 25th, 1948, is clear. According to that text, the
Court may give judgment on the question of principle: Is there
any duty (for Albania) to pay compensation to Great Britain ?
It does not follow at all that the Court has jurisdiction to fix the
amount of the compensation. In my opinion, that is perfectly
clear, not only from the wording of the Special Agreement, but
especially from the circumstances in which that Special Agreement
was concluded.

In her Memorial, Great Britain asked the Court to award her the
sum of £875,000 sterling by way of damages. The signatories of
the Special Agreement of March 25th, 1948, and in particular the
United Kingdom Agent, cannot have failed to have had that demand
in mind. I exclude the possibility of a veservatio mentalis on the
part of the latter agent ; and so the Special Agreement did not
maintain that claim.

At the same time, the Special Agreement put a new question to
the Court concerning the lawfulness of the acts of the British Navy
in Albanian waters. The Special Agreement is a complete restate-
ment of the case submitted to the Court and does not embrace the
question of the amount of money that might have to be paid.

It is true that during the oral proceedings in January 1949 the
United Kingdom reaffirmed its claim for the payment of the sum
previously mentioned, but this interpretation of the Special Agree-
ment by the British Counsel is in my view contrary both to the
letter and the spirit of the Special Agreement of March 25th, 1948,
and it was disputed by the Albanian Counsel.

I consider that the Court should interpret the Special Agreement
of March 25th, 1948, restrictively, bearing in mind that its jurisdic-
tion is based solely on the consent of the Parties.

The vague references which may be found in the records and
the citation of various documents are not adequate to found the
jurisdiction of the Court which, in this respect, has exceeded the
limits laid down by the Special Agreement.

5. The passage of the British ships on October 22nd, 1946.

The passage of the British squadron through the territorial
waters of Albania was made on October 22nd, 1946. These waters
extend to the median line of the North Corfu Strait. Was it an
innocent passage, having regard to (a) its object and (4) the methods
by which it was effected ?
DISSENTING OPINION BY JUDGE KRYLOV 74

The question of innocent passage by warships belonging to one
State through the territorial waters of another State has not been
regulated by convention. The Hague Conference of 1930 for the
Codification of International Law failed in its efforts to regulate
the régime of territorial waters. The practice of States in this
matter is far from uniform, and it is impossible to say that
an international custom exists in regard to it. We only dispose
of scattered sources—suggestions by international associations,
doctrines of learned authorities, etc.

In my opinion, we should adopt the standpoint of the French
writer, M. Gidel, who, in his work Le Droit international public
de la Mer, expresses himself as follows’ (Vol. 3, p. 284): ‘The
passage of foreign warships through territorial watess is not a right
but a tolerance.” The reason is that a warship’s character is
different from that of a merchant ship. The celebrated American
jurist, Mr. Elihu Root, in his speech in the North. Atlantic Fish-
eries case, judiciously declared that the passage of warships through
territorial waters should not be effected without the consent of the
coastal State. Warships constitute a menace—‘‘they threaten’,
that is not the case with merchant ships: ‘‘merchant ships may
pass and repass because they do not threaten’’ (see Hackworth,
Digest of International Law, Vol. I, p. 646). It will be sufficient
to cite in addition the statement on this point in Harvard Law
School Research in International Law (1929, p. 295): ‘‘There is
therefore no reason for freedom of innocent passage of vessels of
war. Furthermore, the passage of vessels of war near the shores
of foreign States and the presence without prior notice of vessels
of war in marginal seas might give rise to misunderstanding even
when they are in transit.”

Accordingly, the right to regulate the passage of warships
through its territorial waters appertains to the coastal State.

Does this right appertain to the coastal State if the territorial
waters form part of an international strait ? No uniform reply
can be given to that question.

Contrary to the opinion of the majority of the judges, I
consider that there is no-such thing as a common regulation
of the legal régime of straits. Every strait is regulated indiv-
idually. That applies to the Bosphorus and the Dardanelles, to
the Sound and the Belts, to the Strait of Magellan, etc. The
legal régime of all those straits is defined by the respective inter-
national conventions. The régime of the Corfu Strait has not been
juridically regulated. Owing to its insignificance, the régime of
that Strait has not been found worthy of special attention. Suffice
it to say, for example, that the Greek writer Jean Spiropoulos, in
his manual Droit international public (1933), makes no mention at
all of the Corfu Strait. If the régime of the strait is not defined
by a multitateral convention, it appertains to the coastal State or
States to regulate it. When political conditions were normal,

74
DISSENTING OPINION BY JUDGE KRYLOV 75

it would have been found possible to regulate the régime of the North
Corfu Strait by an agreement between Albania and Greece. In
1946, when Albania was considered by Greece as being in a state of
war with the latter, such an agreement was impossible. Therefore,
Albania had the right to regulate the passage of warships through
her territorial waters provided that she conformed to the rules of
international law.

Faced with the decision of Albania to make the passage of
warships conditional on a prior authorization, the United Kingdom,
instead of utilizing one of the peaceful methods enumerated in
Article 33 of the United Nations Charter in order to settle the
dispute which had arisen between her and Albania, ordered four
warships to make a passage through the Strait.

In accordance with the instructions received from the Admiralty,
the British squadron carried out the passage through the Corfu
Strait as a special mission, the exact method being specified in an
order issued by the admiral commanding the squadron.

I note that this order, entitled XCU (Exercise Corfu), was not
produced to the Court by the United Kingdom Government not-
withstanding the decision taken by the Court on December r4th,
1948. Iam therefore unable to pass judgment on its contents, and
I will confine myself to examining the methods by which the passage
was made on October 22nd, 1946, and which may reveal the purport
and objects of that order.

I will content myself with drawing attention to two facts which
show how the order XCU was carried out.

(a) It is shown by the records that the British ships were
observing the Albanian coast and making notes on the Albanian
defences and batteries. That is proved by the chart attached to
the British Memorial (Annex 21) and by Admiral Kinahan’s report
of October 23rd, 1946, paragraph 3 of which shows that the recon-
naissance of the Albanian coast defences was being carried out
some time before the explosions which damaged the British ships.

(b) The passage of four British ships revealed the intention on
the part of Great Britain to intimidate the Albanian authorities
and to make a display of British naval power.

Consequently, it may be affirmed that on October 22nd, 1946,
the British ships misused the right of passage. Therefore, the
passage of these ships on October 22nd, 1946, ceased to possess the
character of an innocent passage and, for that reason, the sover-
eignty of Albania in her territorial waters was violated.

6. Operation Retail on November 12th and 13th, 1946.

I agree with the conclusion at which the Court has unanimously
arrived on this point, but I wish to present some supplementary
observations.

An analysis of the acts of the British Navy on November
12th-13th, 1946, makes it clear that this was a minesweeping

75
DISSENTING OPINION BY JUDGE KRYLOV 76

operation organized by the navy of one State in the territorial
waters of another State: Albania.

Under cover of the necessity of sweeping the mines, the acts
undertaken by the British Navy were nothing else but the inter-
vention of a foreign Power in the affairs of another State—a weak
State which possesses no means vim vt repellere.

It may be said that international law is unanimous in condemning
the ‘‘right’’ of intervention in any forms in which this alleged right
may be exercised.

In the present case, a British squadron of twenty-three warships
appeared on November 12th, 1946, off the Albanian coast. It
proceeded to sweep an area where its larger covering ships (cruisers
and aircraft carrier), some eight ships, were stationed for two days,
on November 12th and 13th, 1946, full in view of the Albanian
coast. On November 13th, under the special protection of aircraft,
a minesweeping operation was undertaken near Saranda.

This sweep was effected by a decision of Great Britain without
Albania’s consent, without an observer of the latter country being
allowed to participate and even under a false pretext (see the
British notes of October 26th, 1946, and November roth, 1946,
in which the British Government stated incorrectly that the mine-
clearance had been approved by the Central Mine Clearance Board
—see British Memorial, pp. 43 to 45).

The Albanian note of November 11th, 1946, had proposed the
constitution of a mixed commission to delimit the area which was
to be swept. But no answer was given to this offer.

In defending the unilateral action of the United Kingdom, its
Counsel invoked the alleged right of self-help. He argued that
Great Britain merely wished to collect evidence that mines had
been laid ; in other words, it was a judicial police operation. He
tried to convince the Court that this was a unique and unpre-
cedented case and that Great Britain had no choice but to exercise
the right of self-protection, confined to what was strictly necessary.

The Court was unable to accept this argument. The claim to
exercise judicial action in the territory of another State is inadmis-
sible because it violates the sovereignty of the State in question.
Memory recalls the Austro-Hungarian claim in 1914, before the
outbreak of the first World War, to participate in a criminal
prosecution which had been opened in Serbian territory. As is
known, public opinion throughout the world declared its opposition
to this exorbitant claim which violated the sovereignty of another
State.

It should be observed that the British argument on this point,
i.e., their defence of the alleged right of self-help—which is nothing
else but intervention—relies on assertions which have already
been outstripped by the further development of international law,
especially since the ratification of the Charter of the United Nations.

76
DISSENTING OPINION BY JUDGE KRYLOV 77

Since 1945, 1.e., after the coming into force of the Charter, the
so-called right of self-help, also known as the law of necessity
(Notrecht), which used to be upheld by a number of German authors,
can no longer be invoked. It must be regarded as obsolete. The
employment of force in this way, or of the threat of force, is
forbidden by the Charter (para. 4 of Art. 2).

In forming juridical opinion of the character of the acts of the
British Navy on November 12th and 13th, 1946, it must be noted
that Great Britain assembled considerable naval forces, as has
been stated above, in order to make a naval demonstration off the
Albanian coast. A naval demonstration may be defined as a
direct threat aimed at another State (see Frisch, Kviegerische
Demonstration zur See. Strupp, Wérterbuch des Volkerrechts und der
Diplomatie, Vol. I, pp. 226-227).

The British forces seemed so overwhelming that, according: to
evidence given to the Court, the inhabitants of Saranda were
preparing to leave the town and take refuge in the mountains.
Seeing the British ships stationed and operating in waters adjacent
to Albanian territory, the inhabitants of Saranda were seized with
panic and expected an invasion. Public peace was thus disturbed
on the Albanian shore.

But according to the United Nations Charter (Art. 42) demonstra-
tions and other operations carried out by the air, sea or land forces
of Members of the United Nations may only be undertaken in
pursuance of a decision by the Security Council. The Charter,
therefore, prohibits unilateral military action by its Members.

It follows that the action taken by the British Navy in Albanian
waters on October 22nd, 1946, and on November 12th and 13th,
1946, involved the international liability of Great Britain and
must be described as a violation, in international law, of Albania’s
sovereignty.

The statement of that fact constitutes the satisfaction which is
justly due to Albania.

(Signed) S: KRYLOv.

77


                    52

                                       DECLARATION OF JUDGE GAJA

                      Jurisdiction of the Court — Claims relating to alleged rights of Bank Markazi
                    under Articles III, IV and V of the Treaty of Amity — Applicability of these
                    provisions for the purpose of deciding on a preliminary objection — Sovereign and
                    business activities of Bank Markazi.

                       1. In its third preliminary objection concerning jurisdiction, the
                    United States of America requested the Court to “[d]ismiss as outside the
                    Court’s jurisdiction all claims of purported violations of Articles III, IV,
                    or V of the Treaty [of Amity, Economic Relations, and Consular Rights]
                    that are predicated on treatment accorded to the Government of Iran or
                    to Bank Markazi”. At the present stage of the proceedings, the Court’s
                    task is not to ascertain whether the mentioned provisions of the Treaty
                    confer rights on Bank Markazi and whether those rights have been
                    infringed. What the Court needs to examine for deciding upon this type
                    of preliminary objection is whether “the violations of the Treaty of 1955
                    pleaded by Iran do or do not fall within the provisions of the Treaty” (Oil
                    Platforms (Islamic Republic of Iran v. United States of America), Prelimi-
                    nary Objection, Judgment, I.C.J. Reports 1996 (II), p. 810, para. 16).
                    What is required is for the Court to ascertain that a reasonable case has
                    been made that Bank Markazi enjoys rights under Articles III, IV or V of
                    the Treaty and that these rights may have been violated. In my opinion,
                    that threshold has been reached and the third objection to the Court’s
                    jurisdiction should be dismissed in so far as it concerns Bank Markazi.
                       2. According to Article III, paragraph 1, of the Treaty, “[c]ompanies
                    constituted under the applicable laws and regulations of either High Con-
                    tracting Party shall have their juridical status recognized within the terri-
                    tories of the other High Contracting Party”. It is common ground that
                    Bank Markazi has been constituted under a law of Iran, the Monetary
                    and Banking Act of 1972 (Memorial of Iran, Ann. 73). Article 10 (c) of
                    that Act states that “[t]he Central Bank of the Islamic Republic of Iran
                    enjoys legal personality and shall be governed by the laws and regulations
                    pertaining to joint-stock companies in matters not provided for by this
                    Act”. It is also common ground that the separate legal personality of
                    Bank Markazi has not been recognized when the Bank’s assets were
                    seized. What has been challenged by the United States of America is the
                    applicability of Articles III, IV and V of the Treaty to an entity (Bank
                    Markazi) which exercises sovereign functions.

                       3. The exercise of sovereign functions by Bank Markazi is not regu-
                    lated by the Treaty, except with regard to exchange restrictions in Arti-

                    49

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                    53 	               certain iranian assets (decl. gaja)

                    cle VII. However, the fact that Bank Markazi exercises sovereign functions
                    does not exclude that it also operates as a commercial bank when it
                    engages in transactions in a foreign financial market. The decision to
                    invest in securities may be part of a sovereign prerogative of a central
                    bank, but that does not mean that the implementation of an investment is
                    carried out through the exercise of a sovereign power. The acquisition or
                    sale of securities is not different from that executed by any commercial
                    bank and should enjoy the same protection under the Treaty as that of a
                    commercial bank. It is true that, according to Articles 19 (c) and 21 (c)
                    of the United Nations Convention on Jurisdictional Immunities of States
                    and Their Property, “property of the central bank or other monetary
                    authority of the State” enjoys immunity from “post‑judgment measures
                    of constraint”. However, this comprehensive immunity is not necessarily
                    explained by the nature of the activities of central banks ; it also reflects a
                    policy of encouraging foreign central banks to invest in the financial mar-
                    ket of the host State.

                       4. Article XI, paragraph 4, of the Treaty provides that a State corpora-
                    tion, agency or instrumentality, “if it engages in commercial, industrial,
                    shipping or other business activities”, cannot “claim or enjoy, either for
                    itself or for its property, immunity . . . from taxation, suit, execution of
                    judgment or other liability to which privately owned and controlled enter-
                    prises are subject”. This provision cannot mean that when a State entity
                    engages in business activities it is deprived of all immunities to which it
                    may be entitled under international law. Article XI, paragraph 4, rather
                    conveys that State entities would not enjoy immunities with regard to
                    their business activities. In any event, the provision confirms that State
                    corporations, agencies and instrumentalities are covered by the Treaty
                    generally, not only when they exercise business activities.

                    (Signed) Giorgio Gaja.

                    50

3 CIJ1158.indb 96                                                                                21/10/19 10:25


                     214

                          DISSENTING OPINION OF JUDGE AD HOC CALLINAN

                        1. I have formed the view that it is unnecessary for the Court to indi‑
                     cate provisional measures. Before explaining why I have formed that
                     view, I should say something about the facts of the case so far as they
                     may be discerned at this early stage of these proceedings.

                                                       Context

                        2. At any interlocutory stage of any curial proceedings, the true and
                     full facts can rarely be confidently ascertained. An application for provi‑
                     sional relief will almost always be made in circumstances of asserted
                     urgency. Indeed, without urgency there is no foundation for the indica‑
                     tion of provisional measures.
                        3. There is another reason here for uncertainty as to the true factual
                     situation. Australia contends that there are issues of national security
                     involved which are of legitimate concern to it. Sometimes, indeed more
                     often than not, there will, or can be no open, public or close examination
                     whether, and the extent to which, national security may be at risk because
                     such an examination, and disclosures in respect of it, may themselves
                     increase or precipitate the realization of risk. One obvious risk at the fore‑
                     front of the minds of those engaged in intelligence collection and national
                     security is that their identities, and the nature of the operations in which
                     they have engaged will be disclosed.

                       4. Many countries, including liberal democracies of which Australia is
                     one, adopt therefore, bipartisan or even completely consensual policies,
                     of not confirming or denying that particular conduct has, or has not been
                     pursued, by their national security agencies.

                                                        Facts

                        5. Australia and Timor‑Leste are parties to treaties relating to the
                     sharing of revenue from the exploitation of underwater resources in an
                     area of the seas between them. Timor‑Leste has instituted proceedings
                     before an arbitral tribunal, for which the Permanent Court of Arbitration
                     is acting as Secretariat, seeking to set aside, avoid, or have declared
                     invalid or otherwise not binding upon it, a 2006 Treaty between the Par‑
                     ties, on the ground, in substance, that Australia was obliged to, but did

                     71

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                     215 	          seizure and detention (diss. op. callinan)

                     not negotiate the treaty or treaties in good faith. Australia contends that
                     the Arbitral Tribunal does not have jurisdiction over the matter.

                        6. It is possible, if not likely, that the genesis of the proceedings before
                     the Arbitral Tribunal is a claim said to have been made by a former Aus‑
                     tralian intelligence officer.
                        7. That inference arises from various media reports, including one
                     published in May 2013 in the print media of Timor‑Leste, a copy of which
                     is reproduced in Australia’s presentation, Second Round, of 22 Janu‑
                     ary 2014. It is reported there that an Australian intelligence agent, cur‑
                     rently unwell in an Australian hospital, has alleged that Australian
                     intelligence agents broke into, and eavesdropped upon, Timor‑Leste’s
                     Cabinet rooms nine years ago. The Australian agent is said, in the news‑
                     paper report, to have divulged this information in a bid to clear his con‑
                     science. The implication there, and elsewhere, is that, by electronically
                     eavesdropping upon Cabinet discussions, Australia was able to derive
                     unfair or unethical advantages in negotiating the later of the treaties to
                     which I have referred. The article identifies an Australian lawyer, Mr. Ber‑
                     nard Collaery, as “Minister [Timor‑Leste’s] Pires’s lawyer”.

                        8. On 2 December 2013, shortly before the Arbitral Tribunal convened
                     a preliminary hearing to give directions with respect to the conduct of
                     Timor‑Leste’s proceedings there, the Australian Attorney‑General and
                     the Minister responsible for the Australian Security Intelligence Organ‑
                     isation (ASIO), issued a search warrant to enable the search and seizure
                     of material to which it refers, at and from Mr. Collaery’s legal office
                     and a residence in Canberra. It is important to notice that the Attorney-
                     General was obliged to, and had satisfied himself that there were reason‑
                     able grounds for believing that access by ASIO to records and other things
                     on the subject premises would substantially assist the collection of intelli
                     gence in accordance with the Act . . . [and] is important in relation to
                     security under section 25 (1) of the Australia Security Organisation
                     Act 1979 (Cth) (the “Act”).

                        9. The search warrant was executed on 3 December 2013. A number of
                     documents and other things were seized, some of which have been
                     returned, and others of which have been retained and are the subject of
                     these proceedings. Mr. Collaery was not present at his legal office when
                     the search warrant was executed there.
                        10. The fact of the search and seizure came quickly into the public
                     domain. Mr. Collaery, it seems, was interviewed by the Australian public
                     broadcaster, the Australian Broadcasting Corporation, on television on
                     3 December 2013. He was introduced on the program as “the lawyer for
                     East Timor”. He said on air that the Director of the Australian Secret

                     72

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                     216 	          seizure and detention (diss. op. callinan)

                     Intelligence Service (ASIS) ordered a team into Timor to conduct work
                     which was well outside the proper function of ASIS. The interviewer
                     referred to a witness who had been questioned “tonight”. Mr. Collaery’s
                     response was that the “witness” was a “very senior, experienced, officer
                     who formed a proper view . . .”. Further derogatory references were made
                     by Mr. Collaery to Australia and ASIO. He said that the oral evidence of
                     a prime witness [in the arbitration] was being muzzled. Not surprisingly,
                     these events were followed up by the media. A reporter employed by the
                     Australian Broadcasting Corporation said on air on 4 December said that
                     “the spy has now revealed all and is the star witness for an East Timorese
                     legal action in The Hague to have the billion dollar Treaty recapped. His
                     identity remains a tightly guarded secret.” On another occasion, shortly
                     afterwards Mr. Collaery (from Amsterdam) is reported to have “called
                     for a full inquiry”.

                       11. One other reference to media reports may be relevant. The Sydney
                     Morning Herald, a Sydney broadsheet, purported to quote Mr. Pires,
                     Timor‑Leste’s National Resources Minister as having “. . . identified the
                     team of people who came in to do the bugging. We have their names.
                     They are males, along with a possible lady spy.” The report added that
                     Mr. Pires acknowledged that the members of the team might be at risk if
                     their names got out over the internet.

                        12. In interlocutory proceedings hearsay evidence is frequently provi‑
                     sionally received. The point needs to be made here that some of the evi‑
                     dence to which I have referred, consisting as it does of media reports, is
                     not only untested, but is also double hearsay, in that it is stated by a
                     person one or two persons removed from the person claiming to have
                     direct knowledge of the facts.

                        13. It is also relevant to observe that Mr. Collaery’s exact position or
                     role has its ambiguities and could conceivably give rise to conflicts. It
                     appears from a letter of 12 December 2013 put before this Court, that a
                     Sydney Queen’s Counsel has been briefed by Mr. Collaery to advise and
                     confer with an anonymous witness, who it can reasonably be inferred is
                     the former agent responsible for the claims of entry into Timor‑Leste’s
                     Cabinet rooms. According to the letter from that counsel (which was sent
                     to a senior official of the Attorney-General’s department) Mr. Collaery
                     would withdraw as the solicitor for the anonymous witness, and be
                     replaced by another, unnamed solicitor. It is not entirely clear therefore
                     which of the documents that were seized and retained in execution of the
                     search warrant in Mr. Collaery’s office came into existence as a result of
                     instructions from Mr. Pires personally, Timor‑Leste, or the anonymous
                     witness. In short, it is not at this stage clear, so far as at least some of the
                     seized material is concerned, who is the person entitled to claim legal pro‑
                     fessional privilege in respect of, and any sort of possible proprietary or
                     other interest in it.

                     73

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                     217 	               seizure and detention (diss. op. callinan)

                       14. The Attorney‑General (a democratically elected senator in the
                     Australian Parliament and the First Law Officer of the Commonwealth of
                     Australia), on 4 December 2013 made both a statement to the Senate
                     Chamber and to the public of the kind to which I have referred in para‑
                     graph 4 hereof :
                              “As Honourable Senators are aware, it has been the practice of
                          successive Australian Governments not to comment on security mat‑
                          ters. I intend to observe that convention. However, in view of the
                          publicity which has surrounded the matter since yesterday, I consider
                          that it would be appropriate for me to make a short statement about
                          the matter which does not trespass beyond the convention, and which
                          will also provide an opportunity to correct some misleading statements
                          that have been made in the Chamber this morning, and by others.
                          �����������������������������������������������������������������������������������������������������������������
                              Warrants of the kind executed yesterday are issued under section 25
                          of the Australian Security Intelligence Organisation Act 1979 (the
                          Act). They are only issued by the Attorney‑General at the request of
                          the Director-General of ASIO, and only if the Attorney‑General is
                          satisfied as to certain matters. It is important to make that point, since
                          it was asserted by Senator . . ., in apparent ignorance of the Act, that
                          I had ‘set ASIO onto’ these individuals. The Attorney‑General never
                          initiates a search warrant ; the request must come from ASIO itself.

                          �����������������������������������������������������������������������������������������������������������������
                              A search warrant may only be issued by the Attorney-General if
                          the conditions set out in section 25 (2) are fulfilled. That provision
                          requires that the Attorney be satisfied that there are reasonable
                          grounds . . . in respect of a matter that is important in relation to
                          security . . . ”
                        15. From no later than 10 December 2013, Timor‑Leste had been repre‑
                     sented by another firm of solicitors, DLA Piper (“Piper”). That firm entered
                     into an exchange of correspondence with the Attorney‑General, and senior
                     officials of his Department. In it, Piper demanded copies of the search
                     warrant(s) and the return of all of the documents which had been seized
                     and returned. Because Australia declined to comply with Piper’s demand,
                     Timor‑Leste instituted these proceedings on 17 December 2013. The nature
                     of the proceedings, and the provisional relief now sought appear fully from
                     the Order of the Court. In the exchange of correspondence to which I have
                     referred, Australia has adopted the position that Timor‑Leste should seek
                     to vindicate such rights as it may have in the domestic courts of Australia.

                                                              The Legal Position

                       16. I take the jurisprudence of this Court to be that it will indicate
                     provisional measures only if these conditions are satisfied : that the case is

                     74

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                     218 	          seizure and detention (diss. op. callinan)

                     prima facie within its jurisdiction, is admissible ; it is plausible ; it is
                     urgent ; and, if the conduct complained of is not stopped, there is a risk
                     that the moving party will be irreparably harmed. I do not take it to be
                     settled international law that if those conditions are satisfied, the Court
                     must indicate provisional measures. If it were otherwise, this Court,
                     unlike almost any other court anywhere else in the world, would deny
                     itself the exercise of a nuanced discretionary judgment that had regard to
                     all of the relevant circumstances.

                        17. The distinction as a matter of substance between jurisdiction and
                     admissibility is not always a clear one. As a general principle, parties can‑
                     not confer a jurisdiction upon a court that it does not lawfully have.
                     Timor‑Leste has itself quite properly pointed out that this Court must
                     satisfy itself that it has prima facie jurisdiction. By prima facie, I take
                     Timor‑Leste to mean, I think, at least for the purposes of the current
                     application for measures of a provisional kind only, arguable jurisdiction.
                        18. Both Timor‑Leste and Australia have made declarations acknow
                     ledging that the jurisdiction of the Court is compulsory. In its Declara‑
                     tion (under Article 36 (2)), Australia has made a reservation to exclude

                          “any dispute concerning or relating to the delimitation of maritime
                          zones, including the territorial sea, the exclusive economic zone and
                          the continental shelf, or arising out of, concerning, or relating to the
                          exploitation of any disputed area of or adjacent to any such maritime
                          zone, pending its delimitation”.
                     That reservation was the subject of submissions by Australia in the recent
                     case of Whaling in the Antarctic (Australia v. Japan : New Zealand inter‑
                     vening). It is unnecessary to say anything further about that reservation,
                     or the effect of Australia’s recent submissions about it in that case at this
                     stage of these proceedings because Australia does not, in relation to the
                     provisional measures sought by Timor‑Leste, seek to rely upon the reser‑
                     vation. It is not apparent therefore whether Australia will seek to found
                     upon that reservation at any later stage of these proceedings an argument
                     that the subject material in so far as it relates to, for example, “the exploi‑
                     tation [of] any maritime zone pending the delimitation . . .” is beyond the
                     jurisdiction of the Court, or makes the case inadmissible here.
                        19. Australia informed the Court (on 21 January 2014) that while it
                     might well contest the jurisdiction and admissibility of Timor‑Leste’s
                     Application, at the merits phase or earlier, it will not be raising jurisdic‑
                     tional or admissibility matters on Timor‑Leste’s request for provisional
                     measures.

                       20. Another possible argument, in the alternative, against admissibility
                     or jurisdiction has been adverted to in the pleadings. It is that by reason
                     of the exception in Australia’s Optional Clause Declaration with respect

                     75

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                     219 	              seizure and detention (diss. op. callinan)

                     to “any dispute in regard to which the parties thereto have agreed or shall
                     agree to have resolved by some other method of peaceful settlement”, this
                     Court is denied jurisdiction or should not admit Timor‑Leste’s claim in
                     this Court. Such an argument would be based upon Article 23 of the
                     2002 Treaty between the Parties. It is an argument that I understand has
                     been foreshadowed by Australia already as depriving the Arbitral Tribu‑
                     nal of jurisdiction to entertain Timor‑Leste’s claim there.

                       21. The threshold for an indication of provisional relief is not high.
                     Australia offers undertakings 1 which, in my opinion, are adapted to and
                     sufficient for, the circumstances of the case. That this is so relieves the
                     Court of the need to give any lengthy consideration now to jurisdiction
                     and admissibility. If and when that need arises, it may be helpful to revisit
                     some earlier opinions of judges of the Court. The jurisprudence of the
                     Court on these issues has not of course stood still since 1974, but I doubt
                     whether what Sir Garfield Barwick said about admissibility then in his
                     dissenting opinion in the Nuclear Tests (New Zealand v. France) case 2
                     has been rejected in whole or in part, or fully considered since :

                                 “I observed earlier that there is no universally applicable definition of
                              the requirements of admissibility. The claim may be incompetent, that
                              is to say inadmissible, because its subject-matter does not fall within the
                              description of matters which the Court is competent to hear and decide 3;
                              or because the relief which the reference or application seeks is not
                              within the Court’s power to consider or to give ; or because the applicant
                              is not an appropriate State to make the reference or application, as it is
                              said that the applicant lacks standing in the matter ; or the applicant
                              may lack any legal interest in the subject‑matter of the application or it
                              may have applied too soon or otherwise at the wrong time, or, lastly,
                              all preconditions to the making or granting of such a reference or appli‑
                              cation may not have been performed, e.g., local remedies may not have
                              been exhausted. Indeed it is possible that there may arise other circum‑
                              stances in which the reference or application may be inadmissible or not
                              receivable. Thus admissibility has various manifestations.
                                 Of course all these elements of the competence of the reference or
                              application will not necessarily be relevant in every case. Which form
                              of admissibility arises in any given case may depend a great deal on
                              the source of the relevant jurisdiction of the Court on which reliance
                              is placed and on the terms in which its jurisdiction is expressed. This,
                              in my opinion, is the situation in this case.”

                          1 The undertakings are set out in the Order of the majority.
                          2 Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 423.
                          3 Competence and power to hear may also raise jurisdictional questions.

                     76

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                     220 	           seizure and detention (diss. op. callinan)

                     There are other aspects of the passage that I have quoted from Sir Gar‑
                     field Barwick’s opinion which may have relevance if what he said there is
                     not inconsistent with the ratio of the Court’s Order, or foreclosed by sub‑
                     sequent decisions of the Court. The first relates to the relevance of
                     non‑exhaustion of domestic local remedies. In its responses to Piper’s
                     complaints before the institution of these proceedings, Australia urged
                     Timor‑Leste to seek relief from the Australian courts. The Applicant
                     declined to do so. Could it have done so ? Should it have done so ? Could
                     a refusal to do so argue against urgency ? Is non‑recourse to domestic
                     courts relevant to the exercise of a discretionary judgment of this Court ?
                     Rahimtoola v. Nizam of Hyderabad 4, upon which Timor‑Leste relies, may
                     not assist it. The passage quoted from A. V. Dicey in Viscount Simonds’s
                     speech 5 is concerned with cases against a sovereign State. It does not sug‑
                     gest that a State cannot or should not resort to courts of another State as
                     a claimant or plaintiff. It is also an example of a coincidence of domestic
                     law and international law of a kind which may — a matter not to be
                     decided now —– be the situation in Australia with respect to legal profes‑
                     sional privilege and proprietary and sovereign rights.

                        22. Another aspect of the passage quoted that may be of relevance is
                     the residence or otherwise in this Court of a general discretion to grant or
                     refuse relief, particularly of the kind that was being dealt with there, and
                     is being sought here, that is relief of an injunctive kind. It would be
                     unusual if this Court did not have a broad discretion in such circum‑
                     stances, but no opinion needs to be formed about that, or indeed, any of
                     the questions posed which may or may not arise in the future.

                        23. As Judge Greenwood emphasized at paragraph two of his declara‑
                     tion in the case of Costa Rica v. Nicaragua 6, the Court’s decision on a
                     request for provisional measures is not an interim ruling on the merits.
                     Nor does such a request require a concluded opinion on legal issues.

                       24. I will touch however upon the matter of irreparable damage,
                     merely to say that the concept is analogous with common law principle
                     which holds that interlocutory or provisional relief will not be ordered if,
                     for example, damages or perhaps some other remedy would be an ade‑
                     quate remedy, adding that in a real sense a satisfactory undertaking takes
                     the place of other adequate remedy.

                          4
                          [1958] AC 379.
                          5
                          Ibid., at 394.
                        6 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nica‑

                     ragua), Provisional Measures, Order of 8 March 2011, I.C.J. Reports 2011 (I), p. 46.

                     77

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                     221 	           seizure and detention (diss. op. callinan)

                        25. The existence of a sovereign inviolability of documents in the pos‑
                     session of a lawyer in another country is a large claim, and, I think, pos‑
                     sibly novel. Whether it will be necessary for the Applicant to show that
                     there is an absolute inviolability or immunity can only be determined
                     after full argument.

                        26. As important and extensive a privilege it is, there may also be rea‑
                     son for concern about the absoluteness (in domestic and international
                     law) of legal professional privilege when a nation’s security may be in
                     jeopardy. Any court, including this Court, would be conscious of the
                     unlikelihood that any nation or its leaders would regard themselves as
                     bound to treat national security as inferior, or subject to, legal profes‑
                     sional privilege. The extent to which there is a settled principle of legal
                     professional privilege, unique to the law of nations, and immune to any
                     limitation in an international or national interest, will require detailed
                     and careful argument. The same may be said of an absolute sovereign
                     right in respect of documents in the possession of a sovereign nation’s
                     lawyers in another country.

                        27. On the final hearing, the nature and breadth of the so‑called fraud
                     or crime exception to legal professional (and a sovereign right or privi‑
                     lege) will also need to be the subject of full argument. That exception has
                     been recognized in domestic law since the nineteenth century, if not earl
                     ier 7. A question that may require a decision is whether an intrusion upon
                     a privilege that, either purposely or incidentally, would both uncover evi‑
                     dence of a crime or fraud, and help to prevent the commission or further‑
                     ance of a crime or fraud, would fall within the exception. Here, for
                     example, it is possible that the documents seized would answer both of
                     those descriptions. If legal professional privilege were to be subject to an
                     exception (which it is not) solely to enable the gathering of evidence to
                     prove that a crime of fraud has been committed, the privilege would be
                     subverted.

                        28. Another claim, of an unrestricted proprietary right (not dependant
                     on sovereignty) was made to the seized documents. In deciding upon the
                     existence or otherwise, or the extent, of any of these asserted rights, there
                     may be the further factor to be considered, that is of the commercial and
                     legal role and obligations of the lawyer in physical possession of the doc‑
                     uments. That lawyer will be subject to relevant domestic commercial and
                     legal regulatory regimes of the host nation, over which any proprietary
                     sovereign or legal professional privilege rights may or may not prevail. So
                     too, if a simple proprietary (as opposed to a special sovereign proprie‑
                     tary) right is claimed, regard may need to be had to section 51 (xxxi) of

                        7 R. v. Cox and Railton (1884), 14 QBD 153 ; see also discussion of earlier cases in

                     J. H. Wigmore, Evidence in Trials at Common Law, Vol. 8, rev. 1961, para. 2298, at
                     pp. 572‑577.

                     78

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                     222 	            seizure and detention (diss. op. callinan)

                     the Australian Constitution which confers upon the Commonwealth the
                     power to acquire property (that is, of any kind, including copyright) on
                     just terms for a Commonwealth, that is to say, a sovereign purpose, one
                     of which is of course defence (s 51 (vi)).

                                           The Role of the Attorney-General

                        29. Timor‑Leste made a submission that, in signing and therefore re-
                     issuing the warrants, the Attorney‑General was, under international law,
                     carrying out a judicial or quasi-judicial function. It is unnecessary to
                     decide, but there is reason to doubt (without deciding) whether, even
                     under any extended meaning of “quasi‑judicial”, that is so. Under sec‑
                     tion 75 (v) of the Australian Constitution, any and all officers of the
                     Commonwealth of Australia are amenable to the prerogative writs of cer‑
                     tiorari, prohibition and mandamus, as well as injunction and declarations.
                     The High Court of Australia has consistently and repeatedly held this to
                     be so since 1903. The Attorney‑General is a member of the Executive,
                     and neither a judge nor a quasi‑judge 8. He is no more exercising a judicial
                     power or quasi-judicial power in satisfying himself that a search warrant
                     should be issued than is a police officer or a medical officer in requiring or
                     taking a blood or other sample from the person of a criminal suspect, an
                     intrusive requirement routinely enforced in countries all over the world.

                                                         Undertakings

                        30. Undertakings are repeatedly given and accepted in lieu of the mak‑
                     ing of orders by courts in common law countries. A failure to honour an
                     undertaking is likely to expose anyone who has given it to penalty for
                     contempt of court. Solemnly given as they were here to this Court, they
                     are binding upon Australia. In any event, it is unthinkable that the First
                     Law Officer of the Commonwealth, in his capacity both as a senior coun‑
                     sel obliged as an officer of the Courts of Australia to act honestly in all
                     professional affairs and a Minister answerable to the Parliament, would
                     not honour all undertakings given to this Court.

                         8 As to the political and administrative or executive features and role of a Minister

                     in Australia, see : Minister for Immigration and Multicultural Affairs v. Jia (2001), 205
                     CLR at 244‑245. Chapter 3 of the Australian Constitution and the whole structure of the
                     Constitution contemplate both a functional and legal separation in Australia of the Parlia‑
                      ment, the Executive and the Judiciary. See also R. v. Kirby ; Ex parte Boilermakers’ Society
                      of Australia (1956), 94 CLR 254.

                     79

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                     223 	            seizure and detention (diss. op. callinan)

                        31. The undertakings offered here, initially given to Piper on behalf of
                     Timor‑Leste and extended, enhanced and clarified in the oral and written
                     submissions of Australia are, in my opinion, sufficient to meet the circum‑
                     stances (including of urgency) of this case, and will ensure that no irrepa‑
                     rable harm is done to Timor‑Leste between now and the final hearing.
                     The effect of them is, among other things, to impose upon Australia, and
                     the Attorney-General in particular, an obligation not to have himself, or
                     to provide or enable access to others within the Australian administration
                     to the seized documents without first giving notice to the Court and to
                     Timor-Leste to enable the latter to have its concerns again ventilated in
                     the Court if it wishes. It would not be reasonable to indicate a further
                     measure or to expect Australia to undertake not to “eavesdrop” on or
                     intercept the communications of Timor‑Leste as that would or might sug‑
                     gest that Australia has done so, or will do so in the future, matters that
                     would require cogent and persuasive evidence not produced here 9. It
                     may also be questioned whether there is a sufficient linkage between the
                     claim in or justiciable in this Court and a provisional measure of that
                     kind.

                        32. Quite apart from the other concerns to which I have referred in this
                     opinion, I think that there may be a problem about the use of the word
                     “interfere” in the third dispositif paragraph, by reason of its breadth and
                     unspecific nature.
                        33. National security is a reasonable and natural aspiration and expec‑
                     tation of any body of peoples. Here, the nature of the risk with which the
                     Attorney‑General is concerned is not known to the Court, and may, in
                     any event change in seriousness or imminence. All or most nations have,
                     as Australia’s pleadings show, intelligence organizations. They have them
                     because they need them. Terrorists now operate within communities
                     which shelter and have succoured them. International law must take cog‑
                     nizance of the painful realities of the vulnerabilities of the people in free
                     nations. Any law or principle of it which does not do that may fail to
                     command obedience as well as respect. It is difficult for those not the pos‑
                     sessor of all the relevant information to know which piece of new, or
                     further, or seemingly slight piece of information, will indicate an escala‑
                     tion of risk. Algorithms designed to process such pieces of information to
                     identify risk and its heightening are now universally and ceaselessly
                     employed. And a risk which can arise suddenly and dangerously is to the
                     safety of a particular officer of officers of an intelligence organization, as
                     well as to the security of the nation itself. In my respectful opinion, the

                        9 Evidence is to be evaluated according to the capacity and the circumstances of the

                     party adducing it. It is a canon of good sense long recognized in, for example, the common
                     law, that the cogency and strength of the evidence to establish allegations of fact vary
                     according to the gravity and turpitude of the conduct embraced by them. See Blatch v.
                     Archer (1774), 98 ER 969 ; Refjek v. McElroy (1965), 112 CLR 517.

                     80

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                     224 	        seizure and detention (diss. op. callinan)

                     undertakings to which I have referred are reasonable and sufficient, and
                     should be accepted by the Court without the need for indications of any
                     provisional measures.

                     (Signed) Ian Callinan.

                     81

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48 BARCELONA TRACTION (JUDGMENT)

Judge SpiRoPOULos makes the following declaration :

I regret that I am unable to share the view of the Court in regard
to the second, third and fourth Preliminary Objections.

As to the second Preliminary Objection, my position is determined
by the Court’s Judgment in the case concerning the Aerial Incident
(israel v. Bulgaria). Starting from the concept that the purpose of
Article 37 of the Statute of the Court is the same as that of Article 36,
paragraph 5, and basing myself on the considerations of the Judgment
in question, I consider that the Court should have found that it is
without jurisdiction.

As to the third Preliminary Objection, I think the Court should have
considered as relevant the arguments on which the Spanish Government
founds its third Preliminary Objection.

Judge KoRETSKY makes the following declaration :

I agree with the Judgment and its reasoning. I venture to make
some additional observations as regards the first Preliminary Objection.

Much has been said in the written documents and in the oral pro-
ceedings about discontinuance of the action (désistement d’action) and
discontinuance of the proceedings (désistement d'instance). But this
dichotomy is unknown to the Rules of Court. Articles 68 and 69 know
only discontinuance of the proceedings in its two possible forms—
either by mutual agreement of the parties (Article 68), or by unilateral
declaration of the applicant (Article 69).

Under Article 68 the parties inform the Court in writing either that
they have concluded an agreement as to the settlement of the dispute
or that they are not going on with the proceedings, whilst under
Article 69 the applicant informs the Court that it is not going on with
the proceedings. In either case the Court directs the removal of the
case from its list. Under Article 68 however it officially records the
conclusion of the settlement or the mutual agreement to discontinue,
whilst under Article 69 it officially records the discontinuance of the
proceedings.

The conclusion of a settlement is not the discontinuance of an action
(if one tried to understand the latter expression as the abandonment of
a substantive right), for a settlement is usually the realization of a
right which was in dispute. A dispute may subsequently arise in con-
‘nection with the implementation of this settlement giving rise (possibly)
to new proceedings.

It is to be recalled that the heading for Articles 68 and 69 is “Settle-
ment and Discontinuance”. At the time of the deliberations on the
Rules of Court in 1935 Judge Fromageot (P.C.I.J., Series D, Acts and

46