COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

LICEITE DE LA MENACE OU DE L’EMPLOI
D’ARMES NUCLÉAIRES

(REQUÊTE POUR AVIS CONSULTATIF)

ORDONNANCE DU 1£8 FEVRIER 1995

1995

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

LEGALITY OF THE THREAT OR USE
OF NUCLEAR WEAPONS

(REQUEST FOR ADVISORY OPINION)

ORDER OF 1 FEBRUARY 1995
Mode officiel de citation:

Licéité de la menace ou de l'emploi d'armes nucléaires,
ordonnance du 1° février 1995, C.I.J. Recueil 1995, p. 3

Official citation:

Legality of the Threat or Use of Nuclear Weapons,
Order of I February 1995, I. C.J. Reports 1995, p. 3

ISSN 0074-4441
ISBN 92-1-070719-2

N° de vente:
Sales number

656

COUR INTERNATIONALE DE JUSTICE

1995 ANNEE 1995
1° février
Rôle général
n° 95 1% février 1995

LICÉITÉ DE LA MENACE OU DE L'EMPLOI
D’ARMES NUCLÉAIRES

(REQUETE POUR AVIS CONSULTATIF)

ORDONNANCE

Présents: M. Bepjaoul, Président ; M. SCHWEBEL, Vice-Président ; M. ODA,
sir Robert JENNINGS, MM. GUILLAUME, SHAHABUDDEEN,
AGUILAR MAWDSLEY, WEERAMANTRY, RANJEVA, HERCZEGH,
SHI, FLEISCHHAUER, KOROMA,  VERESHCHETIN, juges;
M. VALENCIA-OSPINA, Greffier.

La Cour internationale de Justice,

Ainsi composée,
Après délibéré en chambre du conseil,

Vu les articles 48, 65, 66 et 68 du Statut de la Cour et les articles 103,
104 et 105 de son Règlement,

Considérant que, le 15 décembre 1994, l’Assemblée générale des
Nations Unies a adopté la résolution 49/75 K par laquelle elle a décidé,
conformément au paragraphe 1 de l’article 96 de la Charte des Nations
Unies, de demander à la Cour un avis consultatif sur la question ci-
après: «Est-il permis en droit international de recourir à la menace ou
à l’emploi d’armes nucléaires en toute circonstance?»;

Considérant que le texte de cette résolution a été transmis à la Cour
par une lettre du Secrétaire général de l'Organisation des Nations Unies
en date du 19 décembre 1994, reçue au Greffe par télécopie le 20 dé-
cembre 1994 et dont l’original a été enregistré le 6 janvier 1995;

4
4 MENACE OU EMPLOI D’ARMES NUCLÉAIRES (ORD. | II 95)

Considérant que l’Assemblée générale a demandé que l’avis consul-
tatif de la Cour soit rendu «dans les meilleurs délais»;

Considérant que, par résolution WHA46.40 en date du 14 mai 1993,
la quarante-sixième Assemblée mondiale de la Santé a demandé à la
Cour un avis consultatif sur la question suivante:

«Compte tenu des effets des armes nucléaires sur la santé et
Penvironnement, leur utilisation par un Etat au cours d’une guerre
ou d’un autre conflit armé constituerait-elle une violation de ses
obligations au regard du droit international, y compris la Constitu-
tion de lOMS?»;

Considérant que, par ordonnance du 20 juin 1994, le Président de la
Cour a fixé au 20 juin 1995 la date d’expiration du délai dans lequel les
Etats ou organisations ayant présenté un exposé écrit sur la question
soumise à la Cour par l’Assemblée mondiale de la Santé pourront pré-
senter des observations écrites sur les autres exposés écrits,

1. Décide que les Etats admis à ester devant la Cour et l'Organisation
des Nations Unies sont susceptibles de fournir des renseignements sur
la question que l’Assemblée générale des Nations Unies a soumise à la
Cour pour avis consultatif,

2. Fixe au 20 juin 1995 la date d’expiration du délai dans lequel des
exposés écrits sur la question pourront être présentés à la Cour confor-
mément au paragraphe 2 de l’article 66 de son Statut;

3. Fixe au 20 septembre 1995 la date d’expiration du délai dans
lequel les Etats ou organisations qui auront présenté un exposé écrit
pourront présenter des observations écrites sur les autres exposés écrits
conformément au paragraphe 4 de l’article 66 du Statut de la Cour;

Réserve la suite de la procédure.

Fait en français et en anglais, le texte français faisant foi, au Palais de
la Paix, à La Haye, le premier février mil neuf cent quatre-vingt-quinze.

Le Président,
(Signé) Mohammed BEDJAOUI.

Le Greffier,
(Signé) Eduardo VALENCIA-OSPINA.


30

SEPARATE OPINION OF M. ANZILOTTI.
(Translation. ]

I find myself, to my great regret, unable to agree to the
Court’s judgment. Availing myself of my right under Article 57
of the Statute, I wish to subjoin to the judgment a short
statement of the reasons for my dissent.

1.—In the first place, I should observe that the question
submitted to the Court—a question which in my opinion is
solely whether the contract of April 1st/r4th, 1913, was regu-
larly entered into—must, in my opinion, be resolved by the
application of Article 1 of Protocol XII of Lausanne.

My reason for adopting this point of view is not merely
that the Parties have stated that the expression “dément
intervenu” in Article 1 of the Special Agreement bears the
same meaning as in Article I of the Protocol; but also,
and more especially, because the question whether Greece
is subrogated to the rights and obligations of Turkey, as
towards the concessionary firm, is governed by Article 9 of
the Protocol; for the application of that Article involves—
in accordance with Article 10—the application of Article I
also, so that the subrogation prescribed in Article 9 can only
take place in the case of a concessionary contract which has
been duly entered into (d#ment intervenu), within the meaning
of Article 1. I shall return to that point later; for the
moment it suffices to point out that the concordant declar-
ations of the two Parties in regard to Article x of the
Special Agreement were made entirely from the standpoint
of Protocol XII, and that the question whether the contract
of April 1st/r4th, 1913, was, or was not, duly entered into
(dûment intervenu) can only be debated in relation to Article I
of the Protocol.

Having made this clear, I can now go on to explain the
nature of my dissent from the Court’s finding. The Court
has held that a concessionary contract was duly entered into
(dûment intervenu) if it was validly made; having satisfied
itself that the contract of April 1st/r4th, 1913, was valid,
the Court deduces that it was “dément intervenu”, and that
it is accordingly operative in regard to the Greek Govern-
ment. My view, on the contrary, is that “concessionary
contracts duly entered into” (däment intervenus), within the
meaning of Protocol XII, are concessionary contracts in
regard to which all the conditions requisite under Ottoman

30
A./B. 62 (LIGHTHOUSES).—SEP. OP. ANZILOTTI 3r

law for the granting of the concession were fulfilled : before
the decisive date: the question which the Court had to decide
was whether this requirement had been satisfied in the case
under consideration.

“contrat dûment . inter-
venu” simply suggests the idea of a “valid contract” or a
contract “‘validly made” (passé). No expression must, however;
be considered in isolation, but in the context to which it belongs ;
and it is solely in relation to that context that those who
seek to interpret it can determine its true meaning.

The moment the question is looked at from that ‘angle,
one begins to feel grave doubts as to whether the expres-
sion ‘concessionary contracts .... duly entered into (dément
intervenus) before the....”, in Article x of Protocol XII, relates
solely to the validity of the contract. No one would have
thought of suggesting that Turkey was obliged to maintain
contracts that were not valid: the word “diément’ would
therefore be redundant, and as a fact it does. not appear in
other clauses of the Protocol, which nevertheless refer, in the
same way as Article I, to contracts that have been validly
entered into. But it is a fundamental rule in interpreting
legal. texts that one should not lightly admit that they
contain superfluous words: the right course, whenever pos-
sible, is to seek for an interpretation which allows a reason
and a meaning to every word in the text. :

3.—This consideration might not, by itself, be sufficient
ground for concluding that the expression ‘‘concessionary
contracts duly entered into” (dément intervenus) in Article I
of the Protocol XII must bear a special meaning, differing
from that of contracts validly made.

But the Protocol contains another article which, in my
opinion, strengthens this conclusion: I mean the passage in
Article 10 making reference to Article 1. Here I believe I
am touching on the basic cause of my disagreement with
the Court. I wish, therefore, to make my point of view.
perfectly clear in regard to this point.

Article 10 of the Protocol reads as follows:

“The provisions of Section I of this Protocol, except Articles 7
and 8, will be applied to the contracts referred to in Article’ 9.
Article 3 will only have effect in detached territories where.
the property or the services of the concessionnaires were utilized
by the State exercising authority in such territory.”

The chief aim of Article 10 was no doubt to render applic-
able in cases, of subrogation. the procedure laid down in:

31
A./B. 62 (LIGHTHOUSES).—SEP. OP. ANZILOTTI 32

Chapter I of the Protocol for the readaptation of concessionary
contracts which the new Ottoman Government undertook to
maintain. But that does not alter the fact that Article 10
also makes reference to Article I, and that it does so in such
clear and unmistakable terms that it is really very difficult
to ignore them; for not only is the clause couched in general
terms, referring to “the provisions of Section I of this Proto-
col”, but it adds the words “except Articles 7 and 8”; and
its second sentence particularizes the cases where Article 3
will not have effect.

But this reference is only intelligible if the words ‘“conces-
sionary contracts ..... duly entered into” (dément intervenus)
have in view a particular condition with which the contracts
must comply in order that the consequences attaching to them
under Article 1 may ensue. No one can indeed doubt that,
when Article 9 provides for the subrogation of succession
States.to the rights and obligations of Turkey in regard to
the beneficiaries “under concessionary contracts entered into
(passés) before”, etc., these words must be understood as mean-
ing contracts that were validly made. It follows that, if the
expression ‘‘concessionary contracts .... duly entered into
(dûment intervenus) before’, etc., in Article r had the same
meaning and import as the expression “concessionary contracts
entered into (passés) before...” in Article 9, the reference in
Article 10 to Article 1 would be devoid of all meaning.

The position is entirely different if Article x, in requiring
that concessionary contracts shall have been “duly entered
into’ (ddment intervenus), has in view a condition peculiar to
those contracts. In that case the effect of the reference
in Article 10 is to subordinate the subrogation prescribed in
Article 9 to the same condition as that to which Article 1
subordinates Turkey’s obligation to maintain concessionary
contracts entered into before October 29th, 1914.

In these circumstances it appears to me inadmissible, in
interpreting this text, to be content with the view that the
reference to Article 1 in Article 10 of the Protocol is an over-
sight, and may be disregarded. The first duty of those who
construe this text is to consider whether it is not possible and
reasonable to interpret the expression ‘concessionary contracts
duly entered into (dément intervenus) before”, etc., in Article 1
of the Protocol in such a manner that the reference made to
this Article in Article 10 preserves its reason and its effect.

It is only if it should be found impossible or unreasonable
to attribute to the expression “contracts duly entered into
(dtiment intervenus) before”, etc., in Article 1, a wider signi-
ficance than that of the expression “contracts entered into
(passés) before”, etc., in Article 9, that one would be justified

32
A./B. 62 (LIGHTHOUSES).—SEP. OP. ANZILOTTI 33

in declaring that the passage in Article 10 which refers to
Article zr is devoid of meaning, and may be disregarded.
That, in my opinion, is the correct method of interpreting
legal texts.

4.—Accordingly, Protocol XII contains precise indications
which lead one to conclude that the “concessionary contracts
duly entered into (däment intervenus) before October 20th, 1914”,
are concessionary contracts subject to a particular condition,
and that this condition is not, or is not necessarily, the simple
validity of the contract.

On the other hand, there is nothing in Protocol XII to
show what condition the contracting Parties had in view when
they spoke of concessionary contracts duly entered into (dément
intervenus) before a certain date.

It is only natural to suppose that this condition must be
connected with the special nature of concessionary contracts ;
but it is equally evident that that does not materially help
us to interpret Article 1.

In these circumstances, and as the text does not. itself
give the information which would enable one to determine the
true intention of the Parties, I think it is necessary to have
recourse to the preparatory work. It is upon the basis of
that preparatory work that we must decide, either definitely
to reject the idea that Article x of the Protocol had in view
anything else than the mere validity of the contracts, or to
determine what the contracting Parties intended when they
stipulated the maintenance of concessionary contracts “duly
entered into (däment intervenus) before October 2gth, 1914”.

5.—The “Draft Protocol relating to concessions’ which
the Allies submitted to the Turkish delegation, and which
formed the basis of the discussions at Lausanne, began with
two articles worded as follows:

“T.—Concessionary contracts, and subsequent agreements relating
thereto, duly entered into before October z2gth, 1914, between the
Ottoman Government or ‘any local authority, of the one part,
and nationals (including companies) of the Allies, of the other
part, are maintained if they are being applied, or have begun to be
applied.

II.—Contracts and agreements in regard to which all the formalities
have not yet been fulfilled are nevertheless considered valid, and
are maintained if they have, by mutual agreement, begun to be
applied, or if they have formed the subject of an arrangement be-
tween the Ottoman Government and an Allied Government involving
an advantage for Turkey.” (Proceedings of the Lausanne Conference,
and Series, Vol. I, p. 423 [French text].)

33
A./B. 62 (LIGHTHOUSES).—SEP. OP. ANZILOTTI 34

At the meeting on July 7th, 1923, Ismet Pasha declared
that Turkey agreed that the treatment to be accorded to
concessionnaires should be settled at Lausanne, in cases where
the negotiations between the said concessionnaires and the
Turkish Government had led to no result. He continued:

“It is of course understood that the companies in question are
those which held concessionary contracts before the World War,
and that these contracts had been duly entered into. In the case
of concessions in regard to which all the formalities had not yet
been fulfilled at the outbreak of the War, the Turkish delegation is
unable to agree to the Allied arguments claiming their confirmation.”

(Op. ctt., p. 411.)

Ismet Pasha’s declarations led General Pellé, one of the
French Government’s delegates, to make a reply, the follow-
ing extract from which appears to be not without interest:

“General Pellé .... said he understood that the Turkish delegation
was willing to discuss the rights of companies which had not yet
been able to reach an agreement with the Angora Government,
provided that such discussions only extended to concessions which
were duly entered into before the declaration of war, and in respect
of which all the prescribed formalities had been fulfilled. These
reservations of the Turkish delegation were evidently directed to
the second Article of the Draft.”

Having thus defined the sense in which he understood the
declaration of the first Turkish delegate, General Pellé went
on to say that Article 2 of the Draft related to certain
agreements entered into in 1914, which the French Govern-
ment regarded as valid, and which had been violated by the
Turkish Government who had granted to another group a
concession which had been previously given to a French
group; for the French delegation, he said, would press for the
retention in the Protocol of a clause covering the agreements
of 1914 (of. cit., p. 415).

It will be seen from the foregoing that the draft Protocol
prepared by the Allies and submitted to the Turkish delega-
tion already drew a clear distinction between concessionary
contracts in respect of which all the formalities had been
fulfilled before the War, and other concessionary contracts
the formalities connected with which had not all been ful-
filled on October 2oth, 1914. The former were “maintained” ;
the latter were ‘‘nevertheless considered as valid, and main-
tained”.

It will also be noted that the Turkish delegation was
unwilling to recognize concessionary contracts in respect of
which all the formalities had not been fulfilled at the out-
break of war, and that it was here that the divergence

34
A./B. 62 (LIGHTHOUSES).—SEP. OP. ANZILOTTI 35

commenced, for the Allies, though not placing the latter category
of contracts on the same footing as the former, insisted on
the insertion of a special clause in the Protocol covering cer-
tain agreements which were precisely in that situation.

An agreement was subsequently reached by a compromise
which found expression in Article 2 of the Protocol : that
Article covers two of the concessions which Turkey regarded
as invalid because all the formalities in respect of them had
not been fulfilled when the war broke out, but which the
Allies nevertheless desired to preserve; it took the place of
Article II in the draft submitted by the Allies.

It follows that Article x relates solely to concessionary
contracts in respect of which all the formalities required by
the Ottoman law had been fulfilled before October 2oth,
1914; it is these contracts—and these alone—which are
described, in contrast to the contracts dealt with in Article 2,
as “concessionary contracts duly entered into (dément inter-
venus) before October 29th, 1914”.

In the draft Protocol submitted by the Allies, the distinc-
tion between the two categories of contracts was clearly
brought out by the difference in the wording of Article I
and Article IJ. Later, Article II ceased to be of a general
character, and only dealt with two particular concessions ;
on the other hand, the word “dément’’ which Ismet Pasha
had used at the meeting on July 7th was now inserted in
Article I to show clearly that the concessionary contracts
which ‘that Article referred to were contracts in respect of
which ‘all the formalities required under Ottoman law had
been fulfilled before the decisive date. A study of the prepar-
atory work places it beyond doubt that this is the signi-
ficance to be attached to the expression “concessionary con-
tracts duly entered into (dément intervenus) before October 2gth,
1914”, in Article xr of Protocol XII: namely, that these are
concessionary contracts, in respect of which all the formal-
ities required under Ottoman law for the granting of the
concession had been fulfilled before that date.

The special character of public utility concessions, the effect
of which is to transfer the exercise of governmental functions
and powers to individuals, amply explains why the authors
of Protocol XII were not satisfied with the mere existence of
a valid contract, but also required that such a contract should
have been accompanied by all the necessary formalities. . It
is of no importance for this purpose whether these formalities
preceded the contract, or accompanied it or were to be ful-
filled subsequently, if the formalities in question are those
requisite for the granting of the concession which forms the
subject of the contract.

5 35
A./B. 62 (LIGHTHOUSES).—SEP. OP, ANZILOTTI 36

6.—If concessionary contracts “‘duly entered into” (dument
intervenus), within the meaning of Article 1 of Protocol XII,
are not only contracts validly made (passés), but contracts.
in respect of which all the formalities required under Ottoman
law for the granting of the concession have been fulfilled by
the decisive date, the reference in Article 10 becomes perfectly
intelligible. : The effect of this reference is that the subrogation
of the succession States to the rights and obligations of
Turkey, as towards the concessionnaires, in accordance with
Article 9, only occurs in the case of concessionary contracts
in connection with which all the requisite formalities had been
fulfilled before the date laid down in this Article, in each of
the respective contingencies provided for in this Article.

Moreover, this result is undeniably a just one. Since, under
Article 1, Turkey secured the advantage that the Government
of the Grand National Assembly would not have to continue
to support the burden of certain of the concessions granted
under the old régime, it would have been, to say the least,
singular if the same advantage had not been extended to the
succession States, who were forced to respect in their own
territories concessions granted by another State.

Again, the very notion of subrogation, which underlies
Article 9 and according to which the succession State replaces
Turkey in so far as concerns the rights and obligations ensuing
from the contract, would seem to require that the concessions
in question must be concessions in regard to which nothing
remained to be done at the date when subrogation was to
take place. In fact, only in that case could subrogation be
effected without modifying the respective positions of the two
Parties: it is evident that if there remained. any formalities
to fulfil which would have enabled Turkey to annul, void or
modify the contract, the succession State, being unable to
fulfil these formalities in the stead of Turkey, would be more
disadvantageously situated ; on the other hand, the concession-
naire would be in a more favourable position.

This is certainly the position in the case before us. Under
Article 9, Greece would have been subrogated as regards
the rights and obligations of Turkey at a time when the
Turkish Parliament had not yet ratified the provisional law
or decree law of 1913: Greece would thus have been definitely
bound by a contract, which Turkey could still cancel or modify ;
on the other hand, the concessionary company which, at
that time, had only obtained a contract, having a provision-
al character, from the Ottoman Government, would have
seen this contract become definitively binding upon the Greek
Government. The position would become still more complex
and paradoxical, if one considers what is a perfectly possible

36
A./B. 62 (LIGHTHOUSES).—SEP. OP. ANZILOTTI 37

contingency, namely, that the Turkish Parliament were subse-
quently to have refused to ratify the provisional law, or pro-
posed to modify the contract (Art. 9 of the law of June roth}
23rd, 1910, concerning public utility concessions).

7.—The foregoing reasoning shows, in my opinion, that the
Court, which was asked to say whether the contract of April rst/
14th, 1013, was “déiment intervenu”, was not simply called
upon to decide as to the validity of that contract, but had
also to decide whether the condition mentioned in Article x
of the Protocol was fulfilled, namely, whether all the form-
alities required by Ottoman law for the prolongation—to which
the contract relates—of the concession, had been accomplished
at the date of the coming into force of the treaty whereby
the territories were transferred to Greece.

As regards the validity of the contract, I entirely concur
in the Court’s opinion. I have no doubt that the contract
was validly concluded on the basis of the provisional law, or
decree law; that no plea of unconstitutionality can be raised
before the Court respecting this provisional law, or decree law;
and, lastly, that the fact that the ratification by Parliament
took place at a date when the territories had already been
transferred to Greece in no way affects the validity of the
contract. .

All this, however, does not exhaust the question.

It remains to ascertain whether the contract of April xst/r4th,
1913, though undeniably valid, also fulfils the condition
prescribed by Article 1 of the Protocol. The fact that the
Turkish Parliament ratified the provisional law or decree law
after the transfer of the territories to Greece, certainly does
not affect the validity of the contract. On the other hand,
it prevents the contract from being regarded as a contract
“duly entered into” (dément intervenu) within the meaning of
Article 1 of the Protocol, because one formality required by
Ottoman law for the grant of the concession to which the
contract relates, namely, the approval or ratification of Par-
liament, was not fulfilled at the date of the coming into force
of the treaty providing for the trarisfer of the territories.

For, under Article 9 of the Ottoman law concerning public
utility concessions, “laws regarding concessions which are
submitted to the Chamber and to the Senate may, after
consideration of the contracts and other documents annexed
thereto, be approved or rejected im toto, or returned together
with a statement of reasons, should there be grounds for
amendments”. The powers of Parliament were not, therefore,
limited to reviewing the reasons of urgency or necessity alleged
by the Government when issuing a provisional law or a
decree law; they also extended to the contract itself, which the

37
A./B. 62 (LIGHTHOUSES).—SEP. OP. ANZILOTTI 38

Parliament had to examine, with a view to either approving
the decree law or provisional law, or to rejecting it, or, again,
referring it back, with a statement of grounds, if the Parlia-
ment was of opinion that it needed amendment.

8.—The French Government’s Agent argued that, according
to Article 1 of the Ottoman law of June roth/23rd, 19170,
concerning public utility concessions, the Ottoman Government
did not require a law in order to make a contract renewing
the lighthouse concession: according to this Agent, a law was
only necessary to authorize the Minister of Finance to conclude
the loan contract. :

Counsel for the Greek Government disputed this view, and
contended that thé lighthouse concession was one of those
which the Ottoman Government could not grant—and conse-
quently could not extend—without the approval of the legis-
lature.

This is a question of Ottoman public law on which I do
not wish to express an opinion, especially as I am not in
possession of the necessary information. Moreover, I do
not believe that there is any need to decide it. It is certain
that the provisional law, or decree law, of April rst/14th, 1973,
‘authorized the Minister of Finance to conclude both the loan-
contract and the contract extending the lighthouse concession.
Indeed, it may -be noted that the law in its first Article is
described as a “law concerning the prolongation of the light-
house concession for twenty-five years” (French Government’s
Case, Annex 4, p. 46). That being so, parliamentary ratifi-
cation became a necessity, even if it were assumed that,
under Article 1 of the law of June roth/23rd, 1910, it enabled
the executive authority to proceed by another method, and
to dispense with the approval of the legislature.

9.—The conclusion to which I have been led may appear
to be very rigorous, since it makes the obligation of Greece
to respect the lighthouse concession dependent upon the approval
of the Turkish Parliament, an approval which that body—so
the Court was informed—was never known to refuse. I do
not deny that it is so, but I desire to add the following
remarks,

This is manifestly a consideration founded rather upon
equity than upon law; for it is certain that, in law, the
Turkish Parliament was perfectly free to give, or to withhold,
its approval. But, in the sphere of equity, there are other
considerations that come into play, and restrain the effect of
that which has been set forth above.

The whole of Protocol XII is of an exceptional character ;
but nowhere is that character so clearly revealed as in

38
A./B. 62 (LIGHTHOUSES).—SEP. OP. ANZILOTTI 39

Article 9, which accords separate treatment to the Powers—
whom it only obliges to respect concessions granted by Turkey
before the War—and to the Balkan States—whom it obliges
to respect even concessions granted during the War and until
the coming into force of the Treaty of Peace. That being
so, a strict application of the conditions governing the subroga-
tion referred to in Article 9 is not only in harmony with the
rules for the interpretation of texts, but also in conformity
with the requirements of equity. |

For the foregoing reasons, I am led to the conclusion that
the contract of April ist/14th, 1013, between the French
firm Collas & Michel and the Ottoman Government, extending
the lighthouse concession from September 4th, 1924, to Sep-
tember 4th, 1949, was not “duly entered into” (dument inter-
venu), within the meaning of Article x of Protocol XII of
Lausanne, and is accordingly not operative in regard to
the Greek Government, within the meaning of Article 9 of
the aforesaid Protocol, so far as concerns lights situated in
territories assigned to Greece after the Balkan wars and prior
to the Turkish Parliament’s ratification of the provisional
law, or decree law, which had authorized the conclusion of
the contract.

(Signed) D. ANZILOTTI.

39


83

DISSENTING OPINION OF JUDGE WINIARSKI
[Translation]

In its final alternative submission, the Swiss Government asks
the Court to declare itself competent to decide whether the United
States of America are under an obligation to submit the dispute
regarding the validity of the Swiss claim either to arbitration or
to conciliation. In the event of the Court declaring itself competent,
the Swiss Government puts forward a number of submissions on
the merits, presenting the claim formulated in its Application in
various forms, but these do not affect the question here examined.

In upholding the Third Objection of the United States Govern-
ment, so far as it concerns this alternative request, the Court
declares that the procedure on the merits is inadmissible, although
it might have led to a settlement of the dispute on that point. I
cannot concur in that decision. |

The United States Government argues that the alternative sub-
missions are directed towards the same end as the principal sub-
mission, namely, the restitution to Interhandel of the assets it is
claiming in the United States. ‘Although they avoid the use of
the word restitution, the alternative submissions are only alter-
native ways in which the intended recovery is sought to be
accomplished.”

The Court is not required to consider what was the purpose of
the Swiss Government in formulating its alternative claim regarding
arbitration and conciliation. That claim is presented as distinct
from the principal claim and must be examined as such. Its
subject-matter is clearly defined. It originated with the refusal
of the United States Government to submit the dispute concerning
Interhandel to arbitration and, in the view of the Swiss Govern-
ment, the dispute is one that is fit to be settled on the basis of
the Washington Accord and the Treaty of 1931. Here there is
no question of the protection of the rights and interests of the
national whose cause its Government is espousing; the rights and
interests at stake derive directly from international instruments
which the States have signed, and to that kind of dispute the rule
of the exhaustion of local remedies does not apply.

As the Judgment says, the reason for the rule is to enable a
State in which the rights of a foreign national are alleged to have
been injured in breach of international law to provide a remedy
by its own means within the framework of its own laws. But where
the rights and obligations of the two States flow directly from
their treaties and agreements there can be no question of settling
such dispute by recourse to local remedies. The American courts

81
INTERHANDEL (DISS. OPIN. OF JUDGE WINIARSKI) 84

are competent to adjudicate on the rights of a Swiss national;
they have no competence to adjudicate on the existence of an
obligation on the part of the United States to submit to arbitration
or conciliation. The legal problems are here on different planes and
their solution must be different. In my opinion, the Third Pre-
liminary Objection should be dismissed. If the Court holds that
it is not possible at this stage of the proceedings to dismiss the
objection without prejudging a question of merits, or, at the least,
if it thinks that it is impossible to determine with certainty that
the consequences of dismissal would not affect the merits, it could
follow precedents and join the objection to the merits. That would
enable it to resume the proceedings and to settle the dispute by
a single judgment.

In support of the decision two reasons are given in which I
cannot concur.

First, the Judgment says that one interest, and one alone, that
of Interhandel, underlies both the proceedings resumed by that
company in the United States courts and the present international
proceedings, and that that interest should determine the scope of
the action brought by the Swiss Government in both its sub-
missions. Assuming that one and the same interest is the basis
of both actions, it is difficult to agree that this consideration—
the existence of one, and only one, interest—should prevail over
the reasons which limit the local remedies rule to claims by indi-
viduals. In the case now under consideration the claim put forward
in the alternative submission aims at obtaining a recognition that
the United States are under an obligation to submit to arbitration
or conciliation, and the Swiss Government may have a strong
interest in seeing the Court offer it a legal remedy that has been
denied it.

Furthermore, a decision by the Court dismissing the Third
Objection of the United States so far as concerns the alternative
submission would in no way affect the right of the arbitral tribunal,
should one be set up, to apply the local remedies rule quite inde-
pendently, should the occasion arise, while conciliation proceedings
are not required to observe that rule.

For all these reasons, I am unable to concur in the decision of
the Court which declares the claim formulated by the Swiss Gov-
ernment in its alternative submission to be inadmissible.

(Signed) B. WINIARSKI.

82


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING
LEGALITY OF USE OF FORCE

(YUGOSLAVIA v. UNITED KINGDOM)

ORDER OF 21 FEBRUARY 2001

2001

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE A LA LICEITE
DE L’EMPLOI DE LA FORCE

(YOUGOSLAVIE c. ROYAUME-UNI)

ORDONNANCE DU 21 FEVRIER 2001
Official citation:

Legality of Use of Force (Yugoslavia v. United Kingdom),
Order of 21 February 2001, I. C.J. Reports 2001, p. 34

Mode officiel de citation:

Licéité de l'emploi de la force (Yougoslavie c. Royaume-Uni),
ordonnance du 21 février 2001, C.I J. Recueil 2001, p. 34

Sales number
ISSN 0074-4441 N° de vente: 8 1 6
ISBN 92-1-070917-9

34

COUR INTERNATIONALE DE JUSTICE

ANNÉE 2001 2001
21 février
Rôle général
21 février 2001 n° 113

AFFAIRE RELATIVE À LA LICÉITÉ
DE L'EMPLOI DE LA FORCE

(YOUGOSLAVIE c. ROYAUME-UN]D

ORDONNANCE

Présents: M. Sul, vice-président, faisant fonction de président en l'affaire;
M. GUILLAUME, président de la Cour; MM. Opa, BEDJAOUI,
RANJEVA, HERCZEGH, FLEISCHHAUER, KOROMA, VERESHCHETIN,
M”™* Hiccins, MM. PARRA-ARANGUREN, KOOIMANS, REZEK,
AL-KHASAWNEH, BUERGENTHAL, juges; M. COUVREUR, gref-

fier.

La Cour internationale de Justice,
Ainsi composée,
Aprés délibéré en chambre du conseil,

Vu l'article 48 du Statut de la Cour et les articles 44 et 79 de son Règle-
ment,

Vu Pordonnance du 30 juin 1999, par laquelle la Cour a fixé au 5 jan-
vier 2000 et au 5 juillet 2000 les dates d’expiration des délais pour le
dépôt, respectivement, d’un mémoire de la République fédérale de You- ©
goslavie et d’un contre-mémoire du Royaume-Uni de Grande-Bretagne
et d'Irlande du Nord,

Vu les exceptions préliminaires d’incompétence et d’irrecevabilité
déposées par le Royaume-Uni le 4 juillet 2000,

Vu l’ordonnance du 8 septembre 2000, par laquelle le vice-président de
la Cour, faisant fonction de président en l'affaire, a fixé au 5 avril 2001 la

4
LICÉITÉ DE L'EMPLOI DE LA FORCE (ORD. 21 II 01) 35

date d’expiration du délai dans lequel la République fédérale de Yougo-
slavie pourrait présenter un exposé écrit contenant ses observations et
conclusions sur les exceptions préliminaires soulevées par le Royaume-
Uni;

Considérant que, par lettre du 18 janvier 2001, reçue au Greffe le
19 janvier 2001 par télécopie, le ministre des affaires étrangères de la
République fédérale de Yougoslavie s’est notamment référé a de récentes
initiatives diplomatiques et a prié la Cour, pour les raisons exposées dans
ladite lettre, «de suspendre la procédure ou ... de reporter de douze mois
la date d’expiration du délai fixé pour la présentation par la Yougoslavie
de ses observations»; et considérant que, dés réception de cette lettre, le
greffier en a fait tenir copie a l’agent du Royaume-Uni;

Considérant que, par lettre du 26 janvier 2001, reçue au Greffe le
même jour par télécopie, l’agent du Royaume-Uni a informé la Cour que
son gouvernement ne s’opposait pas à la suspension de la procédure ou,
si cette suspension n’était pas possible, à la prorogation du délai pour le
dépôt des observations et conclusions de la Yougoslavie sur les excep-
tions préliminaires du Royaume-Uni,

Compte tenu de l’accord des Parties et des circonstances de l'espèce,

Reporte au 5 avril 2002 la date d’expiration du délai dans lequel la
République fédérale de Yougoslavie pourra présenter un exposé écrit
contenant ses observations et conclusions sur les exceptions préliminaires
soulevées par le Royaume-Uni de Grande-Bretagne et d'Irlande du Nord;

Réserve la suite de la procédure.

Fait en anglais et en français, le texte anglais faisant foi, au Palais de la
Paix, à La Haye, le vingt et un février deux mille un, en trois exemplaires,
dont l’un restera déposé aux archives de la Cour et les autres seront
transmis respectivement au Gouvernement de la République fédérale de
Yougoslavie et au Gouvernement du Royaume-Uni de Grande-Bretagne
et d'Irlande du Nord.

Le vice-président,
(Signé) Sui Jiuyong.

Le greffier,
(Signé) Philippe COUVREUR.