COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DES MINQUIERS
ET DES ECREHOUS

(ROYAUME-UNI / FRANCE)
ORDONNANCE DU 26 JUIN 1952

1952

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

THE MINQUIERS
AND ECREHOS CASE

(UNITED KINGDOM / FRANCE)
ORDER OF JUNE 26th, 1952
La présente ordonnance doit étre citée comme suit :

« Affaire des Minquiers et des Écréhous,
Ordonnance du 26 juin 1952: C.I. J. Recueil 1952, p. 25.»

This Order should be cited as follows:

“The Minquiers and Ecrehos case,
Order of June 26th, 1952: I.C.J. Reports 1952, p. 25.”

N° de vente: 88
Sales number

26 JUIN 1952

ORDONNANCE

AFFAIRE DES MINQUIERS ET DES ECREHOUS
(ROYAUME-UNI / FRANCE)

THE MINQUIERS AND ECREHOS CASE
(UNITED KINGDOM / FRANCE)

JUNE 26th, 1952

ORDER
25

INTERNATIONAL COURT OF JUSTICE

YEAR 1952

June 26th, 1952

THE MINQUIERS
AND ECREHOS CASE
(UNITED KINGDOM / FRANCE)

ORDER

The International Court of Justice,
having regard to Article 48 of the Statute of the Court,
having regard to Article 37 of the Rules of Court,

Makes the following Order :

Having regard to the Special Agreement concluded on Decem-
ber 29th, 1950, between the Government of the French Republic
and the Government of the United Kingdom of Great Britain and
Northern Ireland, concerning the Minquiers and Ecrehos case,

Having regard to the Order of January 15th, 1952, fixing the
time-limits for the filing of the Memorial and of the Counter-
Memorial in this case, and reserving the rest of the procedure for
further decision,

Having regard to the Counter-Memorial filed on June 6th, 1952,
that is to say, within the time-limit fixed,

Whereas the Agent for the Government of the United Kingdom
and the Agent for the Government of the French Republic have,
by letters respectively dated June 19th and June 23rd, 1952, made

4

1952
June 26th
General List :
No. 17
ORDER OF 26 VI 52 (MINQUIERS AND ECREHOS) 26

known their desire that the time-limit for the filing of the Reply
should be fixed for October 6th, 1952, and that a period of the
same length should be granted for the filing of the Rejoinder,

Whereas there is no objection to the adoption of the proposals
thus submitted,

THE CouRT

fixes October 6th, 1952, as the time-limit for the filing of the
Reply of the Government of the United Kingdom, and February 6th,
1953, as the time-limit for the filing of the Rejoinder of the Govern-
ment of the French Republic.

Done in French and English, the French text being authoritative,
at the Peace Palace, The Hague, this twenty-sixth day of June,
one thousand nine hundred and fifty-two, in three copies, one of
which will be placed in the archives of the Court and the others
transmitted to the Government of the French Republic and to the
Government of the United Kingdom of Great Britain and Northern
Ireland, respectively.

(Signed) J. G. GUERRERO,
Vice-President.

(Signed) E. HAMBRO,
Registrar.


                              COUR INTERNATIONALE DE JUSTICE

                                 RECUEIL DES ARRÊTS,
                          AVIS CONSULTATIFS ET ORDONNANCES

                           VIOLATIONS ALLÉGUÉES
                      DU TRAITÉ D’AMITIÉ, DE COMMERCE
                      ET DE DROITS CONSULAIRES DE 1955
                       (RÉPUBLIQUE ISLAMIQUE D’IRAN c. ÉTATS-UNIS
                                      D’AMÉRIQUE)

                             ORDONNANCE DU 21 JUILLET 2021

                                     2021
                              INTERNATIONAL COURT OF JUSTICE

                               REPORTS OF JUDGMENTS,
                            ADVISORY OPINIONS AND ORDERS

                              ALLEGED VIOLATIONS
                    OF THE 1955 TREATY OF AMITY, ECONOMIC
                       RELATIONS, AND CONSULAR RIGHTS
                       (ISLAMIC REPUBLIC OF IRAN v. UNITED STATES
                                     OF AMERICA)

                                 ORDER OF 21 JULY 2021

3 Ord_1225.indb 1                                                   2/08/22 13:36

                                               Mode officiel de citation :
                                 Violations alléguées du traité d’amitié, de commerce
                     et de droits consulaires de 1955 (République islamique d’Iran c. Etats-Unis
                                     d’Amérique), ordonnance du 21 juillet 2021,
                                              C.I.J. Recueil 2021, p. 199

                                                   Official citation:
                        Alleged Violations of the 1955 Treaty of Amity, Economic Relations,
                           and Consular Rights (Islamic Republic of Iran v. United States
                                        of America), Order of 21 July 2021,
                                             I.C.J. Reports 2021, p. 199

                                                                                1225
                                                                     No de vente
                    ISSN 0074-4441                                   Sales number:
                    ISBN 978-92-1-003887-4

                                      © 2022 CIJ/ICJ, Nations Unies/United Nations
                                          Tous droits réservés/All rights reserved

                                          Imprimé en France/Printed in France

3 Ord_1225.indb 2                                                                                2/08/22 13:36

                                                      21 JUILLET 2021

                                                      ORDONNANCE

                             VIOLATIONS ALLÉGUÉES
                        DU TRAITÉ D’AMITIÉ, DE COMMERCE
                        ET DE DROITS CONSULAIRES DE 1955
                    (RÉPUBLIQUE ISLAMIQUE D’IRAN c. ÉTATS-UNIS
                                   D’AMÉRIQUE)

                               ALLEGED VIOLATIONS
                     OF THE 1955 TREATY OF AMITY, ECONOMIC
                        RELATIONS, AND CONSULAR RIGHTS
                    (ISLAMIC REPUBLIC OF IRAN v. UNITED STATES
                                  OF AMERICA)

                                                       21 JULY 2021

                                                         ORDER

3 Ord_1225.indb 3                                                       2/08/22 13:36

                                                                                199

                                INTERNATIONAL COURT OF JUSTICE

                                                 YEAR 2021
                                                                                2021
                                                                                21 July
                                                21 July 2021                                  General List
                                                                                No. 175

                              ALLEGED VIOLATIONS
                    OF THE 1955 TREATY OF AMITY, ECONOMIC
                       RELATIONS, AND CONSULAR RIGHTS
                          (ISLAMIC REPUBLIC OF IRAN v. UNITED STATES
                                        OF AMERICA)

                                                  ORDER

                Present: Vice‑President Gevorgian, Acting President; Judges Tomka,
                         Abraham, Bennouna, Cançado Trindade, Yusuf, Xue,
                         Sebutinde, Bhandari, Robinson, Salam, Iwasawa, Nolte;
                         Judges ad hoc Brower, Momtaz; Registrar Gautier.

                     The International Court of Justice,
                   Composed as above,
                   After deliberation,
                   Having regard to Article 48 of the Statute of the Court and to Arti-
                cle 44, paragraph 3, of the Rules of Court,
                   Having regard to the Order dated 3 February 2021, whereby the Court
                fixed 20 September 2021 as the time‑limit for the filing of the Counter‑
                Memorial of the United States of America;
                   Whereas, by a letter dated 9 June 2021, the Agent of the United States
                of America requested the Court to extend to 21 December 2021 the
                time‑limit for the filing of the Counter‑Memorial, explaining that over the
                past three months, the United States of America had been engaged in
                negotiations regarding “the potential for a mutual return to compliance
                by both the United States and Iran with their respective commitments

                                                                                4

3 Ord_1225.indb 5                                                                                2/08/22 13:36

                                 1955 treaty of amity (order 21 VII 21)                   200

                under the Joint Comprehensive Plan of Action”, and that the outcome of
                these negotiations had “direct and substantial bearing” on the content of
                the Counter‑Memorial; whereas, the Agent added that key individuals
                working on the preparation of the Counter‑Memorial had also been
                involved in the negotiations, resulting in practical challenges for the draft-
                ing of the Counter‑Memorial; and whereas, upon receipt of this letter, the
                Registrar transmitted a copy thereof to the Agent of the Islamic Republic
                of Iran, in accordance with Article 44, paragraph 3, of the Rules of Court;
                  Whereas, by a letter dated 22 June 2021, the Co‑Agent of the Islamic
                Republic of Iran expressed the disagreement of his Government with the
                request for an extension of the time‑limit, stating that the outcome of the
                negotiations had no bearing on the current proceedings before the Court
                and noting that the practical challenges referred to by the Agent of the
                United States of America could not be invoked in view of the fact that the
                United States of America had had the Memorial of the Islamic Republic
                of Iran at its disposal for more than two years; and whereas the Co‑Agent
                expressed concern that any extension of the time‑limit would lead to an
                “imbalance between the Parties on the time used for the preparation” of
                their respective written pleadings;

                    Taking into account the views of the Parties,
                 Extends to 22 November 2021 the time‑limit for the filing of the Counter‑
                Memorial of the United States of America; and
                 Reserves the subsequent procedure for further decision.

                  Done in French and in English, the French text being authoritative, at
                the Peace Palace, The Hague, this twenty-first day of July, two thou-
                sand and twenty‑one, in three copies, one of which will be placed in the
                archives of the Court and the others transmitted to the Government of
                the Islamic Republic of Iran and the Government of the United States of
                America, respectively.

                                                              (Signed) Kirill Gevorgian,
                                                                        Vice‑President.
                                                              (Signed) Philippe Gautier,
                                                                           Registrar.

                                                                                5

3 Ord_1225.indb 7                                                                                2/08/22 13:36

                    ISBN 978-92-1-003887-4

3 Ord_1225.indb 8                            2/08/22 13:36


1074

SEPARATE OPINION OF JUDGE KOOIJMANS

Reason for adding separate opinion to joint declaration — Issue of prima
facie jurisdiction in 1999 Orders on provisional measures — Position of Yugo-
Slavia in period 1992-2000 not substantiated in Judgment — Implication for
other pending cases in which Applicant is party — Consistency with earlier case
law ignored by the Court.

Options open to the Court — Dismissal in limine litis — Inconsistency of
Applicant’s behaviour with regard to jurisdictional grounds — Application no
longer meets requirement of Article 38, paragraph 2, of Rules of Court —
Inherent powers of the Court to strike case from General List — Judicial policy
and sound administration of justice.

1. With full conviction, I have subscribed to the joint declaration of
seven members of the Court. I strongly feel that the Court, in the present
Judgment, has failed to meet the criteria for a sound judicial policy, as
spelled out in paragraph 3 of the joint declaration, by basing itself on the
argument that Serbia and Montenegro has no access to the Court, and
that the Court consequently lacks jurisdiction ratione personae.

2. My present point of view may seem slightly surprising to those who
remember the separate opinion I appended to the Court’s Orders of
2 June 1999 on provisional measures in the same cases. There, I said that
the Court’s reasoning in basing itself on prima facie lack of jurisdiction
ratione temporis was flawed from a logical point of view (Legality of Use
of Force (Yugoslavia v. Netherlands), Provisional Measures, I.C.J.
Reports 1999 (I), p. 591, para. 2).

I was of the view that the decisions taken in 1992 by the competent
organs of the United Nations, with regard to the continued membership
of the Federal Republic of Yugoslavia and the events which had taken
place thereafter, had raised serious doubts as to whether the Federal
Republic of Yugoslavia was capable of accepting the compulsory juris-
diction of the Court as a party to the Statute, and that such doubts as a
matter of logic take precedence over other controversies with regard to
the Court’s jurisdiction. I therefore felt that, in respect of its finding that
it had no prima facie jurisdiction, the Court should have based itself on
the argument that the Applicant had doubtful locus standi, and thus that
there was a lack of jurisdiction ratione personae, rather than on the
ground of lack of jurisdiction ratione temporis. (I agreed with the Court’s
finding that with regard to the Genocide Convention it had no prima

67
1075 LEGALITY OF USE OF FORCE (SEP. OP. KOOIJMANS)
facie jurisdiction ratione materiae.)

3. The Court took an approach different to the one I had suggested. It
opted for an approach that, in my view, was defensible and legally sound,
even if I preferred another approach from a logical point of view (para-
graph 30 of my opinion). The approach taken by the Court in 1999 has
now been abandoned in favour of the one suggested by me at the time
(see Judgment, para. 45). Far from being elated by this change of
approach, however, I feel concerned for a number of reasons, which are
mentioned in the joint declaration and elaborated upon in the following
paragraphs.

4. First, in 1999, I certainly did not assume that the issue of the
Court’s jurisdiction ratione personae was an open and shut case. I expli-
citly stated: “[nJot for a moment do I contend that the Court already at
the present stage of the proceedings should have taken a definitive stand
on what I called earlier a thorny question” (Legality of Use of Force
( Yugoslavia v. Netherlands), Provisional Measures, I. C.J. Reports 1999 (I),
p. 596, para. 21). I went on to refer to the dossier on the Federal
Republic of Yugoslavia’s continued membership of the United Nations
as being full of legal complications, and was of the opinion that a
thorough analysis and careful evaluation of the Federal Republic of
Yugoslavia’s status was required at a later stage of the proceedings (ibid,
p. 596, paras. 21 and 22). I am, however, not persuaded by the Court’s
conclusion in the present Judgment that this analysis and evaluation have
convincingly demonstrated that the events of 2000 have “clarified the
thus far amorphous legal situation concerning the status of the Federal
Republic of Yugoslavia vis-à-vis the United Nations” (para. 78).
Although this finding is undoubtedly correct as far as the situation after
the admission of the Federal Republic of Yugoslavia to the United
Nations is concerned (this admission did indeed bring to an end its sui
generis position vis-a-vis the United Nations), the Judgment does not
make clear what the legal effects of this “amorphous” situation were in
the period 1992-2000. The reader is left with the statement — in itself not
uncontroversial — that the sui generis position of the Federal Republic
of Yugoslavia cannot have amounted to its membership in the Organi-
zation (para. 77).

5. The Court’s finding does not seem to be based on a thorough analy-
sis and careful evaluation of, inter alia, the legal effects of the statements
made and positions taken by the Federal Republic of Yugoslavia before
2000, in particular its note of 27 April 1992 to the United Nations, in
which it — admittedly on the presumption of the continuity of the “inter-
national personality of Yugoslavia” — unilaterally committed itself to

68
1076 LEGALITY OF USE OF FORCE (SEP. OP. KOOIJMANS)

fulfil all the rights conferred on, and obligations assumed by, the Socialist
Federal Republic of Yugoslavia in its international relations, including
its membership in all international organizations and participation in
international treaties ratified or acceded to by Yugoslavia. Have these
commitments become meaningless (at least partially), merely as a result
of its admission to the United Nations as a new Member and the nega-
tion of the presumption of continuity implicit therein; and if so, on what
grounds? Have the “thick clouds which have packed around Yugosla-
via’s membership in the United Nations” (an expression I used in my
1999 opinion, para. 27) been fully dissipated by the Federal Republic of
Yugoslavia’s belated decision to act as a successor State to the Socialist
Federal Republic of Yugoslavia, leaving it in a legal vacuum for the
period 1992-2000 as far as its relationship vis-a-vis the United Nations
and thus its participation in certain treaties — in particular the Genocide
Convention — is concerned? In this respect, the Judgment does not give
the reader much by way of clarification.

6. Second, as regards the potential impact of the 1999 Orders on other
cases before the Court, in particular the 1993 case concerning the Appli-
cation of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), it
deserves mention that in 1999 both the Applicant and the Respondents
(with the possible exception of Portugal) considered themselves to be
party to the Genocide Convention, which had been found by the Court in
1996 to be the only basis of jurisdiction in the Genocide Convention case.
An impact of the orders on provisional measures in the instant cases on
the Genocide Convention case was therefore not foreseeable and — to say
the least — not very probable.

7. All this changed, however, when in 2000 a new Government came
into power in Belgrade. This Government no longer considered the Fed-
eral Republic of Yugoslavia to be the continuation of the former Socialist
Federal Republic of Yugoslavia, and it decided to apply for membership
of the United Nations as a successor State. Moreover, it was of the view
that the Federal Republic of Yugoslavia, at the time of its inception in
1992, had not been a party to the Genocide Convention, but only became
a party after its accession to the Convention on 6 March 2001.

8. These new perceptions in Belgrade led the Government to submit
an Application to the Court containing a Request for Revision of the
1996 Judgment on preliminary objections in the Genocide Convention

69
1077 LEGALITY OF USE OF FORCE (SEP. OP. KOOIJMANS)

case on the basis of the “newly discovered facts” mentioned in the
previous paragraph.

The Court gave its decision rejecting the Federal Republic of Yugosla-
via’s Application for Revision in a Judgment dated 3 February 2003, in
which I did not participate. As recalled in paragraph 10 of the joint dec-
laration, the Court found that “resolution 47/1 did not inter alia affect
the Federal Republic of Yugoslavia’s right to appear before the Court...
under the conditions laid down by the Statute”, and that the Federal
Republic of Yugoslavia’s sui generis position vis-a-vis the United Nations
during the period 1992-2000 cannot have been changed retroactively by
its admission to the United Nations in 2000 (Application for Revision of
the Judgment of 11 July 1996 in the Case concerning Application of the
Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections ( Yugo-
Slavia v. Bosnia and Herzegovina}, I.C.J. Reports 2003, p. 31, paras. 70
and 71).

9. The arguments made by Serbia and Montenegro in the Application
for Revision case and in the present cases are virtually identical, and thus
establish a close link between the Genocide Convention case and the
present cases. Such a link did not exist in previous phases of the proceed-
ings in these cases. It is, therefore, all the more remarkable that, in spite
of the fact that this link is now undeniable, the Court, in its present Judg-
ment, has chosen an approach which is not in line with the approach
taken in 1999 and 2003 and which inevitably has implications for the
Genocide Convention case.

The Court’s statement that it “cannot decline to entertain a case
simply . . . because its judgment may have implications in another case”
(Judgment, para. 39) may be correct in general terms, but must be
deemed to lack the prudence and care which are called for in situations
where a variety of options exists.

10. Third, the decisions taken by the Court in the 1999 Orders on pro-
visional measures and in the 2003 Judgment in the Application for Revi-
sion case and its reasoning therein are part of the Court’s case law. As we
say in the joint declaration: “[cJonsistency is the essence of legal reason-
ing”. In my view, this consistency in reasoning in the Court’s case law is
of paramount importance and dwarfs any misgivings I personally may
have or may have had with regard to each and every argument used, as
long as I do not consider them legally untenable.

11. Although I do not consider the Court’s reasoning in the instant
cases legally untenable, I have, in some respects, serious doubts as to its
correctness; moreover, I find it judicially unsound for the reasons given
in the joint declaration and in the preceding paragraphs. What seemed to
me to be a logical ground for determining lack of prima facie jurisdiction

70
1078 LEGALITY OF USE OF FORCE (SEP. OP. KOOIJMANS)

does not automatically qualify as a proper ground for the definitive deter-
mination of the issue of jurisdiction.

« Ÿ +

12. The views expressed in my separate opinion appended to the 1999
Orders on provisional measures and my perception of them in the light of
today’s circumstances are, however, not the only reason why I deemed it
necessary to add a separate opinion to the joint declaration. I also wish
to indicate which of the options open to the Court and referred to in
paragraph 2 of the joint declaration would, in my view, have been the
better one.

13. These options were three in number. The first is the one chosen by
the Court in its Judgment and is based on its jurisdictional considerations
ratione personae. The second is the approach followed by the Court in
1999, which was founded on a lack of prima facie jurisdiction ratione
temporis and ratione materiae.

The third option would have been dismissal of the case in limine litis.
This option is explicitly rejected in the Judgment, but it would have
been my preference. I therefore find it useful to set out my views; they
are not necessarily shared by other colleagues who have signed the joint
declaration and who might have chosen the second option, which is
also plausible and conceivable for good reasons but with regard to
which the Court has not explicitly expressed itself.

14. The option of dismissal in limine litis logically precedes the other
two and it is therefore with good reason that the Court has dealt with it
first. Similarly, the relevant question has correctly been defined as

“whether in the light of the assertions by the Applicant . . . coupled
with the contentions of each of the respondent States, the Court
should take a decision to dismiss the case in limine litis, without
further entering into the examination of the question whether
the Court has jurisdiction under the circumstances” (Judgment,
para. 29).

15. I do not intend to deal with all the arguments given by the Court
in the relevant part of the Judgment (paras. 27-43), which contain mainly
a reply to the contentions of the Respondents. In a number of respects, I
agree with what is said by the Court; that is true particularly when it
states: “in certain circumstances the Court may of its own motion put an
end to proceedings in a case” (para. 32). I am, however, of the view that
the Court has refrained from exercising this proprio motu competence in
a well-considered way, and regrettably has confined itself first and fore-
most to responding to the arguments of the Parties in order to ultimately

71
1079 LEGALITY OF USE OF FORCE (SEP. OP. KOOIJMANS)

conclude that “[flor all these reasons, [it] cannot remove the cases...
from the [General] List, or take any decision putting an end to those
cases in limine litis” (para. 43). Though the Court explicitly stated that,
apart from the arguments of the Parties, it would also consider “any
other legal issue which it deems relevant” (para. 26), there is hardly any
evidence that it has done so. In the following, I will try to demonstrate
that such an approach would nevertheless have been the most appro-
priate one.

16. In its final submissions, Serbia and Montenegro asked the Court to
“adjudge and declare on its jurisdiction ratione personae in the present
cases” (CR 2004/23, p. 38). Such a request is highly unusual. Normally,
the applicant asks the Court to find that it has jurisdiction, not whether it
has jurisdiction.

17. The first time that Serbia and Montenegro asked the Court to
decide on its jurisdiction was when it submitted its Written Observations
on the preliminary objections of the Respondents on 20 December 2002.
In its Observations, Serbia and Montenegro summarily stated that, at the
time of the filing of its Applications in 1999, it had neither been a party to
the Statute nor to the Genocide Convention, thereby implying that the
Court could not base its jurisdiction on either Article 36, paragraph 2, of
the Statute or Article IX of the Genocide Convention, which were the
bases of jurisdiction it had invoked in its 1999 Applications.

18. Serbia and Montenegro explicitly stated in a letter to the Court,
dated 28 February 2003, that its Written Observations did not represent
a notice of discontinuance, and reiterated its request to decide on the
Court’s jurisdiction “considering the pleadings formulated in the Written
Observations”. What is striking — although perhaps not surprising in
view of the litigation tactics of Serbia and Montenegro with regard to the
various cases before the Court in which it is a party, as either applicant or
respondent — is that these Observations did not in any way refer to an
alternative basis of jurisdiction replacing the ones presented in 1999 but
no longer maintained by the Applicant.

19. It was only during the oral pleadings that the Applicant raised the
“key question” whether the sui generis position vis-a-vis the United
Nations (mentioned by the Court in the Judgment in the Application for
Revision case of 3 February 2003 and thus three weeks before the sending
of the letter to the Court) could have provided the link between the new
State and international treaties, in particular the Statute of the Court and
the Genocide Convention. In this respect, it is noteworthy that the Agent
for Serbia and Montenegro did not give any suggestion as to how this
could have happened. He merely stated that the question required a
definitive answer and that only a decision of the Court could bring
clarity. “A judgment on jurisdiction based on the elucidation of the
position of the Federal Republic of Yugoslavia between 1992 and 2000
could create an anchor point of orientation.” (CR 2004/14, pp. 26-27,

72
1080 LEGALITY OF USE OF FORCE (SEP. OP. KOOIJMANS)
paras. 63-64; emphasis added.)

20. Article 38, paragraph 2, of the Rules of Court states, inter alia,
that “[t]he application shall specify as far as possible the legal grounds
upon which the jurisdiction of the Court is said to be based” (emphasis
added). The Applications of 29 April 1999 met this requirement by
explicitly mentioning Article 36, paragraph 2, of the Statute and
Article IX of the Genocide Convention (supplemented in the cases
against Belgium and the Netherlands by letter of 12 May 1999, referring
to compromissory clauses in two bilateral conventions of 1930 and
1931 respectively).

In its Written Observations, filed on 20 December 2002, the Applicant
abandoned these jurisdictional grounds as being pertinent at the date the
Applications were filed without replacing them by another basis for the
Court’s jurisdiction (the Observations were silent as regards the two
bilateral treaties).

21. Therefore, Serbia and Montenegro’s Applications, as supplemented
by its Written Observations of 20 December 2002, no longer meet the
first requirement of Article 38, paragraph 2, of the Rules of Court. That
fact in itself, however, does not provide the Court with a ground to
remove the cases from the List. The provision that the Application shall
specify the legal grounds of jurisdiction was included in 1936; in order to
distinguish the requirements of paragraph 2 from those of paragraph 1,
which were prescribed by the Statute itself, the words “as far as possible”
were used (see G. Guyomar, Commentaire du Réglement de la Cour
internationale de Justice, 1983, pp. 234 et seq.). In contrast to the require-
ments of paragraph 1, non-compliance with those of paragraph 2 does
not lead eo ipso to non-admissibility. These requirements “were imposed
on the Parties by the Court simply because they were helpful to it, but
represented a mere recommendation” (ibid., p. 235 {translation by the
Registry ]). Likewise, Rosenne is of the view that “an application will not
be rejected in limine only because such specification [of the jurisdictional
grounds] is omitted” (The Law and Practice of the International Court
1920-1996, 1997, p. 705).

22. Serbia and Montenegro’s contention that only discontinuance in
conformity with Articles 88 and 89 of the Rules of Court may yield a
removal of a case from the List without a judgment on jurisdiction or on
the merits (CR 2004/14, p. 18, para. 29) is, however, not correct. The fact
that the Rules only speak of removing a case from the List by unilateral
action of the applicant (Art. 89) or joint action by the parties (Art. 88)
cannot deprive the Court of its inherent power, as master of its own pro-
cedure, to strike proprio motu a case from the List. This is also recog-
nized by Rosenne who, in this respect, refers to the general powers of the
Court under Articles 36 and 48 of the Statute (op. cit., p. 1478). This

73
1081 LEGALITY OF USE OF FORCE (SEP. OP. KOOIJMANS)

power is not related to the intention of the parties but to the judicial task
of the Court. This is borne out by the Court’s reasoning in the Orders in
the cases brought by the Federal Republic of Yugoslavia against Spain
and the United States of America, where it said that

“within a system of consensual jurisdiction, to maintain on the
General List a case upon which it appears certain that the Court
will not be able to adjudicate on the merits would most assuredly
not contribute to the sound administration of justice” (Legality of
Use of Force ( Yugoslavia v. Spain), Provisional Measures, I.C.J.
Reports 1999 (II), p. 773, para. 35; emphasis added).

Such power has to be used sparingly and only as an instrument of judicial
policy to safeguard the integrity of the Court’s procedure. The present
cases, however, are without precedent and can truly be called excep-
tional.

23. The Court was, in my opinion, perfectly entitled to issue such an
order in the instant cases on the basis of the fact that the Applicant has
not provided the Court with any plausible information as to the basis of
its jurisdiction. It is not for the Court to ascertain in the preliminary
phase of a case whether it has jurisdiction if the applicant fails to sub-
stantiate in any persuasive manner what the basis for that jurisdiction
could be, and after it has explicitly admitted that the initial grounds it
invoked are no longer valid. Nor is it the Court’s task to provide a party,
which asks for the elucidation of an observation made by the Court in a
judgment in another case to which it was also a party, with “an anchor
point of orientation”, as this would be tantamount to rendering an advi-
sory opinion or giving an interpretation of a judgment in circumstances
and under conditions not warranted by the Statute.

24. It is incompatible with the respect due to the Court for a party not
to provide it with any substantive argument for the speculation that it
might have jurisdiction while explicitly withdrawing the previously
adduced jurisdictional grounds. It is not in conformity with judicial pro-
priety and a sound judicial policy to render a fully reasoned judgment on
jurisdiction when the Applicant bases its request to do so on grounds
which can only be called inadequate. The Applicant can, therefore, be
held to its statement that there are no recognized or generally accepted
grounds of jurisdiction.

25. In the second round of the oral pleadings, the Agent for France
stated that

“the party against whom the application is brought is not required
to prove that there is no basis for jurisdiction, which would require
it — and it would be absurd to ask this of it — as a matter of course
to examine all possible bases” (CR 2004/21, p. 13, para. 22).

74
1082 LEGALITY OF USE OF FORCE (SEP. OP. KOOIJMANS)

What is true for the Respondent is also true for the Court and even more
so. The fact that the Court has the duty under certain circumstances to
ascertain proprio motu that it has jurisdiction cannot, by a contrario
reasoning, be turned into an obligation to explore grounds for its juris-
diction which have not been invoked by the Applicant. As Rosenne
states:

“There can be no doubt that the choice of a title of jurisdiction is
as much a political act as a decision to institute proceedings, and the
Court is following its usual attitude when faced with political ques-
tions of that character not to substitute itself for the party con-
cerned. It is for this reason that a principle such as curia jura novit
cannot appropriately be applied by the Court proprio motu to sub-
stitute a title of jurisdiction which has not been invoked for
another .. .” (Op. cit., p. 956.)

Neither does the Court have to rule on a title of jurisdiction which has
not been claimed.

26. In view of the fact that the Applicant has failed to demonstrate,
and has not even made an effort to demonstrate, that the Court has juris-
diction, I am of the opinion that the Court should have decided in limine
litis to remove the eight cases from the General List.

(Signed) Pieter H. KOOIMANS.

75


518

SEPARATE OPINION OF VICE-PRESIDENT SHI

Operative paragraph 128 (3) of the Judgment — Whether Article 36, para-
graph I (b), of the Vienna Convention creates individual rights — The Court's
interpretation of the subparagraph — Clarity of text and “rules of interpreta-
tion” — Text of Article 36, paragraph I (b), in the context and in light of the
object and purpose of the Convention — Travaux préparatoires of Article 36,
paragraph 1 (b) — The Court's interpretation of Article 36, paragraph 2 —
Explanation of my vote on operative paragraph 128 (7) of the Judgment.

1. It was with a certain reluctance that I voted in favour of operative
paragraph 128 (3) and (4) of the Court’s Judgment. The main reason for
this is my belief that the Court’s findings in these two paragraphs were
based on a debatable interpretation of Article 36 of the Vienna Conven-
tion on Consular Relations (hereinafter called “the Convention”).

2. In operative paragraph 128 (3), the Court finds that

“by not informing Karl and Walter LaGrand without delay follow-
ing their arrest of their rights under Article 36, paragraph | (5), of
the Convention, and by thereby depriving the Federal Republic
of Germany of the possibility, in a timely fashion, to render the
assistance provided for by the Convention to the individuals con-
cerned, the United States of America violated its obligations to the
Federal Republic of Germany and to the LaGrand brothers under
Article 36, paragraph 1”.

I fully agree with the Court that the United States violated its obli-
gations to Germany under Article 36, paragraph 1, of the Convention.
However, I have doubts as to the Court’s finding that the United States
also violated its obligations to the LaGrand brothers. The Court’s deci-
sion is a consequence of its interpretation of Article 36, paragraph 1,
in particular subparagraph (6), of the Convention, regarding the differ-
ences between the Applicant and the Respondent as to whether that sub-
paragraph creates individual rights in addition to the rights appertaining
to the States parties.

Germany claimed that:

“the right to be informed upon arrest of the rights under
Art. 36 (1) (6) of the Vienna Convention does not only reflect a
right of the sending State (and home State of the individuals
involved) towards the receiving State but also is an individual right
of every national of a foreign State party to the Vienna Convention

56
519 LAGRAND (SEP. OP. SHI)

entering the territory of another State party” (Memorial of Germany,
Vol. I, p. 116, para. 4.91).

Whereas the United States contended that

“rights of consular notification and access under the Vienna Con-
vention in any event are rights of States, not individuals. Clearly
they can benefit individuals by permitting — not requiring — States
to offer them consular assistance, but the Convention’s role is not to
articulate or confer individual rights” (Counter-Memorial of the
United States, p. 81, para. 97).

3. In paragraph 77 of the Judgment, the Court, basing its interpreta-
tion of the subparagraph on the clarity of meaning of the text of the pro-
vision read in context, upheld that claim by Germany. [ can readily
accept this finding of the Court only if its interpretation of Article 36,
paragraph 1 (b), is appropriate in the present case. Undoubtedly, the
Court’s interpretation is consistent with the well-known jurisprudence of
this Court and of its predecessor that, if the relevant words in their natu-
ral and ordinary meaning make sense in their context, that is the end of
the matter and there is no need to resort to other methods of interpreta-
tion (Competence of the General Assembly for the Admission of a State to
the United Nations, Advisory Opinion, LC.J. Reports 1950, p. 8). How-
ever, in my view, indiscriminate reliance on such a dictum in any circum-
stances may not always be dependable or helpful in determining the true
intention of the parties to a treaty. It can happen that for one reason or
another — e.g., hasty or careless drafting, last-minute compromise in
negotiations — the meaning clearly apparent from the text does not
necessarily reflect that which the parties intended it to bear. Recourse to
customary rules of interpretation as reflected in Article 31 of the Vienna
Convention on the Law of Treaties may seem superfluous when the nor-
mal meaning of the text appears to be clear, but it does serve as a double
check to prevent any possibility of misinterpretation. In fact, in the
case concerning the Arbitral Award of 31 July 1989 (Guinea Bissau v.
Senegal) the Court, while affirming its dictum in its Advisory Opinion
referred to above, stated that the rule of interpretation according to the
natural and ordinary meaning of the words employed is not an absolute
one and referred to a pronouncement in the case concerning South West
Africa as follows:

“Where such a method of interpretation results in a meaning
incompatible with the spirit, purpose and context of the clause
or instrument in which the words are contained, no reliance can be
validly placed on it.” (Preliminary Objections, Judgment, 1 CJ.
Reports 1962, p. 336).

57
520 LAGRAND (SEP. OP. SHI)

It may also be relevant to quote the following passage from
Oppenheim’s International Law (9th ed., 1992, Vol. I, p. 1267):

“The purpose of interpreting a treaty is to establish the meaning
of the text which the parties must be taken to have intended it to
bear in relation to the circumstances with reference to which the
question of interpretation has arisen. It is frequently stated that if
the meaning of a treaty is sufficiently clear from its text, there is no
occasion to resort to ‘rules of interpretation’ in order to elucidate the
meaning. Such a proposition is, however, of limited usefulness. The
finding whether a treaty is clear or not is not the starting point but
the result of the process of interpretation. It is not clarity in the
abstract which is to be ascertained, but clarity in relation to particu-
lar circumstances and there are few treaty provisions for which cir-
cumstances cannot be envisaged in which their clarity could be put
in question.”

4. In the present case, both the Applicant and the Respondent had no
divergence of views as to the normal meaning of the words of Article 36,
paragraph | (5). However, the Parties reached differing conclusions on
the interpretation of the subparagraph. In these circumstances I wonder
whether it is proper for the Court, in approaching the issue, to place so
much emphasis on the purported clarity of language of the provision,
putting aside altogether the customary rules of interpretation. In my view
it is not unreasonable for the United States to contend that the rights of
nationals of the sending State under detention or arrest to consular noti-
fication and access under paragraph | (5) are not independent of, but
rather are derived from, the right of the State party to protect and assist
its nationals under the Convention, if the subparagraph is read, as the
United States reads it, in context and in the light of the object and pur-
pose of the Convention.

5. In the first place, the very title of the Convention is none other than
the “Vienna Convention on Consular Relations”. And the object and
purpose of the conclusion of an international convention on consular
relations as indicated in the preamble is to “contribute to the develop-
ment of friendly relations among nations”. Nowhere in the Preamble of
the Convention is reference made to the creation of rights of individuals
under the Convention.

6. Secondly, Article 36, which bears the title “Communications and
contact with nationals of the sending State”, begins with the words:
“With a view to facilitating the exercise of consular functions relating to
nationals of the sending State”. This clause serves as the chapeau govern-
ing all the paragraphs of the Article, including paragraph 1 (6), where
“rights” of the concerned nationals of the sending State are provided.
Clearly, the effect of this clause is to limit the scope of Article 36 to facili-
tation of the exercise of consular functions relating to nationals of the
sending State. It is unfortunate that paragraph 77 of the Judgment made

58
$21 LAGRAND (SEP. OP. SHI)

no mention of the chapeau of the Article, as if it were irrelevant to the
context of paragraph | (6).

7. Thirdly, according to Article 5 of the Convention, consular func-
tions consist inter alia in “protecting in the receiving State the interests of
the sending State and of its nationals, both individuals and bodies cor-
porate, within the limits permitted by international law” (Art. 5 {a)) and
“helping and assisting nationals, both individuals and bodies corporate,
of the sending State” (Art. 5 (e)). Article 36, paragraph 1, and specifi-
cally subparagraph (b}, has to be read in the context of these consular
functions provided for in Article 5. It is obvious that there cannot be
rights to consular notification and access if consular relations do not exist
between the States concerned, or if rights of the sending State to protect
and assist its nationals do not exist.

8. Finally, it is clear, as the United States has contended, that the
travaux préparatoires of the 1963 Vienna Conference on Consular Rela-
tions do not confirm that Article 36, paragraph | {b), is intended to cre-
ate individual rights (Counter-Memorial of the United States, pp. 82-84,
paras. 99-100). Indeed, during the negotiating sessions of Article 36,
the delegation of Venezuela objected to the opening statement of para-
graph 1 (a) of the International Law Commission draft, concerning the
right of nationals of the sending State to communicate with and to have
access to the competent consulate, contending that it was inappropriate
in a convention on consular relations, and that “foreign nationals in the
receiving State should be under the jurisdiction of that State and should
not come within the scope of a convention on consular relations” (United
Nations Conference on Consular Relations, 1963, Vol. I, p. 331, para. 32).
In the end, on the motion of Venezuela, Ecuador, Spain, Chile and Italy,
the Second Committee of the Conference decided to reverse the original
order of Article 36, paragraph | (a), of the International Law Commis-
sion draft, so that the subparagraph refers first to the right of consular
officers to communicate with and to have access to nationals of the send-
ing State, and secondly to the right of nationals of the sending State to
have the same freedom with respect to communication with and access to
consular officers of the sending State (ibid., p. 334, para. 2, and p. 336,
para. 22).

9. This reversal of order in Article 36, paragraph 1 (a), confirms the
interpretation of that subparagraph in the context and in the light of the
object and purpose of the Convention. Thus, there are good grounds for
the contention by the United States in its Counter-Memorial that

“That reversal underscores the fundamental point, that the posi-
tion of the individual under the Convention derives from the right of
the State party to the Convention, acting through its consular officer,
to communicate with its nationals. The treatment due to individuals

59
522 LAGRAND (SEP. OP. SHI)

is inextricably linked to and derived from the right of the State.”
(Counter-Memorial of the United States, p. 84, para. 100.)

10. Furthermore, the original International Law Commission draft
Article 36, paragraph 1 (6), makes mandatory the obligation of the
receiving State to inform the competent consulate of the sending State in
case of detention of a national of that State. It reads:

“(b} The competent authorities shall, without undue delay,
inform the competent consulate of the sending State, if within its dis-
trict, a national of that State is committed to prison or to custody
pending trial or is detained in any other manner. Any communica-
tions addressed to the consulate by the person in prison, custody or
detention shall also be forwarded by the said authorities without
undue delay.” (Yearbook of the International Law Commission,
1961, Vol. II, p. 112.)

11. During the negotiating sessions of the Vienna Conference, a
number of delegations stressed the importance of the draft subparagraph.
Thus, the delegation of Tunisia stated that it

“regarded paragraph 1 /b) as one of the most important in the
draft. It was related to article 5 (Consular functions), . . . Detention
(and he agreed with the French representative that arrest should also
be included) was a serious infringement of the freedom and dignity
of the individual. It was therefore unthinkable that the consul of the
sending State should not be notified, and the obligation of the
receiving State to notify him should be firmly established, for it was
possible that in certain circumstances the foreign national might be
unable to inform the consul and ask him for help and protection.”
(United Nations Conference on Consular Relations, 1963, Vol. I,
p. 339.)

The delegation of the United Kingdom also stated that

“The rights of communication and contact with the nationals of
sending States defined in article 36 were especially important for the
persons under detention referred to in sub-paragraph (6). Such per-
sons were obviously in very special need of consular help and the
notification stipulated in sub-paragraph (b) was in many cases a
necessary condition for providing it.” (/hid. )

12. However, during the negotiating sessions, this draft provision
mainly aroused two different reactions. Quite a number of States, though
in agreement with the formulation of the principle in the draft, were
much concerned about the heavy burden that the mandatory consular
notification would impose on the receiving State, particularly on those
States on whose territories there are a sizeable number of resident aliens

60
523 LAGRAND (SEP. OP. SHI)

and foreign tourists or other short-term visitors. There were also some
delegations, at least partly motivated by the then Cold War mentality,
who would have liked the subparagraph to reflect the free will of the
detained or arrested person to state whether or not he or she wished to be
approached by consular officials of his or her country.

13. In these circumstances, a seventeen-States amendment to para-
graph | (6) was put forward before the Conference. The delegation of
Tunisia, representing the sponsors of the amendment, stated that

“As far as sub-paragraph (b) was concerned, the sponsors had
introduced the initial proviso ‘unless he expressly opposes it’, thereby
relieving the receiving State of the automatic duty to inform the con-
sul of the arrest of the person concerned. The reason for that proviso
was the need to take into consideration the prisoner’s own freedom
of choice. It had been argued that in some cases a prisoner might not
wish the consul to know that he had been in prison. The sponsors
had hesitated at first; they had, however, ultimately agreed to take
that point into account, but with appropriate safeguards. It was for
that reason that the proviso was so drafted that the duty to notify
would exist unless the person concerned explicitly stated that he did
not wish the consul to be advised.” (United Nations Conference on
Consular Relations, 1963, Vol. I, p. 82, para. 56.)

14. In response to this proposed amendment, the delegation of the
United Arab Republic introduced a twenty-States joint amendment which
would replace in paragraph 1 (6) the words “unless he expressly opposes
it” by the words “if he so requests”. Explaining the amendment, the
delegation of the United Arab Republic stated that

“The purpose of the amendment was to lessen the burden on the
authorities of receiving Sates, especially those which had large num-
bers of resident aliens or which received many tourists and visitors.
The language proposed in the joint amendment would ensure that
the authorities of the receiving State would not be blamed if. owning
to pressure of work or to other circumstances, there was a failure to
report the arrest of a national of the sending State.” (United Nations
Conference on Consular Relations, 1963, Vol. I, p. 82, para. 62.)

15. The result of the debate was the adoption of the 20 States’ amend-
ment with the insertion of the words “if he so requests” at the beginning
of the subparagraph. The last sentence of Article 36, paragraph | (b), ie.
the provision that the competent authorities of the receiving State “shall
inform the person concerned without delay of his rights” (United Nations
Conference on Consular Relations, 1963, Vol. 1, pp. 336-343) was inserted
belatedly as a compromise between the aforesaid two opposing views.

61
524 LAGRAND (SEP. OP. SHI)

Thus, it is not possible to conclude from the negotiating history that
Article 36, paragraph 1 (5), was intended by the negotiators to create
individual rights. Moreover, if one keeps in mind that the general tone
and thrust of the debate of the entire Conference concentrated on the
consular functions and their practicability, the better view would be
that no creation of any individual rights independent of rights of States
was envisaged by the Conference.

16. With respect to operative paragraph 128 (4) of the Judgment, the
Court’s finding is a consequence of its interpretation of Article 36, para-
graph 2, of the Convention.

Article 36, paragraph 2, of the Convention provides:

“The rights referred to in paragraph | of this article shall be exer-
cised in conformity with the laws and regulations of the receiving
State, subject to the proviso, however, that the said laws and regu-
lations must enable full effect to be given to the purposes for which
the rights accorded under this article are intended.”

In the Court’s view, since Article 36, paragraph 1, creates individual
rights for the detained person in addition to the rights accorded the send-
ing State, the reference in paragraph 2 of the Article to rights referred to
in paragraph | of this Article “must be read as applying not only to the
rights of the sending State, but also to the rights of the detained indi-
vidual” (paragraph 89 of the Judgment).

As I have shown above, the view that Article 36, paragraph 1, specifi-
cally subparagraph (4), creates individual rights is at the very least a
questionable one. It follows that the Court’s finding in regard to the
reference to “rights” in paragraph 2 is also questionable.

17. Finally, 1 should like to make it clear that it was not for reasons
relating to the legal consequences of the breach of Article 36, para-
graph 1 (6), that I voted in favour of operative paragraph 128 (7) of the
Judgment. This operative paragraph is of particular significance in a case
where a sentence of death is imposed, which is not only a punishment of
a severe nature, but also one of an irreversible nature. Every possible
measure should therefore be taken to prevent injustice or an error in con-
viction or sentencing. Out of this consideration, [ voted in favour.

(Signed) Sut Jiuyong.

62