847

SEPARATE OPINION OF JUDGE HIGGINS

1. In this jurisdictional phase the Court has had to decide whether the
1955 Treaty of Amity, Economic Relations and Consular Rights between
Iran and the United States affords a basis of jurisdiction in respect of any
of the claims advanced by Iran.

2. But there are also important questions relating to the methodology
for determining whether a particular claim falls within the compromis-
sory clause of a specific treaty. Some of these questions were clearly of
concern to the Parties in this case. I have thought it useful briefly to
address this issue, not least because of a marked uncertainty in the prac-
tice of the Court.

3. Article XXI (2) of the 1955 Treaty provides (in phraseology iden-
tical to, or closely approximating, comparable clauses in many other
treaties, multilateral and bilateral) that:

“Any dispute between the High Contracting Parties as to the
interpretation or application of the present Treaty, not satisfactorily
adjusted by diplomacy, shall be submitted to the International Court
of Justice...”

In certain other treaties the phrase “interpretation or application” appears
in the reverse order, as “application or interpretation”. Either way, the
phrase contains two distinct elements which may form the subject-matter
of a reference to the Court. All too frequently, they are treated
compendiously.

4. Where the jurisdiction of the Court is contested, the “application”
of a treaty can manifestly form one or more of the grounds of objection.
There are a multitude of reasons why, in the face of claims advanced, a
treaty may be contended not to apply. It may be said to have been ter-
minated (Arts. 54-60, Vienna Convention on the Law of Treaties); or to
be invalid (Arts. 46-53); or to have lost legal significance because of the
effect of a later treaty on the same subject-matter (Art. 30); or to be non-
retroactive in its application (Art. 28); or inapplicable by reference to its
territorial scope (Art. 29); or subject to a relevant reservation (Art. 21). A
treaty may also be claimed to be inapplicable ratione temporis (see Corfu
Channel case, Merits, Judgment, I. C.J. Reports 1949, p. 22); or not to be
in force between both parties (see the Asylum case, Judgment, 1 CJ.
Reports 1950, pp. 276-277; and the case concerning Constitution of the

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848 OIL PLATFORMS (SEP. OP. HIGGINS)

Maritime Safety Committee of the Inter-Governmental Maritime Con-
sultative Organization, Advisory Opinion, I.C.J. Reports 1960, p. 171).

5. There occurs rather more infrequently a preliminary objection
whereby one party contends that a treaty claimed by the other party to
found the jurisdiction of the Court is non-applicable ratione materiae.
Study of such relevant jurisprudence as exists on this point is instructive.

6. There are a series of cases which should properly be referred to, but
which are really marginal to the issue. The Factory at Chorzôw case
(Judgment No. 8, 1927, P.C.I.J., Series A, No. 9), the Asylum case
(LC J. Reports 1950, p. 266), the Interpretation of Peace Treaties with
Bulgaria, Hungary and Romania case U.C.J. Reports 1950, p. 65), the
Haya de la Torre case (LC. J. Reports 1951, p. 71), the Anglo-Iranian Oil
Co. case (LC.J. Reports 1952, p. 93), the Northern Cameroons case
U.C.J. Reports 1963, p. 15), the Barcelona Traction, Light and Power
Company, Limited case (LC.J. Reports 1964, p. 6) and Certain Phos-
phate Lands in Nauru case (I. C.J. Reports 1992, p. 240) are among those
where a treaty has fallen for interpretation in a jurisdictional context, but
without raising any point directly relevant to the application of a treaty
as it arises in the present case.

7. In the United States Diplomatic and Consular Staff in Tehran case
(I. C.J. Reports 1980, p. 3) Iran filed no pleadings. In the various com-
munications it nonetheless sent to the Court, it did not contest the “appli-
cation” of the Vienna Convention on Diplomatic Relations and the 1955
Treaty of Amity, Economic Relations and Consular Rights in the juridi-
cal sense of that term. Rather, it said:

“the problem . . . is thus not one of the interpretation and the appli-
cation of the treaties upon which the American Application is based,
but results from an overall situation containing much more funda-
mental and more complex elements” (ibid., p. 19).

8. In the case concerning Applicability of the Obligation to Arbitrate
under Section 21 of the United Nations Headquarters Agreement of
26 June 1947 (C.J. Reports 1988, p. 12) the Court was called upon to
decide whether there existed between the United States and the United
Nations a dispute concerning the interpretation or application of the
Headquarters Agreement which should be referred to arbitration as
envisaged in Section 21 (c) of that instrument. Although the Court
stated that “the request for an opinion concerns solely the applicability to
the alleged dispute of the arbitration procedure provided for by the
Headquarters Agreement” (ibid., p. 26), the Court focused above all
upon whether there was a dispute and upon all the legal elements relating
to that question. It stated that it “sees no reason not to find that a dispute
exists between the United Nations and the United States concerning the

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‘interpretation or application’ of the Headquarters Agreement” (C.J.
Reports 1988, p. 32). Judge Schwebel pertinently noted that the dispute
was probably only a dispute as to the application of the arbitration pro-
visions, and not a dispute about interpretation of the Agreement (ibid.,
p. 43).

9. Other cases are more directly relevant for the purpose of addressing
the methodological problems at the heart of the present case. They reveal
a struggle between the idea that it is enough for the Court to find provi-
sionally that the case for jurisdiction has been made, and the alternative
view that the Court must have grounds sufficient to determine definitively
at the jurisdictional phase that it has jurisdiction.

10. In the case concerning Nationality Decrees Issued in Tunis and
Morocco (Advisory Opinion, 1923, P.C.IJ., Series B, No. 4) an objec-
tion was made to the jurisdiction of the Court. The Court found that it
would be necessary for it to reach a provisional conclusion as to the
asserted bases of jurisdiction.

11. In the Mavrommatis case (Mavrommatis Palestine Concessions,
Judgment No. 2, 1924, P.C.I.J., Series A, No. 2), it was necessary for the
Court to assure itself that the dispute fell within the requirements of
Article 26 of the Mandate, that is, that it related “to the interpretation
or the application of the provisions of the Mandate”. The Court on this
occasion stated that it “cannot content itself with the provisional conclu-
sion that the dispute falls or not within the terms of the Mandate” (ibid.,
p. 16). It distinguished the case concerning Nationality Decrees Issued in
Tunis and Morocco on the grounds that in an advisory opinion the prin-
ciple of the consent of States to the submission of disputes was not in
issue. The Greek Government had alleged violations of Article 11 of the
Mandate. The Permanent Court declared that “The question to be solved
is whether the dispute above mentioned should be dealt with on the basis
of this clause” (ibid., p. 17). The technique employed by the Permanent
Court was to enter into a very substantive and detailed analysis of the
claims under the various concessions, by reference to the first para-
graph of Article 11. The analysis was anything but “provisional”. Nor
was there any suggestion that the Permanent Court thought its task was
to see if Greece had made “plausible arguments” or suggested a “reason-
able link” between the claims and those provisions. The Permanent
Court said it was “constrained at once to ascertain whether . . . any
breach of [the obligations in Article 11] would involve a breach of the
provisions of this article” (ibid., p. 23). It correctly pointed out that that
was not to prejudge the merits, for only upon the merits would it be pos-
sible to know whether the obligations truly had been violated.

12. On that basis the Permanent Court upheld the British preliminary
objection in so far as it related to the claim regarding works at Jaffa and
dismissed it in so far as it related to the claim regarding works at Jeru-

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salem. The Jerusalem part of the claim could proceed to a judgment on
the merits.

13. In Certain German Interests in Polish Upper Silesia (Jurisdiction,
Judgment No. 6, 1925, P.C.LJ., Series A, No. 6) various preliminary
objections were advanced by Poland, one of which contended that the
Court had no jurisdiction because the dispute was not one contemplated
under Article 23 of the Convention of Geneva, on which the Court’s
jurisdiction was claimed by Germany to be founded. Observing that the
Court’s jurisdiction could not be based on the contentions of either Party
as to Article 23, the Permanent Court acknowledged that it must decide
that matter for itself, at the outset. The Permanent Court acknowledged
that it was important not to intrude upon the merits, but continued:

“On the other hand, however, the Court cannot on this ground
alone declare itself incompetent; for, were it to do so, it would
become possible for a Party to make an objection to the jurisdiction
— which could not be dealt with without recourse to arguments
taken from the merits — have the effect of precluding further
proceedings simply by raising it in limine litis; this would be quite
inadmissible. (Jbid., p. 15.)

The Court concluded that it had to proceed to determine if Article 23
applied “even if this enquiry involves touching upon subjects belong to
the merits of the case” (ibid. ).

14. The Mavrommatis case, in which issues of direct pertinence for the
present case were canvassed both directly and deeply, remains of seminal
importance. The correct way to approach these difficult matters, there so
clearly addressed, appears to have been put in some doubt some 29 years
later by another case between Greece and the United Kingdom. The
Ambatielos case received the detailed attention of both Iran and the
United States in the present case. The comparable issue — that is,
whether a claim was indeed “based on” a treaty (the Treaty of Commerce
and Navigation of 1986) was this time dealt with in a Judgment on the
merits, the Court in its Judgment on jurisdiction the year before having
found that it had jurisdiction to decide whether the United Kingdom was
under an obligation to submit to arbitration in accordance with the Dec-
laration annexed to the Treaty of Commerce and Navigation of 16 July
1926 between Great Britain and Greece. It had found that it had jurisdic-
tion to determine this question “in so far as that claim was based on the
Treaty of Commerce and Navigation of November 10th, 1886” (C.J.
Reports 1953, p. 12). And that matter now fell for determination in the
Court’s Judgment of 1953.

15. Greece suggested that a modest link between the subject-matter of

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the dispute and the Treaty of Commerce would suffice: it was said that
the claim “does not prima facie appear to be unconnected with those pro-
visions” (I.C.J. Reports 1953, p. 12). The United Kingdom thought that
this was the wrong jurisdictional test — and that even had it been right
the claim was “obviously unrelated” (ibid., p. 13). The United Kingdom
further contended that “even if all the facts alleged by the Hellenic Gov-
ernment were true, no violation of the Treaty would have occurred”
(ibid. ).

16. The Court departed from the approach so clearly set out in the
Mavrommatis case, stating that in dealing with the words “in so far as
this claim is based on the Treaty of 1866” did “not mean that the Ambat-
ielos claim must be found by the Court to be validly based on the Treaty
of 1886” (ibid, p. 16). Rather, its task was to determine whether:

“the arguments advanced by the Hellenic Government in respect of
the treaty provisions on which the Ambatielos claim is said to be
based, are of a sufficiently plausible character to warrant a conclu-
sion that the claim is based on the Treaty. It is not enough for the
claimant Government to establish a remote connection between the
facts of the claim and the Treaty of 1886. On the other hand, it is not
necessary for that Government to show, for present purposes, that
an alleged treaty violation has an unassailable legal basis . . . If the
interpretation given by the Hellenic Government to any of the pro-
visions relied upon appears to be one of the possible interpretations
that may be placed upon it, though not necessarily the correct one,
then the Ambatielos claim must be considered, for the purposes of
the present proceedings, to be a claim based on the Treaty of 1886.”
Ubid., p. 18.)

17. This passage was much examined in the present case. It manifestly
marks both a different standard and a different methodology from that
employed in the Mavrommatis case. The Court sought to explain this by
stating that this case was “quite unlike the case of Mavrommatis Pales-
tine Concessions” (ibid., p. 14), because in the Ambatielos case the Court
could not itself decide on the merits of the claim, that matter reserved to
another tribunal. Its only duty was to see whether the dispute should be
referred to that tribunal.

18. Some may wonder at the distinction being made, noting that the
International Court must just as much avoid passing upon on the merits
in the jurisdictional phase of a case where the merits (if proceeded to) it
will itself later have to address. And in the Appeal Relating to the Juris-
diction of the ICAO Council case the Court was later to find that the
analysis of the compromissory clause would necessarily be the same,
whether the substantive competence was its own or ICAO’s (LC.

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Reports 1972, p. 61). In any event, whether or not one shares the percep-
tion that the Ambatielos case was “quite unlike” the Mavrommatis case,
in the present case there is no question of the merits of the case being
decided by any tribunal other than the Court itself. The Mavrommatis
model remains the more compelling.

19. In the Interhandel case (1959) the Court had to decide whether it
had jurisdiction over the Swiss claims in the light of the United States
objection that the issues raised in the Swiss Application and Memorial
were matters within the domestic jurisdiction of the United States. The
Swiss Government, in responding to this objection, invoked the Wash-
ington Accord between the two Parties. The Court stated that it would:

“confine itself to considermg whether the grounds invoked by the
Swiss Government are such as to justify the provisional conclusion
that they may be of relevance in this case and, if so, whether ques-
tions relating to the validity and interpretation of those grounds are
questions of international law” U.C.J. Reports 1959, p. 24; emphasis
added).

The approach of the Court as to the application of the Washington
Accord was to see, as a “provisional conclusion”, whether it might be
“relevant to this case”, i.e. apply to the claims advanced. But no further
attention was directed to the matter.

20. The case concerning Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America), in both its
jurisdictional phase and in the Judgment for the merits, has important
implications for this case, as both Parties have stressed. Nicaragua’s
claim was based on certain military activities in Nicaragua and the waters
off its coast, responsibility for which it attributed to the United States of
America (.C.J. Reports 1984, p. 428). While the main basis for jurisdic-
tion was predicated on Article 36 (2) of the Statute, Nicaragua offered as
a subsidiary basis of jurisdiction the 1956 Treaty of Friendship, Com-
merce and Navigation between itself and the United States. The terms of
Article XXIV (2), the compromissory clause, are exactly the same as
those in Article XXI of the Iran-United States Treaty of 1955. Nicaragua
in its Memorial alleged violations of Articles XIX, XIV, XVII, XX and
I of the Treaty, though virtually no further reference was made to these
heads of the subsidiary claim in the oral argument (see ibid., Judge Oda,
separate opinion, p. 472).

21. The Court decided, by 14 votes to 2, that it had jurisdiction under
Article XXIV. In so doing it referred to the generality of the
articles invoked “particularly the provision in, inter alia, Article XIX”.
It continued that, taking these factors into account

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“there can be no doubt that, in the circumstances in which Nicara-
gua brought its Application to the Court, and on the basis of the

. facts there asserted, there is a dispute between the Parties, inter alia,
as to the ‘interpretation and application’ of the Treaty” (C.J.
Reports 1984, p. 428, para. 83).

22. The Court appears on this occasion, as before, to have made a
definitive finding by reference to the various articles of the 1956 Treaty,
especially Article XIX, but this time without legal reasoning being prof-
fered for its findings. The separate and dissenting opinions generally do
not elucidate further the matter of legal reasoning. Of those who mention
the matter at all, Judge Singh limited himself to observing that the FCN
Treaty was in fact the best basis of jurisdiction. Judge Oda clearly felt the
matter had received insufficient attention by bar and bench. In Judge
Ago’s view, the jurisdictional requirement was met by the very recitation
of claims alleging violations of specific articles. The necessary implication
is that there was no further task for the Court itself to perform at the
jurisdictional phase. Judge Sir Robert Jennings approved the FCN Treaty
as a basis of jurisdiction, and treated compendiously the concepts of
seeing that a clause “covers” alleged acts and making good the allega-
tions relating to them. Both “must await the proceedings on the merits”
(ibid., p. 556).

23. Judge Schwebel, by contrast, clearly was of the view that a link
between the claims and the treaty must be offered by Nicaragua, and
determinatively resolved by the Court, at the phase of jurisdiction. He
engaged in that task himself in relation to each of the articles invoked
and concluded “[I]t is plain that the Treaty itself cannot plausibly be
interpreted to afford the Court jurisdiction” (ibid., p. 637). It would
appear that Judge Schwebel believed the correct test to be the relative
modest one of “plausible interpretation” (ibid) and that it was for the
Court to resolve the jurisdictional matter on that basis at the outset.

24. The Court, however, was to leave its substantive analysis of the
clauses of the Treaty, claimed to found a subsidiary basis of jurisdiction,
until the merits.

25. In the recent Application of the Convention on the Prevention and
Punishment of the Crime of Genocide case, the Court returned to a rather
more traditional approach to these matters. Bosnia and Herzogovina
invoked Article IX of the Genocide Convention as the jurisdictional basis
for the claims it brought against the Federal Republic of Yugoslavia.
Yugoslavia claimed that the dispute did not fall within the compromis-
sory clause of the Genocide Convention, which gave the Court jurisdic-
tion over “disputes . . . relating to the interpretation, application or ful-
filment of the present Convention” (Application of the Convention on the

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Prevention and Punishment of the Crime of Genocide, Judgment, I.C_J.
Reports 1996, p. 614, para. 27). It was not suggested by Yugoslavia that
— as the United States has suggested in the present case — the claim had
nothing to do with the subject-matter of the Treaty. But it did claim that
Article IX envisaged an international dispute, which it saw as being
absent, and that, furthermore, the responsibility of a State for its own
actions falls outside of the subject-matter jurisdiction of Article IX.

26. It is true that the question of “sufficiency of subject-matter connec-
tion” was not an issue. Nor did the manner in which the Court should
approach its task receive special attention from the Parties or the Court.
At the same time the Court simply pronounced with finality on the objec-
tions ratione materiae advanced by the Federal Republic of Yugoslavia
under Article IX. There was no suggestion from the Court that it thought
it sufficed for Yugoslavia to advance a “possible interpretation” { Ambat-
ielos) or that it was reaching a “provisional conclusion” (Jnterhandel).

x * x

27. The present case has put into sharp focus a range of related but
discrete issues that must be addressed. When the Court faces a prelimi-
nary objection to its jurisdiction on the grounds that the invoked treaty
“does not cover” the claims, or concludes that the claims “do not fall
under” or “do not fall to be determined by reference to” the Treaty, three
questions arise. First, what is the test by which the Court is to make its
finding? Second, is the Court’s finding on this issue at the jurisdictional
stage provisional or final? Third, in what way is the answer dictated by
the necessity of the Court avoiding entering into the merits at the juris-
dictional phase?

28. It is not an easy task to see a clear or constant line of jurisprudence
on these matters, but certain answers suggest themselves. In formulating
them, it is to be borne in mind that:

“Neither the Statute nor the Rules of Court contain any rule
regarding the procedure to be followed in the event of an objection
being taken in limine litis to the Court’s jurisdiction. The Court
therefore is at liberty to adopt the principle which it considers best
calculated to ensure the administration of justice, most suited to pro-
cedure before an international tribunal and most in conformity with
the fundamental principles of international law.” (Mavrommatis
Palestine Concessions, Judgment No. 2, 1924, P.C.LJ., Series A,
No. 2, p. 16.)

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855 OIL PLATFORMS (SEP. OP. HIGGINS)

29. The necessary interpretative analysis in the Mavrommatis case fell
to be made within the framework of Article 11 of the Mandate. But it
cannot be doubted that had Greece suggested that the British Govern-
ment had violated other articles of the Mandate, the Permanent Court
would have gone through the same exercises of interpretation with regard
to those articles, too. It is true, of course, that the Court must found its
jurisdiction on the compromissory clause, Article XXI of the 1955 Treaty.
But that cannot be done on an impressionistic basis. The Court can only
determine whether there is a dispute regarding the interpretation and
application of the 1955 Treaty, falling within Article XXI (2), by inter-
preting the articles which are said by Iran to have been violated by the
United States destruction of the oil platforms. It must bring a detailed
analysis to bear.

30. Nor does it suffice to say that there is manifestly a dispute about
the application, and indeed the interpretation of the Treaty — and that
ergo there exists jurisdiction under Article XXI. It was suggested to the
Court by Iran that it was enough for there to be differences between the
two sides as to the application of the Treaty (CR 96/15, p. 31). But one
must ask the question: enough for what? It is, of course, enough for the
Court to have to exercise its compétence de la compétence, as it is now
doing. But it is not necessarily enough in the sense of it being a pass-key
for the case to proceed to the merits. The Court has first to decide if the
claims fall under the 1955 Treaty — in other words, that the Treaty
applies. In the present case, where jurisdiction is disputed, and there is a
dispute about “the interpretation or application” of a treaty, “applica-
tion” falls for determination at the jurisdictional phase.

31. Where the Court has to decide, on the basis of a treaty whose
application and interpretation is contested, whether it has jurisdiction,
that decision must be definitive. (It is uncertain whether cases where the
merits fall to be determined by another tribunal may perhaps be an
exception to this general provision — notwithstanding that the rationale,
when closely examined, is debatable.) It does not suffice, in the making of
this definitive decision, for the Court to decide that it has heard claims
relating to the various articles that are “arguable questions” or that are
“bona fide questions of interpretation” (each being suggestions advanced
in this case). This is so notwithstanding that the Interhandel case (with its
passing reference to a “provisional conclusion”) and the Military and
Paramilitary Activities in and against Nicaragua case do not fit easily
into this approach. The treatment of the issue in the latter case contained
so many remarkable elements and so many diverse views that it cannot
be seen as a clear decision by the Court to move away from the approach
so powerfully established in the Mavrommatis case. Nor, in my view, is
the answer to be found in the establishment of a “reasonable connection”

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856 OIL PLATFORMS (SEP. OP. HIGGINS)

between the claims and the Treaty — that is a necessary but not sufficient
condition.

32. There has been some suggestion that “plausibility” provides
another test for determination of whether the Court has jurisdiction. It
was said in the Ambatielos case that the Court must determine whether
the arguments of the applicant State

“in respect of the treaty provisions on which the Ambatielos claim is
said to be based, are of a sufficiently plausible character to warrant
a conclusion that the claim is based on a Treaty” (LC. J. Reports
1953, p. 18; emphasis added).

“Plausibility” was not the test to warrant a conclusion that the claim
might be based on the Treaty. The only way in which, in the present case,
it can be determined whether the claims of Iran are sufficiently plausibly
based upon the 1955 Treaty is to accept pro tem the facts as alleged by
Iran to be true and in that light to interpret Articles I, IV and X for juris-
dictional purposes — that is to say, to see if on the basis of Iran’s claims
of fact there could occur a violation of one or more of them.

33. In the Ambatielos case (1953), the Court rejected the United King-
dom claim that the Court should provisionally accept the facts as asserted
by the applicant and see if they would constitute a violation of the Treaty
said to provide the Court with jurisdiction. The Court did this for two
reasons: first, to find that the facts would constitute a violation was to
step into the merits; and second, the merits in this case had been reserved
to a different body, the Commission of Arbitration established under the
Protocol of 1886. This constraint does not operate in the present case. It
is interesting to note that in the Mavrommatis case the Permanent Court
said it was necessary, to establish its jurisdiction, to see if the Greek
claims “would” involve a breach of the provisions of the article. This
would seem to go too far. Only at the merits, after deployment of evi-
dence, and possible defences, may “could” be converted to “would”. The
Court should thus see if, on the facts as alleged by Iran, the United States
actions complained of might violate the Treaty articles.

34, Nothing in this approach puts at risk the obligation of the Court
to keep separate the jurisdictional and merits phases (unless it had been
decided that a preliminary objection did not possess an exclusively pre-
liminary character under Article 29 (2) of the Rules of Procedure) and to
protect the integrity of the proceedings on the merits. Of course any
definitive decision that even on the facts as described by Iran no breach
of a particular article could follow, does “affect the merits” in the sense
that that matter no longer may go to the merits. That is inherent in the
nature of the preliminary jurisdiction of the Court. What is for the merits

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— and which remains pristine and untouched by this approach to the
jurisdictional issue — is to determine what exactly the facts are, whether
as finally determined they do sustain a violation of, for example,
Article X; and if so, whether there is a defence to that violation, lying
in Article XX or elsewhere. In short, it is at the merits that one sees
“whether there really has been a breach” (Mavrommatis Palestine
Concessions, Judgment No. 2, 1924, P.CI.J., Series A, No. 2, p. 23).

35. It is clear from the jurisprudence of the Permanent Court and of
the International Court that there is no rule that requires a restrictive
interpretation of compromissory clauses. But equally, there is no evi-
dence that the various exercises of jurisdiction by the two Courts really
indicate a jurisdictional presumption in favour of the plaintiff. (I make
no reference in these observations as to the jurisdictional standards appli-
cable for establishing a competence sufficient for the ordering of provi-
sional measures.) The Court has no judicial policy of being either liberal
or strict in deciding the scope of compromissory clauses: they are judicial
decisions like any other.

36. A final point on judicial methodology: in its Judgment the Court
has accepted certain of the preliminary objections, and rejected others.
This is not without precedent, as shown by the different treatment that
was accorded in the Mavrommatis case to the preliminary objections as
they related to the Jaffa and the Palestine Concessions. The Court may
properly determine that it has jurisdiction in respect of certain claims but
not in respect of others. (This approach to settling one’s own jurisdiction
is, incidentally, very familiar to human rights tribunals, which often are
faced with claims of violations of a variety of treaty provisions, but
decide that, for jurisdictional reasons, the applicant may only proceed to
the merits in respect of one or more of them.) Selection of grounds of
claim that may proceed to the merits is a proper exercise of the com-
pétence de la compétence.

x * +

37. It is these methodological considerations that have fashioned my
approach to the substantive consideration of Articles I, IV and X of the
1955 Treaty in the light of the United States preliminary objection. It is
necessary to decide definitively whether any of them afford a basis of
jurisdiction; and the legal threshold in this regard is exactly as it would
be with any other decision.

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38. The Court was informed by Iran that the destroyed platforms were
in active commercial use, save for Platform 7 in the Reshadat complex
and the control room at the Salman complex, which were undergoing
repairs. The United States has told the Court that the platforms were
being used for hostile military purposes. The question to be resolved is
whether, even taking pro tem Iran’s version of the facts, their destruction
could violate Articles I, IV (1) or X (1).

39. I am essentially in agreement with what the Court has to say on
the application of Articles I and IV (1) of the 1955 Treaty to the facts as
claimed by Iran. In particular, I agree that the use of force is not per se
“outside of” the 1955 Treaty: the issue rather is whether the use of force
in issue could in principle cause a violation of the Treaty. I equally agree
that neither Article I nor Article IV (1) provides that potentiality. My
reasons regarding Article I are essentially those offered by the Court. My
reasons regarding Article IV (1) are to an extent different. I believe
that Article IV (1) clearly refers to the obligations of the United States to
Iranian nationals, their property and their enterprises, within the territory
of the United States; and vice versa. This follows from the stated duty
not to impair “their legally acquired rights” — the language of foreign
investment protection. It follows equally from reading Article IV (1)
together with the clauses that follow. I further believe that the key terms
“fair and equitable treatment to nationals and companies” and “unreason-
able and discriminatory measures” are legal terms of art well known in the
field of overseas investment protection, which is what is there addressed.
And the well-known meaning given to these terms simply has no common
point of reference with the facts as claimed by Iran.

40. The Court has founded its jurisdiction on Article X (1) which pro-
vides that “Between the territories of the two High Contracting Parties
there shall be freedom of commerce and navigation”. In the Oscar Chinn
case (Judgment, 1934, P.C.I.J., Series A/B, No. 63), as in the present
case, the Permanent Court noted that freedom of navigation and freedom
of commerce were indeed separate concepts but, in the context of the
rights under examination in that case, did not need separate examination.
Although — as the Court has observed in paragraph 38 of its Judgment
— no claim has been made by Iran relating to freedom of navigation, here
too the freedom of commerce provided for in Article X (1) still has to be
read in context. Freedom of commerce in its general sense is exactly what
is buttressed by the provisions of Articles VIII and IX. Read both against

59
859 OIL PLATFORMS (SEP. OP. HIGGINS)

the background of these articles, and in the context of the para-
graphs that follow in Article X itself, it does seem to me that the com-
merce there referred to is maritime commerce or — as in the Oscar Chinn
case — commerce integral to, closely associated with, or ancillary to
maritime commerce.

41. Were the phrase “freedom of commerce” in paragraph 1 of
Article X to have a meaning entirely distinct from all that follows in
Article X, it would surely either have been located in Articles VIII or IX,
or have merited a separate article to itself. The fact that the 1955 Treaty
replaced the provisional agreement of 1928 (Judgment, para. 41) does not
seem to outweigh these considerations.

42. It is suggested in the Judgment (para. 46) that “the right to...
operate businesses” is covered by treaties dealing with trade and com-
merce. But any such right is a right given to the nationals of the one party
in the territory of the other. Treaties of trade and commerce do not pro-
vide that party A will allow party B to operate businesses in B’s own ter-
ritory. Such a provision would be strange indeed.

43. These points apart, there is also the question as to whether
petroleum production platforms (whether engaged in actual production
at the relevant moments or not) are “commerce” within the terms of
Article X (1). The Court has persuasively shown in paragraph 45 of the
Judgment that “commerce” is generally understood as going beyond pur-
chase and sale and including a multitude of activities ancillary thereto. It
is equally true that petroleum is an important commercial export from
Iran to the United States. But yet a further step is required to show that
commerce is generally understood to include the means of production of
that which may, much later in the chain, form the subject matter of inter-
national commerce.

44. No authority is offered by the Court for that “step too far”.

45. The quotation from the Judgment of the Permanent Court of
International Justice in the Oscar Chinn case (Judgment, 1934, P.C.LJ.,
Series A/B, No. 63, p. 84) cited in the Court’s present Judgment
(para. 48) should not be taken out of its context. In this case the Court
was called upon to decide if, by virtue of the impact of certain Belgian
actions upon Mr. Oscar Chinn, a British river transporter in the Congo,
Belgium had violated its obligations towards the United Kingdom under
the Convention of Saint-Germain-en-Laye of 1919. Article 1 of that Con-
vention annexed Article 1 of the General Act of Berlin of 26 February
1885 according to which “the trade of all nations shall enjoy complete
freedom”. And Article 5 of the Convention of Saint-Germain-en-Laye
provided that the navigation of the Niger and lakes within the specified

60
860 OIL PLATFORMS (SEP. OP. HIGGINS)

territories “shall be entirely free for merchant vessels and for the trans-
port of goods and passengers”. Further, craft of every kind belonging to
the signatory Powers “shall be treated in all respects on a footing of per-
fect equality”.

46. The Court found that, in the Saint-Germain régime, fluvial trans-
port was a branch of commerce and that freedom of commerce (“com-
mercial freedom”) was expressly contemplated (Oscar Chinn, Judgment,
1934, P.C.I_J., Series A/B, No. 63, pp. 81 and 83). It was but a short step
for the Permanent Court to find that freedom of trade guaranteed the
right to engage in any commercial activity, including “industry, and in
particular the transport business” (ibid., p. 84).

47. The fluvial transportation industry was an integral part of the
trade envisaged under Article 5 of the Saint-Germain Convention in a
way that oil production is not an integral part of what was envisaged
under Article X of the 1955 Treaty of Amity, Economic Relations and
Consular Rights between Iran and the United States. Moreover, the
aggrieved party was a foreigner, complaining about the actions of the
host State. The Oscar Chinn case cannot, in my view, be relied on as
authority for the proposition that the legality of the destruction of oil
platforms falls to be decided by reference to the treaty obligation of free-
dom of commerce.

48. Nor is the situation saved, in my view, by the contention that
“freedom of commerce”, even if not “commerce” itself, covers that which
is produced and which may perhaps at a later stage be exported, perhaps
to the United States (cf. the present Judgment, para. 50).

49. Were the standard required for deciding any of the above matters
mere “reasonable connection” or “provisional conclusion”, then I con-
cede that this test might well be met. But, for the reasons I have elabo-
rated above, the Court must have available to it substantive reason to
support a definitive finding.

50. Iran emphasized in its pleadings to the Court that the oil produced
in the Reshadat field passed through a central platform within the com-
plex, in order to be passed by pipeline to the storage and loading facilities
at Lavan Island. It was also contended that it was from platform A on
the Nasr complex that oil was transported by pipeline to the loading,
storage and export facilities at Sirri Island. If that is so (and these asser-
tions of fact are not conceded by the United States and until the merits
cannot be adjudicated), then those particular platforms may be regarded
as integral to the transport of oil to tanker loading points (and not just
its production). Iran informed the Court that the United States attacks
were directed at the Reshadat central platform and the Nasr complex A
platform. Accordingly, their destruction might occasion a violation of

61
861 OIL PLATFORMS (SEP. OP. HIGGINS)

Article X (1). That transportation (or “carriage of goods”) is an essential
part of commerce is well recognized in the leading textbooks on the sub-
ject, as well as in the citations relied on by the Court in paragraphs 45
and 46 of its Judgment.

51. It is on these very limited grounds that I have voted in favour of
the Court’s dispositif in this case. They provide a sufficiently substantive
ground for the existence under Article XX1 (2) of a dispute between Iran
and the United States concerning the application and interpretation of
Article X (1) of the 1955 Treaty, as it bears on the destruction of the
Reshadat and Nasr complex. I do not believe the Court has any jurisdic-
tion over the destruction of the Salman complex, where no comparable
allegations of fact were made as to the transportational function of the
installations destroyed.

52. It will be for the United States, upon the merits, to challenge Iran’s
allegations of fact as to the technical, operational character of the par-
ticular installations destroyed and to seek to make good its own claims
that they were being put to military use. The United States will also be
able to adduce all defences open to it.

(Signed) Rosalyn Hicoins.

62


278

SEPARATE OPINION OF JUDGE LAUTERPACHT

1. This opinion is written in implementation of my statement made at
the provisional measures stage of this case regarding the role of an ad hoc
judge:

“He has, I believe, the special obligation to endeavour to ensure
that, so far as is reasonable, every relevant argument in favour of the
party that has appointed him has been fully appreciated in the
course of collegial consideration and, ultimately, is reflected —
though not necessarily accepted — in any separate or dissenting
opinion that he may write.” (Application of the Convention on the
Prevention and Punishment of the Crime of Genocide, Provisional
Measures, Order of 13 September 1993, 1 C.J. Reports 1993, p. 409,
para. 6.)

2. The problem before the Court at this stage of the case is one of the
admissibility of counter-claims filed by the Government of the Federal
Republic of Yugoslavia (“Yugoslavia” hereinafter). While I agree with
the Court’s Order in so far as it relates to the admissibility of the counter-
claims, I have been concerned about the fact that the Court has not given
the Parties the opportunity to develop their respective positions in oral
argument.

PROCEDURE

3. The justification for oral proceedings lies in Article 80, paragraph 3,
of the Rules of Court which provides that:

“In the event of doubt as to the connection between the question
presented by way of counter-claim and the subject-matter of the
claim of the other party the Court shall, after hearing the parties,
decide whether or not the question thus presented shall be joined to
the original proceedings.” (Emphasis added.)

4. The Court has taken the view that the requirement of “hearing the
parties” can, in the present case, be satisfied by giving each of them the
opportunity of presenting its views in writing. The position taken by the
Court is supported by its practice in respect of some, but not all, other
matters covered by a similar requirement, for example, the nomination of
ad hoc judges. Article 35, paragraph 4, of the Rules provides that: “In the
event of any objection or doubt, the matter shall be decided by the Court,

39
279 APPLICATION OF GENOCIDE CONVENTION (SEP. OP. LAUTERPACHT)

if necessary after hearing the parties.” Again, in relation to the problem
of appointing an ad hoc judge that arises when two or more parties may
be in the same interest, Article 36, paragraph 2, provides that “the matter
may be decided by the Court, if necessary after hearing the parties”.
Likewise, Article 56, paragraph 2, relating to the authorization of the
production of documents after the closure of the written proceedings,
contains a similar formula, as does Article 67. In regard to these matters,
the practice of the Court has been merely to give the parties the oppor-
tunity to present their views in writing.

5. Even so, that interpretation is not one that immediately springs to
mind in respect of so substantial an issue as the admissibility of counter-
claims. It is to be recalled that the Rule on counter-claims (Art. 80)
appears immediately after the rule on preliminary objections (Art. 79)
and that both are classed together in Section D of the Rules, under the
heading “Incidental Proceedings”. A similar requirement of hearing the
parties appears also in Article 79, paragraph 7, and has regularly been
met by the holding of oral proceedings. Even if the Court retains a discre-
tion to decide in a given case that such proceedings need not be held, the
present case is one in which the relative merits and the complexity of the
issues involved would certainly have warranted giving the parties the
additional opportunity of commenting orally on each other’s arguments
and the Court the opportunity of the more extended consideration of the
matter that would have been involved in the holding of a hearing and in
the deliberations that would then have followed — the more so as such a
step would also have met the expressed expectations of the Parties.

6. The degree to which the decision of the Court not to hold such oral
proceedings departs from the opinion of, amongst others, the most
learned commentator on the Court’s procedure may be gathered from the
terms in which the question is discussed by Professor Rosenne in the
latest edition of his major work. As regards Article 80, paragraph 3, of
the Rules he writes:

“Paragraph 3 corresponds to the last sentence in the previous
Rules, with the substitution of ‘after hearing the parties’ for ‘after
due examination’. This means that in future there will always be
some oral proceedings in the event of doubt — by whom is not
stated — as to the connection between the question presented by
way of counter-claim and the subject-matter of the claim of the
other party.” (The Law and Practice of the International Court,
1920-1996, 3rd ed., 1997, Vol. II], p. 1273.)

7. It is, therefore, to be hoped that when the Rules of Court next come
to be revised, the opportunity will be taken to eliminate the cause of the
present division of opinion by ensuring that the word “hearing” is used
consistently to convey the idea of oral proceedings and that when the
Court intends to retain a discretion to determine that the exchanges

40
280 APPLICATION OF GENOCIDE CONVENTION (SEP. OP. LAUTERPACHT)

between representatives of the parties are to be limited to written pro-
ceedings, it will adhere to such wording as is used elsewhere in the Rules
(e.g. Arts. 46, para. 1, 53, paras. | and 2, 55 and 58, para. 2), namely
“after ascertaining the views of the parties” or, as in Article 76, para-
graph 3, after affording “the parties an opportunity of presenting their
observations on the subject” or, as in Article 79, paragraph 3, “the other
party may present a written statement of its observations”.

THE ADMISSIBILITY OF THE COUNTER-CLAIMS

8. The present consideration by the Court of the question of counter-
claims is occasioned by the filing by Yugoslavia on 23 July 1997 of an
extensive Counter-Memorial. This falls into two parts. The first part, of
nearly 350 pages, may be described in general terms as containing
“defences”. The second part, consisting of over 700 pages, sets out fac-
tually Yugoslavia’s allegations of genocide by Bosnia and Herzegovina
(“Bosnia” hereinafter) against the Serbs in Bosnia and Herzegovina.
Apart from a statement in the Introduction to the Counter-Memorial
that it “includes counterclaims” and the inclusion as one of the three
Submissions at the close of the Counter-Memorial of an elaboration of
the statement that “Bosnia and Herzegovina is responsible for the acts
of genocide committed against the Serbs in Bosnia and Herzegovina”,
the Counter-Memorial contains no discussion of the legal aspects of the
counter-claims. But even though the Counter-Memorial contains no
reference to Article 80 of the Rules of Court and no argument that the
matters covered in Part II of that pleading are “directly connected with
the subject-matter of the claim” of Bosnia, it would have been unreal-
istic not to recognize that Part for what it is. Accordingly, on 28 July
1997, Bosnia addressed a letter to the Court expressing the opinion that
the counter-claims “did not meet the criteria of Article 80, paragraph 1,
of the Rules of Court and should therefore not be joined to the original
proceedings”. Having then been requested by the Court to specify in
writing “the legal ground on which this opinion is based”, Bosnia
responded on 9 October 1997 with a letter to the Court in which it con-
tended that the Yugoslav counter-claim was not admissible since, by
reference to Article 80, paragraph |, of the Rules of Court, “any direct
connection with the subject-matter of Bosnia and Herzegovina’s origi-
nal claim is totally lacking”. Though conceding that both claim and
counter-claim are based on the same legal ground — the Genocide
Convention — Bosnia contended that the two sets of allegations had
nothing to do with one another:

4]
281 APPLICATION OF GENOCIDE CONVENTION (SEP. OP. LAUTERPACHT)

“[it] is evident that the alleged victims are not the same... nor are
the material perpetrators of the alleged atrocities the same . . . This
means, then, that if the two claims were joined in the same proceed-
ings before the Court, it would in any event have to verify separately
the facts alleged ex adverso and consider separately whether, in
regard to the Genocide Convention, they constitute unlawful con-
duct attributed, respectively, to one or the other Party . . .” (Letter
to the Registrar from the Deputy-Agent of Bosnia and Herzegovina
dated 9 October 1997, para. 3.)

9. Bosnia also requested the Court to decide that the counter-claim
should not be joined to the principal claim, but expressly acknowledged
that Yugoslavia was free to submit to the Court a separate application
instituting proceedings in the normal way.

10. Yugoslavia, for its part, responded that there is a direct connection
between Part IT of its Counter-Memorial, 1.e., the counter-claim, and the
Bosnian claim. Yugoslavia pointed out, first, that the claim and counter-
claim are based on the same legal grounds, namely the Genocide Conven-
tion and general rules of State responsibility. Secondly, it contended:

“The disputed facts of the claim and counter-claim are the facts of
the same tragic conflict, i.e. civil war in Bosnia and Herzegovina,
which happened in a single territorial and temporal setting, based on
the same historical background and within the framework of the
same political development. Due to that reason as well as to the
same legal ground of the claim and counter-claim, all relevant facts
which form the basis of claim and counter-claim are interrelated in
such a way to make a factual and legal connection relevant to the
issue.” (Statement of Yugoslavia concerning the admissibility of the
counter-claim, 23 October 1997, para. 4.)

il. It thus appears that Bosnia supports what may be called a “restric-
tive” interpretation of the requirement of “direct connection”, while
Yugoslavia advances a “broad” one. For Bosnia there must be an iden-
tity of the alleged victims as there must be of the material perpetrators;
the judicial analysis of the facts in the counter-claim must have a rela-
tionship to, or must be of help in, the examination of the facts in the prin-
cipal claim. For Yugoslavia it is sufficient that the counter-claim “raised
the question of genocide of the Serbs as one relevant to contradicting
facts presented by the Applicant as being relevant for attributing alleged
acts to the Respondent”.

42
282 APPLICATION OF GENOCIDE CONVENTION (SEP. OP. LAUTERPACHT)

12. In the present case, the choice between these two approaches must
depend to a large extent on the nature of the concept “genocide”. Can
what we conceive of as amounting to genocide be constituted by a single
act of a horrific nature? Or can it only be constituted by a series of acts
which, while individually being no more than murder or causing serious
bodily harm to individuals or such like, are, when viewed cumulatively,
evidence of a pattern of activity amounting to genocide?

13. The second alternative seems logically to be the more cogent. A
single murder or other horrific act cannot be genocide. Only a series or
accumulation of such acts, if they reveal collectively the necessary intent
and are directed against a group identifiable in the manner foreseen in
Article Il of the Convention, will serve to constitute genocide — where-
upon liability for the individual component crimes, as well as for the spe-
cial crime of genocide, will fall not only upon the individuals directly
responsible but also upon the State to which their acts are attributable.

14. Approached thus, it is not possible to require that the facts under-
lying a counter-claim in respect of genocide must have their direct con-
nection with the individual and specific acts forming the basis of the
principal claim of genocide. It is sufficient that the acts invoked as con-
stituting the basis of the counter-claim should be directly connected with
the principal claim by reason of their occurrence in the course of the
same conflict. Indeed, it may be suggested that the policy underlying the
prohibition of genocide favours this broader view since the particular
obligations of respect for human rights embodied in the Genocide Con-
vention are ones which rest with equal weight upon all persons involved.
It is upon this basis that I agree with the conclusion of the Court that the
Yugoslav counter-claim is admissible.

15. It is not necessary to repeat here the Court’s analysis of its own
jurisprudence, but it is appropriate to mention the support for this
approach to be derived from the treatment of the analogous problem
within national legal systems when counter-claims are brought against
plaintiff States which would, were they sued directly as defendants, be
able to plead State immunity. One may recall pertinent statements of two
particularly distinguished United States judges. The first was made by
J. Manton, of the United States Court of Appeals, Second Circuit:

“Claims arising out of the same transaction may be set off against
a sovereign. The same transaction does not necessarily mean occur-
ring at the same time. In Moore v. New York Cotton Exchange .. .
the court said that the transaction may comprehend a series of many

43
283 APPLICATION OF GENOCIDE CONVENTION (SEP. OP. LAUTERPACHT)

occurrences depending not so much upon the immediateness of their
connection as upon their logical relationship.” (United States
v. National City Bank of New York (1936) 83 F. (2d), p. 236;
International Law Reports, Vol. 8, p. 218, at p. 220.)

16. The second contribution was by Justice Frankfurter in the Supreme
Court of the United States in a case in which the principal claim was by
the Republic of China for the recovery of a deposit made in the defend-
ant Bank by the Shanghai-Nanking Railway Administration, an official
agency of the State. The Bank counter-claimed on defaulted Treasury
Notes of the Republic of China owned by it. Justice Frankfurter said:

“It is recognized that a counterclaim based on the subject matter
of a sovereign’s suit is allowed to cut into the doctrine of immunity.
This is proof positive that the doctrine is not absolute, and that con-
siderations of fair play must be taken into account in its application.
But the limitation of ‘based on the subject matter’ is too indetermi-
nate, indeed too capricious, to mark the bounds of the limitations on
the doctrine of sovereign immunity. There is great diversity among
courts on what is and what is not a claim ‘based on the subject mat-
ter of the suit’ or ‘growing out of the same transaction’... No doubt
the present counterclaims cannot fairly be deemed to be related to
the Railway Agency’s deposit of funds except insofar as the trans-
actions between the Republic of China and the petitioner may be
regarded as aspects of a continuous business relationship. The point
is that the ultimate thrust of the consideration of fair dealing which
allows a setoff or counterclaim based on the same subject matter
reaches the present situation.” (National City Bank of New York
v. Republic of China, et al. (1955) 348 US 356; International Law
Reports, Vol. 22, p. 210, at p. 215.)

17. Nothing in Article 9 (counter-claims) of the Draft Articles on
Jurisdictional Immunities of States and their Property, adopted in 1991
by the International Law Commission of the United Nations, suggests
that codification of the subject has led to any materially different conclu-
sion:

“A State instituting a proceeding before a court of another State
cannot invoke immunity from the jurisdiction of the court in respect
of any counter-claim arising out of the same legal relationship or
facts as the principal claim.” (Yearbook of the International Law
Commission, 1991, Vol. II, Part Two, p. 30.)

44
284 APPLICATION OF GENOCIDE CONVENTION (SEP. OP. LAUTERPACHT)

18. But determination that the Yugoslav counter-claim is directly con-
nected with the subject-matter of the Bosnian claim cannot be the end of
the matter. Each case must be looked at in the light of its own particular
facts. The Court has an inherent power and duty to ensure the orderly
and effective administration of justice. Cases should be heard with all
deliberate speed. To these ends the Court enjoys a significant measure of
discretion. It is not controlled by the letter of Article 80 of its Rules. It
should be recalled that, in contrast with many of the Rules of the Court,
Article 80 does not have its source in any obligatory provision of the
Court’s Statute. In Article 80 the Court is not laying down a procedure
for the implementation of its statutory duty; it is only exercising the gen-
eral power conferred on it by Article 30 of the Statute to “frame rules for
carrying out its functions”. The Court has seen the consideration of
counter-claims as a possible aspect of its functions and so, of its own ini-
tiative, it has framed certain rules. But it is not rigidly or perpetually
bound by these Rules. It is free, and, indeed, obliged, to apply them
reasonably and to adjust their application to the circumstances of the
case before it.

19. It would, therefore, have been open to the Court to have exercised
its discretion in the present case by declining to join the otherwise admis-
sible counter-claims to the principal claims. The principal factor that
could have been invoked to justify the separation of the treatment of the
claims and counter-claims is the immense additional complexity to which
the treatment of the counter-claims simultaneously with the claims is
bound to give rise. As stated above, a claim of genocide involves the
establishment of a pattern or accumulation of individual crimes. Bosnia
has in its Memorial alleged six categories of offences: the use of concen-
tration camps; killing; torture; rape; expelling of people and destruction
of property, homes, places of worship and cultural objects; and the cre-
ation of destructive living conditions — shelling, starvation and intimi-
dation of the population. Yugoslavia has responded in detail to each
of these allegations in Part I (the “defence” section) of its Counter-
Memorial, as well as adding in Part II a detailed catalogue of the crimes
alleged to have been committed by Bosnians and Croats against Serbians.
The assessment of the allegations and responses, if approached other than
on a fairly general level (a matter on which it is not appropriate to express
any view at this stage of the case), could take months of hearings and
deliberation. The annexes adduced by Bosnia in support of this part of its
case are some 15 cm thick; and those adduced by Yugoslavia in connec-
tion with Part I of its Counter-Memorial are some 18 cm thick, while
those adduced in support of Yugoslavia’s counter-claims add about a
further 14.5 cm. The bulk of paper in a case is not always a good guide to
its true simplicity or complexity, but it is safe to say that nothing in the
materials presented by the two Parties in this case suggests that the task

45
285 APPLICATION OF GENOCIDE CONVENTION (SEP. OP. LAUTERPACHT)

that will eventually face the Court when it comes to the merits will be
other than an extremely heavy one.

20. The question is, however, whether the Court could exercise its dis-
cretion to defer the consideration of the material contained in the Yugo-
slav counter-claim until after it has disposed of the Bosnian claim with-
out improperly depriving Yugoslavia of its right to deploy those defences
that the latter thinks are necessary as a response to the Bosnian claim.
The answer in this case is no. It appears from the Yugoslav Statement of
23 October 1997 in reply to Bosnia’s Statement of 9 October 1997 that
Yugoslavia considers that the material it has advanced in Part II of its
Counter-Memorial (the “counter-claim” part) is also an essential ingre-
dient of its defence to the principal Bosnian claim. It is impossible for the
Court at this stage of the case to attempt to assess the extent to which the
material in Part [I of the Yugoslav Counter-Memorial is or is not proper
for use as a defence to the Bosnian principal claim. Also, the Court can-
not disregard the possibility that the Yugoslav Counter-Memorial is
advancing a fu quogue argument.

21. One fact which might have affected the admissibility of the Yugo-
slav counter-claim is that some of the allegations of genocidal conduct
are levelled not only against Bosnians but also against Croats, thus seem-
ingly bringing into the case the question of the liability of a State not
party to the proceedings. The Yugoslav Counter-Memorial does not
grapple with the implications of this fact. However, the number of situa-
tions in which allegations are made against Croats would appear, at the
present stage at any rate, to be too small to lead the Court to treat this
feature by itself as sufficient to exclude the admissibility of the counter-
claims a whole.

22. In short, reluctant though one may feel to see the complexity of
this case magnified by the incorporation of the Yugoslav counter-claim,
there appears to be no convincing basis on which it may be excluded —
though the possibility is not to be excluded that some satisfactory solu-
tion might have been found if the Court had agreed to oral proceedings
on this interlocutory, but nevertheless important, aspect of the case.

23. In conclusion, it is essential to appreciate that the difficulties which
confront the Court are not of its own making nor, indeed, of the making
of the Parties. The closer one approaches the problems posed by

46
286 APPLICATION OF GENOCIDE CONVENTION (SEP. OP. LAUTERPACHT)

the operation of the judicial settlement procedure contemplated by
Article IX of the Genocide Convention, the more one is obliged to
recognize that these problems are of an entirely different kind from those
normally confronting an international tribunal of essentially civil, as
opposed to criminal, jurisdiction. The difficulties are systemic and their
solution cannot be rapidly achieved, whether by the Court or, perhaps
more appropriately, by the parties to the Genocide Convention.

(Signed) Elihu LAUTERPACHT.

47


1110

DÉCLARATION DE M. RANJEVA

Je souhaiterais d’abord préciser l'interprétation que je donne de la

réponse à l’article I du compromis concernant les alinéas 2 et 3 du dis-
positif relatifs au statut de l’île de Kasikili/Sedudu:

1.

Par l'effet dévolutif attaché au choix du chenal nord comme chenal
principal, l'arrêt a retenu la solution la moins invraisemblable en
l'absence d’une comparaison systématique des deux chenaux de navi-
gation; ainsi s’explique le rattachement de l’île de Kasikili/Sedudu au
territoire botswanais.

Le communiqué de Kasane a créé des obligations juridiques à la
charge des deux Etats parties au litige à propos de la jouissance et
l'exercice des droits de leurs ressortissants dans la zone pertinente; en
plus du droit de navigation et de pêche dans le chenal, s’ajoute celui
du libre accès dans les eaux environnantes et sur le territoire de l’île de
Kasikili/Sedudu.

Par ailleurs, en ce qui concerne la présence des Masubia sur l'île de

Kasikili/Sedudu, la proposition énoncée au paragraphe 98 de l’arrêt selon
laquelle:

«même si des liens d’allégeance ont pu exister entre les Masubia et
les autorités du Caprivi, il n’est pas établi que les membres de cette
tribu occupaient l’île «a titre de souverain», c’est-à-dire y exerçaient
des attributs de la puissance publique au nom de ces autorités».

n’a pas une portée à caractère général, elle ne vise que les circonstances
particulières de la présente affaire.

69

(Signé) Raymond RANJEVA.


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DE LA BARCELONA
TRACTION, LIGHT AND POWER
COMPANY, LIMITED

(NOUVELLE REQUETE: 1962)
(BELGIQUE c. ESPAGNE)

ORDONNANCE DU 12 AVRIL 1967

1967

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING
THE BARCELONA TRACTION, LIGHT
AND POWER COMPANY, LIMITED

(NEW APPLICATION: 1962)
(BELGIUM v. SPAIN)

ORDER OF 12 APRIL 1967
Mode officiel de citation:

Barcelona Traction, Light and Power Company, Limited,
ordonnance du 12 avril 1967, C.I.J. Recueil 1967, p. 9.

Official citation:

Barcelona Traction, Light and Power Company, Limired,
Order of 12 April 1967, I.C.J. Reports 1967, p. 9.

Sales ummber OL À

INTERNATIONAL COURT OF JUSTICE

YEAR 1967
1967
12 April 1967 12 April
General List:
No. 50

CASE CONCERNING
THE BARCELONA TRACTION, LIGHT
AND POWER COMPANY, LIMITED

(NEW APPLICATION: 1962)
(BELGIUM v. SPAIN)

ORDER

Present: President BUSTAMANTE Y RIVERO; Vice-President KORETSKY;
Judges Sir Gerald FITZMAURICE, TANAKA, JESSUP, MORELLI,
PADILLA NERVO, FORSTER, GROS, AMMOUN, BENGZON, PETREN,
LACHS, ONYEAMA; Registrar AQUARONE.

The International Court of Justice,

Composed as above,

After deliberation,

Having regard to Article 48 of the Statute of the Court and to Article 37
of the Rules of Court,

Makes the following Order:

Having regard to the Order of 23 November 1966 extending to 24 April
1967 and 2 October 1967 respectively the time-limits for the filing of the
Reply of the Government of Belgium and the Rejoinder of the Govern-
ment of Spain;

4
BARCELONA TRACTION (ORDER OF 12 IV 67) 10

Whereas, by a letter dated 6 April 1967, the Agent for the Government
of Belgium, for the reasons therein set out, requested the extension to
15 May 1967 of the time-limit for the filing of the Reply;

Whereas, on 7 April 1967, a certified true copy of the aforementioned
letter was transmitted to the Agent for the Government of Spain who
was asked to make known the views of that Government on the request;

Whereas, by a letter dated 11 April 1967, the Agent for the Government
of Spain stated that that Government raised no objection and left it
entirely to the Court to decide upon the action to be taken on the request
of the Belgian Government,

THE COURT,
Having ascertained the views of the Parties,

Extends to 16 May 1967 the time-limit for the filing of the Reply of
the Government of Belgium and consequently to 24 October 1967 the
time-limit for the filing of the Rejoinder of the Government of Spain.

Done in French and in English, the French text being authoritative,
at the Peace Palace, The Hague, this twelfth day of April, one thousand
nine hundred and sixty-seven, in three copies, one of which will be placed
in the archives of the Court and the others transmitted to the Govern-
ment of Belgium and to the Government of Spain, respectively.

(Signed) J. L. BUSTAMANTE R.,
President.

(Signed) S. AQUARONE,
Registrar.