54

SEPARATE OPINION OF JUDGE KOOIJMANS

1. I have voted in favour of the operative part of the Judgment since
I concur with the Court’s finding that it has jurisdiction to entertain the
claim as submitted by Libya and that this claim is admissible. I also share
the view expressed in the Judgment that a number of the objections sub-
mitted by the Respondent do not have an exclusively preliminary char-
acter. Since, however, the Judgment does not reflect fully my own con-
siderations I wish to place on record my views on some specific arguments
brought forward by the Parties. I will do so rather succinctly with regard
to the objections to the jurisdiction of the Court and in a slightly more
comprehensive way with regard to the objections to the admissibility of
the claim and to the objection that the Libyan claims have been rendered
without object, or that Libya is precluded from obtaining the relief it
seeks, by the subsequent adoption of Security Council resolutions 748
(1992) and 883 (1993).

I. JURISDICTIONAL ISSUES

2. It would be a truism to contend that the present case is a politically
highly sensitive one. As the Court has stated many times before, the fact
that a dispute brought before it has serious political overtones does not
act as a bar to the Court’s entertaining it, nor does the fact that the dis-
pute is being dealt with simultaneously by the Security Council.

In the present case the Respondent has gone further than pointing out
merely these elements. It has intimated that Libya has not invoked the
Court’s jurisdiction under the Montreal Convention in order to settle a
dispute which has arisen under that Convention but for other — quite
unconnected — reasons. During the hearings held on 13 October 1997
the Agent of the United Kingdom said:

“what the Applicant is seeking by these proceedings is simply not a
Montreal Convention matter, but a scarcely veiled attempt to frus-
trate the exercise by the Security Council of its responsibilities under
the United Nations Charter” (CR 97/16, p. 16).

3. The Respondent not only denies that there exists a dispute with
Libya on the interpretation or application of the Montreal Convention, it
also casts serious doubts on Libya’s motives to construe such a dispute;
the Court should not allow itself to be lured into such a politically
inspired hoax. I have chosen the rather extreme wording of this last sen-

49
55 1971 MONTREAL CONVENTION (SEP. OP. KOOIJMANS)

tence on purpose in order to show how easily the Court can be portrayed
as an instrument used by one of the parties for extrajudicial purposes.
And this risk becomes an acute danger if the impression arises that the
Court is used as a pawn in a game of chess where other principal organs
of the United Nations play a role.

4. Against this background it seems proper and worthwhile to point
out once more what is the function of the Court according to the Charter
and its Statute, which forms an integral part of that Charter. This func-
tion was described in apposite terms by the Court itself in its Judgment of
20 December 1988 in the Border and Transborder Armed Actions case:

“the Court is aware that political aspects may be present in any legal
dispute brought before it. The Court, as a judicial organ, is however
only concerned to establish, first, that the dispute before it is a legal
dispute, in the sense of a dispute capable of being settled by the
application of principles and rules of international law, and sec-
ondly, that the Court has jurisdiction to deal with it, and that that
jurisdiction is not fettered by any circumstance rendering the appli-
cation inadmissible. The purpose of recourse to the Court is the
peaceful settlement of disputes; the Court’s judgment is a legal pro-
nouncement, and it cannot concern itself with the political motiva-
tion which may lead a state at a particular time, or in particular
circumstances, to choose judicial settlement.” (Border and Trans-
border Armed Actions (Nicaragua v. Honduras ), Jurisdiction and
Admissibility, Judgment, I. C.J. Reports 1988, p. 91, para. 52.)

5. Whether the eventual finding of the Court on the merits is compat-
ible with binding decisions of other United Nations organs, in particular
the Security Council, is quite another matter and in the Court’s view
must be considered at a later stage. The first task of the Court after a case
is submitted to it is to consider whether the case concerns a legal dispute
and whether it has jurisdiction to deal with it. As the Court said in the
Nuclear Tests cases: “the existence of a dispute is the primary condition
for the Court to exercise its judicial function”. The Court went on to say
that “it is not sufficient for one party to assert that there is a dispute”,
nor, it may be added, is it sufficient that the other party denies that there
is a dispute. Referring to what is said in the case concerning Interpreta-
tion of Peace Treaties with Bulgaria, Hungary and Romania (IC.
Reports 1950, p. 74), the Court stated that “whether there exists an inter-
national dispute is a matter for objective determination” by it (Nuclear
Tests (Australia v. France), Judgment, C.J. Reports 1974, p. 271,
para. 55).

6. If the Court, therefore, is determining the existence or the non-
existence of a legal dispute, it is carrying out its proper judicial function.

50
56 1971 MONTREAL CONVENTION (SEP. OP. KOOIJMANS)

In this respect it is in my view not relevant that the Respondent does not
rely on the Montreal Convention and contends that it has no dispute
with Libya concerning its interpretation or application. It is not in dis-
pute between the Parties that the facts of the Lockerbie incident as such
may be characterized as an act defined in Article 1 of the Montreal Con-
vention which would imply that the Convention could be applicable to
that incident and — under normal circumstances — would be applicable.
The Respondent has stated that this does not mean that no other rules of
international law are applicable to these facts and by bringing the situa-
tion to the attention of the Security Council as a potential threat to peace
and security resulting from State involvement in acts of terrorism it has
relied on the provisions of the United Nations Charter. Under such cir-
cumstances the Montreal Convention would not be the only and exclu-
sively applicable instrument as is contended by the Applicant.

7. The resulting difference of opinion is therefore not an abstract dis-
agreement about the applicability of the Montreal Convention, it is a
very precise legal dispute about its applicability to the very facts of the
case before the Court. The fact that the Security Council by adopting
resolution 731 (1992) implicitly denied the Convention’s applicability to
these facts can in no way detract from the Court’s own competence and
its own responsibility to determine whether the dispute as submitted by
the Applicant is a justiciable dispute within the terms of Article 14, para-
graph 1, of the Montreal Convention, the settlement of which is entrusted
to the Court. To conclude otherwise would impair the proper function of
the Court as it is determined in the Charter and the Statute. By implica-
tion the Court has also jurisdiction to entertain the claims by Libya that
the Respondent has not respected Libya’s rights under Article 7 of the
Convention, respectively its own obligations under Article 11, since these
are the specific claims submitted by the Applicant. Whether the Court
will have to deal with these specific claims will, of course, depend upon
the Court’s finding on the preliminary question of the Convention’s
applicability in view of the resolutions of the Security Council.

8. The Court’s jurisdiction in my view is confined to the issues just
mentioned which are covered by the terms of Article 14, paragraph 1, of
the Montreal Convention, viz., the issues of applicability and compliance
or non-compliance. In particular the ways and means by which this non-
compliance is practised and the question whether these ways and means
are at variance with the Charter of the United Nations and with manda-
tory rules of general international law do not come within the Court’s
jurisdiction as consensually agreed upon in Article 14, paragraph 1, of
the Convention.

9. I, therefore, fully agree with the Court’s finding that it has jurisdic-
tion to hear the dispute between the Applicant and the Respondent in

Si
57 1971 MONTREAL CONVENTION (SEP. OP. KOOIJMANS)

accordance with Article 14, paragraph 1, of the Montreal Convention.
That I nevertheless have expressed some personal views on the issue of
jurisdiction is because I deem it important to point out that in this regard
the competences of the Security Council and the Court are separate and
clearly distinguishable, and should not be confused, let alone be seen as
potentially conflicting with each other. Just as each State is entitled to
bring a situation to the attention of the Security Council and the Council
is entitled to give its views on that situation and to qualify it as a threat
to international peace and security, so each State is entitled to submit to
the Court a claim against another State with regard to a dispute which in
its opinion is justiciable. It is for the Court and only for the Court to
determine: whether it is competent to entertain the claim on the basis of
the relevant legal provisions.

II. Issues oF ADMISSIBILITY AND MOOTNESS

10. Whether the Court, once it has assumed jurisdiction, should carry
out its judicial function under all circumstances, is quite a different mat-
ter. The Respondent has submitted that any rights which Libya might
have under the Montreal Convention are in any event superseded by its
obligations under Security Council resolutions 748 (1992) and 883 (1993)
which were adopted after the date of the filing of Libya’s Application.
Consequently, any judgment on the merits would be an empty one
because it would be neither applicable nor enforceable.

11. It seems to be a question of minor relevance whether this objection
must be called an objection to the admissibility and consequently must be
rejected since these resolutions were adopted after the date of the filing of
the Application which according to the Judgment is the only relevant
date for determining the admissibility or whether it must be qualified as
an “objection the decision upon which must be determined before any
further proceedings” in the sense of Article 79, paragraph 1, of the Rules
of Court.

12. It may be questioned whether it is necessary or even possible to
give a neat categorization of preliminary objections. S. Rosenne says in
this respect:

“All that can be deduced from experience is that it is an individual
matter to be appreciated in the light of all the circumstances of each
case.” (S. Rosenne, The Law and Practice of the International Court
of Justice, 1920-1996, 1997, p. 883.)

In this respect reference may be made also to the Northern Cameroons
case where the Court, commenting on the various meanings ascribed by
the Parties to, inter alia, the term “admissibility” said:

52
58 1971 MONTREAL CONVENTION (SEP. OP. KOOIJMANS)

“The Court recognizes that these words in differing contexts may
have various connotations but it does not find it necessary in the
present case to explore the meaning of these terms. For the purposes
of the present case, a factual analysis undertaken in the light of cer-
tain guiding principles may suffice to conduce to the resolution of
the issues to which the Court directs its attention.” (Northern Cam-
eroons, Judgment, I. C.J. Reports 1963, p. 28.)

13. Irrespective of the question whether preliminary objections should
be distinguished as to category, this contextual analysis is exactly what
the Court has undertaken in the present Judgment. Taking into account
all circumstances of the case it has come to the conclusion that the objec-
tion that Security Council resolutions 748 (1992) and 883 (1993) have
rendered the Libyan claim without object is an objection which possesses
a preliminary character and falls within the provisions of Article 79 of the
Rules of Court. Nevertheless, the Court has concluded that this objection
does not have an exclusively preliminary character within the meaning of
Article 79, paragraph 7, and, therefore, should be considered at the stage
of the merits.

14. I share this view of the Court. I have, however, the feeling that
some additional remarks would be appropriate in light of the fact that
the Respondent has not denied that this objection may touch upon the
merits. It is of the opinion that the case should nevertheless be terminated
at the present stage as any judgment on the merits would be without
practical effect since the relief sought by Libya cannot be provided by the
Court because of the overriding legal effects of the mandatory resolutions
of the Security Council.

Counsel for the United Kingdom stated that it would not be a proper
exercise of the judicial function if the Court would pronounce a judgment
which would be an empty one because it was neither applicable nor
enforceable given the terms of prior decisions of the Security Council
which remained in force (CR 97/16, p. 60).

In this respect reference was made to the Court’s finding in the
Northern Cameroons case, where it said:

“The Court’s judgment must have some practical consequence in
the sense that it can affect existing legal rights or obligations of the
parties, thus removing uncertainty from their legal relations.” (Z CJ.
Reports 1963, p. 34.)

15. It seems questionable, however, whether this reference to the
Northern Cameroons case is correct. The Court’s reasoning was based on the
argument that a judgment on the merits would not be a judgment capable
_ of effective application since the decision of the General Assembly (reso-
lution 1608 (XV)) to terminate the Trusteeship over the British Cam-
eroons (which mooted the case between the United Kingdom and the
Republic of Cameroon) was an administrative measure of a determina-
tive and final character. A finding of a breach of law by the Court could

53
59 1971 MONTREAL CONVENTION (SEP. OP. KOOIJMANS)

not lead to redress as the General Assembly was no longer competent
with regard to the Territory pursuant to the termination of the Trustee-
ship as a result of resolution 1608 (XV) and consequently no determina-
tion reached by the Court could be given effect to by the former Admin-
istering Authority (Z C.J. Reports 1963, p. 35).

16. The Northern Cameroons case makes clear that a decision that a
claim no longer has any object can only be made within a highly concrete
context. It is “the circumstances which have arisen” which bring the
Court to the determination that “it does not enter into the adjudicatory
. functions of the Court to deal with issues in abstracto, once it has
reached the conclusion that the merits of the case no longer fall to be
determined” (1. C.J. Reports 1974, p: 272).

17. In the present case circumstances are different: there is no admin-
istrative measure of a determinative and final character taken by an
organ of the United Nations. Resolutions of the Security Council taken
under Chapter VII of the Charter may have far-reaching legal effects, but
they are not irrevocable or unalterable. In the exercise of its function the
Security Council is free to confirm, revoke or amend them and conse-
quently they cannot be called “final” even if during their lifetime they
may be dispositive of the rights and obligations of member States, over-
riding rights and obligations these States may have under other treaties.
It is generally agreed that the Security Council has full competence under
Chapter VII to determine that a factual situation constitutes a threat to
international peace and security and that it may take the necessary legally
binding measures to counter that threat, but that it has no competence to
determine the law, whereas it has been questioned whether the Council
can modify the law when applying it to a particular set of facts (see, for
example, Malcolm Shaw, “The Security Council and the International
Court of Justice: Judicial Drift and Judicial Function”, in A. S. Muller ez
al. (eds.), The International Court of Justice — Its Future Role after Fifty
Years, 1997, pp. 219 ff).

18. Since Security Council resolutions 748 (1992) and 883 (1993) have
authoritatively but not definitively and for an indefinite period of time
determined the matters at issue, the Court rightly concluded that the
objection by the Respondent that the Libyan claims are without object
does not have “an exclusively preliminary character” and will be consid-
ered by the Court when it reaches the merits of the case. By doing so the
Court has upheld its function as it is defined in Article 38 of the Statute,
viz., “to decide in accordance with international law such disputes as are
submitted to it”, at the same time respecting fully the competences which
the Security Council has under the Charter.

19. Distinguishing carefully the proper functions of both Security
Council and Court in my view is essential for what Judge Lachs calied “a

54
60 1971 MONTREAL CONVENTION (SEP. OP. KOOIJMANS)

fruitful interaction” between these two main organs of the United
Nations. These functions are complementary and in that sense can be
mutually supportive.

III. ConcLUDING REMARKS

20. One final remark may be made. The Respondent has invoked the
concept of “judicial economy” when advocating a dismissal of the case in
the preliminary phase. It has warned of proceedings on the merits which
make it necessary for the Court to address complex issues of fact and
added that the case should be disposed of at the preliminary phase
because the Council resolutions would have rendered it without object. It
cannot be excluded that this might be the case indeed, although this is by
no means certain as it was in the Northern Cameroons case.

21. Judicial economy however may go to the detriment of judicial pro-
priety which asks for a careful weighing of the interests of all parties to
the dispute. In this respect it is worthwhile to recall what Judge Read said
in his dissenting opinion in the Anglo-Iranian Oil Co. case:

“Tt is impossible to overlook the grave injustice which would be
done to an applicant State, by a judgment upholding an objection to
the jurisdiction and refusing to permit adjudication on the merits,
and which, at the same time, decided an important issue of fact or
law, forming part of the merits, against the applicant State. The
effect of refusal to permit adjudication of the dispute would be to
remit the applicant and respondent States to other measures, legal or
political, for the settlement of the dispute. Neither the applicant nor
the respondent should be prejudiced, in seeking an alternative solu-
tion of the dispute, by the decision of any issue of fact or law that
pertains to the merits.” (LC J. Reports 1952, p. 149; emphasis
added.)

22. It certainly cannot be foreseen that alternative solutions, for
example on the basis of suggestions made by regional organizations or
other international or national groupings, will be found and at present
that may even seem improbable but neither can it be excluded. The
Court should not be seen as standing in the way of any conciliatory
effort.

(Signed) P. H. Kooumans.

55


                      754

                                 JOINT DECLARATION OF JUDGES TOMKA,
                                        GREENWOOD, SEBUTINDE
                                      AND JUDGE AD HOC DUGARD

                        Costs —– Article 64 of the Statute of the Court — Provisional measures —
                      Obligation of a State to comply with Order indicating provisional measures —
                      Obligations imposed by 2011 Order violated by Nicaragua — Conduct of Nicara‑
                      gua — Costs incurred by Costa Rica in seeking further Order in 2013 — Whether
                      Court should have exercised discretion to order Nicaragua to pay Costa Rica’s
                      costs of the 2013 request for provisional measures.

                         1. We regret that we are unable to agree with the decision of the major-
                      ity of the Court to reject Costa Rica’s request that it be awarded the costs
                      of having had to come to the Court in October 2013 for a second Order
                      on provisional measures of protection. We have therefore voted against
                      operative paragraph 5 (c) of the Judgment.

                         2. Article 64 of the Statute of the Court provides that “[u]nless other-
                      wise decided by the Court, each party shall bear its own costs”. This pro-
                      vision is supplemented by Article 97 of the Rules of Court, which provides
                      that “[i]f the Court, under Article 64 of the Statute, decides that all or
                      part of a party’s costs shall be paid by the other party, it may make an
                      order for the purpose of giving effect to that decision”.
                         We accept that, in the words of a leading work on the Court, Article 64
                      of the Statute “may be interpreted as implying the general rule that each
                      party bears its own costs, and that only in exceptional circumstances will
                      the Court decide otherwise” (see Shabtai Rosenne, The Law and Practice
                      of the International Court, 1920‑2005, Vol. III, 4th ed., 2006, p. 1281). In
                      no case so far has the Court considered that such exceptional circum-
                      stances existed. Nevertheless, it is clear that the Statute gives the Court
                      discretion in this matter and we consider it important that the Court exer-
                      cises that discretion, when it is called upon to do so, after careful consid-
                      eration of the particular circumstances of the case.

                        3. What, then, are the circumstances of the present case ? In its Order
                      on provisional measures of 8 March 2011, the first measure, indicated
                      unanimously by the Court, was that “[e]ach Party shall refrain from send-
                      ing to, or maintaining in the disputed territory, including the caño, any
                      personnel, whether civilian, police or security” (Order of 8 March 2011,
                      I.C.J. Reports 2011 (I), p. 27, para. 86 (1)). The “disputed territory” was

                      93

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                      755 	 certain activities and construction of a road (joint decl.)

                      defined in paragraph 55 of that Order as “the area of wetland of some
                      3 square kilometres between the right bank of the disputed caño, the right
                      bank of the San Juan River up to its mouth at the Caribbean Sea and the
                      Harbor Head Lagoon” (I.C.J. Reports 2011 (I), p. 19, para. 55). The first
                      provisional measure, therefore, could not have been clearer. Nicaragua
                      was prohibited from “sending to, or maintaining in the disputed terri-
                      tory” any personnel, military or civilian, let alone from carrying out any
                      works therein. The Court’s orders on provisional measures being binding
                      (LaGrand (Germany v. United States of America), Judgment, I.C.J. Reports
                      2001, p. 506, para. 109), Nicaragua had a legal obligation to comply with
                      this measure. The Court also enjoined both Parties to “refrain from any
                      action which might aggravate or extend the dispute before the Court or
                      make it more difficult to resolve” (Order of 8 March 2011, I.C.J. Reports
                      2011 (I), p. 27, para. 86 (3)).

                         4. On 13 September 2013, Costa Rica received evidence, in the form of
                      satellite images, that two new caños had been dug in the disputed terri-
                      tory, that a dredger was operating in one of them and that a Nicaraguan
                      military encampment had been established on the beach nearby. On
                      16 September, Costa Rica wrote to Nicaragua complaining of a violation
                      of the provisional measures. According to counsel for Nicaragua, this let-
                      ter prompted the President of Nicaragua to order an investigation into
                      the state of affairs in the disputed territory. Nevertheless, on 18 Septem-
                      ber, the Nicaraguan Foreign Ministry replied to Costa Rica, stating that
                      Nicaragua had authorized no works in the disputed territory (Costa Rica,
                      Request for the Indication of New Provisional Measures, 24 September
                      2013, Attachment PM‑5). As counsel for Nicaragua subsequently
                      remarked, “[i]n retrospect, it would have been better if the Foreign Min-
                      istry had waited until the investigation ordered by President Ortega was
                      completed, or at least until the following day” (CR 2013/25, p. 21). Costa
                      Rica reacted to the Foreign Ministry’s letter by filing, on 24 September
                      2013, a new request for provisional measures. In the meantime, however,
                      the investigation ordered by President Ortega had disclosed that two new
                      caños had indeed been dug on the orders of Mr. Eden Pastora, who was
                      described in a Nicaraguan document as the “Government Delegate for
                      [the] Dredging Works” (see letter from Nicaragua to the Court, 11 Octo-
                      ber 2013, Ref. HOL‑EMB‑197, Ann. 8). On 21 September 2013, Presi-
                      dent Ortega gave instructions that Mr. Pastora was to cease all operations
                      on the two new caños and to withdraw the dredger. These instructions
                      were complied with. Nicaragua did not, however, inform either Costa Rica
                      or the Court of this development, or take any steps to rectify the impres-
                      sion created by its letter of 18 September, until Thursday 10 October
                      2013. In the meantime, the Court had informed both Parties that it would
                      hold hearings on the new Costa Rican request for provisional measures
                      beginning on Monday 14 October 2013. So far as the military encamp-
                      ment was concerned, Nicaragua maintained that it was located on Nica-

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                      756 	 certain activities and construction of a road (joint decl.)

                      raguan territory outside the disputed territory, specifically, on a beach
                      just to the north of the disputed territory, and that Nicaragua was there-
                      fore under no obligation to withdraw (CR 2013/25, p. 29).

                         5. The Court has unanimously found (see Judgment, paras. 121‑129
                      and para. 229 (3)) that this conduct amounted to a violation of the provi-
                      sional measures ordered by the Court in March 2011. While Mr. Pastora
                      may have exceeded his instructions, he was a senior official of the Repub-
                      lic of Nicaragua and his actions purported to be an exercise of his official
                      authority. That they would have seemed as such to any observer was
                      accepted by Nicaragua, which stated that those who saw him may have
                      assumed he was authorized to be in the area ; in the words of Nicaragua’s
                      counsel, “Mr. Pastora is a well‑known figure in Nicaragua” and “[i]t
                      would have been quite strange that a young lieutenant in charge of the
                      nearby areas would question what Mr. Pastora was doing” (CR 2013/25,
                      p. 16). It is beyond question that Mr. Pastora’s actions were attributable
                      to Nicaragua and engaged its responsibility for a breach of the obliga-
                      tions under the March 2011 provisional measures Order. Nicaragua quite
                      rightly accepted that responsibility. Nevertheless, while Nicaragua’s
                      counsel described the breach as “unintentional” (CR 2015/7, p. 61), the
                      senior position held by Mr. Pastora means that the breach cannot be so
                      lightly put aside. There was nothing “unintentional” about the breach of
                      the Court’s Order ; it was a deliberate action undertaken on the instruc-
                      tions of the senior government official entrusted by Nicaragua with
                      responsibility for the dredging programme in the area immediately adja-
                      cent to the disputed territory.

                         6. As for the establishment of a military encampment, the Court found,
                      in its 2013 Order, that — contrary to what Nicaragua said — that
                      encampment was not on the sandbank but on land that formed part of
                      the disputed territory (Order of 22 November 2013, I.C.J. Reports 2013,
                      p. 365, para. 46). Nicaragua has never suggested that the presence of this
                      encampment was unauthorized.
                         7. The Court is thus faced with two serious violations of the obliga-
                      tions imposed upon Nicaragua by the 2011 Order on provisional mea-
                      sures. The Court has made plain that Nicaragua must compensate Costa
                      Rica for any damage caused by its violation of those obligations.
                      Costa Rica will therefore be able to recover, for example, the costs of any
                      remediation work which was necessary in order to deal with the two addi-
                      tional caños. The Court has, however, denied Costa Rica the chance of
                      recovering from Nicaragua what may well be the largest expense it was
                      obliged to incur, namely the costs of nearly a week of hearings before the
                      Court. Those costs were a direct consequence of Nicaragua’s breach of
                      the obligations imposed by the 2011 Order. Moreover, even after it had
                      ordered Mr. Pastora’s withdrawal, Nicaragua could have taken steps
                      which would have made the hearings in October 2013 unnecessary but it
                      did not do so. Instead of notifying the Court and Costa Rica of its order

                      95

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                      757 	 certain activities and construction of a road (joint decl.)

                      to Mr. Pastora on 21 September 2013, it said nothing until the eve of the
                      hearings, leaving Costa Rica — and the Court — under the impression
                      that it denied that there had been any activity in the disputed territory.
                      When it did inform the Court and Costa Rica of its actions, Costa Rica
                      suggested that the Parties agree [to] an Order which the Court would
                      issue and thus save the cost of the hearing itself. Nicaragua refused. It is
                      illogical for the Court to adopt a posture in which a party which has been
                      the victim of a breach of provisional measures indicated by the Court is
                      treated less favourably if it incurs expense in coming back to the Court to
                      seek redress than if it takes unilateral action to remedy the damage caused
                      by that breach.

                         8. We consider that these are exceptional circumstances which warrant
                      an exercise by the Court of the power given to it by Article 64 of the Stat-
                      ute. It is true that the Court has never previously exercised that power but
                      it has seldom been asked to do so and none of the cases in which costs
                      have been requested by a party has been remotely comparable to the pres-
                      ent one. The power to indicate provisional measures is of the utmost
                      importance for the maintenance of the integrity of proceedings before the
                      Court. The measures thus indicated are legally binding and their breach is
                      an autonomous violation of legal obligations, entirely distinct from the
                      merits of the case. The Court, and those States appearing before it, are
                      entitled to assume that a State litigating in good faith will be scrupulous
                      in complying with those measures. If its failure to do so necessitates a
                      further hearing, it is only right that that State should bear the costs
                      incurred.
                         9. It is therefore a matter for regret that the Court has dismissed Costa
                      Rica’s request for the costs incurred in obtaining the Order of 22 Novem-
                      ber 2013 and that it has done so without any discussion of the circum-
                      stances considered in this declaration. This was surely a case in which
                      something more was called for than a Delphic pronouncement that “tak-
                      ing into account the overall circumstances of the case, an award of costs
                      to Costa Rica . . . would not be appropriate” (Judgment, para. 144).

                                                                 (Signed) Peter Tomka.
                                                           (Signed) Christopher Greenwood.
                                                                (Signed) Julia Sebutinde.
                                                                (Signed) John Dugard.

                      96

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                             INTERNATIONAL COURT OF JUSTICE

                               REPORTS OF JUDGMENTS,
                            ADVISORY OPINIONS AND ORDERS

                          APPLICATION FOR REVISION
                       OF THE JUDGMENT OF 23 MAY 2008
                    IN THE CASE CONCERNING SOVEREIGNTY
                    OVER PEDRA BRANCA/PULAU BATU PUTEH,
                       MIDDLE ROCKS AND SOUTH LEDGE
                            (MALAYSIA/SINGAPORE)
                               (MALAYSIA v. SINGAPORE)

                                 ORDER OF 29 MAY 2018

                                    2018
                             COUR INTERNATIONALE DE JUSTICE

                                 RECUEIL DES ARRÊTS,
                          AVIS CONSULTATIFS ET ORDONNANCES

                            DEMANDE EN REVISION
                           DE L’ARRÊT DU 23 MAI 2008
                   EN L’AFFAIRE RELATIVE À LA SOUVERAINETÉ
                     SUR PEDRA BRANCA/PULAU BATU PUTEH,
                         MIDDLE ROCKS ET SOUTH LEDGE
                             (MALAISIE/SINGAPOUR)
                               (MALAISIE c. SINGAPOUR)

                              ORDONNANCE DU 29 MAI 2018

2 CIJ1140.indb 1                                              6/11/18 15:26

                                                 Official citation :
                      Application for Revision of the Judgment of 23 May 2008 in the Case
                      concerning Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle
                     Rocks and South Ledge (Malaysia/Singapore) (Malaysia v. Singapore),
                               Order of 29 May 2018, I.C.J. Reports 2018, p. 284

                                            Mode officiel de citation :
                         Demande en revision de l’arrêt du 23 mai 2008 en l’affaire relative
                     à la Souveraineté sur Pedra Branca/Pulau Batu Puteh, Middle Rocks et
                           South Ledge (Malaisie/Singapour) (Malaisie c. Singapour),
                             ordonnance du 29 mai 2018, C.I.J. Recueil 2018, p. 284

                                                                                1140
                                                                 Sales number
                   ISSN 0074-4441                                No de vente:
                   ISBN 978-92-1-157339-8

2 CIJ1140.indb 2                                                                               6/11/18 15:26

                                                      29 MAY 2018

                                                        ORDER

                          APPLICATION FOR REVISION
                       OF THE JUDGMENT OF 23 MAY 2008
                    IN THE CASE CONCERNING SOVEREIGNTY
                    OVER PEDRA BRANCA/PULAU BATU PUTEH,
                       MIDDLE ROCKS AND SOUTH LEDGE
                            (MALAYSIA/SINGAPORE)
                           (MALAYSIA v. SINGAPORE)

                            DEMANDE EN REVISION
                           DE L’ARRÊT DU 23 MAI 2008
                   EN L’AFFAIRE RELATIVE À LA SOUVERAINETÉ
                     SUR PEDRA BRANCA/PULAU BATU PUTEH,
                         MIDDLE ROCKS ET SOUTH LEDGE
                             (MALAISIE/SINGAPOUR)
                           (MALAISIE c. SINGAPOUR)

                                                      29 MAI 2018

                                                     ORDONNANCE

2 CIJ1140.indb 3                                                    6/11/18 15:26

                                                                                284

                                 COUR INTERNATIONALE DE JUSTICE

                                                 ANNÉE 2018                                           2018
                                                                                29 mai
                                                  29 mai 2018                                      Rôle général
                                                                                no 167

                       DEMANDE EN REVISION
                      DE L’ARRÊT DU 23 MAI 2008
              EN L’AFFAIRE RELATIVE À LA SOUVERAINETÉ
                SUR PEDRA BRANCA/PULAU BATU PUTEH,
                    MIDDLE ROCKS ET SOUTH LEDGE
                        (MALAISIE/SINGAPOUR)
                                        (MALAISIE c. SINGAPOUR)

                                               ORDONNANCE

                   Présents : M. Yusuf, président ; Mme Xue, vice-présidente ; MM. Tomka,
                               Abraham, Bennouna, Cançado Trindade, Mme Donoghue,
                               M. Gaja, Mme Sebutinde, MM. Bhandari, Robinson,
                               Gevorgian, Salam, juges ; M. Couvreur, greffier.

                     La Cour internationale de Justice,
                     Ainsi composée,
                     Après délibéré en chambre du conseil,
                     Vu l’article 48 du Statut de la Cour et le paragraphe 1 de l’article 88 de
                   son Règlement,
                     Vu la requête enregistrée au Greffe de la Cour le 2 février 2017, par
                   laquelle le Gouvernement de la Malaisie, se référant à l’article 61 du Sta-
                   tut de la Cour, a demandé à la Cour de reviser son arrêt du 23 mai 2008
                   en l’affaire relative à la Souveraineté sur Pedra Branca/Pulau Batu Puteh,
                   Middle Rocks et South Ledge (Malaisie/Singapour) (arrêt, C.I.J. Recueil
                   2008, p. 12),

                                                                                4

2 CIJ1140.indb 5                                                                                6/11/18 15:26

                                 demande en revision (ordonnance 29 V 18)                     285

                     Vu les lettres du 14 février 2017, par lesquelles le greffier a informé les
                   Parties que la Cour avait fixé au 14 juin 2017 la date d’expiration du délai
                   dans lequel la République de Singapour (ci‑après dénommée « Singa-
                   pour ») pourrait présenter ses observations écrites sur la recevabilité de la
                   demande en revision, comme prévu au paragraphe 2 de l’article 99 du
                   Règlement,
                     Vu les observations écrites sur la recevabilité de la demande en revision
                   présentée par la Malaisie, qui ont été déposées au Greffe par Singapour le
                   24 mai 2017, dans le délai fixé à cet effet,

                      Vu les lettres des 9 et 23 juin 2017, par lesquelles le coagent de la Malai-
                   sie, se référant au paragraphe 3 de l’article 99 du Règlement, a prié la
                   Cour de donner à son gouvernement la possibilité d’exposer à nouveau
                   ses vues sur la question de la recevabilité, et indiqué que celui‑ci souhai-
                   tait présenter une documentation additionnelle à l’appui de sa demande
                   en revision, ainsi que les lettres des 13 et 28 juin 2017, par lesquelles le
                   coagent de Singapour a informé la Cour que son gouvernement s’oppo-
                   sait au dépôt par la Malaisie de ces pièces additionnelles,

                       Vu les lettres du 9 octobre 2017, par lesquelles le greffier a fait savoir
                   aux Parties que la Cour avait décidé d’accéder à la demande de la
                   Malaisie, et qu’elle avait fixé au 11 décembre 2017 la date d’expiration du
                    délai dans lequel la Malaisie pourrait soumettre ses observations écrites et
                    sa documentation additionnelles, et au 12 février 2018 la date d’expiration
                    du délai dans lequel Singapour pourrait soumettre ses commentaires
                    écrits et documents à l’appui sur les observations additionnelles de la
                    Malaisie,
                       Vu les observations écrites et documentation additionnelles déposées
                    au Greffe par la Malaisie le 11 décembre 2017, dans le délai fixé à cet
                    effet, ainsi que les commentaires écrits et documents à l’appui sur les
                    observations additionnelles de la Malaisie déposés au Greffe par Singa-
                    pour le 12 février 2018, dans le délai imparti ;
                       Considérant que, par une lettre datée du 28 mai 2018, le coagent de la
                    Malaisie a notifié à la Cour que les Parties étaient convenues d’un désis-
                    tement de l’instance ; et que, par une lettre en date du 29 mai 2018, l’agent
                    de Singapour a confirmé l’accord de son gouvernement pour le désiste-
                    ment de l’instance,
                       Prend acte du désistement, par accord des Parties, de l’instance
                   introduite le 2 février 2017 par la Malaisie contre la République de
                    Singapour ;
                     Prescrit que l’affaire soit rayée du rôle.

                     Fait en anglais et en français, le texte anglais faisant foi, au Palais de la
                   Paix, à La Haye, le vingt-neuf mai deux mille dix‑huit, en trois exem-

                                                                                5

2 CIJ1140.indb 7                                                                                6/11/18 15:26

                                demande en revision (ordonnance 29 V 18)              286

                   plaires, dont l’un restera déposé aux archives de la Cour et les autres
                   seront transmis respectivement au Gouvernement de la Malaisie et au
                   Gouvernement de la République de Singapour.

                                                                  Le président,
                                                     (Signé) Abdulqawi Ahmed Yusuf.
                                                                      Le greffier,
                                                         (Signé) Philippe Couvreur.

                                                                                6

2 CIJ1140.indb 9                                                                             6/11/18 15:26


                      COUR INTERNATIONALE DE JUSTICE

                          RECUEIL DES ARRÊTS,
                   AVIS CONSULTATIFS ET ORDONNANCES

                    DÉLIMITATION MARITIME
                   DANS LA MER DES CARAÏBES
                     ET L’OCÉAN PACIFIQUE
                       (COSTA RICA c. NICARAGUA)

                       ORDONNANCE DU 31 MAI 2016

                             2016
                      INTERNATIONAL COURT OF JUSTICE

                        REPORTS OF JUDGMENTS,
                     ADVISORY OPINIONS AND ORDERS

                    MARITIME DELIMITATION
                     IN THE CARIBBEAN SEA
                    AND THE PACIFIC OCEAN
                       (COSTA RICA v. NICARAGUA)

                          ORDER OF 31 MAY 2016

3 CIJ1097.indb 1                                       23/01/17 11:09

                                           Mode officiel de citation :
                       Délimitation maritime dans la mer des Caraïbes et l’océan Pacifique
                            (Costa Rica c. Nicaragua), ordonnance du 31 mai 2016,
                                           C.I.J. Recueil 2016, p. 235

                                                Official citation :
                       Maritime Delimitation in the Caribbean Sea and the Pacific Ocean
                              (Costa Rica v. Nicaragua), Order of 31 May 2016,
                                          I.C.J. Reports 2016, p. 235

                                                                                1097
                                                                 No de vente:
                   ISSN 0074-4441                                Sales number
                   ISBN 978-92-1-157292-6

3 CIJ1097.indb 2                                                                             23/01/17 11:09

                                                31 MAI 2016

                                               ORDONNANCE

                    DÉLIMITATION MARITIME
                   DANS LA MER DES CARAÏBES
                     ET L’OCÉAN PACIFIQUE
                   (COSTA RICA c. NICARAGUA)

                    MARITIME DELIMITATION
                     IN THE CARIBBEAN SEA
                    AND THE PACIFIC OCEAN
                   (COSTA RICA v. NICARAGUA)

                                               31 MAY 2016

                                                 ORDER

3 CIJ1097.indb 3                                              23/01/17 11:09

                    235

                                   COUR INTERNATIONALE DE JUSTICE

        2016                                       ANNÉE 2016
       31 mai
     Rôle général
       no 157                                       31 mai 2016

                                  DÉLIMITATION MARITIME
                                 DANS LA MER DES CARAÏBES
                                   ET L’OCÉAN PACIFIQUE
                                        (COSTA RICA c. NICARAGUA)

                                                 ORDONNANCE

                    Présents: M. Abraham, président ; M. Yusuf, vice‑président ;
                               MM. Owada, Tomka, Cançado Trindade, Greenwood,
                               Mme Donoghue, M. Gaja, Mme Sebutinde, MM. Bhandari,
                               Gevorgian, juges ; M. Al‑Khasawneh, juge ad hoc ;
                               M. Couvreur, greffier.

                        La Cour internationale de Justice,
                     Ainsi composée,
                     Après délibéré en chambre du conseil,
                     Vu les articles 48 et 50 du Statut de la Cour et l’article 67 de son Règle-
                    ment,
                     Rend l’ordonnance suivante :
                     Considérant que :

                      1. Par une requête déposée au Greffe de la Cour le 25 février 2014, la
                    République du Costa Rica (ci‑après le « Costa Rica ») a introduit une ins-
                    tance contre la République du Nicaragua (ci‑après le « Nicaragua ») au
                    sujet d’un différend relatif à la délimitation maritime dans la mer des
                    Caraïbes et l’océan Pacifique.

                    4

3 CIJ1097.indb 14                                                                                23/01/17 11:09

                    236 	         délimitation maritime (ordonnance 31 V 16)

                        2. Par une ordonnance en date du 1er avril 2014, la Cour a fixé
                    au 3 février 2015 et au 8 décembre 2015, respectivement, les dates d’expi-
                    ration des délais pour le dépôt d’un mémoire du Costa Rica et d’un
                    contre‑mémoire du Nicaragua. Le mémoire et le contre‑mémoire ont été
                    déposés dans les délais ainsi fixés.
                        3. Lors d’une réunion que le président a tenue avec les représentants
                    des Parties le 28 janvier 2016, celles‑ci se sont accordées pour considérer
                    que le dépôt d’une réplique et d’une duplique en l’espèce n’était pas
                    nécessaire.
                        4. En application du paragraphe premier de l’article 67 de son Règle-
                     ment, le greffier a, par une lettre en date du 13 avril 2016, informé les Parties
                     que la Cour envisageait, conformément aux articles 48 et 50 de son Statut,
                     de faire procéder à une expertise dans le cadre de laquelle un ou plusieurs
                     experts seraient chargés de rassembler, en se rendant sur place, l’ensemble
                     des éléments factuels relatifs à l’état de la côte entre le point situé sur la rive
                     droite du fleuve San Juan à son embouchure et le point de la côte le plus
                     proche de Punta de Castilla, tels que ces deux points peuvent être identifiés
                     à l’heure actuelle. Les Parties ont également été informées que la Cour avait
                     fixé au 3 mai 2016 la date d’expiration du délai dans lequel elles pourraient
                     exposer leur position concernant cette éventuelle expertise, notamment leurs
                     vues sur l’objet de celle‑ci, le nombre et le mode de désignation des experts
                     et les formalités à observer. Elles ont en outre été avisées de ce que toutes
                     observations qu’une Partie souhaiterait formuler sur la réponse de la Partie
                     adverse devraient être communiquées à la Cour le 13 mai 2016 au plus tard.
                        5. Par une lettre en date du 3 mai 2016, le Costa Rica s’est félicité de ce
                     que la Cour envisage d’exercer son pouvoir de faire procéder à une exper-
                     tise. Il a suggéré que la Cour désigne un comité d’experts composé de
                     trois géographes indépendants et que les Parties aient la possibilité de
                     formuler des observations sur l’identité desdits experts. Le Costa Rica a
                     proposé l’inclusion d’un certain nombre de questions dans le mandat des
                     experts. Il a en outre émis le souhait que les Parties aient la possibilité de
                     formuler des observations écrites sur le rapport des experts avant l’ouver-
                     ture de la procédure orale et que tout commentaire qu’une Partie enten-
                     drait formuler sur les observations de l’autre soit communiqué par écrit
                     avant la tenue des audiences. Le Costa Rica a enfin formulé des proposi-
                     tions d’ordre logistique.
                        6. Par une lettre en date du 3 mai 2016, le Nicaragua a quant à lui
                     indiqué qu’il n’estimait pas nécessaire de faire procéder à une visite d’ex-
                     perts sur les lieux, soutenant que, l’emplacement du point de départ de la
                     frontière terrestre sur la côte caraïbe ayant été fixé par divers instruments,
                     la localisation du point de départ de la frontière maritime entre les Parties
                     constituait une tâche purement technique et juridique qui ne nécessitait
                     pas de visite sur les lieux. Le Nicaragua a toutefois ajouté que si, ayant
                     examiné sa position, la Cour estimait devoir faire procéder à une visite
                     d’experts sur place, il serait disposé à formuler en temps voulu ses vues
                     concernant les modalités de nomination du ou des experts et leur man-
                     dat, et à apporter à ceux‑ci toute l’assistance possible.

                    5

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                    237 	          délimitation maritime (ordonnance 31 V 16)

                       7. Par lettres du 13 mai 2016, chacune des Parties a réitéré sa position.
                       8. La Cour considère que certains éléments factuels relatifs à l’état de
                    la côte pourraient se révéler pertinents aux fins de régler le différend qui
                    lui a été soumis, lequel est notamment relatif à la délimitation de la fron-
                    tière maritime entre les Parties dans la mer des Caraïbes, et que, à cet
                    égard, elle gagnerait à bénéficier d’une expertise. Ayant entendu les Par-
                    ties en application du paragraphe premier de l’article 67 du Règlement et
                    disposant de toutes les informations nécessaires aux fins de sa décision,
                    elle est dès à présent en état de préciser l’objet d’une telle expertise, de
                    fixer le nombre et le mode de désignation des experts, et d’indiquer les
                    formalités à observer.
                       9. La décision de faire procéder à une expertise ne préjuge en rien
                    la question de la détermination du point de départ ou du tracé de la
                    frontière maritime entre les Parties dans la mer des Caraïbes, ni

                    aucune autre question relative au différend soumis à la Cour, et laisse
                    intact le droit des Parties de faire valoir leurs moyens de preuve
                    et arguments en ces matières, conformément au Règlement de la
                    Cour.

                                                              *
                                                          *       *
                        10. La Cour,
                        Décide ce qui suit :
                    1) Il sera procédé à une expertise, laquelle sera confiée à deux experts
                       indépendants, désignés par ordonnance du président de la Cour une
                       fois entendues les Parties.
                    2) Les experts visés au point 1) ci‑dessus se rendront sur place. Ils don-
                       neront leur avis à la Cour en ce qui concerne l’état de la côte entre les
                       points invoqués respectivement par le Costa Rica et le Nicaragua, dans
                       leurs écritures, comme étant le point de départ de la frontière maritime
                       dans la mer des Caraïbes, et, en particulier, répondront aux questions
                       suivantes :
                         a) Quelles sont les coordonnées géographiques du point auquel la
                            rive droite du fleuve San Juan rencontre la laisse de basse mer ?

                          b) Quelles sont les coordonnées géographiques du point terrestre le
                             plus approchant de celui qui avait été défini dans la première sen-
                             tence Alexander comme étant le point de départ de la frontière
                             terrestre ?
                          c) Existe‑t‑il, entre les points visés aux litt. a) et b) ci‑dessus, un banc
                             de sable ou une quelconque formation maritime ? Si tel est le cas,
                             quelles en sont les caractéristiques physiques ? En particulier, ces
                             formations, ou certaines d’entre elles, sont‑elles constamment
                             découvertes, même à marée haute ? La lagune de Los Portillos/
                             Harbor Head est-elle séparée de la mer ?

                    6

3 CIJ1097.indb 18                                                                                23/01/17 11:09

                    238 	        délimitation maritime (ordonnance 31 V 16)

                        d) Dans quelle mesure est‑il possible ou probable que la zone concer-
                           née subisse des modifications physiques importantes à court et
                           long terme ?
                    3) Avant de prendre ses fonctions, chaque expert fera la déclaration
                       suivante :
                            « Je déclare solennellement, en tout honneur et en toute conscience,
                         que je m’acquitterai de mes fonctions d’expert en tout honneur et
                         dévouement, en pleine et parfaite impartialité et en toute conscience,
                         et que je m’abstiendrai de divulguer ou d’utiliser en dehors de la
                         Cour les documents ou renseignements de caractère confidentiel
                         dont je pourrais prendre connaissance dans l’accomplissement de ma
                         mission. »
                    4) Le greffier pourvoira au secrétariat des experts. Il pourra désigner à cet
                       effet des fonctionnaires du Greffe.

                    5) Le greffier mettra les pièces de procédure et les documents annexés à
                       la disposition des experts, qui les considéreront comme confidentiels
                       tant qu’ils n’auront pas été rendus accessibles au public conformément
                       au paragraphe 2 de l’article 53 du Règlement.
                    6) Les Parties fourniront l’assistance requise aux fins des opérations
                       d’expertise.
                    7) Les experts établiront un rapport écrit contenant leurs conclusions et
                       le déposeront au Greffe. Ce rapport sera communiqué aux Parties,
                       auxquelles la possibilité sera offerte de présenter des observations en
                       application du paragraphe 2 de l’article 67 du Règlement.
                    8) Les experts assisteront, en tant que de besoin, à la procédure orale. Ils
                       répondront aux questions des agents, conseils et avocats des Parties,
                       en application de l’article 65 du Règlement.
                    9) La Cour se réserve le droit de poser de nouvelles questions aux experts
                       si elle le juge utile.

                       Fait en français et en anglais, le texte français faisant foi, au Palais de
                    la Paix, à La Haye, le trente et un mai deux mille seize, en trois exem-
                    plaires, dont l’un restera déposé aux archives de la Cour et les autres
                    seront transmis respectivement au Gouvernement de la République du
                    Costa Rica et au Gouvernement de la République du Nicaragua.

                                                                            Le président,
                                                                  (Signé) Ronny Abraham.
                                                                               Le greffier,
                                                                 (Signé) Philippe Couvreur.

                    7

3 CIJ1097.indb 20                                                                                23/01/17 11:09


30

DISSENTING OPINION BY JONKHEER VAN EYSINGA.
[Translation.]

The judgment decides that the first objection raised by the
Lithuanian Government as a preliminary objection does not
possess that character. This decision had not yet been taken
by the Court’s Order of June 30th, 1938. The result of this way
of proceeding would be that if it were necessary to adjudicate
on the merits of this dispute between Estonia and Lithuania,
the Court could only do so in a third phase of the proceed-
ings. It may be questioned whether this way of proceeding
is a very happy one. It is moreover not in accordance with the
procedure laid down by Article 62 of the Rules of Court with
regard to preliminary objections. Under that Article, which
was introduced after mature reflection in 1926 as Article 38,
the Court must decide as to the preliminary character of objec-
tions as soon as they are raised as such, after which, unless
the Court upholds the objections, it has the choice of rejecting
them or joining them to the merits. Article 62 of the Rules
very rightly does not contemplate a third possibility consisting
in leaving open the question whether objections are or are not
preliminary in character and joining them nevertheless to the
merits.

*
* *

The first preliminary objection of the Lithuanian Government
to the Estonian Government’s claims is to the effect that the
latter Government has not observed ‘the rule of international
law according to which a claim must be a national claim not
only at the time of its presentation but also at the time when
the injury was suffered’.

In this connection, the following observations should be made.

It appears from the memorials and oral arguments which
were already before the Court in the first stage of the proceed-
ings in regard to this dispute, that is to say in June 1938,
that the unlawful act complained of by the Estonian Govern-
ment is the seizure by the Lithuanian Government in Septem-
ber 1919 of the Panevezys-Saldutiskis railway. And it is not
denied that at that date the Esimene Juurdeveo Raudteede
Selts Venemaal (First Company of Secondary Railways in
Russia), whose case the Estonian Government has taken up,
could not possess Estonian nationality.

The Lithuanian Government. contends that the Company was
only founded in 1923 and that consequently it then received

30
A./B. 76 (PANEVEZYS-SALDUTISKIS).—OP. VAN EYSINGA 31

Estonian nationality. On the other hand, the Estonian Govern-
ment contends that the Estonian Company is none other than
the First Russian Company, founded in 1892, the nationality
and statutes of which were altered following the world war
and after 1919. It is therefore unnecessary to settle the ques-
tion which of the two Parties is right with regard to this point
—à thing which it would only be possible to do by entering
upon the merits of the dispute—in order to decide whether or
not we are dealing with a preliminary objection. For no matter
which of the two lines of argument is correct, the fact remains
that at the time when the injury was suffered, the Company
did not possess Estonian nationality and that, consequently, the
rule of international law which the Lithuanian Government
adduces is applicable, at all events if it exists in the absolute
form attributed to it by that Government.

But it is precisely in regard to this point that there appears
to be ground for serious doubt; for the Lithuanian Agent has
not succeeded in establishing the existence of the rule in the
absolute form attributed to it according to the Lithuanian
‘ argument.

To decide the question whether an unwritten rule of inter-
national law is really a hard and fast rule, it does not suffice
to present general considerations—which in some circumstances
may be sufficient; it is also necessary to consider the legal
situation in which the rule has to be applied in a particular
case. This has not been done in the present case.

It should be added that, if the Estonian contention that the
Esimene is no other than the First Company were correct, the
rule adduced by the first Lithuanian objection would be open
to other criticisms besides that relating to the lack of proof
of the existence of such a rule. These criticisms will be set
out first in the following observations, which will do not more
than touch upon the merits of the dispute.

The train of events underlying the present dispute falls within
the branch of international law known as State succession. At
a certain moment portions of the old Russian Empire, includ-
ing Lithuania, became independent States; what had previously
been a part of Russia, of the Russian people and of the Russian
authorities, was now Estonia, the Estonian people and the
Estonian authorities. All the powers which the Estonian Govern-
ment can now exercise are new in the sense that these same
powers previously belonged to another State, namely Russia.

There exists no general statute governing the part of inter-
national law relating to State succession, and the treaties which
deal with the matter, such as the Treaty of Peace of Tartu
between Russia and Estonia, signed on February 2nd, 1920,
which came into force on March 29th, 1920, define sometimes

3r
A./B. 76 (PANEVEZYS-SALDUTISKIS).—OP. VAN EYSINGA 32

one part, sometimes another of the law of State succession;
all depends on the degree of importance attributed by the
parties to the particular treaty to these sections of interna-
tional law in the actual conditions which confront them. That
being so, it will be seen that the question of the transfer of
the registered offices of joint-stock companies and consequently
the question of their nationality would have assumed another
aspect if Russia had not passed through a tremendous revo-
lution leading to a very far-reaching nationalization of private
property, but had remained a State attaching great importance
to the inviolability of private property.

A treaty such as the Treaty of Tartu may provide that the
local inhabitants and likewise corporations, whether joint-stock
companies or otherwise, which are situated in the territory of
the new State, shall acquire the latter’s nationality. The Treaty
of Tartu does not say so expressis verbis. On the other hand,
other aspects of the law of State succession were dealt with
therein in special articles covering such matters as debts due
to the Russian Treasury by Estonian subjects, which debts
passed into the hands of Estonia under Article XI, paragraph 2.

But whether or not dealt with in the Treaty, the legal life
of the new State in all its aspects proceeds in succession to
the legal life of the old State. Thus in all matters where the
Government of the latter had jurisdiction, its place is now
taken by the Government of the new State. This holds good
as regards diplomatic protection. If the Estonian contention
that the Esimene is the same as the First Company were cor-
rect, the diplomatic protection of the Company would until a
certain date have been a matter for the Russian Government,
but after that date it would have fallen to the Estonian Govern-
ment. It is the same principle as that found in Article XI,
paragraph 2, under which at a certain date debts owing to
the Russian Treasury passed into the hands of Estonia, and it
is difficult to see why a “claim” against a third State arising
out of an unlawful act should not also pass from the old to
the new State. Regarded from this aspect of the law of State
succession—and this is how the present dispute should be
envisaged—there is nothing surprising in the fact that Estonia
should have had the right to take up a case which previously
only Russia could have espoused. Such a “succession” is an
absolutely characteristic and even essential feature of the law
of State succession. The successor State is continually exer-
cising rights which previously belonged exclusively to the old
State, and the same holds good as regards obligations. Accord-
ingly it would be quite normal that in this case the successor
State should have protected both diplomatically and before

32
A./B. 76 (PANEVEZYS-SALDUTISKIS).—OP. VAN EYSINGA 33

the Court a company the diplomatic protection of which form-
erly fell to Russia alone.

As has already been said, the rule that a claim must be a
national claim not only at the time of its presentation but
also at the time when the injury was suffered, if it were really
a hard and fast rule, would apply not only if the Lithuanian
contention that the Esimene was ‘only founded in 1923 were
correct, but also if the Estonian contention were well-founded.
It follows from what has been said above that it cannot be
applied in the latter alternative. But apart from this the
Lithuanian Agent has not succeeded in establishing the exist-
ence of the rule in the absolute form imputed to it by the
Lithuanian argument.

Those who maintain that this is a hard and fast rule rely
mainly on the jurisprudence of the Claims Commissions (Mixed
Commissions). So does the Lithuanian Agent.

The Mixed Commissions are set up by treaty when, especially
after stormy events such as a revolution or civil war, a great
number of the nationals of both parties to the treaty have
suffered injury. A desire to liquidate all these claims leads
the two parties to refer them by treaty to a commission set
up especially te deal with them. Accordingly the commission
is a special tribunal for certain groups of the nationals of both
sides, and it is obvious that such treaties have in view only
the nationals of the two parties who have suffered injury, but
not non-nationals, who may be in the same situation and who,
in order to take advantage of the existence of the commission,
get themselves naturalized, or nationals who may have bought
the claims of non-nationals. In the domain of treaties setting
up Mixed Commissions, the rule relied on by the Lithuanian
Agent is perfectly comprehensible and perhaps in this sphere
it is possible to speak of a rule of international law in the
sense that, in the absence of a definite treaty provision, it
must be observed by the Mixed Commissions.

The Lithuanian Agent, in order to support his contention as
to the hard and fast character of the rule adduced by him,
has frequently cited the American publicist Borchard. In this
connection it should be observed that the quotation on page 19
of the Lithuanian Preliminary Objections gives the impression
that Borchard, in his classic work, had laid down the rule
that a claim must be a national claim not only at the time
of its presentation but -also at the time of the injury as a
rule of general application. But if one continues to read on
page 660 of Diplomatic Protection of Citizens abroad, one
realizes that Borchard really only has in mind the line of

33
A./B. 76 (PANEVEZYS-SALDUTISKIS).—OP. VAN EYSINGA 34

conduct of the United States Department of State in the sphere
of the Claims Commissions. And the heading of paragraph 306
of Borchard explains that this paragraph is merely concerned
with the impossibility of ‘nationalizing’ a claim whether by
the naturalization of the person advancing it or by the assign-
ment of the claim to a national. Accordingly he is dealing with
abuses with which the Mixed Commissions have constantly
had to contend, but which are not present in the Panevezys-
Saldutiskis railway case.

If therefore Borchard’s book is not relevant in the present
case, the same applies with regard to the learned note of
MM. de Lapradelle and Politis on the Washington Mixed Com-
mission of December 31st, 1862, which note is cited on page 21
of the Lithuanian Preliminary Objections. In this note the
part devoted to the question of nationality begins with the
following sentence: ‘Questions of nationality are frequently put
to Mixed Commissions.” And some lines later: “In Mixed
Commissions, protection and nationality coincide. The States
which set them up only make them available to their respec-
tive nationals.’”’ It follows that this note is only concerned
with “Claims Commissions” set up by conventions and which
the contracting parties place at the exclusive disposal of their
nationals. Moreover there is nothing surprising in this, since
the note deals only with such a mixed commission and is not
concerned with international jurisdiction in general.

- The passage quoted on page 21 of the Lithuanian Preliminary

Objections: “In the Medina case the theory of nationality is
definitely and frankly introduced into arbitration proceedings.
And since then it has consistently developed”, might give the
impression that the passage was intended to cover the whole
sphere of arbitration. But the context shows that this is not
so. Moreover the note is careful to emphasize the distinction
between Mixed Commissions and arbitration properly so-called :
on page 179 it says that, in special circumstances, that is to
say when all the claims come from one side only—when there-
fore reciprocity is absent—‘the Mixed Commission nearly
approaches an arbitration properly so-called’.

In the Institute of International Law, Borchard attempted to
generalize that which in his book related only to Mixed Commis-
sions, and he then said a thing which should be stressed and
which indeed is quoted on page 20 of the Preliminary Objections.
“An extensive jurisprudence has established and crystallized the
rule to the effect that a claimant must have possessed the
nationality of the claimant State when the claim originated”
(Year Book of the Institute of International, Law, 1931, I,
p. 282). The jurisprudence referred to by Borchard and quoted

34
A./B. 76 (PANEVEZYS-SALDUTISKIS).—OP. VAN EYSINGA 35

by him is still that of Mixed Commissions. It may be that
this jurisprudence has crystallized the rule which Borchard has
in mind. But it may be observed that “crystallize” implies
the idea of rigidity. When the Court has to apply unwritten
law, of course it often encounters difficulties. But there are
also advantages, in particular the advantage that such rules of
law, not being written, are precisely not rigid. It will suffice
to read, tntey alia, the observations of M. Politis (Year Book,
1931, II, pp. 206-209) to see that it is a happy thing that
the rule adduced by Lithuania, which may be binding in a
certain number of cases, is by no means crystallized as a general
rule. And in this connection the question also arises whether
it is reasonable to describe as an unwritten rule of -interna-
tional law a rule which would entail that, when a change of
sovereignty takes place, the new State or the State which has
increased its territory would not be able to espouse any claim
of any of its new nationals in regard to injury suffered before
the change of nationality. It may also be questioned whether
indeed it is any part of the Court’s task to contribute towards
the crystallization of unwritten rules of law which would lead
to such inequitable results.

It follows from the foregoing that the Lithuanian Agent has
not succeeded in establishing the existence, in the absolute
form alleged by him, of the rule of international law to the
effect that a claim must be a national claim not only at the
time of its presentation but also at the time when the injury
was suffered, and that this rule cannot resist the normal oper-
ation of the law of State succession.

As the basis on which the first Lithuanian preliminary objec-
tion rests is thus shown to be non-existant, that objection
should have been rejected, and its rejection would have been
possible without prejudging the merits of the case.

*
% *

The second Lithuanian objection, which is likewise prelim-
inary in character, is of the same pattern as the first. It also
adduces a rule of international law, “the rule requiring the
exhaustion of local remedies’. The Lithuanian Agent in his
speech on June 13th, 1938, said that the rule would always be
binding as between the two States unless it had been set aside
by a treaty, and, in Lithuania’s contention, no such treaty
existed.

It is this latter point which is open to doubt. It would
seem that Lithuania cannot rely upon this rule as against
Estonia for the very reason that the acceptance by the two

5 35.
A./B. 76 (PANEVEZYS-SALDUTISKIS).—OP. VAN EYSINGA 36

States of the Court’s compulsory jurisdiction under Article 36 ‘of
the Court’s Statute, which acceptance is unreserved (Series D.,
No. 6, p. 42; Series E., No. 11, p. 257), implies the setting
aside of the rule in question in relations -between the two
States. We have here an exception to the rule which is accepted
in principle by Lithuania, but which in that country’s conten-
tion does not operate in the present case.

The rule that the means of redress afforded by the national
courts must be exhausted before a government can take up
the case of one of its nationals against a foreign government
is a rule of conduct which has been observed for a very long
time. It is a rule the observance of which dates back to the
remote past, a past antedating by far the “general and logically
coordinated theory of State responsibility”, as M. De Visscher
has called it, a theory which dates from the beginning of this
century and ‘which owes its origin to the remarkable German
science of Laband and after him of Triepel.

When a person approaches his government with a view to
getting it to take up his case against a foreign government,
the former government will begin by ascertaining whether the
remedies afforded by the latter’s courts have been exhausted.
If they have not, it will advise its national to apply to those
courts before it can take up the case on his behalf.

Reciprocally, when a government receives a diplomatic com-
plaint regarding a foreigner, if the latter has not yet exhausted
the remedies afforded him by the national courts, that govern- -
ment will reply to the other government that the outcome of
action before the national courts or other authorities must be
awaited. The same will hold good if the diplomatic represent-
ations take the form of a proposal for arbitration.

The application of the local remedies rule is not restricted
solely to diplomatic relations between governments. Instances
of its application are also to be found in other spheres of inter-
national administration. Thus when the Central Commission
on the Navigation of the Rhine was assigned the task of
dealing with complaints regarding the non-observance of inter-
national law governing the Rhine, it also determined to apply
the rule.

Though therefore the rule is normally followed in interna-
tional practice, there are also. cases where it has not been
followed, There are for instance cases where a settlement of
the claim by diplomacy has been effected notwithstanding the
non-exhaustion of local remedies, and’ also cases where an
arbitrator has been appointed who was to adjudicate in spite
of the fact that all the national courts competent to deal with

36
A./B. 76 (PANEVEZYS-SALDUTISKIS),—OP. VAN EYSINGA 37

the claim had not rendered a decision. When an arbitrator
is appointed in such circumstances, this constitutes a ‘‘proroga-
tion” of jurisdiction.

The local remedies rule encountered an important landmark
in its history when ad hoc arbitrations, the special agreements
for which are not based on compulsory arbitration clauses which
at that date did not yet exist, began to be replaced by such
clauses or even by general arbitration conventions in which the
contracting States agreed beforehand to submit to arbitration
certain categories of legal disputes or even all such disputes
which might arise. Compulsory or institutional arbitration, as
Lammasch calls it, constitutes, in so far as concerns disputes in
which one government is taking up the case of one of its nation-
als, a ‘‘prorogation’’ of jurisdiction provided for in advance. As
regards a particular dispute it has the same effect as an agree-
ment ad hoc with reference to a dispute in which the local remedies
have not been exhausted. In fact, compulsory arbitration,
accepted unconditionally, constitutes an exception to the applic-
ability of the local remedies rule.

So true is this that when, at the instigation of the 1899
Peace Conference, governments began to conclude general arbi-
tration conventions, they realized the necessity of making an
explicit reservation in such conventions regarding the local
remedies rule if they wished to maintain that rule. “Without
such a reservation, compulsory arbitration accepted beforehand,
unconditionally, would constitute a “prorogation” of jurisdiction.
whenever arbitration was obligatorily resorted to before local
remedies had been exhausted. On the other hand, the making
of a reservation postpones compulsory arbitration until the local
courts have adjudicated.

One of the first examples of this reservation is to be found
in the General Arbitration Convention between Denmark and
the Netherlands of February 12th, 1904; and in Article 6 of
the General Treaty of Arbitration between Italy and the Nether-
lands of November 2oth, 1909, we already find a formula very
much like that to be met with more and more frequently in
compulsory jurisdiction or arbitration conventions. Article 6 of
the General Arbitration Treaty between Italy and the Nether-
lands is as follows:

“In questions falling under the jurisdiction of the national
judicial authorities, according to the territorial laws, the Contract-
ing Parties are entitled not to submit the dispute to arbitra-
tion until the competent national courts have delivered a final
decision, except in the case of a denial of justice.”’

37
A./B. 76 (PANEVEZYS-SALDUTISKIS).—OP. VAN EYSINGA 38

A perusal of the collection of texts governing the Court’s
jurisdiction in Series D., No. 6, and in the addenda to that
collection, will suffice to realize that in a very large number of
conventions providing for the Court’s compulsory jurisdiction,
this compulsory jurisdiction does not exist so long as local
remedies have not been exhausted. Thus for instance Arti-
cle 3 of the Locarno Arbitration Conventions of 1925 runs as
follows : :

“In the case of a dispute the occasion of which, according to
the municipal law of one of the Parties, falls within the compet-
ence of the national courts of such Party, the matter in dis-
pute shall not be submitted to the procedure laid down in the
present Convention until a judgment with final effect has been
pronounced, within a reasonable time, by the competent national
judicial authority.’

The General Act of Conciliation, Judicial Settlement and Arbi-
tration, signed at Geneva on September 26th, 1928, contains
an article—No. 31—the wording of which very much resembles
that of the Locarno instruments. This article is as follows:

<<

I. In the case of a dispute the occasion of which, according
to the municipal law of one of the Parties, falls within the
competence of its judicial or administrative authorities, the
Party in question may object to the matter in dispute being
submitted for settlement by the different methods laid down in
the present General Act until a decision with final effect has
been pronounced, within a reasonable time, by the competent
authority.

2. In such a case, the Party which desires to resort to the
procedures laid down in the present General Act must notify
the other Party of its intention within a period of one year
from the date of the afore-mentioned decision.”

It is not without interest to observe that both the text of
Locarno and that of the General Act, as well as the numerous
treaties based on the text of these important instruments, speak
of disputes between States the subject (occasion) of which falls
within the competence of the courts (judicial or administrative
authorities) of one of the parties to the treaty. In a case where
one of the parties has espoused the claim of a physical or
juristic person, the dispute between the two States has there-
fore precisely the same subject (occasion) as the dispute between
the physical or juristic person and one of the two States.

It seems clear that in all cases where the jurisdiction of the
Court is conditional upon the exhaustion of local remedies, an
objection to the effect that an application presented before
such remedies have been exhausted cannot be entertained must
be sustained by the Court.

The position however is different when the Court’s jurisdiction
is accepted unconditionally. In the case, the Court’s compulsory

38
A./B. 76 (PANEVEZYS-SALDUTISKIS).—OP. VAN EYSINGA 39

jurisdiction, if all the remedies afforded by the national courts have
not been exhausted, constitutes a ‘‘prorogation’’ of jurisdiction;
the Court is competent even before exhaustion of local remedies.

This is the position in the present case; for neither Arti-
cle 36, paragraph 2, of the Court’s Statute nor the Lithuanian
and Estonian declarations contain a reservation respecting the
exhaustion of local remedies.

It follows from the foregoing that the local remedies rule
cannot operate in the present case. It. is set aside by the
unconditional acceptance of the Court’s jurisdiction.

The same would hold good if an objection had been lodged
based, not on the non-exhaustion of the remedies afforded by
the national courts but on the non-exhaustion of international
remedies, that is to say the diplomatic channel. In this con-
nection, the Court in Judgment No, 6, in the case concerning
certain German interests in Polish Upper Silesia, says that
if a compulsory jurisdiction clause does not stipulate that
diplomatic negotiations must first be tried, recourse may be
had to the Court as soon as one of the parties considers that
a difference of opinion exists (p. 14).

It is true that some States have been led to attach very
great importance to the local remedies rule because pressure,
which has sometimes been unjustified, has been brought to bear
on them in order to induce them to recognize private claims
espoused by a government, although the remedies of municipal
law have not been exhausted. This circumstance however can-
not invalidate the foregoing considerations.

Three further observations may be made.

‘In the first place it has been said that the local remedies
rule is implied in Article 36 of the Court’s Statute. When one
considers the influence which the new conception of compul-
sory arbitration has exercised on the old practice in regard to
the local remedies rule and that in order to maintain that
tule in force side by side with compulsory arbitration, it has
been held necessary to make an express reservation regarding
it in general arbitration or jurisdictional conventions, it will
perhaps be realized that it is difficult to admit the existence
of an implied reference in view of so many explicit reservations.

It has also been said that if the view put forward above
were correct, the result would be that governments would
hesitate much before renewing or signing declarations accept-
ing the optional clause. It would seem that such hesitation
is unnecessary, for practice shows that these declarations often
comprise a fairly wide range of reservations. Thus, several
Dominions when signing their declarations have, in certain

39
A./B. 76 (PANEVEZYS-SALDUTISKIS).—OP. VAN EYSINGA 40

conditions, made a reservation respecting prior recourse to the
Council of the League of Nations. Accordingly, there is nothing
to prevent States from making a condition respecting the
‘exhaustion of local remedies.

In the third place, it has been said that since the Court, under
Article 38 of the Statute of the Court, must apply the general
principles of law recognized by civilized nations, it must apply the
local remedies rule. This obligation is not denied. But one
must also not lose sight of the fact that this is a rule to which
there are many exceptions. It is by no means a rule of public
police which States must treat as sacrosanct. They do not do
so when they arrange an ad hoc arbitration without previous
exhaustion of local remedies ; they neither do when they accept
the Court’s jurisdiction in advance without making the usual
reservation concerning the rule. The Court itself in Judgment
No. 14, page 19 (the Serbian Loans case), recalled that there
were cases in which the rule did not apply.

Even disregarding for the moment what has been said above,
it is to be observed that the highest court in Lithuania, the
Lithuanian Supreme Court, in its judgment of March 16th/26th,
1934, pronounced so definitely in regard to a cardinal point
which, if accepted by the Court, would entail complete success
for Lithuania in this case, that it would be useless for the
Company to apply to the Lithuanian courts before the Estonian
Government took up its case before the Court. I refer
to the question whether the legal personality of the First
Company persists in the Esimene Company, or whether on the
contrary the Esimene is a new company. The Supreme Court
of Lithuania definitely said that the Esimene was a new com-
pany. The following are the relevant passages :

“The defendant cited in this case as liable for the bond is
not the First Company of Secondary Railways in Russia, with
its Board of Directors in Petrograd, but the First Company of
Secondary Railways in Russia, with its Board of Directors at
Tallinn in Estonia and whose managing director, Paul Klompus,
at present resides at Kaunas, at the Lithuania Hotel, No. 9,
Daukant Street. Consequently, in order to bring this case within
the jurisdiction of the Lithuanian courts, a domicile has been
artificially created in breach of Articlé 220 of the Code of Civil
Procedure, which indicates where a company is to be sued.

More especially since, as may be seen from the evidence pro-
duced by the defendant, no company exists in Estonia in whose
name the bond was issued and whose statutes were in force in
1892, but there is a company newly founded under the name

40
A./B. 76 (PANEVEZYS-SALDUTISKIS).—OP. VAN EYSINGA  4I

of the Esimene Juurdeveo Raudteede Selis Venemaal (which,
translated, may mean: ‘First Company of Secondary Railways
in Russia’).”’

It is difficult to imagine a clearer example of a definite pro-
nouncement by a highest national court on a question which
decides the issue in favour of one of the two Parties before
the Court. In such a case an objection based on the local
remedies rule is inapplicable, even apart from what had been
said concerning the impossibility of presenting this objection in
view of the unconditional acceptance by the two Parties of
the Court’s compulsory jurisdiction under Article 36 of the
Court’s Statute.

(Signed) v. EYSINGA.

4i