370

SEPARATE OPINION OF JUDGE WEERAMANTRY

This case focuses attention on the question of the binding nature of pro-
visional measures more sharply and urgently than almost any other in the
history of this Court or of the Permanent Court of International Justice.
As the Court stresses in its Order delivered today, “the present perilous
situation demands . . . immediate and effective implementation” of the
measures contained in its Order of 8 April 1993 (para. 59). Today’s Order
also has my full support.

The important question of the binding nature of provisional measures
is veiled in some obscurity as both academic and judicial writing speak
upon it with an uncertain voice. As this case pre-eminently demonstrates,
the matter urgently needs examination for, so long as present uncertain-
ties continue, the Court is hampered in the full discharge of the judicial
functions entrusted to it by the United Nations Charter and the Statute of
the Court.

THE FACTUAL BACKGROUND

I note preliminarily the concern the Court has expressed regarding the
sufferings of the people of Bosnia-Herzegovina which, despite several res-
olutions of the Security Council, are such as to “shock the conscience of
mankind and flagrantly conflict with moral law and the spirit and aims of
the United Nations” (para. 52). The Court’s apprehensions at the time of
the Order of 8 April of an aggravation or extension of the dispute before
it, far from being alleviated, have been “deepened by the persistence of
conflicts on the territory of Bosnia-Herzegovina and the commission of
heinous acts in the course of those conflicts” (para. 53).

This opinion will deal with so much of the factual material placed
before it as is pertinent to a consideration of the question of law under
discussion and of the urgency of the need for its resolution. This examina-
tion becomes necessary in the light of the provision of Article 41 of the
Statute of the Court that the Court shall have the power to indicate provi-
sional measures “if it considers that circumstances so require”. The
examination of facts that follows takes place only within the ambit of that
phrase.

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371 APPLICATION OF GENOCIDE CONVENTION (SEP. OP. WEERAMANTRY)

The ensuing brief statement regarding the facts will show that, given the
highest standards of caution demanded for making a provisional assess-
ment for the purpose of interim measures, these standards are satisfied in
this case by the material placed before the Court. The essential facts are
recounted in the barest outline, so that the question of law addressed in
this opinion may be seen in its proper and realistic context. This examina-
tion of the facts being of a purely provisional nature, does not involve any
definitive findings nor does it affect the decision on the merits that will
need to be made at a later stage of this case.

The Applicant has placed before the Court information from a diversity
of independent sources in support of its contention that, after the date of
the Court’s Order of 8 April 1993, there has been a continuing series of
acts which constitute a clear violation of that Order. This material can be
classified into three groups — accounts and descriptions carried by the
international media, statements emanating from neutral and independent
observers, and statements issued by the Respondent Government and by
the Government of the Republic of Serbia.

For the purpose of the provisional assessment which follows, it is not
necessary to take into account the first group of materials. The plethora of
reports placed before the Court, which were carried by well-known inter-
national media, dealt with shelling, destruction of ancient mosques, sup-
plies from Yugoslavia to the Serbs in Bosnia, and murder, rape and torture
on an extensive scale. However, since, in a complex international situa-
tion such as this, media reports by themselves may be an uncertain guide,
they have not been taken into account in this assessment. This approach
stems also from the natural caution that needs to be exercised in judicial
fact-finding, even though it be of a provisional nature.

In the second category are statements emanating from disinterested
sources such as officials of the Office of the United Nations High Com-
missioner for Refugees (UNHCR), the Chairman of the United States
Senate’s Committee on European Affairs, Helsinki Watch, an EC media-
tor, the Director of the United States Bureau of Refugees Program, and
various United Nations officials. The acts referred to in these statements,
all of them subsequent to the Court’s Order of 8 April this year, include
the massacre of women and children in a “heinous policy ... nothing short
of genocide” (Chairman of United States Senate’s Committee on Euro-
pean Affairs, 9.4.93); the shelling of Srebrenica with shells set to explode
in mid-air to wreak the greatest havoc on people caught in the open
(UNHCR official, 13.4.93); the wounding of large numbers of civilians,
resulting in bodies and parts of bodies, some in gruesome condition, being
loaded onto ox carts and wheelbarrows after such an attack (Canadian
United Nations official, 15.4.93); atrocities committed in Bosnia-Herze-

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372 APPLICATION OF GENOCIDE CONVENTION (SEP. OP. WEERAMANTRY)

govina by Serbian military and paramilitary forces (Second Report of
Helsinki Watch, 17.4.93); the shelling of Sarajevo with an intensity such
that United Nations officials logged 1,200 shells exploding by mid-
morning (United Nations officials in Sarajevo, 4.7.93); the bombing of
mosques as a prelude to “ethnic cleansing” campaigns (UNHCR official,
9.5.93); the presence of 1.4 million refugees in Bosnia whose food sup-
plies, already at starvation levels, would be cut in half by the fighting
(UNHCR, 1.7.93); the reduction of a town of 6,000 people to 50 people
wandering around (UNHCR official, 10.5.93); the killing of 1,400 chil-
dren and the wounding of 13,000 more (United Nations officials in Sara-
jevo, 5.7.93); the involvement of the Yugoslav National Army in at least
part of the shelling of Srebrenica (Chairman of United States Senate’s
Committee on European Affairs, 20.4.93); the passage of supplies to the
Bosnian Serbs through Belgrade (EC mediator, 19.4.93); assistance to the
Bosnian Serbs by helicopter missions flown from Yugoslavia (military
specialist at King’s College, London, 24.6.93); and the rape of women
numbered in the tens of thousands (Helsinki Watch, 8.6.93). The items set
out above represent only a portion of the material placed before the
Court. Some of these statements are accompanied by circumstantial
details, sometimes of a lurid nature, to which it is not necessary for present
purposes to refer. Cumulatively, the material in this second category is
more than adequate to justify a provisional finding sufficient for the pur-
poses of this request.

The third category of materials consists of statements in official com-
muniqués issued in the period 8-11 May 1993 by the Respondent Govern-
ment and the Government of the Republic of Serbia. These are contained
at pages 43-49 of the second request for the indication of provisional
measures, dated 27 July 1993.

Among the statements contained in the first communiqué of the Repub-
lic of Serbia is the description of the current conflict in Bosnia-Herze-
govina as a “just battle for freedom and the equality of the Serbian
people”. The Republic states that it has provided aid in “funds, fuel,
raw materials, etc.” to the Serb Republic in Bosnia at great sacrifice to
itself. There is also a statement that the Republic of Serbia has been

“unreservedly and generously helping the Serb Republic in spite of
the enormous problems it had to face due to sanctions introduced

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373 APPLICATION OF GENOCIDE CONVENTION (SEP. OP. WEERAMANTRY)

against it by the UN Security Council” (second request by Bosnia,
p. 43).

This information must be read with the communiqué issued by the
President of the Republic of Serbia, released by the Yugoslav telegraph
service on 11 May 1993 and carried by the BBC in its summary of World
Broadcasts on 13 May (second request by Bosnia, p. 46). This asserts that
in the past two years the Republic of Serbia has made massive efforts and
substantial sacrifices to assist the Serbs outside Serbia. The communiqué
continues: “Most of the assistance was sent to people and fighters in
Bosnia-Herzegovina.” The international sanctions are described as
brutal, and solidarity is expressed with the Serbs in Bosnia-Herzegovina.
Sufficient reason exists, according to the communiqué, to halt the war
as “Most of the territory in the former Bosnia-Herzegovina belongs now
to Serb provinces.” The communiqué reiterates that the Serbs in
Bosnia-Herzegovina have achieved most of what they wanted owing to
the “great deal of assistance” they received from the Republic of Serbia.

The communiqué, issued by the Federal Government of Yugoslavia
(ibid., p. 44), expresses its “indignation and profound concern” that the
Republic of Sprska (i.e., of the Serbs in Bosnia) had decided not to accept
the Vance-Owen Plan but to leave it to a referendum among the Serb
people of Bosnia-Herzegovina. In view of this, the Federal Republic
announces that it will reduce its future aid to the Republic of Sprska
“exclusively to contingents of food and medicaments”.

Such material placed by the Applicant before the Court must naturally
cause grave concern regarding the Respondent’s compliance with the
Court’s Order of 8 April. It is not difficult in the light of this material to
reach a provisional finding that the conditions of Article 41 are satisfied
for the activation of the Court’s provisional measures jurisdiction.

By way of contrast to the range and independence of the sources cited
by the Applicant in support of its assertions of fact, the assertions of fact
by the Respondent lack that basis of wide and impartial support but
depend mainly upon a report compiled by the Yugoslav State Commis-
sion for War Crimes and Genocide. There can be no doubt regarding the
considerable sufferings currently being undergone by the Serbian people
in Bosnia-Herzegovina and this must necessarily be of deep concern to the
Court. Yet the matter under examination is non-compliance with the
Court’s Order of 8 April, and there is an insufficiency of independent
material sufficient to show such a non-compliance by Bosnia.

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374 APPLICATION OF GENOCIDE CONVENTION (SEP. OP. WEERAMANTRY)

Is THE ORDER OF 8 APRIL 1993
LEGALLY BINDING?

Against the background of the foregoing summary of the bases for a
provisional finding, this opinion proceeds to consider the legal question
of the binding nature of provisional measures. As a learned writer on the
subject of interim measures has observed of the inter-war literature on the
subject, it presents “the picture of an extremely colourful — not to say
confusing — mosaic of opinions”! . Such a picture is not in the interests of
international justice.

The problem is not an easy one. On the one hand, there is the lack of an
opportunity for a definitive finding of fact and, on the other, the compel-
ling need for a steadying hand to be applied to prevent irreversible damage
to a party. These are powerful considerations to be balanced against each
other and call for consideration from a variety of perspectives, not the
least of which is the importance of achieving the purposes of international
justice which the Court was created to fulfil. This is thus a question whose
importance transcends the matter presently before the Court, important
though it be.

(a) Binding Nature of a Provisional Order as Distinguished
from its Enforceability

As the lack of mechanisms for enforceability sometimes clouds discus-
sions of the binding nature of the orders of this Court, a consideration of
the binding nature of provisional measures must start with the clear dis-
tinction that exists between the question of the legal obligation to comply
with an order and the question of its enforcement. The fact that an order
cannot be enforced does not in any manner affect its binding nature, for
the binding nature of an order is inherent in itself. It imposes a positive
obligation recognized by international law. Whether such an order is com-
plied with or not, whether it can be enforced or not, what other sanctions
lie behind it — all these are external questions, not affecting the internal
question of inherent validity.

In the Anglo-Iranian Oil Co. case, this Court, having ordered interim

! Jerzy Sztucki, Interim Measures in the Hague Court: An Attempt at a Scrutiny, 1983,
p. 283.

2 See ASILS International Law Journal, Vol. 9 (1985), p. 176; and see
Jerome B. Elkind, Interim Protection: A Functional Approach, 1981, p. 157, for an
instance cited by the author of a blurring of these issues even in learned discussion.

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375. APPLICATION OF GENOCIDE CONVENTION (SEP. OP. WEERAMANTRY)

measures; subsequently held it had no jurisdiction on the merits!, but, in
the meantime, the United Kingdom, the applicant in the case, took the
matter to the Security Council, seeking enforcement under Article 94 of
the Charter. This attempt failed and, through a blurring of the distinction
here being made, this failure at enforcement became “the focal point for
commentary on various aspects of interim measures, and particularly on
the question of whether there is a duty of compliance”. The Court, while
enjoining the parties, went out of its way to point out that those measures
“in any case retain their own authority”?. It is to be noted also that deci-
sions of the Security Council as to whether it will enforce an order or not
are not determinative of the question whether the order imposes a legal
duty.

Even in domestic law, the positivistic view that a sanction is essential to
its validity has long been left behind. Modern research, both jurispruden-
tial and sociological, has shown the inherent validity of a law to be inde-
pendent of the existence of a sanction to enforce it. This is doubly so in
regard to international law.

Indeed, it scarcely needs mention that in international law the Aus-
tinian view that a sanction is necessary to the existence of a rule of law, or
of a legal prescription, has always been particularly inappropriate. The
treatment of provisional measures as not imposing legal obligations
because the Court has no power of enforcement is thus untenable. Viewed
in this light, a provisional measure, no differently from a final order, if
pronounced by a court according to due forms and processes and within
its jurisdiction, is inherently valid and as such carries with it a duty of
compliance.

When this Court, duly acting within its authority and jurisdiction, indi-
cates provisional measures, it is in the expectation that those measures will
be complied with, in accordance with international law. Their violation
must therefore be viewed with great concern. The question of the obliga-
tion to comply must at all times be sharply distinguished from the question
of enforceability.

! Anglo-Iranian Oil Co., Interim Protection, I.C.J. Reports 1951, p. 89; and Anglo-
Iranian Oil Co., Judgment, I.C.J. Reports 1952, p. 114.

2 C.H. Crockett, “The Effects of Interim Measures of Protection in the International
Court of Justice”, California Western International Law Journal, Vols. 6-7 (1975-1977),
p. 350; emphasis added.

3 Anglo-Iranian Oil Co., Interim Protection, I.C.J. Reports 1951, p. 94.

4 See Crockett, op. cit., p. 376.

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376 APPLICATION OF GENOCIDE CONVENTION (SEP. OP. WEERAMANTRY)

(b) Binding Nature of Provisional Orders as Resulting
from the Inherent Authority of a Judicial Tribunal

The function of a judicial tribunal, once an issue has been brought to it,
is to take the necessary steps according to law towards reaching a decision
in accordance with the principle of the equality of parties. This presup-
poses that the issue brought to it, once committed to the court, must as far
as possible be preserved in that form, free of interference by unilateral
action of a party, until the determination made by the court. It means also
that the principle of equality cannot be disturbed by the superior force
available to one party, wherewith to impair or interfere with the subject-
matter until determination. It is thus inherent in the authority of that tribu-
nal that, ancillary to the power of judgment, it must have power to issue
incidental orders to ensure that the subject-matter of the suit is preserved
intact until judgment.

Such a power would of course be completely negatived if a party were
under no legal obligation to obey such an order and were therefore free to
disregard it. In certain cases, as one writer puts it, this could “make a
mockery of the jurisdiction on the merits” !, The anomaly is even greater
where the unilateral action of a party is of such an order as to destroy the
subject-matter which is in litigation before the court. Even stronger is the
case where such action threatens to destroy or undermine the very exis-
tence of a party.

To take the view that a court seised of a matter has no power to act in the
face of a unilateral threat to the subject-matter by one of the parties before
it would appear then to result in the contradictory situation of the court on
the one hand having jurisdiction to hear a case and on the other being
denied the effective and necessary authority to discharge the task which
has thus been validly entrusted to it. To view procedural measures as not
binding on the parties is to enable the ground to be cut under the feet
not only of the opposite party but also of the court itself. A reasonable
construction, in total context, of the judicial powers entrusted to the
court does not seem capable of sustaining such a meaning. The rule under
discussion has been described as a “principle of institutional effective-
ness” *.

' J. Peter A. Bernhardt, “The Provisional Measures Procedure of the International
Court of Justice through U.S. Staff in Tehran: Fiat lustitia, Pereat Curia ?’, Virginia
Journal of International Law, Vol. 20, No. 3 (1980), p. 303.

2 Vv. S. Mani, “Interim Measures of Protection: Article 41 of the ICJ Statute and
Article 94 of the UN Charter”, Indian Journal of International Law, Vol. 10 (1970),
p. 362. .

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377 APPLICATION OF GENOCIDE CONVENTION (SEP. OP. WEERAMANTRY)

Support for the universality of such a conceptual approach is to be
found in Electricity Company of Sofia and Bulgaria. This Order recites:

“Whereas the above quoted provision [Article 41 (1)] of the Statute
applies the principle universally accepted by international tribunals
and likewise laid down in many conventions to which Bulgaria has
been a party — to the effect that the parties to a case must abstain
from any measure capable of exercising a prejudicial effect in regard
to the execution of the decision to be given and, in general, not allow
any step of any kind to be taken which might aggravate or extend the
dispute” (P.C.LJ., Series A/B, No. 79, p. 199).

The Court has also expressed concern that its Judgment should not be
anticipated by unilateral action of a party. In the Aegean Sea Continental
Shelf case, it observed:

“Whereas the power of the Court to indicate interim measures
under Article 41 of the Statute presupposes that irreparable preju-
dice should not be caused to rights which are the subject of dispute in
judicial proceedings and that the Court’s judgment should not be
anticipated by reason of any initiative regarding the matters in issue
before the Court” (.C_J. Reports 1976, p. 9, para. 25).

Any interpretation of the relevant provisions of the Charter, the Statute
or the Rules in a sense that provisional measures do not impose legal obli-
gations on the party at whom they are directed thus does not accord with
the structural framework of judicial power.

Conceptual reasons such as this persuaded Hambro, one of the early
Registrars of this Court, to the view that the power to act by way of pro-
visional measures is a part of judicial power already existing in principle,
apart from specific provisions to that effect. In his words:

“The’ Court in exercising its authority under Article 41 does
only in effect give life and blood to a rule that already exists in
principle.” ! |

The same ‘author argues that, under general principles of international
law, all States parties to an international dispute sub judice are under an
absolute obligation to abstain from all acts that would nullify the result of
the final judgment or aggravate or extend the dispute?.

1 Edvard Hambro, “The Binding Character of the Provisional Measures of Protec-
tion Indicated by the International Court of Justice”, in Rechtsfragen der Internatio-
nalen Organisation, Festschrift für Hans Wehberg zu seinem 70. Geburtstag, 1956, p. 167.

2 Ibid., p. 168.

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378 APPLICATION OF GENOCIDE CONVENTION (SEP. OP. WEERAMANTRY)

Hence, Hambro reaches the conclusion that:

“it would not be in conformity with the august character of the Court
as an “organ of international law’ and as the ‘principal judicial organ
of the United Nations’... to make any decision that the parties were
free to respect or to ignore according to their own pleasure” !.

This argument is taken yet further by other scholars who argue that the
binding nature of interlocutory injunctions and similar measures is a rule
universally recognized and as such may even be considered to be a “gen-
eral principle of law recognized by civilized nations” under Article 38 (1) (c)
of the Court’s Statute. It is of interest that some influential early writers
on this topic shared this view. Thus Dumbauld3 and Niemeyer saw the
duty to observe interim provisional measures as existing independently of
the Statute and as therefore lying upon the party in question even if the
Statute had contained no such provisions dealing with this matter.

Niemeyer describes it as a basic normative principle (Norm-Grundsatz)
that:

“from the moment that, and as long as, a dispute is submitted to judi-
cial decision and one is awaited, the parties to the dispute are under
an obligation to refrain from any act or omission the specific factual
characteristics of which would render the normative decision super-
fluous or impossible” (translation)°.

Account must, however, be taken of the fact that a number of eminent
writers, including A. Hammarskjéld, another early Registrar, have
expressed a strongly contrary view®. Among the factors weighing with
them are their stress upon the word “indicate”, the lack of enforceability
and the location of Article 41 in the Chapter of the Statute dealing with

! Hambro, op. cit., pp. 165-167.

2 See, for example, Elkind, op. cit., p. 162. Elkind, indeed, makes this proposition the
central theme of his treatise on the subject — see Chapter 2 of Elkind’s work in which he
cites Anglo-American, Roman, Soviet and Hindu law in support of this proposition.

3 Interim Measures of Protection in International Controversies, 1932, pp. 173-177.

4 Einstweilige Verfiigungen des Weltgerichtshofs, ihr Wesen und ihre Grenzen, 1932,
pp. 15-16.

5 “Sobald und solange ein Streit einer richterlichen Entscheidung unterworfen und
eine solche zu erwarten ist, haben sich die streitenden Parteien jeder Handlung und
jeder Unterlassung zu enthalten, deren Faktizitat die normative Entscheidung über-
fliissig oder unmôglich machen kônnte.” (Op. cit., p. 16.)

6 See A. Hammarskjéid, “Quelques aspects de la question des mesures conserva-
toires en droit international positif”, in Zeitschrift fiir ausländisches ôffentliches Recht
und Vülkerrecht, Vol. V (1935), p. 5.

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379 APPLICATION OF GENOCIDE CONVENTION (SEP. OP. WEERAMANTRY)

procedure and such matters as the language of the Court — thus suggest-
ing that it was not of importance in a substantive sense.

However, such considerations, each of which may no doubt be separ-
ately answered !, seem to be outweighed by the conceptual factors already
outlined and the linguistic and other considerations which follow.

The importance of the conceptual considerations discussed above
becomes apparent when, from a practical standpoint, one looks at the
gravity of causes for which the provisional measures jurisdiction of the
Court is used — prevention of irreparable prejudice or injury; of action in
a manner so as to render the final judgment nugatory; of destruction of the
subject-matter; and of aggravation of the dispute. The gravity of each of
these reasons reinforces the view that the Court’s power, once exercised,
cannot still leave the parties free to act as though unrestrained.

The view that provisional orders are part of the inherent authority of a
judicial tribunal is thus one which is sustainable on general principle, on
practical necessity, and on the basis of a not inconsiderable body of
authority. Principles that may be invoked in support of such a view
include the principle of equality of parties, the principle of effectiveness,
the principle of non-anticipation by unilateral action of the decision of
the Court, and also the wide and universal recognition of the enjoining
powers of courts as an inherent part of their jurisdiction.

(c) Binding Nature of Provisional Measures as Resulting
from the Terminology of the Charter, the Statute and the Rules of Court

The language of Article 41 of the Statute uses the word “indicate”
rather than “order” in relation to provisional measures, thus opening
up discussion as to whether it is less binding in its nature than other
decisions.

! In relation to the argument that the positioning of Article 41 in the procedural por-
tion of the Statute in some way weakens its power, Professor Greig points out that:

“it could even more strongly be argued that Article 41 is placed under the heading
procedure because the governing principle is not to be found in Chapter II, but as
part of the Court’s inherent incidental jurisdiction. Article 41 is, therefore, as set
out in the Permanent Court’s judgment in the Electricity Company case, an expres-
sion of that principle and the means of giving effect to it.” (D. W. Greig, “The Bal-
ancing of Interests and the Granting of Interim Protection by the International
Court”, Australian Year Book of International Law, Vol. 11 (1991), p. 131.)

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380 APPLICATION OF GENOCIDE CONVENTION (SEP. OP. WEERAMANTRY)

It is useful to examine this question from the standpoint of the other
relevant terminology which appears in the Statute and the Rules of Court.
There are several avenues along which this linguistic examination can be
approached.

(i) The word “indicate”

The original draft of Article 41, in French, prepared by Mr. Raoul Fer-
nandes, used the word “ordonner” ! which too appeared as “order” in the
English translation. Mr. Fernandes’ suggestion that such order should be
supported by effective penalties did not meet with the approval of other
members of the Advisory Committee such as Elihu Root, de Lapradelle
and Lord Phillimore, and a new draft was submitted wherein the words
“pourra ordonner” were replaced by “pouvoir d’indiquer” with an
English translation reading “power to suggest”. At the Fifth Meeting of
the Sub-committee, Mr. Huber of Switzerland insisted on a stronger term
than “suggest” and the word was replaced by “indicate” 2.

This drafting history shows that the Court’s power goes beyond mere
suggestion or advice, but carries some connotations of obligation. Indeed,
the French word “indiquer” probably goes even further in this direction
than the English word “indicate”, for one of the meanings of “indiquer” is
“to draw up (a procedure, etc.); to dictate, prescribe, lay down a line of
action, etc.)”3.

(ii) The word “ought”

To be noted first of all is the fact that, within the context of Article 41
itself, one finds the word “ought” being used in reference to the provi-
sional measures that are indicated. The word “ought” carries the connota-
tion of an obligation, and takes the matter further in the direction of a duty
being imposed than does the word “indicate” taken by itself. A reference
_ tothe French version of the Statute rather strengthens this conclusion, for
it uses the word “doivent” which carries the implications of “should” or
“ought” in the sense of the existence of a duty4. Indeed, a perusal of stan-
dard dictionaries shows that the word “devoir”, whether used as a verb or
as a noun, carries heavy overtones of duty or obligation, as in “it is your
duty to honour your parents” or “do your duty come what may” (for the
verb) or (a) “duty” as to do one’s duty; (b) “obligation” as the obligations
of a citizen (for the noun). Though these meanings do not by themselves

1 P.C.LJ., Advisory Committee of Jurists, Procés-Verbaux of the Proceedings of the
Committee, June 16th- July 24th, 1920, 28th meeting, Annex No. 3, p. 609.

2 Documents of the 5th Meeting of the Third Committee, Annex 16, p. 172.

3 Harrap’s Standard French and English Dictionary, Vol. 1, p. 1:18.

4 Ibid, p.D:53.

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381 APPLICATION OF GENOCIDE CONVENTION (SEP. OP. WEERAMANTRY)

convey the idea of a legal duty, it is clear that both the English “ought” and
the French “doivent” considerably reinforce the word “indicate”.

Approaching the matter from another angle, another writer observes:

“In Hohfeldian terms a legal right imports a correlative legal duty.
Thus the word ‘ought’ in the phrase ‘measures which ought to be
taken to preserve the respective rights of either party’ would seem to
refer to a legal duty.” !

This argument of correlative connotations assumes relevance also in
relation to the word “power”.

(ili) “Mesures conservatoires”

Further reinforcement is given to this stronger meaning when we see
that the expression “provisional measures” in English is again weaker
than the French expression “mesures conservatoires”, which gives more
emphasis than the English phrase to the importance of preserving the sub-
ject-matter without damage. While the English words taken by themselves
may seem to stress the provisional aspect of these measures, the French
expression stresses more clearly what the whole exercise is about —
namely the preservation intact of the subject-matter of the case. Indeed, in
the English translation of Mr. Fernandes’ original draft, the words
“mesures conservatoires” were correctly translated as “protective
measures” 2, but while the expression “mesures conservatoires” remained
constant through altered French versions of the provision and still remains
in Article 41, the English translation switched to the weaker expression
“provisional measures” which of course does not exactly parallel the
French text.

The discrepancy between the English and the French texts was the sub-
ject of comment at a meeting of the judges of the Permanent Court when
they discussed the amendment of the Rules relating to provisional
measures. Sir Cecil Hurst noted the phraseology “mesures conserva-
toires” and “interim protection” in the two versions and expressed a
doubt as to whether the two expressions exactly corresponded. The
Registrar then drew attention to the different expressions used in English
in Article 41 of the Statute and Article 57 of the Rules as they then existed,

1 Elkind, op. cit. p. 153.

2 See Elkind, op. cit., p. 44.

3 Acts and Documents concerning the Organization of the Court, Second Addendum to
No. 2, p. 253.

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382 APPLICATION OF GENOCIDE CONVENTION (SEP. OP. WEERAMANTRY)

for the rendering into English of the expression “mesures conserva-
toires”!.

(iv) The word “power”

Perhaps more conclusive than all of these in reinforcing this interpreta-
tion of something more than a mere moral duty, is the use at the com-
mencement of the Article of the word “power”. If all that Article 41
enables the Court to do is give exhortations to parties, which are of a non-
binding nature, the use of the word “power” in enabling the Court to do so
is difficult to understand. One needs power to impose a binding obligation
but one does not need “power” to give exhortatory advice. One cannot see
the Statute as solemnly investing the Court with special power under Ar-
ticle 41 if the sole object of that power was to proffer non-binding advice,
which the parties were perfectly free to disregard. A word with such heavy
connotations as “power” must clearly have been meant to give the Court
an authority it did not otherwise have — an authority to impose on parties
an obligation which, without such a word, would not be binding on them.

Power, in the language of analytical jurisprudence, means that those on
whom that power is exercised are under a duty to comply with the exercise
of that power, for, if no duty were to result, there would be no need for the
exercise of “power”. The well-known Hohfeldian analysis of rights,
which has received wide acceptance, classifies liability as the jural corre-
lative of power?, thus indicating that, when a legal power is exercised,
a legal liability ensues to comply with that exercise of power. Such con-
siderations lead to the conclusion that “indications” issued under
Article 41 carry more than a merely moral duty to comply with the
measures indicated3,

(v) The description of less significant measures as orders

Another approach to the question is along that of the interesting
argument adduced by Hambro that orders made by the Court under
Article 48 of its Statute, which are described as orders in the Article itself,
and which relate to comparatively minor matters such as the form and
time in which each party must conclude its arguments are undoubt-
edly enforceable under Article 53 of the Statute. Hence, the “much

1! Acts and Documents concerning the Organization of the Court, Second Addendum to
No. 2, p. 253.

2 On the Hohfeldian analysis and the many writers upon it, see Salmond on Juris-
prudence, 12th ed., 1966, p. 225.

3 Elkind, op. cit., p. 153.

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383 APPLICATION OF GENOCIDE CONVENTION (SEP. OP. WEERAMANTRY)

more solemn and serious orders under Article 41” should be binding
as well’.

A misunderstood passage in this context is the following from Free
Zones of Upper Savoy and the District of Gex:

“[Olrders made by the Court, although as a general rule read in
open Court, due notice having been given to the Agents, have no
‘binding’ force (Article 59 of the Statute) or ‘final’ effect (Article 60
of the Statute) in deciding the dispute brought by the Parties before
the Court...” (P.C_LJ.,, Series A, No. 22, p. 13.)

The Court was there merely giving expression to the principle that
“an order has no binding force on the Court in its ultimate decision on the
merits”.

(vi) The undertaking to comply with “decisions” of the Court in terms of
Article 94 of the United Nations Charter

By Article 94 (1) every Member of the United Nations undertakes to
comply with the decisions of the Court in any case to which it is a party.
When the Court decides to indicate provisional measures is it making a
decision?

An indication that provisional measures are treated as a decision by the
Court itself is their description as such in Articles 74 (2), 76 (1) and 76 (3)
of the Rules of Court. As Hambro argues, interim measures are certainly
treated as decisions by these Articles.

Also to be noted is that the French expression “pour statuer d’urgence”,
appearing in the French version of Article 74 (2) of the Rules of Court,
conveys the idea of making a decision or judgment. In Articles 76 (1) and
76 (3), however, the French version uses the same word “décision”.

One notes in this context the statement of one of the most eminent
writers on the jurisprudence of the Court who, in discussing whether the
obligation derived from Article 94 (1) of the Charter is wide enough
to embrace interlocutory orders, has observed that “the word ‘decision’
in the Charter refers to all decisions of the Court, regardless of their
form” 4. This would include provisional orders as well.

! Hambro, op. cit., p. 170.

2 See Crockett, op. cit., p. 377, emphasis added.

3 Hambro, op. cit., p. 170.

4 Shabtai Rosenne, The Law and Practice of the International Court, 1985, p. 125; see,
also, Rosenne, The International Court of Justice, 1957, p. 82, to the same effect.

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384 APPLICATION OF GENOCIDE CONVENTION (SEP. OP. WEERAMANTRY)

In this context, it is to be noted that Judge Elias has also expressed the
view that an indication of preliminary measures has the same force as
a judgment since it is at least an interim judgment!. This supports the
view that provisional measures have been treated by the Court as a judg-
ment.

Many routes of internal analysis of the relevant instruments thus lead to
the same conclusion, namely, that an indication of provisional measures
by the Court is not merely a formula of exhortation but a decision exer-
cised under the powers of the Court which imposes an obligation on the
party to whom they are directed, which is of a legal and binding nature.

Nor does this conclusion, reached upon a purely linguistic analysis of
the phraseology used in the Court’s instruments, lead to a conclusion
which is other than one eminently suited to the purpose and the function
of the judicial process, especially as it is exercised at the highest interna-
tional level through the International Court.

(d) Binding Nature of Provisional Measures as Inferred
from Decisions of the Court

We are not on clear ground here, but there is much that is suggestive of
the Court’s implicit acceptance of the binding nature of provisional
measures, quite apart from the Court’s treatment of provisional measures

“orders” or “decisions” in its internal practice.

In Nuclear Tests, for example, the Court recited without comment the
pleadings of the Australian Government that

“in the opinion of the Government of Australia the conduct of the
French Government constitutes a clear and deliberate breach of the
Order of the Court of 22 June 1973” (Nuclear Tests (Australia
v. France), I.C.J. Reports 1974, p. 259, para. 19).

While this was, of course, the position of Australia and not of the Court,
the selection of this averment and its reproduction without adverse com-
ment leaves room for inferring that the Court gave that position its tacit
endorsement. As Sztucki observes:

“the Court is responsible for its own selection of quotations and
for supplying them with, or leaving them without, a commentary.
The quoted passage from the Court’s order can therefore be inter-

! Taslim ©. Elias, The International Court of Justice and Some Contemporary Prob-
lems, 1983, p. 79.

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385 APPLICATION OF GENOCIDE CONVENTION (SEP. OP. WEERAMANTRY)

preted as a tacit and indirect endorsement of the applicant’s posi-
tion.” !

The marked lack of affirmative decisions of the Court on this matter is
another factor attracting attention to the importance of a consideration of
this question. There is a paucity also of dicta of judges of the Court in
separate opinions, declarations or dissents.

Among other judicial dicta to the same effect, we should note the dec-
laration of Judge Ignacio-Pinto in Fisheries Jurisdiction where, with ref-
erence to interim measures ordered by the Court, he viewed certain later
incidents involving numerous clashes in the disputed fishery zone as acts
which “constitute so many flagrant violations on either side” of the opera-
tive part of the Orders in question.

The Permanent Court commented in the Polish Agrarian Reform case
that the interim measures requested would result in a general suspension
of agrarian reform in so far as concerns Polish nationals of German race.
The implication of such an observation could well be that in the Court’s
view the interim measures sought would have a legally binding effect.

The often-quoted statement of the Permanent Court in Free Zones of
Upper Savoy and the District of Gex that such order had “no ‘binding’ force
...or ‘final’ effect... in deciding the dispute brought by the Parties before
the Court”* does not have the conclusive effect it is sometimes repre-
sented as having, as pointed out earlier in this opinion. That statement was
restricted to the impact of those measures on the final order. Clearly an
interim order does not have a binding force or final effect upon the
eventual decision of the dispute as it is clearly interlocutory and pro-
visional.

From the recent jurisprudence of this Court, perhaps the case of
Military and Paramilitary Activities in and against Nicaragua could
best be cited as indicative of a duty lying on a party to take “seriously
into account” provisional measures indicated by the Court and “not
to direct its conduct solely by reference to what it believes to be its
rights” >.

1 Jerzy Sztucki, op. cit. pp. 272-273.

2 Fisheries Jurisdiction (United Kingdom v. Iceland), Interim Protection, I.C.J. Reports
1973, p. 305.

3 PCLJI, Series A/B, No. 58, p. 178.

4 P.C.LJ, Series A, No. 22, p. 13.

5 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), IL.C.J. Reports 1986, p. 144, para. 289.

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(e) Binding Nature of Provisional Measures as Inferred
from Extra-judicial Writings of Judges of the Court

Judges of this Court, writing extra-judicially, have contributed much to
the view that provisional orders are binding.

Judge Jessup, in his foreword to an academic work which reaches the
conclusion that such orders are binding, has given that conclusion the
weight of his support by observing that the author “weighs the pros and
cons and soundly concludes that such orders are binding” !.

Sir Gerald Fitzmaurice observes:

“The whole logic of the jurisdiction to indicate interim measures
entails that, when indicated, they are binding — for this jurisdiction
is based upon the absolute necessity, when the circumstances call for
it, of being able to preserve, and to avoid prejudice to, the rights of the
parties, as determined by the final judgment of the Court. To indicate
special measures for that purpose, if the measures, when indicated,
are not even binding (let alone enforceable), lacks all point . . .”?

Judge Lauterpacht, while strongly of the view that the Statute did
more than impose a purely moral argument, also expressed some reser-
vations:

“It cannot be lightly assumed that the Statute of the Court — a
legal instrument — contains provisions relating to any merely moral
obligations of States and that the Court weighs minutely the circum-
stances which permit it to issue what is no more than an appeal to the
moral sense of the parties. At the same time, the language of
Article 41 of the Statute precludes any confident affirmation of the
binding force of the measures issued by it under that Article. . .”3

Judge Hudson of the Permanent Court in his treatise wrote that the
word “indicate” “is not less definite than the term order would have been,
and it would seem to have as much effect” 4.

1 Philip C. Jessup, Foreword to Elkind, op. cit., p. XIII.

2 Fitzmaurice, The Law and Procedure of the International Court of Justice, Vol. IL,
1986, p. 548.

3 Sir Hersch Lauterpacht, The Development of International Law by the International
Court, 1958, p. 254.

4 Manley O. Hudson, The Permanent Court of International Justice, 1920-1942, 1943,
p. 425.

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387 APPLICATION OF GENOCIDE CONVENTION (SEP. OP. WEERAMANTRY)

AN HISTORICAL OVERVIEW

This has thus far been a strictly legal analysis. However this Court can-
not lose sight of the human factor which looms large, particularly in a case
such as that which is now before the Court. It is an aid to this necessary
dimension in the appreciation of a legal problem to take a glance at the
great historical processes that brought this Court into existence. The
Permanent Court, set up in the aftermath of the most devastating conflict
the world had seen, embodied the aspirations of a war-torn generation
anxious to put behind them the horrors of international lawlessness and to
enthrone international law. They sought to achieve this through a Court
operating internationally on the model of the superior courts which
ensured the rule of law at a domestic level.

Despite strong contentions in favour of a jurisdiction more closely
modelled on the analogy of a Supreme Court, the Statute of the Court
drafted by the Advisory Committee of Jurists did not give the Court the
full judicial powers normally associated with a court of superior jurisdic-
tion. Worthy of recall in this context is the speech of Mr. Lafontaine of
Belgium, regarding the jurisdiction of the proposed court. This speech
was made at the 20th plenary meeting of the First Assembly on 13 Decem-
ber 1920 on the occasion of the presentation of the report of Commit-
tee III on the Permanent Court of International Justice. He lamented the
failure of the proposed Statute to vest the Court with fuller jurisdiction.

The speaker reminded the Committee that an expectant world had
been “long ago told that the creation of an International Court would be
the only effective antidote to the dread supremacy of force” !. His speech
is deeply relevant to contemporary discussions of the powers of this
Court.

“In such circumstances I feel how poor a thing is my eloquence.
We need a Demosthenes, a Mirabeau, a Jaurés on this platform. I call
upon you to listen to the sound that comes to you from beyond these
walls, a great moaning like to that of the sea. It is the voices of the
mothers and the wives who are mourning for those whom they have
lost. It is the voice that rises from the peoples, the working masses
who are weary of the miseries and of the plagues which are striking
them and continue to strike them. . . It is the voice of those who are
sleeping buried on the battlefield, who have given their youth and
sacrificed hope and joy in order that there might be justice in the
world.

Nevertheless, we have obtained in the Statute submitted to you the

1 Documents concerning the Action Taken by the Council of the League of Nations under
Article 14 of the Covenant and the Adoption by the Assembly of the Statute of the Permanent
Court, 1920, p. 232.

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388 APPLICATION OF GENOCIDE CONVENTION (SEP. OP. WEERAMANTRY)

means of accepting a compulsory jurisdiction of the Court. I hope
that those who sign the Protocol, I trust that all the Delegations here
present, will accept the provisions of Article 36.”!

These are poignant words — words whose poignancy matches that of
the circumstances before us. They highlight the very problem now before
the Court.

That jurisdiction, though not as complete as many had desired when the
Statute of this Court was first formulated, has yet been worked, through
nearly 70 years of jurisprudence, to evolve a not insubstantial body of
international law which has served a valuable role in preserving interna-
tional peace. To give to those powers, incomplete as they are, a meaning
which attenuates them further by denying the Court the authority to con-
serve its own jurisdiction through provisional measures of a binding
nature, when another equally sustainable interpretation is possible, is a
step away from the idealism which gave birth to the Court.

Moreover, times have changed since the era, more than 70 years ago,
when for the first time in world history an international court was created.
Manley O. Hudson captured the pressures of those times when he wrote in
his treatise:

“The term indicate, borrowed from treaties concluded by the
United States . . . possesses a diplomatic flavor, being designed to
avoid offense to the ‘susceptibilities of States’. It may have been due
to a certain timidity of the draftsmen.”2

There was then a natural hesitancy in taking on this new jurisdiction
which was as yet untried. That natural hesitancy in that incipient phase of
the Court’s jurisdiction led to weak interpretations which have left their
legacy to this day. Many decades of creative work since then enable a
more confident interpretation of the powers of the Court.

The words under examination, as shown in the earlier part of this opin-
ion, are thus, in accordance with accepted rules of legal construction,
clearly capable of bearing the meaning that they impose a legal obliga-
tion. That is an interpretation supported also by sound legal principle

1 Documents concerning the Action Taken by the Council of the League of Nations under
Article 14 of the Covenant and the Adoption by the Assembly of the Statute of the Permanent
Court, 1920, p. 233.

2 Manley O. Hudson, op. cit., p. 425.

3 As Hudson observed in continuation of the passage already cited:

“An indication by the Court under Article 41 is equivalent to a declaration of
obligation contained in a judgment, and it ought to be regarded as carrying the
same force and effect.” (Op. cit., p. 426.)

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389 APPLICATION OF GENOCIDE CONVENTION (SEP. OP. WEERAMANTRY)

and by the universal acceptance of nations. It is a principle which the
Court, at this stage of its jurisprudence, can confidently assert. It should
of course be clear at all times that the Order is only provisional, is not a
final finding of fact and leaves untouched the matters that await the final
decision of the Court upon the merits.

To view the Order made by the Court as anything less than binding so
long as it stands would weaken the régime of international law in the very
circumstances in which its restraining influence is most needed.

* * OF

For the reasons set out, the provisional measures ordered by the Court
on 8 April 1993 imposed a binding legal obligation on the Respondent.
Non-compliance with that Order endangers the very subject of the dispute
before the Court and can cause irreparable harm to the Applicant. This
irreparable harm is not in regard to rights and duties such as are often the
subject of litigation, for we are here dealing with matters under the Geno-
cide Convention, touching the very existence of a people. An interpreta-
tion which imposes anything short of a binding legal obligation upon the
Respondent is out of tune with the letter and spirit of the Charter and the
Statute.

(Signed) Christopher Gregory WEERAMANTRY.

68


691

DISSENTING OPINION OF JUDGE FRANCK

The 1891 Convention determined the allocation of territorial sovereignty
between the Parties — Pulau Ligitan and Pulau Sipadan clearly located south
of 4°10 allocational line therein established — Presumption that 4°10’ line
intended to settle all areas of potential conflict between the Parties — Need to
interpret boundary and allocation agreements broadly —- Role of ad hoc judge —
Three principal issues in case —- Agreement with Court’s Judgment rejecting
Malaysian “chain of title” argument — Difficulty in assessing comparative
weight of Parties’ pleaded effectivités --- Effectivités were minimal and not per-
formed, in all but a few instances, a titre de souverain — Effectivités do not
prevail against conventional title established under 1891 Convention — New
effectivités created after 1969, the critical date, are inadmissible as evidence of
title — 1891 Convention's text does not establish the applicability of Article IV
(the 4°10° line) to Pulau Ligitan and Pulau Sipadan — Article IV does not
have one clearly expressed “ordinary meaning” within the terms of Article 31 of
the Vienna Convention on the Law of Treaties — “Across Sibbitik” equally can
be construed to mean “over and beyond” or “over but no further” — Vienna
Convention in Article 31 refers Court to the “object and purpose” of a treaty as
way to clarify ambiguous text — Parties’ “object and purpose” was closure, to
achieve certainty and finality — Collateral evidence of this object and purpose
in Dutch map attached to Explanatory Memorandum and comments of Nether-
lands Minister van Dedem — British “object and purpose” to include territories
south of 4°10" latitude also deducible from British Foreign Office Minute as
well as lack of reaction to transmission of Dutch map by British Minister in
The Hague, Sir Horace Rumbold — Commonsense confirms Parties could not
have intended to exclude tiny islets from 1891 boundary settlement — Further
confirmed by Parties granting oil exploration concessions in 1960s east of Seba-
tik that stop 30” on either side of the 4°10’ line — Court should confirm
precedents making rebuttable presumption that a line to fix a frontier should,
if possible, be so interpreted that the result of the application of its provisions
in their entirety conduces to establishment of a precise, complete and definitive
frontier.

1. INTRODUCTION

1. The 1891 Convention between Britain and the Netherlands should
have been determinative of this case. It established a line beginning at
Broershoek on Borneo’s east coast and continuing in an eastward direc-

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692 PULAU LIGITAN AND PULAU SIPADAN (DISS. OP. FRANCK)

tion along the 4° 10’ iatitude. Pulau Ligitan and Pulau Sipadan clearly lie
south of this line, on the Indonesian side.

2. Beyond that, little else is clear. This case presents the Court with a
record full of ambiguities. That is no one’s fault: it is the fate of history
in obscure places. Pulau Ligitan and Pulau Sipadan, at least until recently,
were not the stuff of which history is made.

3. To overcome that difficulty within the case’s factual record, how-
ever, the Court need not have had recourse to conjectures about
fragments of effectivités when it could, instead, have resorted to well-
established presumptions of law that are applicable to the interpretation
of the text and context of the 1891 Convention. More precisely, when, as
frequently occurred, the evidence presented was unclear or indecisive,
the Court could have applied rules of evidence to clarify not only the
issues central to this case but also to elucidate — for these and for future
litigants — the applicable principles by which the law shines a light on
that which is unclear to the naked eye.

4. A presumption of law draws on the common experience to make a
reasonable inference from what is known to what is unknowable. Such
inferences are crystallized in well-known principles or legal maxims, such
as res ipsa loquitur. Any rebuttable presumption can be contradicted by
evidence demonstrating its opposite, or by application of a stronger evi-
dentiary presumption such as the principle of absolute liability. In a
sense, then, a rebuttable presumption shifts the onus of proof to the party
seeking to disprove the deduction derived from it.

5. How is this relevant to the dispute over two tiny islands off Borneo?
I believe that when two powerful States, with a history of both conflict
and co-operation, negotiate a convention settling a long boundary in a
distant theatre of their colonial interaction, then this Court should pre-
sume that the boundary was meant to cover all the area’s potential points
of conflict.

6. Instead, the Court has relied on a narrow parsing of effectivités that
are (by its own admission) enveloped in ambiguity. I dissent, not because
I think that reasonable judges could not have concluded as this Court has
done, but, rather, because a visionary judiciary should have used the
opportunity here presented to clarify the adjectival law of evidence — the
presumptions — applicable to the interpretation of treaties intended to
resolve territorial and jurisdictional conflict. The applicable presumption
is straightforward: where a treaty specifies a boundary line or principle of
territorial allocation, it should be interpreted as broadly as necessary to
resolve any conflict of jurisdiction in the absence of clear evidence of a
contrary intent. As | will seek to demonstrate in part 8 below, such a pre-
sumption accords both with common intuition and with judicial practice.

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693 PULAU LIGITAN AND PULAU SIPADAN (DISS. OP. FRANCK)

7. In terms of the present case, the line established by the 1891 Anglo-
Dutch Convention at the eastern end of the agreement’s subject-matter
(the 4° 10’ line) should have been presumed to apply broadly to the entire
area of the Parties’ interface east of Sebatik, subject only to prevailing
evidence to the contrary. The onus of proof, in other words, should have
been held to rest with those seeking to rebut a presumption of complete-
ness or closure. A treaty such as this one, resolving a vast area of poten-
tial conflict, is special. It seeks to transform a zone of conflict into a zone
of peace. Its purpose requires not just deference but generosity. It is not
to be construed by the gimlet eye as if it were a contract for the sale of
barley.

8. Of course, this is a case about very small islands. But, that the sub-
ject-matter of the case is small does not mean that it does not afford the
Court an auspicious occasion to clarify important law. The legal issues in
this case are ones that have arisen in other, weightier, contexts and they
will arise again in contexts more freighted than these. The Court’s deci-
sion, alas, does not elucidate the applicable normative standards. Quite
aside from which party wins a case, it is the international legal system
which loses when the Court fails broadly to address the iegal issues and,
instead, focuses on deciding small questions of fact on ambiguous evi-
dence, eliciting little that can be of value to the corpus juris.

2. THE ROLE OF THE AD Hoc JUDGE

9. Before adverting further to these matters, it seems in keeping with
this preference for developing the corpus juris that 1 express myself
regarding the appropriate role of the ad hoc judge. The subject has but
rarely been canvassed by those occupying this unusual position. An
exception is the separate opinion of Judge ad hoc Lauterpacht in the pro-
visional measures phase of the Application of the Convention on the Pre-
vention and Punishment of the Crime of Genocide ( Bosnia and Herze-
govina v. Yugoslavia), Provisional Measures, Order of 13 September
1993 (LC.J. Reports 1993, pp. 408-409, paras. 4-6); see also Judge
ad hoc Palmer, in his dissenting opinion in the Request for an Examina-
tion of the Situation in Accordance with Paragraph 63 of the Court's
Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v.
France) Case, Order of 22 September 1995 U.C.J. Reports 1995, pp. 420-
421, para. 118). I subscribe entirely to Judge ad hoc Lauterpacht’s useful
analysis, the gist of which is that ad hoc judges, in accordance with their
solemn declaration under Article 20 of the Statute, are bound to exercise
their function impartially and conscientiously, while also discharging:

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694 PULAU LIGITAN AND PULAU SIPADAN (DISS. OP. FRANCK)

“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 (Bosnia and Herzegovina v. Yugoslavia),
Provisional Measures, Order of 13 September 1993, I.C.J. Reports
1993, p. 409, para. 6).

As Judge ad hac Nicolas Valticos has pointed out, the ad hoc judge is not
simply a representative of the appointing State. Notably, one —~ Judge ad
hoc Suzanne Bastid — has even disagreed on the merits with the position
of the appointing States. (See Nicolas Valticos “L’évolution de la notion
de juge ad hoc”, Revue hellénique de droit international (RHDI), Vol. 50,
1997, pp. 11-12; and Hubert Thierry, “Au sujet du juge ad hoc”, Liber
Amicorum “In Memoriam” of Judge José Maria Ruda, 2000, p. 285.)

10. The nub of the matter is this: the ad hoc judge must always ensure
that the appointing State’s arguments are fully addressed by the
Court, whether or not they convince the majority of the judges.
Between March 1948 (Corfu Channel (United Kingdom v. Albania))
and July 2002 (Ahmadou Sadio Diallo (Republic of Guinea v. Democratic
Republic of the Congo)) there have been ad hoc judges in 45 cases and
53 phases of cases before this Court. Of these, 29 have written dissenting
opinions, corresponding quite closely to the number of ad hoc judges
appointed by losing parties. That, however, does not argue against the
integrity of the institution of ad hoc judges. Rather, it demonstrates that,
when a State is the losing party, the ad hoc judge it appointed has an even
greater obligation to ensure that the Court’s judgment accurately and
fully reflects the careful consideration given by the Court to the losing
State’s representations. The drafting of the dissent attests to the richness
of the Court’s collegial deliberative process.

11. The function of the dissent, therefore, is multiple. It assures the
losing party that its arguments, far from being overlooked, were con-
sidered extensively by the entire Court. It facilitates the reasoned and
balanced exchange of research and written views among the judges
during the deliberative process. And, perhaps, it presents to the law’s
universal market place of ideas certain principles of law and nuances of
analysis which, even if not adopted in the instant case, may be of use in
another, as yet unforeseen, context.

12. The ad hoc judge, like any other judge authoring a separate opinion,
is accorded a sacred freedom. To be preserved, it must be used. As
Judge ad hoc Bula-Bula has written, the ad hoc’s “traditional practice
would seem to be characterized by its freedom” (Arrest Warrant of
11 April 2000 (Democratic Republic of the Congo v. Belgium), Judg-

73

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695 PULAU LIGITAN AND PULAU SIPADAN (DISS. OP, FRANCK)

ment, C.J. Reports 2002, p. 100, para. 2, separate opinion of Judge ad
hoc Bula-Bula). That freedom, of course, quite simply, is to write as one
wills: to be the sole author of an opinion, unencumbered by a majority’s
need, sometimes, to find common ground through compromise and cre-
ative ambiguity.

3. THE PRINCIPAL ISSUES IN DISPUTE

13. That the Court’s Judgment leaves ambiguous the answers to some
questions raised in this case is as apparent as that this may have been
inevitable given the relative paucity of unambiguous controlling facts.

14. In my reading of the pleadings and the Court’s Judgment it emerges
that there are three principal points of contention:

(1) whether the 1891 Convention should be read to extend the 4°10’
“boundary” line to allocate islands east of the east coast of Sebatik;

(2) whether, on the contrary, a “chain of title” exists which establishes
sovereignty to Pulau Ligitan and Pulau Sipadan, successively, in the
Sultan of Sulu who transferred it to Spain, which transferred it to
the United States, which transferred it to Great Britain, which,
ultimately, transferred it to Malaysia; and

(3) whether, if the answers to (1) and (2) are both in the negative, the
two disputed islands’ resultant, unresolved status (terra nullius) can
be said to have been resolved in favour of either Party by reason of a
preponderance of effectivités exercised by one or the other.

4. ASSESSING THE CourT’s ANSWERS

15. The Court answers both questions No. 1 and No. 2 in the nega-
tive: the 1891 Convention is held not to be applicable to Pulau Ligitan
and Pulau Sipadan, and the Court finds no controlling “chain of title”
leading to Malaysian sovereignty over the islands. It therefore relies on a
relative weighing of the effectivités of the Parties to conclude that those
of Britain and Malaysia are superior to those of Indonesia.

16. I will leave to the next section my grounds for disagreeing with the
Court’s response to question No. i. I find myself fully in agreement with
the Court in its response to question No. 2. For reasons set out precisely
in the majority’s opinion, I reject Malaysia’s “chain of title” theory as
unsupported by the events cited as demonstrative of it. It is unnecessary
for me to restate the Court’s conclusions in this regard, with which I
wholly concur.

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696 PULAU LIGITAN AND PULAU SIPADAN (DISS. OP. FRANCK)

17. Question No. 3 I find difficult — and ultimately unnecessary — to
answer categorically. 1 do not agree, but neither do I really disagree, with
the Court in its weighing up of the effectivités adduced by Indonesia and
Malaysia to support their respective claims of title. To weigh, on the one
hand, occasional administration of turtle egg harvesting and of a bird
sanctuary — neither of these, apparently, in situ — together with the
establishment of a few navigational lights (by Britain/Malaysia) against,
on the other hand, naval and air patrolling and piracy-control (by Indo-
nesia) appears to me like trying to weigh precisely a handful of feathers
against a handful of grass: it can be done, but not very convincingly. The
Court has not set out a coherent table of weights and measures for assess-
ing and comparing the effectivités here pleaded, nor could it be expected
to do so, given their ephemera! nature. Nevertheless, it is not convincing
to give preference to a very few activities by one party while discounting
those of the other party without some effort to develop neutral principles
by which the relative weight of their respective effectivités can be
compared.

18. The problem of their comparative weight is augmented by the
brevity of the period from which evidence of effectivités may properly
be pleaded. There is no evidence before this Court that, prior to 1930,
Britain believed itself to have title to either Ligitan or Sipadan. Whatever
slender acts of administration might have been undertaken prior to that
date by the British North Borneo Company were not claimed to have
been made à titre de souverain. As Judge Huber said in the Island of Pal-
mas case, the demonstration of effectivités must consist “in the actual
display of State activities, such as belongs only to the territorial sover-
eign” Usland of Palmas (Netherlands! United States of America), Award
of 4 April 1928, Reports of International Arbitral Awards ( RIAA}, Vol. IE,
p. 839). To qualify, they must be activities undertaken not as a good
neighbour or a gratuitous intermeddler, but as an exercise of sovereign
responsibility for the territory in question. The harvesting activities of
fishermen were found not to constitute occupation à titre de souverain
by this Court in the KasikililSedudu Island (Botswana/Namibia) case
(Judgment, C.J. Reports 1999 (IT), p. 1095, para. 75) and the same
principle is applicable to turtle egg collectors. Similarly, the construction
by Malaysia of lighthouses on Ligitan and Sipadan may or may not be
evidence of occupation à titre de souverain when seen by itself, without
reference to the 1891 Convention. Even so, the Arbitral Award of 9 Octo-
ber 1998 between Eritrea and Yemen stated: “The operation or main-
tenance of lighthouses and navigational aids is normally connected to
the preservation of safe navigation, and not normally taken as a test of
sovereignty.” (Award of the Arbitral Tribunal in the First Stage of the
Proceedings (Territorial Sovereignty and Scope of the Dispute), 9 October

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1998, p. 91, para. 328; see also to same effect Minquiers and Ecrehos,
Judgment, 1 C.J. Reports 1953, pp. 70-71.)

19. This is especially so when, as in this case, the territory is the subject
of a competing claim of sovereignty based on conventional title, against
which mere effectivités have been held to be of little evidentiary value
(Land, Island and Maritime Frontier Dispute (El Salvador Honduras:
Nicaragua intervening ), Judgment, I C.J. Reports 1992, p. 472, para. 181;
ibid., p. 516, para. 266). As this Court has pointed out, “where the terri-
tory which is the subject of the dispute is effectively administered by a
State other than the one possessing the legal title, preference should be
given to the holder of the title” (Frontier Dispute (Burkina Fasol Republic
of Mali), Judgment, I C.J. Reports 1986, p. 587, para. 63). Moreover
“acts ... largely of a routine and administrative character performed by
local officials . . .” were held insufficient in the Sovereignty over Certain
Frontier Land (Belgium!Netherlands) case “to displace Belgian sover-
eignty established by. . . Convention” (Judgment, 1 C.J. Reports 1959,
p. 229). Effectivités are rubber spears when wielded against the shield of
conventional title. In the present case, it is title under the 1891 Con-
vention that Indonesia claims. Thus the minor effectivités presented
by Britain and Malaysia depend for whatever persuasive power they
may have on a determination that the 1891 Convention failed to resolve
the question of title to Ligitan and Sipadan: a proposition I reject
(see below).

20. By 1969, moreover, the window of opportunity for effectivités had
closed. The Parties, in their status quo agreement (described by the Agent
for Indonesia in CR 2002/27, pp. 16-17, paras. 13-18), in effect had deter-
mined the critical date by which new acts and facts could not be adduced
to support the claim of either Party. Evidence of new effectivités, such as
the establishment of a deep-sea diving resort, are inadmissible in evidence
of Malaysian title.

21. If I were disposed to weigh the handful of Malaysian true effecti-
vités against that of Indonesia, | could conceivably join the majority
opinion on that count. But were I to agree with the Court — arguendo —
that a few turtle eggs and signal lights do, indeed, have greater gravitas
than the voyage of HNLMS Lynx, that would still not get me across to
the other shore. In my opinion, these are token acts of no legal value. For
effectivités to be weighed at all, they must not only be performed 4 titre
de souverain but also upon terra nullius or, at least, upon territory whose
title has not been dispositively determined. Both Malaysia and Indonesia
have argued that at all relevant times, neither Ligitan nor Sipadan were
terra nullius, and | agree with them. The one solid legal instrument before

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this Court is the Convention of 20 June 1891 between Great Britain and
the Netherlands. It is to that sturdy instrument I now turn. Against it,
properly construed, an effectivités-based claim cannot stand.

5S. THE 1891 CONVENTION

22. If the 1891 Convention between Britain and the Netherlands were
applicable to Pulau Ligitan and Pulau Sipadan, that would be decisive in
this case. Is it? It’s Article IV establishes a line beginning at the east coast
of Borneo at 4°10’ latitude and proceeding in an easterly direction
“across the Island of Sebittik . . .”. What, crucially, is in dispute is
whether the words of Article IV, in allocating to the British North Bor-
neo Company the territory north of this line and “the portion south of
that parallel to the Netherlands”, intended it to stop at the east coast of
“Sebittik” or to continue on its mission of allocation in an easterly direc-
tion. If the former, then the 1891 Convention would have nothing to say
about title to Ligitan and Sipadan, thereby properly focusing the Court’s
attention on subsequent effectivités. If the latter, however, the Conven-
tion would allocate Ligitan and Sipadan to the Netherlands, thereby
making recourse to subsequent effectivités irrelevant in the absence of
evidence of Dutch abandonment of title.

23. What, then, if anything, does the 1891 Convention say about the
two contested islands? Nothing at all. But that should not be an end to
the Court’s search for its meaning. More specifically, what adjectival law
may be of help to the Court in its task of construing the Convention?

24. The first stop in any search for applicable legal principles to guide
the Court is the Vienna Convention on the Law of Treaties. Article 31 of
that instrument lays down the principle that the text of a treaty is to be
understood in its “ordinary meaning” and “in the light of [the treaty’s]
object and purpose”. It is acknowledged by the Parties and this Court
that these two adjectival legal principles — requiring a search for the
words “ordinary meaning” and the Convention’s overall contextual
“object and purpose” — must guide the Court.

6. THE “ORDINARY MEANING” PRINCIPLE

25. First, then, the Court is obliged to give their “ordinary meaning”
to Article IV’s words. Key, here, is the phrase “across the Island of Sebit-

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tik”. While Malaysia has insisted, in effect, that these words must be read
to imply the additional definite words “and no further”, Indonesia has
insisted that the phrase can be construed to imply the additional defining
words “and beyond”. Unfortunately, neither Party can demonstrate that
the ordinary meaning of “across the Island of Sebittik” necessarily implies
either the one clarifying phrase or the other. Quite simply, in ordinary
usage, the word “across” can equally mean “over and beyond” or “over
but no further”. There is no one “ordinary” meaning. There are several.
They are equally valid. Examine them as one.will, they cannot resolve the
riddle of Article IV’s applicability to Ligitan and Sipadan.

7. THE “OBJECT AND PuRPOSE” PRINCIPLE

26. That, however, cannot exhaust our search for meaning and intent.
Article 31 of the Vienna Convention also alerts us to interpret treaties in
accordance with their “object and purpose”. To the same effect is the
Decision of the Eritrea-Ethiopia Boundary Commission regarding Delimi-
tation of the Border between the State of Eritrea and the Federal Demo-
cratic Republic of Ethiopia (13 April 2002, para. 3.4). The key provisions
of the Vienna Convention had become the customary law of treaty
interpretation.

27. While the text of the Convention is of little help in determining an
“ordinary meaning”, it is quite responsive to the quest for its “object and
purpose”. The 1891 Dutch-British Convention’s preamble stipulates its
purpose: that of “defining the boundaries between the Netherlandfs]
possessions in the Island of Borneo and the States in that island which
are under British protection”. Accordingly, the parties “resolved to con-
clude a Convention to that effect .. . for that purpose”. The history of
the negotiations leading up to the Convention make even clearer the lar-
gesse of this purpose. They wanted to solve, once and for all, the prob-
lems that could arise between adjacent imperial Powers. Could it have
been that the parties, nevertheless, willingly left two islets, some 50 miles
east — or, indeed, any other bits and pieces of their Borneo empire — to
future disputation, regardless of what that might do to undermine the
closure so evidently being sought? For it was closure the parties wanted.
It was the object and purpose of their agreement. The presumption of a
desire for closure was central to this Court’s decision in the Temple of
Preah Vihear (Cambodia v. Thailand) case, when it interpreted the
French-Thai frontier settlement of 1904-1908 as intended “to achieve
certainty and finality” in an area where, “very long frontiers” had been
the “cause of uncertainty, trouble and friction” leading to “growing ten-
sion” (Merits, Judgment, I.C.J. Reports 1962, p. 34). Why has the Court

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not presumed the 1891 Convention to have had the same object and
purpose?

28. According to Malaysia, when the parties declare themselves to be:
“Desirous of defining the boundaries between the Netherlands posses-
sions in the island of Borneo and the States in that island which are under
British protection . . .” (Memorial of Malaysia, Vol. 1, p. 89, para. 8.7)
they intended only that the Convention “was intended to be a land
boundary treaty” (ibid, para. 8.8) which, in the words of Article I of the
1891 Convention, would define only “The boundary between the Nether-
lands possessions in Borneo and those of the British-protected States in
the same island .. .” (ibid.). In Malaysia’s view, the treaty’s use of the
designation “in Borneo” colours the entire project, making it exclusively
a designation of British and Dutch possessions on that one giant island —
with the exception of Sebatik, provided for specifically in Article IV —
and not anywhere else in the vicinity.

29. Indonesia, to the contrary, claims that the parties, in drawing up
the 1891 Convention, were “motivated by a wish to put an end once and
for all to their territorial problems in the area” (Reply of Indonesia,
Vol. 1, p. 16, para. 1.24 (c)). Therefore, the 4° 10’ line was chosen, start-
ing at Broershoek and “continued eastward along that parallel” (Art. IV).
This line, Indonesia asserts “passing to the north of Sipadan and Ligitan,
established that [the parties intended that title to the two islands] belonged
to [t]he Netherlands (. . . now to Indonesia)” (Reply of Indonesia, Vol. 1,
p. 16, para. 1.24).

30. There is collateral evidence to support Indonesia’s contention. It
cites a British Foreign Office Minute that sets out a proposal for a com-
promise line which, albeit along latitude 4° and thus south of 4°10’, is
eastward to longitude 118° 44’ 30”, well east of Sipidan (but not Ligitan):
the point being that the British, all along, were also thinking about an
allocational line extending to territories in the sea east of Sebatik (Reply
of Indonesia, Vol. 1, p. 21, para. 1.31; and p. 22, Map 1).

31. That the Dutch, certainly, were thinking about a line prolonged
eastward beyond Sebatik is apparent from the map attached to the
Explanatory Memorandum by means of which the Dutch Government
requested ratification of the 1891 Convention by its Parliament (States-
General) in compliance with the Netherlands Constitution and with
Article VIF of the 1891 Convention. This map (Memorial of Indonesia,
Vol. 1. p. 88, Map 5.2) shows the agreed 4° 10’ line extending well beyond
Sebatik, although stopping west of Ligitan and Sipadan. Whether or not
an acceptance of this extension of the 4°10’ line is imputable to the
British Government, on the ground that it knew of the map and did
not object to it, will be discussed below. For present purposes it is relevant

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simply to note that the map illustrates the Netherlands Government’s
belief that the 4°10’ line was meant to extend further east than the
eastern coast of Sebatik: that, in other words, to the Netherlands the
term “across Sebbitik” in Article IV of the Convention implied “across
and beyond” rather than “across and no further”.

32. The British Government, moreover, did know what the Dutch
were thinking. There is no disagreement between the Parties that the
Dutch Government’s Explanatory Memorandum and accompanying map
was published and freely available, that through the ministrations of
Sir Horace Rumbold, the British Minister at The Hague, it reached the
British Government after being specifically commented upon by him as
“the only interesting feature” of the Memorandum, and that it was duly
filed without objection or comment. At a minimum, this seems to me to
demonstrate that the British Government, like the Dutch, did not believe
that the 4°10’ line established by the 1891 Convention terminated at the
east coast of Sebatik. Moreover, the British Government, closely observ-
ing the debates in the Dutch Parliament, may well have heard (or read)
the Netherlands Minister for the Colonies, Mr. van Dedem’s, public
explanation to the First Chamber that the treaty was made to “prevent
conflict” and regularize relations “both in Borneo itself and on the neigh-
bouring smaller islands” (Memorial of Indonesia, Vol. 1, p. 94, para. 5.61;
ibid., n. 102). This cannot have been a surprising comment, given the
context. Would it not have been much more surprising if Mr. van Dedem
had explained that the Convention was intended to prevent conflict in
Borneo but not on the neighbouring small islands?

33. These facts suggest the parties’ “object and purpose” in entering
into the 1891 Convention. That the Convention, in its preamble, speaks
of “the island of Borneo” does not, to me, demonstrate, a contrario, that
a treaty dealing with “Borneo” intended to exclude these minute islands
situated a short distance (57.6 miles, in the case of Ligitan, the more dis-
tant of the two) east of Sebatik. Is it credible to infer that, had the parties
in 1891 thought of Ligitan and Sipadan as possible future arenas of dis-
putation, they would nevertheless deliberately have chosen to defer reso-
lution of these potential irritants to another time and place? Would they
have said to one another: “Let’s see who most zealously guards against
piracy on those islands, or who best administers the gathering of its turtle
eggs?” In order to rebut the narrowest rendering of the 1891 Conven-
tion’s preambular reference to an intent of the parties to fix their mutual
boundary “in Borneo” is it realistic to insist that they should instead have
stipulated “in Borneo, Ligitan and Sipadan”? Or even that they should at
least have made a separate reference in Article [V to those tiny islands
alongside the reference to the much larger and more strategically impor-
tant island of Sebatik, risking an inclusio unis est exclusio alterius effect
on other reefs and islets left unmentioned?

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34. It has been argued that the intent of the Parties, and the object and
purpose of the 1891 Convention, can be gleaned from the way the Parties
subsequently dealt with Ligitan and Sipadan. This, however, is an arid
record. The 1912 Boundary Commission began its work of demarcation
in a westerly direction from the east coast of Sebatik, and this is what the
map accompanying the 1915 Agreement shows. But what else does it
demonstrate? The task of demarcation was to establish more precisely
the land boundary between the Dutch and British possessions. To the
east of Sebatik, there was no land boundary to be demarcated since the
4° 10’ line traversed no territory. Ligitan and Sipadan were south of that
meridian and not traversed by it. In any event, since the 1891 Convention
did not purport to apportion sovereignty over the adjacent seas east of
Sebatik, and since the whereabouts of the 4°10’ meridian was neither sus-
ceptible to, nor in need of, demarcation — being entirely an imaginary
line over water — it proves nothing that the 1915 Agreement and map
did not take that area into further account.

35. Something more substantial, as to the Parties’ understanding of
the import of the 1891 Convention, may be gleaned from their respective
practice regarding the granting of oil exploration concessions. Here it is
evident that, in the 1960s, both Malaysia and Indonesia thought that the
4°10’ line extended to sea well east of Sebatik, for both States granted
concessions up to, but not beyond, a point at sea precisely 30” short of
the 4°10’ line. No other reasons have been proffered to explain this hap-
penstance and, in their absence, the coincidence is highly suggestive. This
Court has held that, while oil concessions cannot shift existing delimita-
tions, “the existence of an express or tacit agreement between the parties
on the siting of their respective oil concessions may indicate a consensus
on the maritime areas to which they are entitled” (Land and Maritime
Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equa-
torial Guinea intervening), Judgment, I.C.J. Reports 2002, p. 448,
para. 304). In the present instance, the behaviour of the Parties may well
confirm their identical] belief as to the vigour of the 4° 10’ line in the area
east of Sebatik, a belief inconsistent with a Malaysian claim to the
two disputed islands. The case concerning the Continental Shelf (Tuni-
sialLibyan Arab Jamahiriya) similarly recognized the value of compat-
ible concessions granted by disputants as evidence of their de facto agree-
ment (Judgment, I.C.J. Reports 1982, p. 84, para. 117). It is a deduction
that might well have found resonance in this decision.

8. THE PRESUMPTION OF THE CONCLUSIVENESS AND COMPLETENESS
OF DEFINED FRONTIERS

36. Still, the words of the 1891 Convention and the sparse evidence of
the parties’ object and purpose in entering into the treaty do not make

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absolutely clear that the 4°10’ line was, or was not, intended to extend
beyond Sebatik as far east as Ligitan and Sipadan. What does emerge
with some clarity is that the Netherlands entered the agreement in the
belief that the 4°10’ line extended east of Sebatik and that, early in the
run-up to the negotiations leading to the Convention, the British also
thought that the designated eastward line could extend east of Borneo
beyond Sebatik.

37. We do not know, however, how far-east the parties may have
expected the line to extend. A probable explanation for the failure of
either party to specify a terminal point for the 4° 10’ line is that they may
have been uncertain as to where the effect of such a line would begin to
trench upon Spanish (or Sulu) titles. While the Netherlands sovereignty
clearly extended for many hundreds of miles southward of any desig-
nated eastward limit, the extent of British possessions northward of such
a terminal point would have been far from clear in 1891. It may thus
have appeared prudent to leave the eastern terminus of the 4°10’ line
indeterminate, since its length need not have affected actual British or
Dutch jurisdiction but might unnecessarily have aroused Spanish (or
Sulu) concerns. This, too, of course is pure speculation. Once again, all
that we know for sure is that the Netherlands thought that the 1891 Con-
vention established a line at 4°10’ that did continue east of Sebatik and
that the British knew of this and voiced no objection.

38. With so much being uncertain, this Court essentially had two
divergent paths along which it could have proceeded. It could either have
left the disposition of the matter to be settled by a weighing up of the few
real effectivités claimed to have been conducted by each Party, or it could
have enunciated a legal presumption by which to dispel the uncertainty
created by the examination of the words, purpose and context of the
1891 Convention. It chose the former course, whereas I prefer the latter.

39. On its chosen path, the Court relies substantially on a weighing of
the Parties’ contending factual evidence of effectivités. As to this I can
but observe once again that I find it unpersuasive: this weighing of a
handful of feathers against a handful of grass. Moreover, the admissi-
bility in evidence of these effectivités is contingent upon an absence of any
legal title derived from a treaty. This was the conclusion of the Chamber
of this Court in the Frontier Dispute (Burkina FasolRepublic of Mali)
case (Judgment, L C.J. Reports 1986, pp. 586-587, para. 63). Effectivités,
also in the present case, are of use only on the assumption of an absence
of legal title.

40. If the 1891 Convention did confer legal title on one of the Parties,
effectivités cannot override that title, absent evidence of its abandonment
(Sovereignty over Certain Frontier Land (Belgium/Netherlands), Judg-
ment, I.C.J. Reports 1959, pp. 227-230). But does the 1891 Convention

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establish such title? We have already observed the ambiguities inherent in
the text. What seems to me to have been demonstrated is that the treaty
established a line, that the Dutch believed it to have continued eastward
of the island of Sebatik, and that the British did not rebut that belief. The
Test is speculation.

41. Did it extend so far eastward — at least to 119° east longitude —
as to allocate to the Netherlands the title to two tiny islands lying just to
the south of the 4°10’ latitude? The ambiguities cannot be dispelled by
grasping at the straws of even more ephemeral facts. The 1915 map could
prove something but it could just as well prove nothing, given the limited
mandate of the Commission which drew it. Other “facts” are equally
open to opposing interpretations. Instead of focusing on these, the
Court could — and in my opinion should — have endorsed an interpre-
tative or adjectival principle of evidentiary law: the presumption first
stated by the Permanent Court of International Justice in its 1925 Advi-
sory Opinion on Interpretation of Article 3, Paragraph 2, of the Treaty of
Lausanne:

“It is... natural that any article designed to fix a frontier should,
if possible, be so interpreted that the result of the application of its
provisions in their entirety should be the establishment of a precise,
complete and definitive frontier.” (1925, P.C.I.J., Series B, No. 12,
p. 20.)

As has been noted, Article FV of the 1891 Convention was “designed to
fix a frontier” {ibid.). The Convention certainly may “be so interpreted
that the result of the application of its provisions in their entirety” (ibid. )
conduces to “the establishment of a precise, complete and definitive fron-
tier” (ibid.) across not only Borneo and Sebatik but also the adjacent
spaces that could become /oci of disputation. Why, then, not do so? This
Court should have adopted the beneficial presumption that, absent strong
evidence to the contrary, a treaty between two States to end territorial
disputes and preclude disputation should be read in the way most likely
to accomplish the presumed objective of obviating all such disputes as
might arise between them.

42. As Judge Shahabuddeen pointed out in his separate opinion in the
Territorial Dispute (Libyan Arab JamahiriyalChad) case, the colonial
boundary treaty considered in that case “must .. . be construed so as to
produce a comprehensive definition of the frontiers” (Judgment, I. C.J.
Reports 1994, p. 44) unless there are “compelling reasons to the con-
trary” (ibid. ). Judge Shahabuddeen appropriately noted that this deduc-
tive evidentiary principle would not apply in “cases in which the adjoin-
ing areas are so extensive as to make it both practical and sensible for
parties to agree a boundary for some particular sector only” (ibid, p. 49).
The “adjoining area” of Ligitan and Sipadan, however, are distinctly not

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“so extensive” as to have made a special agreement pertaining to them a
“practical and sensible” option in 1891. Therefore, the treaty should have
been construed as a comprehensive definition of the frontiers.

43. In the present case, this Court might have built on the Lausanne
and Preah Vihear precedents to confirm the legal presumption in favour
of the dispositiveness of frontiers defined in a treaty, i.e., that, when a
treaty is made for the purpose of defining a boundary, it should be con-
strued, if possible, to have succeeded in doing so to the full extent of the
interface between the parties, unless there is persuasive evidence that
some areas were meant to be exempt from its allocation. The onus of
proving the intent to create such an exemption, however, should lie with
the party asserting it.

44, Presumptions are necessary and well-established aspects both of
common and civil law and cannot but be a part of the fabric of public
international law. They capture the common experience of persons
everywhere that make inferences an essential part of rational thought
and action. As such, they are often captured in legal maxims recognized
across diverse legal systems (Henri Roland, Laurent Boyer, Adages du
droit francais, 3rd ed., 1992, p. 38; and see examples indexed under the
title “Présomption” at p. 1009.) As Professor Bin Cheng has pointed out:

“Without going so far as to holding them to be true, it is legiti-
mate for a tribunal to presume the truth of certain facts or of a cer-
tain state of affairs, leaving it to the party alleging the contrary to
establish its contention. These presumptions serve as initial premises
of legal reasoning.” (Bin Cheng, General Principles of Law as Applied
by International Courts and Tribunals, 1987, p. 304.)

“In general, it may be said that what is normal, customary or the
more probable is presumed, and that anything to the contrary has to
be proved by the party alleging it.” (Jbid., p. 306).

The same point, citing various instances, is made by Professor Thirlway:

“presumptions can and do play an important part in directing the
reasoning of a tribunal . . . in the delicate operation of ascertainment
of the intention of one or more States .. . This results from the fact
that direct circumstantial evidence of an intention may be very hard
to come by, or may in the nature of things not exist.” (H. W. A. Thirl-
way, “Evidence before International Courts and Tribunals”, in Ency-
clopedia of Public International Law, Vol. Two, 1995, p. 303.)

45. In the present case, there is circumstantial evidence that the Parties
thought they were resolving all the territorial problems arising out of
their overlapping imperial claims in the Borneo area. Even were that evi-
dence inconclusive, it is surely sufficient to invoke the rebuttable pre-

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sumption, based on the common sense and experience of diplomacy and
recognized by several international tribunals, to the effect that when
States negotiate a boundary allocating or confirming their respective
areas of sovereignty over territories, these shall be presumed to have
intended to resolve all outstanding and potentially disputatious claims in
the area in question, subject only to convincing evidence to the contrary.

46. If the Court had applied this legal presumption to the Indonesia-
Malaysia dispute, it would have concluded, as I do, that the 1891 Con-
vention intended Ligitan and Sipadan to be Dutch and, now, Indonesian.

47. I respectfully dissent.

(Signed) Thomas FRANCK.

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