114

SEPARATE OPINION OF JUDGE RUDA

I have voted in favour of the operative part of the Advisory Opinion.
However, I would like to explain how, although I reach somewhat similar
conclusions to those of the Court, I do so by way of a different reason-
ing.

The first question submitted to the Court by the request for advisory
opinion is framed by reference to the negotiation and notice provisions of
Section 37 of the 1951 Agreement between the WHO and Egypt, and
relates to the eventuality of a transfer from Egypt of the WHO Regional
Office for the Eastern Mediterranean. Now, this Section 37 begins with the
words “The present Agreement may be revised”, refers in the second
sentence to “the modifications to be made in its provisions” and ends with
the phrase “the present Agreement may be denounced by either party
giving two years’ notice”. Therefore, in order to ascertain whether the
negotiation and notice provisions of Section 37 are applicable to the
eventuality just mentioned, we have to find out whether there is any
stipulation in the Agreement determining the site of the Regional Office, or
laying down the requirements for its eventual removal, that could be the
object of negotiations and, subsequently, lead to modification or revision,
or to denunciation in case of failure, as provided for in the Section. It seems
to me a logical premise that you cannot “revise” a treaty on a point that is
not in it, except perhaps by way of adding a new clause or a new subject,
which is not the case here.

Let us begin with the preamble, which is always a very useful part of an
instrument for defining its general purpose. This, in the present instance,
seems to be clear, 1.e., to determine the privileges, immunities and facilities
to be granted by Egypt to the WHO, to the representatives of its Members,
and to its experts and officials, “in particular with regard to its arrange-
ments in the Eastern Mediterranean Region and... regulating other
related matters”.

The text of the Agreement confirms this general purpose. Most of the
articles are devoted to the concession of privileges, immunities and fa-
cilities, the exception being the articles dealing with what the preamble
calls “other related matters” : Article X, on the “Security of the Govern-
ment of Egypt”, and the final provisions in Articles XI and XII. But I can
find no clause in the text, including the preamble, agreeing on Alexandria
as the site of the Eastern Mediterranean Regional Office, or laying down
the requirements for a transfer from that site.

It is true that there are several allusions to the Office in the 1951
Agreement. In the definitions given in Article I, “the Regional Office in

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115 INTERPRETATION OF AGREEMENT (SEP. OP. RUDA)

Alexandria” is mentioned by name as one of the “principal” or “subsidiary
offices”. Section 6 refers to “the premises of the Organization in Egypt” ;
Section 25 provides for additional diplomatic privileges and immunities
for “the Regional Director in Egypt and his Deputy” ; Section 30 contains
an undertaking to the WHO for the provision of water, electricity, etc., to
“the premises placed at its disposal” and police supervision “for the
protection of the seat of the Organization”.

I agree with the contention that the 1951 Agreement was mainly devoted
to regulating the conditions under which the Office would function in
Alexandria, and, even more, that no such agreement would have been
signed if the Office had not been located in Alexandria, but this does not
mean that Alexandria was chosen and agreed upon in the 1951 Agreement
as the site of the Regional Office.

According to my interpretation, the 1951 Agreement presupposes the
establishment of the Regional Office in Alexandria. The Office is not
created or established in this instrument, nor is the choice of site fixed
therein. This interpretation is in accordance with the facts as I see them,
which I now propose to describe.

At its Third Session, the Interim Commission of the WHO, in 1947,
decided to instruct the Executive Secretary

“to get in touch with the authorities of the Pan Arab Sanitary Orga-
nization and to submit a report on the activities and status of that
organization” (WHO, Official Records, No. 5, p. 142).

Later, in September 1947, at its Fourth Session, the Interim Commission
decided to appoint a subcommittee

“to study, in consultation with appropriate authorities, the relation-
ship to the WHO of the Sanitary Bureau at Alexandria, in the light of
Chapter XI of the WHO Constitution and the International Sanitary
Convention of 1938” (WHO, Official Records, No. 6, p. 220).

In the course of the discussions, the Interim Commission considered a
Report by the Egyptian Minister of Health on the Pan Arab Regional
Health Bureau (ibid., pp. 173-177) and the delegation of France pointed
out correctly that this Bureau “did not really exist” and that “the nego-
tiations regarding the integration of the Alexandria Epidemiological Intel-
ligence Bureau with the WHO should take place with the Egyptian
Government” (ibid, pp. 28 f.).

At the beginning of 1948, the Interim Commission decided, after con-
sidering the replies received from Governments and finding that there was
not sufficient data available, to defer the question of the determination of
the geographical regions to the Health Assembly (WHO, Official Records,
No. 7, p. 232). During its meetings, the Commission discussed a report by
the Executive Secretary, Part 38 of which, entitled “Location of Head-

46
116 INTERPRETATION OF AGREEMENT (SEP. OP. RUDA)

quarters and Regional Bureaux of the WHO” mentioned a reply received
from the Government of Egypt stating that

“the competent authorities have declared that they are most anxious
to see a Regional Bureau established at Alexandria. The bureau could
deal with all questions coming within the scope of the WHO for the
entire Middle East” (ibid, p. 135).

Greece favoured “the maintenance, as heretofore, of a regional organiza-
tion of the WHO in Alexandria” (ibid).

In the supplementary Report of the Interim Commission to the First
World Assembly Dr. Stampar, Chairman of the Interim Commission, in
May 1948 recommended in a very comprehensive report, under the item
“Pre-existing Regional Organizations”, that the Regional Health Centre
for the Near and Middle East be located in Alexandria (WHO, Official
Records, No. 12, pp. 65-75).

At the First World Health Assembly, the Committee on Headquarters
and Regional Organizations appointed a working grokp, which recom-
mended that “a regional organization be established immediately . . . with
headquarters at Alexandria” (WHO, Official Records, No. 13, p. 267). A
draft resolution was submitted by Egypt, but not adopted, which, inter alia,
took into consideration

“the fact that the Egyptian Government has offered to place at the
disposal of the organization a large and suitable building, formerly
occupied by the Sanitary Maritime and Quarantine Board and pres-
ently occupied by the Regional Sanitary Bureau of Alexandria”

and recommended that the Regional Bureau be integrated with the WHO
as a regional organization (A/HQ/3, 5 July 1948). Finally, on 10 July 1948,
the Assembly, on the basis of a second report of the Committee (ibid.,
p. 80), adopted resolution WHA1.72 on the delineation of geographical
regions. This read as follows :

“The First World Health Assembly

Resolved on the delineation of the following as geographical areas :
(1) Eastern Mediterranean Area, (2) Western Pacific Area, (3) South-
East Asia Area, (4) European Area, (5) African Area, (6) American
Area.

1. Eastern Mediterranean Area, comprising the following coun-
tries: Egypt ... Cyprus...

Resolved that the Executive Board should be instructed : (1) to
establish regional organizations in accordance with the delineation of
geographical areas decided upon and as soon as the consent of the
majority of Members situated in such areas has been obtained ; (2) as
regards the Eastern Mediterranean Area, to integrate the Alexandria
Regional Bureau with WHO as soon as possible and (3) as regards
Europe ...” (WHO, Handbook of Resolutions, Vol. I, p. 315).

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117 INTERPRETATION OF AGREEMENT (SEP. OP. RUDA)

The First Session of the Eastern Mediterranean Regional Committee
was held in Cairo, in February 1949. The Director-General of WHO
presented a statement (RC/EM/7) on the “Role of the Sanitary Bureau at
Alexandria as a Regional Bureau for Epidemiological Notifications and
information under the International Sanitary Conventions” which con-
cluded that integration with the WHO should not impair the functions
carried out efficiently by the Sanitary Bureau for many years and should
facilitate the co-ordination of these functions with the WHO headquarters
and the Singapore Epidemiological Information Station.

The Agenda of the Meeting included as item 5 “Location of the
Regional Office” (RC/EM/6), as item 9 “Epidemiological Intelligence
Service” (RC/EM/7), as item 11 “Integration of the Sanitary Bureau at
Alexandria” (RC/EM/3) and as item 12 “Draft Agreement of the Host
Government of the Regional Office”. Document RC/EM/6, on the loca-
tion of the Regional Office, is a short report by the WHO Secretariat
citing Article XI (2) of the Agreement between the United Nations
and the WHO, which states that any regional office of the WHO
shall

“so far as practicable be closely associated with such regional or
branch offices as the United Nations may establish”

and pointing out the existence of FAO and ILO offices already located in
Cairo, and the intention of the United Nations to open an information
centre in that city. The report stressed the point that any action taken by
the Regional Committee on the location of the Office should be provi-
sional, “until clearance is obtained” in negotiations with the United
Nations at the meeting of the Administrative Committee on Co-ordina-
tion.

At its Second Session, the Regional Committee dealt with an item on the
location of the Regional Office. After a declaration by the Director-
General, the contents of which are not given in the minute, the delegate of
Egypt made a statement (RC/EM/9)

“to the effect that the Government of Egypt is taking steps to offer the
site and building at Alexandria to the WHO for a period of nine
years” ;

and the minute goes on:

“A motion was then made and adopted to recommend to the
Director-General and the Executive Board, subject to consultation
with the United Nations, the selection of Alexandria as the site of the
Regional Office. A resolution on this point will be prepared.”

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118 INTERPRETATION OF AGREEMENT (SEP. OP. RUDA)

At the next meeting, on the same item, the delegate of Egypt read a draft
resolution which was adopted and which I shall describe in detail, together
with other resolutions adopted at the same session of the Regional Com-
mittee. Two meetings later, item 9, “Epidemiological Intelligence Service”
and item 11, “Integration of the Sanitary Bureau at Alexandria”, were
discussed together and a draft resolution was also adopted on integration,
which I shall deal with later. It should be noted that in the course of the
debate the Director-General pointed out that provision “for taking over
the Bureau had been made” in the 1949 Budget, and that the delegate of
Egypt announced that his Government

“was pleased to transfer the functions and all related files and records
of the Alexandria Bureau to the World Health Organization”

and also that the

“transfer would be made on the date on which the Organization
notifies the Government of Egypt of the beginning of operations in
the Regional Office of the Eastern Mediterranean Region”.

The Committee then approved a motion to begin the operations of the
Regional Office in July, because, according to the Egyptian delegate and
the Director-General, such a decision “would be in accord with the draft
budget for six months”. There was discussed as a separate item, at the same
meeting, the “Draft Agreement with the Host Government”, the Director-
General stating that a draft agreement had been produced and handed to
the Egyptian Government, whose legal department was studying it. With
respect to the venue for the second session of the Committee, the delegate
of Egypt proposed Alexandria “in order that the first /sic] meeting should
be held at the Regional Bureau” ; this motion was supported by the
Director-General who said that “it was desirable to have the early meetings
at Regional Headquarters”.

The Report of the First Meeting of the Regional Committee to the Third
Session of the Executive Board (WHO, Official Records, No. 17, pp. 45 f.)
included a “Summary of resolutions and decisions” and the texts of two
resolutions and two statements by the delegate of Egypt. In the summary
of resolutions the Committee, under item No. 5, dealt with the “Location
of the Regional Office” and mentioned a resolution and a statement which
were given as appendices. Appendix 4, “Resolution on Location of the
Regional Office”, referred in its introduction to (1) the historical role of
Alexandria as a centre of epidemiological services, (2) to Article XI of the
Agreement between the United Nations and the WHO, (3) to the impor-
tance of establishing the Regional Office in the proximity of Cairo because
of the location there of several United Nations offices and (4) to

49
119 INTERPRETATION OF AGREEMENT (SEP. OP. RUDA)

“the desirability of the excellent site and buildings under favourable
conditions generously offered by the Government of Egypt”,

and in conclusion resolved

“to recommend to the Director-General and the Executive Board,
subject to consultation with the United Nations, the selection of
Alexandria as the site of the Regional Office”.

Appendix 3 included a statement by the Egyptian delegate in which he
announced that

“at its meeting of 6 February 1949 the Council of Ministers has
agreed, subject to approval of the Parliament, to lease to the Worid
Health Organization, for the use of the Regional Office for the East-
ern Mediterranean Area, the site of land and the building thereon
which are at present occupied by the Quarantine Administration and
the Alexandria Health Bureau, for a period of nine years at a nominal
annual rent of P.T.10”,

an offer for which the Committee expressed its thanks.

The Report also referred, under item No. 9, to the “Integration of the
Alexandria Sanitary Bureau”, mentioning a resolution reproduced as
Appendix 2, in which the Committee, having regard to (1) the provisions of
Chapter XI of the WHO Constitution, (2) the resolution of the World
Health Assembly on the delineation of regions and (3) the services and
experience of the Sanitary Bureau at Alexandria, resolved

“to recommend to the Executive Board that in establishing the
Regional Organization and the Regional Office for the Eastern Medi-
terranean the functions of the Alexandria Sanitary Bureau be inte-
grated with those of the Regional Organization of the World Health
Organization”.

Appendix 5 reproduced a statement by the Egyptian delegate in which he
recalled that the Government of Egypt had assumed the functions and
carried on the services of the Alexandria Sanitary Bureau in accordance
with a declaration made by his Government at the International Sanitary
Conference of 1938. The statement added that :

“In consideration of the resolution on integration of the Alexandria
Sanitary Bureau with the World Health Organization, the Govern-
ment of Egypt is pleased to transfer these functions and all related
files and records to the World Health Organization.

This transfer will be made as of the date on which the World Heaith
Organization notifies the Government of Egypt of the commence-
ment of operations in the Regional Office for the Eastern Mediter-
ranean Area.”

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120 INTERPRETATION OF AGREEMENT (SEP. OP. RUDA)

This statement was received with thanks by the Committee.

The Summary of Resolutions and Decisions had other points of interest.
Under item No. 8, the Committee “requested the Director-General and
the Executive Board to establish the regional office and commence work
on 1 July 1949”, under item No. 10, the Committee “noted that the
Director-General would negotiate an agreement with the Government of
Egypt”, under item No. 12, the Committee “nominated, for consideration
of the Executive Board, Dr. Ali Tewfik Shousha Pasha, for the position of
Regional Director’, and under item No. 13, the Committee “noted the
draft budget of the Regional Office” for 1949.

The Third Session of the Executive Board of WHO adopted in March
1949, after having considered the report of the Committee, resolution
EB3.R30, which reads as follows :

“The Executive Board

(1) Conditionally approves the selection of Alexandria as the site
of the Regional Office for the Eastern Mediterranean Area, this action
being subject to consultation with the United Nations ;

(2) Requests the Director-General to thank the Government of
Egypt for its generous action in placing the site and buildings at
Alexandria at the disposal of the Organization for a period of nine
years at a nominal rate of 10 piastres a year ;

(3) Approves the establishment of the Regional Office for the
Eastern Mediterranean Area, operations to commence on or about
1 July 1949 ;

(4) Approves the resolution of the Regional Committee that ‘the
functions of the Alexandria Sanitary Bureau be integrated within
those of the Regional Organization of the World Health Organiza-
tion’ ;

(5) Authorizes the Director-General to express appreciation to the
Government of Egypt for the transfer of functions, files and records
of the Alexandria Sanitary Bureau to the Organization upon com-
mencement of operations in the Regional Office” (WHO, Handbook
of Resolutions, Vol. I, pp. 331 £.).

At the same session (ibid., p. 332) the Executive Board appointed Sir Ali
Tewfik Shousha Pasha as Regional Director for the Eastern Mediterra-
nean, for five years, beginning t July 1949. According to Article 52 of the
WHO Constitution. “The head of the regional office shall be the Regional
Director . . .”.

Resolution EB3.R30 appears to me to have been the instrument that
decided on the location of the Regional Office, subject to certain condi-
tions. There had been an offer from the Egyptian Government placing the
site and buildings at Alexandria of the pre-existing Regional Sanitary
Bureau at the disposal of the new organization for nine years ; this offer,
according to the statement made by the Egyptian delegate at the First

51
121 INTERPRETATION OF AGREEMENT (SEP. OP. RUDA)

Meeting of the Regional Committee for the Eastern Mediterranean, was
subject to the approval of the Egyptian Parliament. The offer was accepted
and the Executive Board decided to select Alexandria as the site of the
Regional Office, and approved its establishment subject to consultations
with the United Nations, its operations to commence in the near future.
This was one of the actions taken in resolution EB3.R30, which dealt with
the location of the Office.

The other action taken was the integration of the Alexandria Sanitary
Bureau within the Regional Office. It seems to me that the terminology of
the resolution is clear : what was integrated were “the functions” of the
Bureau. In other words, the previous functions of the Bureau were to be
performed in the future by the Regional Office, and for this purpose
the Government of Egypt transferred the Bureau’s files and records.
Although Article 54 of the WHO Constitution is not mentioned in
resolution EB3.R30, this seems to have been done in pursuance thereof,
even though Article 54 refers to “inter-governmental regional organi-
zations” and the Sanitary Bureau was an office of the Egyptian
Government.

I draw a distinction between these two actions, i.e., establishing the
location of the Regional Office and the integration of the Alexandria
Bureau with the Regional Office, because they have a different purpose.
The functions performed by the Alexandria Bureau and its files and
records could have been transferred, “integrated”, within the Regional
Office while at the same time the seat was nevertheless established in
another location than Alexandria.

The choice of the site of the Regional Office was subject to consultations
with the United Nations, which took place in May 1949, without objection
from the Administrative Committee on Co-ordination of the Economic
and Social Council (E/1340, pp. 13 f.).

The approval of the Egyptian Parliament was given in Law No. 66 of 29
May 1949, which approved the lease to the WHO of the land in Alexandria
occupied by the Quarantine Administration (i.e., the Alexandria Bureau)
which was in the public domain, for a nominal rent, to serve as the site of
the Regional Office (Journal officiel du Gouvernement egyptien, 6° année,
16 juin 1949, n° 81, p. 1).

The conditions laid down by Egypt and the WHO were thus fulfilled at
the end of May 1949.

Here, it is worth while to compare resolution EB3.R30 with the decisions
taken in connection with the establishment of other WHO regional orga-
nizations and sites of regional offices. There are various types of resolu-
tion.

A comparison of the decisions taken by the Executive Board regarding
the sites of various regional offices shows that in two cases, Manila and
Copenhagen, approval was made subject to the conclusion of a host
agreement, which was not the case with respect to Alexandria or the other
offices.

52
122 INTERPRETATION OF AGREEMENT (SEP. OP. RUDA)

My conclusions from these facts are the following :

(1) there was an offer from the Egyptian Government to the WHO of a
site and building at Alexandria for the Eastern Mediterranean Regional
Office, subject to the approval of the Egyptian Parliament ;

(2) this offer was accepted by the WHO, subject to consultations with
the United Nations ;

(3) both conditions were fulfilled in May 1949 ;

(4) the Egyptian Government integrated the functions of the Alexan-
dria Sanitary Bureau with the Eastern Mediterranean Regional Organiza-
tion and transferred its files and records to the latter ;

(5) the Office commenced operations in July 1949, with a budget, a staff
and a Director ; and

(6) the establishment of the seat of the Regional Office in Alexandria
was not made subject to the conclusion of a host agreement.

Therefore, the Regional Office had already been factually and juridi-
cally established in its site in Alexandria since 1949, two years before the
signature of the 1951 Agreement, and its settlement was not linked to the
conclusion of the host agreement. Consequently, the facts seem to point to
an interpretation of the terms of that treaty to the effect that its text
presupposed that the Regional Office was already established in Alexan-
dria.

I find nothing in the text of the 1951 Agreement, in its context, or in its
object and purpose to show that it dealt with the establishment of the seat
of the Regional Office or its removal. On the contrary, the circumstances
previous to its conclusion disclose a prior agreement on this question of the
site of the Office. I interpret the 1951 Agreement as a treaty which deals
with privileges, immunities and facilities and not with the seat or removal
of the Regional Office.

I do not attach legal importance to the description by some of the 1951
Agreement as a “host” or “headquarters” agreement despite the fact that
the title under which it was registered ! with the United Nations was :
“Agreement between the World Health Organization and the Government
of Egypt for the purposes of determining the privileges, immunities and
facilities to be granted in Egypt by the Government to the Organization, to
the representatives of its Members and toits experts and officials, signed at
Cairo, on 25 March 1951.” What is important is the content of the treaty
and what rights and obligations were assumed by virtue of that instrument.
I cannot deduce from the mere labelling of the 1951 Agreement as a “host”
or “headquarters” agreement that the location of the office in Alexandria
forms part of its provisions. It is true, as I have said before, that most of the

! According to Article 8, paragraph 1 (5), of the Regulations for Registration of
Treaties and International Agreements, approved by General Assembly resolution 97
(D) of 14 December 1946, the Register shall comprise, inter alia, a record of : “The title
given to the instrument by the parties.”

53
123 INTERPRETATION OF AGREEMENT (SEP. OP. RUDA)

provisions of the 1951 Agreement are based on the maintenance of the
Office in Egypt, but this does not mean that the parties agreed in 1951 that
the Office was to be located in Alexandria ; that had already been agreed in
1949. It has been contended that the 1951 Agreement integrates and
displaces any prior understanding and the proof of this assertion is said to
lie in a statement made by Mr. Zarb, a member of the Secretariat, when he
stated in the Fourth World Health Assembly that :

“although the Organization thus enjoyed the most courteous treat-
ment, it would be highly desirable for such treatment to be accorded
de jure and not only de facto” (WHO, Official Records, No. 35,
p. 315).

I interpret this statement, where Mr. Zarb refers to “treatment”, to refer
to the privilege of temporary exemption from customs duties already
enjoyed by the Office, on the basis of the unilatera! decision adopted by
Egypt and communicated by the Ministry of Public Health to the Director
on 23 June 1949. On the other hand, I cannot see, explicitly or implicitly, in
any of the provisions of the 1951 Agreement an intention to integrate or
displace any prior understanding.

To my mind, the Regional Office was established at Alexandria by an
agreement between Egypt and the WHO, which was reached through a
series of successive acts which progressively expressed the will of both
parties to locate the Office in Alexandria and which culminated in reso-
lution EB3.R30, the approval of the Egyptian Parliament signified in Law
No. 66 and the non-opposition of the United Nations to the choice of
Alexandria.

It is well known that international law does not impose any given form
for the conclusion of an agreement, provided that there is sufficient evi-
dence of the intention of the parties to create rights and obligations, i.e., to
produce legal effects. There is no legal distinction between formal and
informal agreements, because the validity of a treaty does not depend on
the adoption of any form ; it therefore is up to the parties to choose such
form as they think fit for assuming international obligations.

There was, of course, no formal agreement, in 1949, selecting Alexandria
as the site of the Regional Office, but the common will of the WHO and
Egypt to such effect was very clearly expressed in successive acts of one and
the other party, which together constitute an international binding engage-
ment. I see no reason to consider these engagements as not producing
contractual legal effects ; effects which were not subject to the conclusion
of any other agreement.

The problem that the Court faces in Question | is simply whether the
1951 Agreement does or does not provide for the location or removal of the
Alexandria Office, because Section 37 laid down a procedure for the
revision and potential denunciation of the “present Agreement”. Since I

54
124 INTERPRETATION OF AGREEMENT (SEP. OP. RUDA)

find nothing in the 1951 Agreement that refers to these subjects, which had
already been dealt with in a previous agreement in 1949, I am forced to
conclude that Section 37 is not applicable “in the event that either party to
the Agreement wishes to have the Regional Office transferred from the
territory of Egypt”.

But I think that a simple negative answer to Question 1 could lead to
misleading legal conclusions, because, as the Court says, a rule of inter-
national law “does not operate in a vacuum, it operates in relation to facts
and in the context of a wider framework of legal rules of which it forms
only a part”. Moreover, I see the role of the Court in advisory proceedings
as giving the organ or organization that has requested an opinion the
maximum possible legal assistance within the margin of the true legal
issues before the Court. For these reasons, I believe that it is necessary,
after having found that Question | should be answered in the negative, to
go into other rules provided for in general international law and the
agreements in force between the WHO and Egypt, which determine the
obligations incumbent upon them should either of them desire a transfer of
the Regional Office.

As I have stated several times before, I am of the opinion that there was,
in 1949, an informal agreement, with full legal effects, on the selection of
Alexandria as the site of the Regional Office. This agreement, although it
has no outright denunciation clause, is, under the law of treaties, the kind
of agreement which is subject to denunciation, because there is no obli-
gation on the part of the Organization to remain in a given place, and,
reciprocally, the host State is not obliged to keep an international orga-
nization or any of its branches on its territory without its consent.

Therefore, there is no rule that could impede the WHO and Egypt, if
either of them so wish, to bring about the removal of the Regional Office
from Alexandria through unilateral action.

But this transfer could not be carried out without taking into account the
legitimate interests of the other side. For this reason, the WHO and Egypt,
as the Court has stated in paragraph 49 and in the operative part of the
Advisory Opinion, should consult each other in good faith and negotiate
the conditions and modalities of the transfer, bearing in mind that a
reasonable period of time should be allowed for the removal, because the
orderly termination of the operations of the Regional Office should be the
paramount consideration to be taken into account.

(Signed) J. M. RUDA.

55


229

DECLARATION OF JUDGE VAN DEN WYNGAERT

Arrest warrant — Enforcement in third States — War crimes — Genocide —
Crimes against humanity — Universal jurisdiction — International criminal
court — National prosecutions — Customary international (criminal) law —
Immunities — Victims seising courts in third States — State of origin unwilling
or unable to prosecute —— Importance of decision on the merits: International
Court of Justice revisiting the 1927 “Lotus” precedent of the Permanent Court
of International Justice.

1. I fully support the Court’s decision to dismiss the applicant State’s
request for the indication of provisional measures. There is no irrepar-
able prejudice to the rights which are the subject of the dispute, and
the measures requested (immediate discharge of disputed arrest warrant)
are not justified by urgency.

2. At the outset I wish to clarify that the disputed arrest warrant is a
national arrest warrant, not an “international arrest warrant”! that can
be enforced automatically in third countries. There is always a need for
validation by the authorities of the State where the person named in the
warrant has been found, even in the case where a red notice has been
issued by Interpol’, which has not happened in the case of Mr. Yerodia
Ndombasi.

3. | agree with the statement in paragraph 76 of the Order that a deci-
sion on the Congo’s Application should be reached with all expedition.
The dispute between the two countries concerns an important question
that may be crucial to the further development of modern international
criminal law. The basic question that it raises is how far States are
allowed (or are obliged) to go when implementing and enforcing norms
of international criminal law. As more and more States are adopting
legislation to this effect, problems similar to the ones that gave rise
to the dispute between the Congo and Belgium are likely to arise in the
future.

' See the nature of the claim in the Application of the Congo, reproduced in para-
graph 3 of the present Order.

? Interpol, Secretariat général, Rapport sur la valeur juridique des notices rouges, ICPO
— Interpol -— General Assembly. 66th Session, New Delhi, 15-21 October 1997, AGN/
66/RAP/8, No. 8 Red Notices, as amended pursuant to Resolution No. AGN/66/RES/7.

SI
ARREST WARRANT (DECL. VAN DEN WYNGAERT) 230

4. The international community undoubtedly agrees in principle with
the proposition that the “core crimes” of international criminal law
(war crimes, genocide and crimes against humanity) should not remain
unpunished *. However, how this should be realized in practice is still the
subject of much discussion and debate.

5. Ideally, such crimes should be prosecuted before international crimi-
nal courts such as the permanent international criminal court (Rome
Statute for the International Criminal Court (1998)*) or the ad hoc inter-
national criminal tribunals (International Criminal Tribunal for the
Former Yugoslavia (1993)°, International Criminal Tribunal for Rwanda
(1994)° or the (future) Sierra Leone Special Court’. It is clear, however,
that not all cases will be justiciable before these courts. The principle of
complementarity in the Rome Statute confers primary responsibility for
prosecution of core crimes on States, not on the International Criminal
Court, except in the cases where States are unwilling or unable to
prosecute (Art. 17). Moreover, this court will only have jurisdiction
in respect of crimes committed after the entry into force of the statute
(Art. 11).

6. In the absence of supranational enforcement mechanisms, national
criminal prosecution before domestic courts is the only means to
enforce international criminal law. States have not only a moral but
also a legal obligation under international law to ensure that they are
able to prosecute international core crimes domestically. This flows

* See, for example, Principles of International Co-Operation in the Detection, Arrest,
Extradition and Punishment of Persons Guilty of War Crimes and Crimes against
Humanity, General Assembly resolution 3074 (XXVIII), 28 United Nations, Official
Records of the General Assembly, Supplement No. 30A, at p. 78, United Nations doc.
A/9030/Add.1 (1973); Security Council resolution 978, 27 February 1995, United Nations
doc. S/RES/978 (1995); Economic and Social Council, Sub-Commission on Prevention of
Discrimination and Protection of Minorities, resolution 1995/4 on the Prevention of
Incitement to Hatred and Genocide, particularly by the Media, 18 August 1995, United
Nations doc. E/CN.4.Sub.2/RES/1995/4, 23 October 1997; Security Council resolution
1234, 9 April 1999, United Nations doc. S/RES/1234 (1999); Security Council resolution
1291 of 24 February 2000, United Nations doc. S/RES/1291 (2000); Security Council
resolution 1304, 16 June 2000, United Nations doc. S/RES/1304 (2000).

4 Rome Statute of the International Criminal Court, /LM, 1998, p. 999.

5 Security Council resolution 827 (1993) on Establishing the International Tribunal for
the Prosecution of Persons Responsible for Serious Violations of International Humani-
tarian Law Committed in the Territory of the Former Yugoslavia, /LM, 1993, p. 1192
(text statute) and p. 1203 (text resolution) (as amended by Security Council resolution
1166 of 13 May 1998).

6 Security Council resolution 955 establishing the International Tribunal for Rwanda,
ILM, 1994, p. 1598.

7 Security Council resolution 1315, 14 August 2000, United Nations doc. S/RES/1315
(2000): Report of the Secretary-General on the Establishment of a Special Court for
Sierra Leone. 4 October 2000, United Nations doc. S/2000/915 (2000).

52
ARREST WARRANT (DECL. VAN DEN WYNGAERT) 231

from a wide range of conventions that lay down the principle aut
dedere aut judicare*.

7. The idea that traditional limitations on criminal prosecution (terri-
torial jurisdiction, immunities) cannot be applied to international core
crimes is gaining support. Numerous international criminal law instru-
ments (ranging from the Nuremberg principles? through the various
subsequent codifications of international criminal law!® to the Rome
Statute for an International Criminal Court) have, in different ways, laid
down the principles of universal jurisdiction !!, the non-applicability of
traditional immunities!” and the non-applicability of statutory limita-

8 See. for example, Arts. 49 (1), 50 (II), 129 (IIL) and 146 (IV), Geneva Conventions
1949 (infra, footnote 10); Art. 7, Convention for the Suppression of Unlawful Seizure of
Aircraft (The Hague, 16 December 1970, /LM, 1971. p. 133); Art. 7, Convention for the
Suppression of Unlawful Acts against the Safety of Civil Aviation (Montreal. 23 Septem-
ber 1971, JEM. 1971, p. 1151): Art. 7, Convention on the Prevention and Punishment of
Crimes against Internationally Protected Persons. including Diplomatic Agents (New
York, 14 December 1973, LLM, 1974, p. 41): Art. 7, Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (New York, 10 December
1984, ILM, 1984, p. 1027): Art. 14. Inter-American Convention to Prevent and Punish
Torture (Cartagena de Indias, 12 September 1985, OAS Treaty Series, No. 67); Art. 7,
European Convention on the Suppression of Terrorism (Strasbourg, 27 January 1977,
ETS, No. 90); Art. 8. International Convention for the Suppression of Terrorist Bomb-
ings (New York. 12 January 1998. JLM, 1998. p. 249). See also Art. 15, paras. 3 and 4.
and Art. 16, para. 10, United Nations Convention against Transnational Organized
Crime. adopted by the United Nations General Assembly on 15 November 2000 (United
Nations doc. A/55/383) and to be opened for signature from 12 December 2000 in
Palermo, Italy (http ://www.un.cjin.org/Documents/documents.htm]).

° Principles of International Law Recognized in the Charter of the Nuremberg Tribunal
and in the Judgment of the Tribunal, United Nations, Official Records of the General
Assembly, Fifth Session, Supplement No. 12, doc. A/1316 (1950).

1 See, for example. Convention on the Prevention and Suppression of the Crime of
Genocide. Paris, 9 December 1948, UNTS, Vol. 78, p. 277; Convention for the Ameliora-
tion of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva,
12 August 1949, UNTS, Vol, 75, p. 31; Convention for the Amelioration of the Condition
of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva. 12 August
1949, UNTS. Vol. 75. p. 85: Convention relative to the Treatment of Prisoners of War,
Geneva, 12 August 1949. UNTS. Vol. 75, p. 135; Convention relative to the Protection of
Civilian Persons in Time of War, Geneva. {2 August 1949, UNTS,. Vol. 75, p. 287) and
their Additional Protocols (1977) (Protocol Additional (1) to the Geneva Conventions of
12 August 1949, and relating to the Protection of Victims of International Armed Con-
flicts, Geneva. 8 June [977, United Nations, Official Records of the General Assembly,
doc. A/32/144, 15 August 1977: Protocol Additional (Il) to the Geneva Conventions of
12 August 1949. and relating to the Protection of Victims of Non-International Armed
Conflicts. Geneva, 8 June 1977, United Nations. Official Records of the General Assem-
bly, doc. A/32/144. 15 August 1977).

il See, for example. Arts. 49 (1). 50 (ID. 129 (LID, 146 (TV). Geneva Conventions. supra
footnote 10.

'2 See, for example, Art. [V. Genocide Convention. supra footnote 10.

53
ARREST WARRANT (DECL. VAN DEN WYNGAERT) 232

tions !?. There is a growing opinion in legal doctrine supporting the view
that these principles are applicable to the international “core crimes”
because these crimes are now prohibited under customary international
law'4. Some argue that there is a right and even a duty on States to
prosecute such crimes. Several decisions of the ad hoc International
Criminal Tribunals tend to support this view '*.

8. However, uncertainty prevails as to the implications of this proposi-
tion for national prosecution of international core crimes, in particular
regarding the question as to whether the principles described above apply
to prosecutions before national courts in the same way as they do before
international courts. Increasingly victims or non-governmental organiza-
tions representing such victims call upon third States to prosecute per-
sons suspected of international core crimes, because the State where these
crimes occurred is unwilling or unable to prosecute. Some legal systems
(e.g., the civil law systems that apply the partie civile system) actually
allow victims to trigger criminal proceedings and do not distinguish
between national and foreign victims for that purpose '®. Often, such vic-
tims claim refugee status in the State in which they bring their complaint.
In certain cases, they acquire the nationality of the State to which they
have fled. It can be expected that cases of this nature will grow in
number.

9. States engaging in the domestic prosecution of such crimes as well
as States called upon to co-operate with these States in extradition pro-
ceedings are confronted with applying norms of international criminal-

'3 Convention on the Non-Applicability of Statutory Limitations to War Crimes and
Crimes against Humanity, New York, 26 November 1968, /LM, 1969. p. 68, and Euro-
pean Convention on the Non-Applicability of Statutory Limitations to Crimes against
Humanity and War Crimes, Strasbourg, 25 January 1974, ETS, No. 82.

'4 See, for example, American Law Institute, Restatement of the Law (Third). The For-
eign Relations Law of the United States, 1987, para. 404, Reporters’ Notes, p. 257. See
also International Law Commission, Draft Code of Crimes against the Peace and Security
of Mankind (1996), text adopted by the Commission at its forty-eighth session, 1996.
Yearbook of the International Law Commission, 1996, Vol. IL (2), doc. A/51/10: http://
www.un.org/law/ilc/texts/dcodefra.htm.

'S See, for example, ICTY, Decision on the Defence Motion for Interlocutory Appeal
on Jurisdiction, 2 October 1995, Tadi¢, para. 134 (Common Art. 3, Geneva Conventions):
ICTY, Judgment, 10 December 1998, Furundzija, para. 153 (Torture); ICTR, Judgment,
2 September 1998, Akayesu, paras. 495 (Genocide) and 608 (Common Art. 3. Geneva
Conventions); ICTR, Judgment, 21 May 1999, Kayishema and Ruzindana, para. 88
(Genocide).

16 For a survey of national criminal procedure systems in Europe, see C. Van den Wyn-
gaert (ed.), Criminal Procedure Systems in the European Community, 1993.

54
ARREST WARRANT (DECL. VAN DEN WYNGAERT) 233

law. Increasingly, domestic courts are called upon to tackle difficult tech-
nical notions of public international law such as jus cogens, erga omnes
obligations and the question what norms qualify as norms of customary
international (criminal) law. The various Pinocher decisions (in Spain !”,
Belgium '®, France !° and the United Kingdom?°) and the Dutch Bouterse
case”! are examples of a growing number of national judicial decisions ??
dealing with (different aspects) of the issues of international criminal law
that are now before the International Court of Justice.

10. The case concerning the Arrest Warrant of 11 April 2000 { Demo-
cratic Republic of the Congo v. Belgium) is the first modern case which
confronts two States on the issues of extraterritorial jurisdiction and
immunity arising from the application of a domestic statute implementing
international core crimes. Times have changed since the Permanent Court
of International Justice decided the “Lotus” case in 192777, International
law now calls upon States to prosecute and punish international core
crimes, but leaves some uncertainty as to the practical implications of this
proposition as far as the enforcement of domestic implementation laws is
concerned. For the sake of legal certainty, it is important that the Inter-
national Court of Justice decides on the merits of the present case with
expedition.

(Signed) Christine VAN DEN WYNGAERT.

17 Audiencia Nacional, Auto de la Sala de lo Penal de la Audiencia Nacional confir-
mando la jurisdiccion de España para conocer de los crimenes de genocidio y terrorismo
cometidos durante la dictadura chilena, 5 November 1998, http :/Avww.derechos.org/
nizkor/chile/juicio/audi.html. See also AJIL, 1999, pp. 690-969.

18 Investigating Judge. Tribunal of first instance, Brussels, 6 November 1998, Revue de
droit pénal et de criminologie, 1999, p. 278; Journal des Tribunaux, 1999, p. 308.

'° Investigating Judge. Tribunal de Grande Instance, Paris, 2 and 12 November 1998.
AJTE, 1999, pp. 696-700.

20 R. v. Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet
Ungarte, 25 November 1998. All ER (1998), p. 897: R. v. Bow Street Metropolitan Stipen-
diary Magistrate and others, ex parte Pinochet Ungarte. 24 March 1999, All ER (1999), p. 97.

21 Court Amsterdam, Order of 20 November 2000, http://www.gerechtshof-
amsterdam.nl/uitspraken/art12/Bouterse/bes_bouterse.htm. See also Court Amsterdam.
Order of 3 March 2000, Nederlandse Jurisprudentie, 2000, pp. 1795-1800.

22 See also Bundesgerichtshof, 30 April 1999. Neue Zeitschrift für Strafrecht. 1999.
pp. 396-404: Bundesgerichtshof, Ermittlungsrichter, 13 February 1994, Neue Zeitschrift
fir Strafrechi, 1994, pp. 232-233: Bundesgerichtshof. 11 December 1998, Neue Zeitschrift
für Strafrecht, p. 236: Cour de cassation (fr.), 6 janvier 1998, Bull. Crim.. 1998, pp. 3-8:
Federal Court of Australia. 1 September 1999, Nulvarimma v. Thompson, FCA, 1192.

23 Permanent Court of International Justice, the case of the S.S. “Lotus” ( France! Tur-
key), 7 September 1927, P.C.LJ.. Series A, No. 10.

55


          JOINT DECLARATION OF JUDGES KOROMA
                      AND YUSUF

  Obligation aut dedere aut judicare — The purpose of Belgium’s request for
provisional measures — Senegal’s assurances serve the purpose of Belgium’s
 equest — Impunity not allowed.

   1. We have voted in favour of the Order but nevertheless have decided
 o append this declaration given the importance of the matters raised in
 he Application and the legal principle involved at this stage of the pro-
ceedings.
   2. The present case between Belgium and Senegal concerns Senegal’s
obligation, under conventional and customary international law, to extra-
dite or prosecute (aut dedere aut judicare) the former President of Chad,
Mr. Hissène Habré, for crimes he is alleged to have committed or ordered
while President in 1982, including
     “murders, acts of torture, abductions, arbitrary arrests and the
     execution of a large number of Chadian civilians and military per-
     sonnel, in particular on the grounds of their ethnicity” (International
     Arrest Warrant of 19 September 2005 issued by the Belgian investi-
     gating judge responsible for the case ; Application instituting pro-
     ceedings of 19 February 2009, Ann. 3, p. 29, para. 2.1).
  3. The Assembly of the African Union, having considered Mr. Habré’s
acts,
     “[observed] that, according to the terms of Articles 3 (h), 4 (h) and
     4 (o) of the Constitutive Act of the African Union, the crimes of
     which Hissène Habré is accused fall within the competence of the
     African Union” (Decision on the Hissène Habré Case and the Afri-
     can Union, AU Doc. Assembly/AU/Dec.127 (VII), Assembly of the
     African Union, Seventh Ordinary Session, 1-2 July 2006, Banjul,
     The Gambia).
  4. Belgium claims that some of its nationals were injured by Habré’s
acts :
        “Between 30 November 2000 and 11 December 2001, a Belgian
     national of Chadian origin and Chadian nationals filed a series of
     criminal complaints with civil-party applications in the Belgian courts
     against the former President of Chad, Mr. Hissène Habré, for crimes
     under international humanitarian law.
        As the present jurisdiction of the Belgian courts is based on the
     complaint filed by a Belgian national of Chadian origin, the Belgian

22

     courts intend to exercise passive personal jurisdiction.” (Application
     instituting proceedings, 19 February 2009, p. 5, para. 3.)
  5. Invoking the principle of aut dedere aut judicare, Belgium asks the
Court
     “to adjudge and declare that Senegal must prosecute Mr. H. Habré
     for . . . crimes of torture and crimes against humanity which are
     alleged against him, failing his extradition to Belgium, where the
     Belgian courts have brought proceedings against him on the same
     grounds as a result of complaints filed in particular by a Belgian vic-
     tim of Chadian origin” (Request for indication of provisional meas-
     ures submitted by the Government of Belgium, 17 February 2009
     (summarizing the submissions in the Application instituting pro-
     ceedings, 19 February 2009)).
   6. The primary conventional authority cited by Belgium for this obli-
gation to extradite or prosecute is the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment,
10 December 1984 (“Torture Convention”). According to its Preamble,
 he object and purpose of the Torture Convention is to ensure the “inher-
ent dignity of the human person” and “to make more effective the strug-
gle against torture and other cruel, inhuman or degrading treatment or
punishment throughout the world”. With regard to the obligation aut
dedere aut judicare, Article 7, paragraph 1, of the Convention against
Torture provides :
        “The State Party in the territory under whose jurisdiction a person
     alleged to have committed any offence referred to in Article 4 is
     found, shall in the cases contemplated in Article 5, if it does not
     extradite him, submit the case to its competent authorities for the
     purpose of prosecution.”
  7. At this stage of the proceedings, the Court has addressed Belgium’s
request, appended to its Application, that the Court indicate provisional
measures, pending a final judgment on the merits,

     “requiring Senegal to take all the steps within its power to keep
     Mr. H. Habré under the control and surveillance of the judicial
     authorities of Senegal so that the rules of international law with
     which Belgium requests compliance may be correctly applied”
     (Request for the indication of provisional measures submitted by the
     Government of Belgium, 17 February 2009).
  8. The purpose of provisional measures is the preservation of the
respective rights of the parties pending the decision of the Court, in order
 o ensure that irreparable prejudice shall not be caused to rights which
are the subject of dispute in judicial proceedings. Belgium has stated that
 his corresponds to its motive in requesting the indication of provisional
measures, specifically because “Senegal is at risk of causing irreparable

23

prejudice . . . to Belgium’s right for Mr. Hissène Habré to be brought to
 rial in Senegal or extradited to Belgium” (CR 2009/8, para. 27 (David)).

  9. Senegal, however, on several occasions during the oral proceedings
declared before the Court that it will not release Mr. Habré pending the
resolution of the case. First, the Agent of Senegal stated :
        “Senegal does not envisage putting an end to the control and sur-
     veillance of Mr. Hissène Habré both before and after the funding
     pledged by the international community has been made available to
     it to cover the legal proceedings concerned.” (CR 2009/9, para. 57
     (Thiam).)
Second, counsel for Senegal declared :
       “In the light of the decision by the African Union, Senegal has
     never had and does not have now any intention to lift the control
     and surveillance measures taken with respect to Mr. Hissène Habré,
     hence, at present, no risk of irreparable prejudice exists, which might
     justify the request for the indication of provisional measures submit-
     ted by Belgium.” (CR 2009/9, para. 12 (Gaye).)

Third, Mr. Demba Kandji, Co-Agent of Senegal, made the following sol-
emn declaration in the course of his presentation of Senegal’s final sub-
missions in the oral pleadings :
        “Senegal is of course prepared solemnly to confirm what it has
     already said :
           ‘By order of my Government, and as Co-Agent of Senegal, I
        hereby confirm what Senegal said last Monday, that is — and I
        shall say this in English to Judge Greenwood, who put the ques-
        tion — ‘Senegal will not allow Mr. Habré to leave Senegal while
        the present case is pending before the Court. Senegal has not the
        intention to allow Mr. Habré to leave the territory while the
        present case is pending before the Court’.” (CR 2009/11, para. 6
        (Kandji).)

   10. In our view, Senegal’s solemn declaration that it “will not allow
Mr. Habré to leave Senegal while the present case is pending before the
Court” (ibid.) preserves the rights of the Parties and ensures against the
risk of irreparable prejudice in exactly the same way as would an order
 ndicating provisional measures. Accordingly, the purpose of Belgium’s
request for the indication of provisional measures having been served,
 here was no further need for the Court to examine the judicial measure
requested by Belgium. In our view, the Court should simply have declared

24

 hat following the declaration by Senegal the request for the indication of
provisional measures had ceased to have any object.

   11. Moreover, it is our view that the Court should have more force-
 ully emphasized that both Parties, Belgium and Senegal, as well as the
Assembly of the African Union — which has recognized that the case
against Mr. Hissène Habré falls within its competence and mandated the
Republic of Senegal to prosecute and ensure that Mr. Hissène Habré is
 ried, on behalf of Africa, by a Senegalese court with guarantees for a fair
 rial — have acknowledged that impunity is no longer allowed under
 nternational law, irrespective of the status of the individual and, in par-
 icular, that Senegal is making efforts to ensure that impunity is not
allowed in this particular case.

                                      (Signed) Abdul G. KOROMA.
                                  (Signed) Abdulqawi Ahmed YUSUF.

25


153

           DÉCLARATION DE M. LE JUGE ABRAHAM

   J’éprouve quelques réserves quant à la manière dont l’avis consultatif
traite de la question relative au principe dit de « l’intégrité territoriale »
dans le contexte d’un processus de décolonisation. Cette question est
abordée aux paragraphes 153 à 160 de l’avis consultatif. Les développe-
ments que la Cour lui consacre ne sont pas, selon moi, dépourvus de
quelque ambiguïté. C’est pourquoi je souhaite préciser ci-après mon opi-
nion en la matière.
   Je suis d’accord, en principe, avec l’idée selon laquelle le respect de
l’intégrité territoriale d’un territoire non autonome « constitue le corol-
laire du droit à l’autodétermination », comme l’aﬃrme le paragraphe 160
de l’avis. Mais cela n’est vrai — au moins de manière indiscutable et en se
plaçant à l’époque pertinente, soit 1965-1968 — que si l’on donne à l’obli-
gation, qui pèse sur la puissance coloniale, de respecter « l’intégrité terri-
toriale » du territoire considéré la portée suivante. Ce à quoi cette
obligation vise à faire obstacle, c’est l’amputation d’une partie du terri-
toire sous administration coloniale par la décision unilatérale de la puis-
sance administrante, au moment de l’accession à l’indépendance ou au
cours de la période la précédant immédiatement, pour des raisons de
commodité, d’intérêt stratégique ou militaire, ou plus généralement des
raisons tenant aux intérêts politiques ou économiques de la puissance
coloniale elle-même.
   La Cour aurait dû s’en tenir là, et ne pas s’aventurer au-delà de la déﬁ-
nition qui précède, laquelle suﬃt à fonder en droit la réponse aux ques-
tions qu’elle avait à résoudre dans la présente aﬀaire, une fois constaté
que le détachement de l’archipel des Chagos « n’a pas été fondé sur l’ex-
pression libre et authentique de la volonté » des Mauriciens, comme le dit
le paragraphe 172. En eﬀet, une fois écarté le consentement de la popula-
tion de Maurice dans son ensemble (faute que ce consentement ait été
donné régulièrement) et puisque les autorités britanniques n’ont à aucun
moment cherché à connaître la volonté de la population des îles Chagos
elle-même, il demeure que le détachement des Chagos a procédé d’une
décision unilatérale de la puissance administrante motivée par la recherche
d’un avantage politique, stratégique ou militaire.
   Mais l’avis consultatif paraît aller au-delà de ce constat, en employant,
au paragraphe 160, des formules générales et abstraites qui pourraient
être comprises comme donnant au principe de « l’intégrité territoriale »
une portée quasi absolue, laquelle serait selon moi, au regard en tout cas
du droit international coutumier en vigueur à l’époque pertinente, des
plus douteuses.
   La question se pose dans les termes suivants. Nous savons que les
limites des territoires coloniaux (limites administratives séparant des enti-

62

154             séparation des chagos (décl. abraham)

tés relevant de la même souveraineté) étaient déﬁnies, par les puissances
coloniales, de manière plus ou moins arbitraire dans certains cas, parfois
pour des raisons de commodité administrative, parfois pour des raisons
d’ordre stratégique ou d’autres raisons du même genre. Rien ne garantis-
sait, en conséquence, que la population d’une entité coloniale soit suﬃ-
samment homogène pour être animée par une claire volonté commune en
ce qui concerne le choix de son avenir.
   Dans le cas de Maurice, par exemple, s’il est vrai que l’archipel des
Chagos a toujours fait partie de cette colonie depuis la cession de cette
dernière au Royaume-Uni en 1814 et jusqu’en 1965, les limites géogra-
phiques de l’entité coloniale constituée par « l’île Maurice et ses dépen-
dances » ont varié dans le temps, sur décision du Gouvernement
britannique. Les îles Seychelles ont été détachées de Maurice en 1903
pour devenir une colonie distincte, et dans les années suivantes d’autres
îles ont été détachées de la colonie de Maurice pour être incluses dans la
nouvelle colonie des Seychelles. On pourrait donner bien d’autres
exemples, empruntés à l’histoire coloniale, et pas seulement celle du
Royaume-Uni, du caractère plus ou moins mouvant des limites colo-
niales.
   Il pouvait donc arriver — et de fait, cela est arrivé dans plusieurs cas —
que les populations de divers sous-ensembles géographiques au sein d’une
entité coloniale unique (du point de vue des limites ﬁxées par la puissance
administrante) exprimassent des préférences diﬀérentes dans le cours du
processus de décolonisation. Je doute qu’en pareille hypothèse la puis-
sance coloniale ait eu l’obligation de donner suite aux demandes diver-
gentes provenant des diﬀérents sous-ensembles géographiques concernés.
Mais je doute aussi, et plus encore, qu’en y donnant suite, en acceptant,
par exemple, la partition d’un territoire au motif que la population d’un
sous-ensemble de ce territoire avait clairement et librement exprimé la
volonté de ne pas suivre la même voie que le reste de ce territoire, la puis-
sance coloniale puisse être regardée comme ayant violé ses obligations au
regard du droit international coutumier, au motif qu’elle aurait méconnu
le principe de « l’intégrité territoriale » des territoires sous administration
coloniale. Ce serait donner, à mon sens, une portée excessive à ce prin-
cipe. Comme je l’ai dit plus haut, il vise sans nul doute à empêcher le
démantèlement arbitraire (c’est-à-dire dicté par les seuls intérêts de la
puissance coloniale) d’un territoire. Il ne saurait, à mes yeux, faire obsta-
cle à ce que soit prise en compte, lorsque les circonstances particulières le
justiﬁent, la volonté librement exprimée des diﬀérentes composantes de la
population de ce territoire, même si cette prise en compte conduit à une
solution de partition. Il serait d’ailleurs paradoxal que le principe du droit
des peuples à disposer d’eux-mêmes consacré par la Charte, qui est la
base même de tout l’édiﬁce juridique construit au ﬁl des décennies en
matière de décolonisation, se retourne in fine contre la prise en compte de
la volonté réelle, et librement exprimée, des populations concernées. Il y
aurait là une sorte de sacralisation du territoire, dont l’indivisibilité pren-
drait l’ascendant sur la volonté des peuples.

63

155             séparation des chagos (décl. abraham)

   L’examen de la pratique des Etats et de l’opinio juris à l’époque consi-
dérée conﬁrme la conclusion qui précède sur le terrain du droit internatio-
nal coutumier (le seul sur lequel la Cour puisse fonder son avis consultatif
dans la présente aﬀaire). Dans plusieurs cas, il est arrivé que divers sous-
ensembles au sein d’une même entité coloniale — telle que délimitée par
la puissance administrante dans la période précédant l’accession à l’indé-
pendance — suivent des voies diﬀérentes dans le processus de décolonisa-
tion sans que cela soulève d’objection, et même parfois (comme dans le
cas de la colonie britannique des îles Gilbert et Ellice en 1974) avec la
coopération des organes compétents de l’Assemblée générale. Par ailleurs,
postérieurement à l’adoption de la résolution 1514 (XV) du 14 décembre
1960, dont la Cour indique à juste titre qu’elle a constitué un « moment
décisif » dans l’évolution du droit international coutumier en matière de
décolonisation (par. 150), l’Assemblée générale s’est constamment référée,
dans ses résolutions successives se rapportant à cette question de 1966
à 1974, à l’« intégrité territoriale » des entités coloniales. Mais elle l’a
généralement fait en liant l’« intégrité territoriale » à l’« unité nationale »
et, bien souvent, à la condamnation de l’établissement par les puissances
administrantes de bases militaires dans les territoires concernés (voir, par
exemple, la résolution 2232 (XXI) du 20 décembre 1966, citée au para-
graphe 35 de l’avis consultatif). L’adoption de ces résolutions ne mani-
feste donc pas, selon moi, l’adhésion des Etats à une conception absolutiste
du principe d’intégrité territoriale, qui ferait obstacle à la partition d’un
territoire colonial dans le cadre du processus d’accession à l’indépen-
dance, lorsqu’une telle partition permet de prendre en compte la volonté
librement exprimée des populations concernées. Cela est vrai même si la
partition n’est pas approuvée par la majorité de la population du terri-
toire colonial considéré dans son ensemble. Nous savons que, à aucun
moment, les autorités britanniques n’ont consulté, ni même, semble-t-il,
envisagé de consulter, les habitants de l’archipel des Chagos. Une telle
consultation aurait-elle eu lieu, et la population des Chagos eût-elle mani-
festé sa volonté libre et éclairée de ne pas être intégrée dans le nouvel Etat
indépendant de Maurice, les données de la question soumise à la Cour
eussent été, selon moi, substantiellement diﬀérentes.

                                              (Signé) Ronny Abraham.

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