1196

DISSENTING OPINION OF JUDGE FLEISCHHAUER

Interpretation of the term “main channel’/Hauptlauf” in Article III of the
1890 Treaty — The applicable law — The ordinary meaning of the term —
Object and purpose of the 1890 Treaty — The context in which the term is used
— The error of the Parties to the 1890 Treaty in the appreciation of the possible
uses of the Chobe River — The third paragraph of the dispositif of the Judg-
ment — Final remark on the role of prescription in the case.

I have voted against paragraphs | and 2 of the dispositif of the Court’s
Judgment. For the reasons which J will explain below, I dissent from the
Court’s interpretation of the term the “main channel of that river”/
“Hauptlauf dieses Flusses”! in Article III (2) of the 1890 Treaty as mean-
ing the northern rather than the southern channel of the Chobe around
Kasikili/Sedudu Island. As for the rest of the Judgment, I agree with
almost all its other parts, including the conclusion that the rules reflected
in Article 31 of the Vienna Convention are applicable to the interpreta-
tion of the 1890 Treaty and the finding that the boundary established by
Article HI (2) of that Treaty follows the thalweg rather than the median
line of the main channel. As the Court does not accept Namibia’s argu-
ment on acquisitive prescription, the territorial status of the Island
depends entirely on the course of the boundary. My dissent on the inter-
pretation of the term “main channel of that river”/“Hauptlauf dieses
Flusses” therefore affects not only my view on the location of the bound-
ary, but also my view on the status of the Island. This explains why
I voted not only against the first but also against the second paragraph of
the dispositif. For considerations which I will also explain below, I voted,
however, in favour of the third paragraph.

Among the many parts of the Judgment with which I agree, is the
Court’s conclusion that Namibia has no title to the Island based on pre-
scription, as

“Namibia has not established with the necessary degree of preci-
sion and certainty that acts of State authority capable of providing
alternative justification for prescriptive title, in accordance with the
conditions set out by Namibia, were carried out by its predecessors
or by itself with regard to Kasikili/Sedudu Island” (Judgment,
para. 99).

' In Article IL (2) of the 1890 Treaty the term is used in the genitive. That makes it read
in German des Hauptlaufes dieses Flusses. For reasons of convenience, I quote the term in
German in the nominative Hauptlauf dieses Flusses.

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But, in my view, the Court should also have found that Namibia’s imme-
diate predecessor in the Caprivi Strip, South Africa, could not have
acquired prescriptive title over the Island.

My reasoning is as follows:

I. THE INTERPRETATION OF THE TERM “MAIN CHANNEL” /“ HAUPTLAUF”
IN ARTICLE III (2) OF THE
1890 TREATY

The Applicable Law

1. The Judgment correctly starts from the fact that although

“neither Botswana nor Namibia are parties to the Vienna Conven-
tion on the Law of Treaties of 23 May 1969, ... both of them con-
sider that Article 31 of the Vienna Convention is applicable inasmuch
as it reflects customary international law” (Judgment, para. 18).

The Judgment goes on to say that “[t]he Court itself has already had
occasion in the past to hold that customary international law found
expression in Article 31 of the Vienna Convention” (ibid.): it further says

“Article 4 of the Convention, which provides that it ‘applies only
to treaties which are concluded by States after the entry into force of
the... Convention . . .” does not, therefore, prevent the Court from
interpreting the 1890 Treaty in accordance with the rules reflected in
Article 31 of the Convention.” (/bid.)

2. The Vienna Convention on the Law of Treaties establishes in its
Articles 31-33 a system of treaty interpretation. Article 31, paragraph 1,
provides that, based on the principle of good faith, the ordinary meaning
of the term to be interpreted has to be explored in the light of the object
and purpose of the treaty in which the term finds itself and the context in
which it is used. While upholding that the parties are to be presumed to
have that intention, which appears from the terms used by them, the
Vienna Convention thus does not force the Court to find the abstract
meaning of contested terms and to proceed on that basis; what the Court
is asked is rather to explore the intention of the Parties, the reason why
they used the particular term, and to proceed on that more nuanced
basis.

The Ordinary Meaning of the Term “the Main Channel of That
River’ /“Hauptlauf dieses Flusses”

3. Looking at the term as used in Article III (2) of the 1890 Treaty,
I note that in its ordinary meaning it does not give an even approximately
precise indication of the channel of the Chobe River in which the delimi-

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tation between the British and the German spheres of interest is to be
placed. It seems that the negotiating parties had, through reports of trav-
ellers and explorers and early maps prepared by them, a superficial
knowledge of the topography they were dealing with (see Benjamin Brad-
shaw, “Notes on the Chobe River, South Central Africa”, Proceedings of
the Royal Geographic Society (1881), pp. 208 ff., Memorial of Namibia,
Vol. V, Ann. 115, pp. 117 ff.; Map 1/2, ibid., Vol. VII, p. 4). The reference
to the “main channel of that river”/“Hauptlauf dieses Flusses” indicates
that they knew that the Chobe has, at different locations at least, several
channels, and that they wanted to place the line of delimitation into
the principal one of these channels. But there the matter ends. There is
neither in English nor in German a common understanding of the term
which would apply in a general fashion to the determination, in case of
doubt, which among several channels of a river is the main one. There is
— as the discussion about the role of navigability in the determination of
the main channel of the Chobe shows — not even agreement on all of the
criteria which play a role for that evaluation and disagreement on the
meaning or weight to be given to some of them. And the same is true for
the German word “Hauptlauf”.

Nor is there an ordinary meaning of the term “main channel of that
river’ /“Hauptlauf dieses Flusses” in a hydrological sense. The intense
hydrological debate which has taken place for years between the Parties
and during these proceedings before the Court, was about, inter alia, the
annual flow of water that goes through either of the two channels and in
this context about what precisely constitutes the southern channel, the
comparative visibility of the two channels during the flow seasons and
during the dry parts of the year and the bed profile configuration of the
channels. The Parties did not only disagree in substance on these matters,
but also on their relevance and applicability in the determination of the
main channel of the Chobe at Kasikili/Sedudu Island.

4. The Judgment lays much weighi on the ordinary meaning of the
term “main channel of that river”/“Hauptlauf dieses Flusses”. In order to
define that meaning, the Court bases itself on “the most commonly used
criteria in international law and practice, to which the Parties have
referred” (Judgment, para. 27).

Accordingly, the Court addresses the criteria relied on by the Parties
and analyses their views on each of them before formulating brief con-
clusions of its own (Judgment, paras. 29-41). As a result, the Court is no
more successful in establishing the ordinary meaning of “main channel
of that river”/“Hauptlauf dieses Flusses” than the Parties are in their
parallel efforts. A number of the conclusions arrived at by the Court
are not arbitrary as they are based on presentations by the Parties, but
nevertheless subjective in nature and without a clear justification. In
the end the Court’s conclusion that

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“in accordance with the ordinary meaning of the terms that appear
in the pertinent provision of the 1890 Treaty, the northern channel
of the River Chobe around Kasikili/Sedudu Island must be regarded
as its main channel” (Judgment, para. 41)

remains unconvincing.

Apparently recognizing the shortcomings of its efforts, the Court
repeatedly refers to the findings of Captain Eason in 1912, Messrs. Trol-
lope and Redman in 1948, and the Joint Survey of 1985, all of which are
to the effect that, at Kasikili/Sedudu Island, the northern channel of the
Chobe has to be regarded as the “main channel of that river’/“Hauptlauf
dieses Flusses” (Judgment para. 33, para. 42, and para. 80). The Judg-
ment correctly states that those findings do not constitute subsequent
agreements or subsequent practice in the sense of Article 31, paragraph 3,
but refers to them as giving support to its own conclusion on the north-
ern channel as the main channel of the Chobe around Kasikili/Sedudu
Island:

“The Court finds that these facts, while not constituting subse-
quent practice by the parties in the interpretation of the 1890 Treaty,
nevertheless support the conclusions which it has reached by inter-
preting Article IJ, paragraph 2, of the 1890 Treaty in accordance
with the ordinary meaning to be given to its terms . . .” (Judgment,
para. 80.)

In making this statement however, the Court does not take account of
the fact that neither Eason nor Trollope and Redman were hydrological
experts and that the Court has not been informed of the basis on which
they reached their conclusions; moreover, the report on the Joint Survey,
according to South Africa, did not prove conclusively that the Island
belongs to Botswana.

In its effort to establish an ordinary meaning of the term to be inter-
preted, on which the Court could proceed, the Judgment is not fully con-
sonant with the system of interpretation provided for by the Vienna Con-
vention. It discusses only certain aspects of the object and purpose of the
1890 Treaty and does not deal at all with the context in which the term
“main channel of that river”/“Hauptlauf dieses Flusses” is used in that
Treaty (Judgment, paras. 43-45). Object and purpose of the Treaty in
which the term to be interpreted finds itself and the context in which the
term has been used, are important elements of treaty interpretation as
they throw light on the intentions of the Parties which are a key factor for
treaty interpretation as foreseen by the Vienna Convention. An interpre-
tation of the term “main channel of that river”/“Hauptlauf dieses Flusses”,
which properly takes into account the object and purpose of the Treaty
and the context in which this term is used in Article III (2), leads to a
result that is different from the one reached by the Court in its Judgment.

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Object and Purpose of the 1890 Treaty

5. As to object and purpose of the 1890 Treaty, I would like to first
observe that the 1890 Treaty is a bilateral treaty and that, as is often the
case with bilateral treaties, object and purpose pursued with the Treaty
by its parties follow fairly clearly from its text. The object of the 1890
Treaty were the spheres of influence of the two contracting parties in
Africa and the purpose was their agreed delimitation (Arts. I-IV of the
Treaty) in order to secure the respect by each of the parties of the sphere
of the other (Art. VII). Although the delimitations provided for in the
Treaty have evolved to become existing boundaries between African
States, including the boundary between Namibia and Botswana, the
Treaty has not to be regarded as a boundary treaty in the technical sense;
the Treaty was meant to keep the political relations between the two con-
tracting States undisturbed by rivalry in Africa. This cannot be over-
looked in its interpretation; the Treaty must not be understood as mean-
ing a comprehensive settlement of all questions regarding the actual
course of the delimitations it establishes. It seems quite compatible with
the Treaty’s object and purpose that, in certain places, it sets forth only in
broad lines where the delimitation of the spheres of interests runs but
leaves the fixation of its course in detail to the future application of the
Treaty.

What has just been said on the object and purpose of the 1890 Treaty
means what follows for the determination of the meaning of the term
“main channel of that river” in Article HI (2) of that Treaty.

6. The object and purpose of the 1890 Treaty were that the parties
wanted to establish an easily definable delimitation of their zones of
influence in the north-eastern corner of South West Africa as well as else-
where in Africa. Once they had given up the reference to parallels of lati-
tude and longitude in the drawing of the line of delimitation, the next
best method from the point of view of clarity would have been to fix, in
the area of Kasikili/Sedudu Island, the line of delimitation on the crest of
the Chobe Ridge. The Chobe Ridge runs on the south bank of the Chobe
River, which is the right bank, and was known at the time of the negotia-
tion of the Treaty (see B. F. Bradshaw, “Notes on the Chobe River, South
Central Africa”, Proceedings of the Royal Geographic Society (1881),
pp. 208 ff.). The Ridge is clearly visible and does not disappear under
water in the flood season. However, for reasons which have to do with
the supposition of the parties that the Chobe is navigable and gives access
to the Zambezi by river, the parties to the 1890 Treaty specified that the
line of delimitation had to be in the “main channel of that river’/“Haupt-
lauf dieses Flusses”, meaning the Chobe.

This now makes the southern channel the “main channel”/“Hauptlauf”
in the sense of Article If (2). This is so because in the entire area of
Kasikili/Sedudu Island the southern channel runs along the Chobe Ridge.
The Chobe Ridge acts like a dam along which the waters of the Chobe
run upstream in the beginning of the flood season when they are backed

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up by the Mambova Rapids and downstream at the end of that season.
The Ridge also backs up the overflow waters that come down from the
Zambezi and directs them to flow off through the southern channel. Con-
sequently the yearly flow of water in the southern channel is such that the
Parties disagree whether the northern or the southern channel has the
greater flow. The Chobe Ridge also identifies the location of the southern
channel and thereby a boundary located in that channel; even in times of
high water, when the left bank of the southern channel is under water,
the exact location of the tha/weg can be established from the Ridge, once
the necessary measurements have been taken during the dry season. This
could not be easily done in the northern channel, both banks of which
are under water in the flood season.

Object and purpose of the 1890 Treaty therefore show that the “main
channel”/“Hauptlauf” of the Chobe in which the boundary is meant to
run is the southern channel.

This finding is supported by the fact that after the conclusion of the
1890 Treaty it was at first generally assumed as quite natural that the
delimitation line established by the Treaty lies in the southern channel, an
assumption that found its way into early maps.

The Context in Which the Term “Main Channel of That
River”’/“Hauptlauf dieses Flusses” Is Used in Article HI (2) of the
1890 Treaty

7. The context in which the terms of a treaty are used is necessarily
connected with the object and purpose of the treaty itself. That does not
mean, however, that the context is always identical with, or indistinguish-
able from, object and purpose of the treaty. The context in which a term
is used in a treaty may relate to the overall realization of the object and
purpose of the treaty; but the context may as well concern the realization
of a particular feature or aspect of the treaty. This is the case with the
term “main channel of that river’/“Hauptlauf dieses Flusses” in
Article III (2) of the 1890 Treaty.

Article III deals with the spheres of influence of the two contracting
parties in South West Africa, and paragraph 2 of this Article in particular
with the eastern delimitation of the sphere of influence reserved for Ger-
many. In establishing that delimitation, the two parties intended to meet
a particular German request, accepted by Great Britain, namely that
“Germany shall have free access from her Protectorate to the Zambesi”
(second subparagraph of Article II] (2)).

Rivers were regarded at the time as potentially important means for
the further exploration and the development of Africa. As the Judgment
states: “The great rivers of Africa traditionally offered the colonial

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powers a highway penetrating deep into the African continent.” (Judg-
ment, para. 44.) The German interest in access to the Zambezi was
motivated by such conceptions. The access of Germany to the Zambezi
was to be twofold: by land and by river.

As to the access by land, the second subparagraph of Article III (2) of
the 1890 Treaty states that the access of Germany to the Zambezi shall be
“by a strip of territory which shall at no point be less than 20 English
miles in width”. The access by river was to be through the River Chobe
and the delimitation between the British and the German sphere of inter-
est was to run in the “centre of the main channel of that river”/“Thalweg
des Hauptlaufes dieses Flusses” to “its junction with the Zambesi, where
it terminates” (Art. III (2) of the 1890 Treaty), so that both parties had
equal access to the Chobe and its uses. Originally there was only the ref-
erence to access to the Zambezi by the Chobe. The passage regarding
access by land did not yet figure in the text initialled by the British and
German negotiators on 17 June 1890, 13 days before the signature of
the Treaty. Until then, there was only the following reference to the
Chobe:

“The frontier between the German territory and the English ter-
ritory in the south-west of Africa shall follow, from the point which
has been agreed upon in previous arrangements, the 22nd degree of
south latitude (leaving Lake Ngami to England), to the east up to
the 21st degree of longitude; from thence to the north to where that
degree touches the 18th degree of south latitude. Thence the line of
demarcation shall be carried to the east along the centre of the River
Tschobi, up to the point where it flows into the Zambesi.” ({nitialled
Agreement between the representatives of Germany and Great
Britain, 17 June 1890 (PRO, FO 881/6146, No. 48), Memorial of
Namibia, Vol. IV, Ann. 21, p. 114; emphasis added.)

The negotiating history of the term “main channel of that river”/
“Hauptlauf dieses Flusses” in Article III (2) of the 1890 Treaty thus con-
firms that this term has been used in the context of an effort to give equal
access to the Zambezi by the River Chobe. Navigability therefore is an
important factor for the interpretation of the meaning of the term.

8. The context in which the term “the main channel”/“Hauptlauf
dieses Flusses” is used in Article HI (2) of the Treaty speaks rather in
favour of the northern channel as the main channel. In that channel, con-
ditions for navigation seemingly are better than in the southern channel
to the degree that the northern channel is, in the dry periods, deeper and
wider than the southern channel. That would speak in favour of inter-
preting the term main channel of “that river”/“ Hauptlauf dieses Flusses”
as referring to the northern channel.

As a means of interpretation, the context in which the term “main
channel of that river”/“Hauptlauf dieses Flusses” is used in Article III (2)
of the 1890 Treaty, is therefore at cross purposes with interpretation of

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the term in accordance with object and purpose of the Treaty which indi-
cates the southern channel as the main channel. This contradiction does
not however have to be addressed because the expectations of the parties
regarding the navigability of the Chobe were mistaken.

The Error of the Parties to the 1890 Treaty in the Appreciation of the
Possible Uses of the Chobe River

9. In placing hopes in the expected navigational use of the Chobe
River, the parties were in error; the context in which they perceived the
“main channel of that river”/“Hauptlauf dieses Flusses” was unreal. We
know now, more than hundred years after the conclusion of the Treaty,
that the river has not been used, and is not usable, for larger-scale navi-
gation. This is mainly due to the fact that if there was a fully navigable
part of the Chobe, it would run from nowhere to nowhere, 1.e., from
some point upstream from Kasikili/Sedudu Island to the point where —
downstream from the Island — the Mambova Rapids block navigation.
But also the particular hydrological conditions prevailing in the Chobe in
the area around Kasikili/Sedudu Island would not permit full naviga-
tional use of the river there. This is supported by the fact that while
an attempt at lumber floating was undertaken by Mr. Ker in 1947-1948,
the Court has not been informed that this attempt was repeated after
Mr. Ker’s first experience. The Zambezi Queen is not operated on a regu-
lar schedule but is moored in the northern channel as a floating hotel.
The only navigational activity which has ever, in a sustained way, been
carried out on the River Chobe, is the operation of the tourist flatboats
that has taken place, for some time now, mainly in the southern chan-
nel, as the Island is becoming known as a major wildlife feeding ground
readily accessible to safe viewing by tourists who mainly come from
Botswana. The parties to the Treaty were thus in error when they drafted
the Treaty in the expectation of larger-scale navigational usability of the
Chobe, in particular in giving access to the Zambezi.

The error with which the Court is confronted here is not an error “in a
treaty” as dealt with by Article 48 of the Vienna Convention on the Law
of Treaties, which one State party to the treaty wishes to invoke “as
invalidating its consent to be bound by the treaty”. It is rather an error in
motivation which led to the use of the term “main channel of that river”/
“Hauptlauf dieses Flusses” in Article III (2) of the 1890 Treaty, an error
made by both parties to the Treaty. The question that arises does not
concern the validity of the consent to be bound by the Treaty; the error
rather raises the question whether a mistaken expectation of the parties
when they drew up the Treaty can still serve, more than 100 years after
the conclusion of the Treaty and a long time after the error has become
clear, in the interpretation of the Treaty.

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In the circumstances of the present case, the interpretation of the term
“main channel”/“Hauptlauf dieses Flusses” based on the mistaken expec-
tation of large-scale navigational usability of the Chobe cannot be held
against Namibia because that would mean that Namibia alone would be
burdened with the consequences of the error. The flatboat navigation
connected to the tourist activities that have evolved on and around
Kasikili/Sedudu Island is concentrated in the southern channel. Interpre-
tation of the term “the main channel of that river”/“Hauptlauf dieses
Flusses” in favour of the northern channel would deprive Namibia from
having an equitable share in the only navigational use of the Chobe there
is to share. That would run directly counter to the intention of the parties
to split the river evenly. Therefore the interpretation of the term “main
channel of that river”/“Hauptlauf dieses Flusses” in favour of the north-
ern channel would not be compatible with the principle of good faith
which, according to Article 31, paragraph 1, of the Vienna Convention,
governs all treaty interpretation. Interpretation of the term “main chan-
nel of that river”/“Hauptlauf dieses Flusses” in favour of the southern
channel, however, would correspond to what the parties wanted to
achieve regarding the River Chobe. It would be a good faith interpreta-
tion of the term because it would split evenly between the Parties the only
channel that is of some navigational interest.

Since the Court has found — correctly — that Namibia does not have
a prescriptive title to Kasikili/Sedudu Island, the finding that the main
channel is the northern channel automatically clarifies that Kasikili/
Sedudu Island is not part of Namibia, but part of Botswana. To arrive at
such an important conclusion from the interpretation of a term of the
1890 Treaty based on a mistaken expectation of the navigational useful-
ness of the Chobe River is equally not compatible with the requirement
of good faith in the interpretation of treaties.

In sum, the context in which the term “main channel of that river’/
“Hauptlauf dieses Flusses” is used in Article III (2) of the 1890 Treaty
does not justify the interpretation of the term in favour of the northern
channel.

IJ. THE THIRD PARAGRAPH OF THE DISPOSITIF OF THE JUDGMENT

10. The fact that the Court finds in the third paragraph of the disposi-
tif of its Judgment that

“in the two channels around Kasikili/Sedudu Island, the nationals
of, and vessels flying the flags of, the Republic of Botswana and the
Republic of Namibia shall enjoy equal national treatment”

does not fully overcome the shortcomings of interpreting the term
“main channel of that river”/“Hauptlauf dieses Flusses” in favour of the
northern channel. As far as the territorial status of the Island itself is

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concerned, the third paragraph of the dispositif of the Judgment does not
affect the finding in the second paragraph of the dispositif that the Island
forms part of Botswana. As to the waters around the Island, conceding
equal national treatment to the nationals of the other Party and to boats
flying the flag of that Party, is not the same as the splitting of the “main
channel”/“Hauptlauf” of the Chobe around the Island, as originally
envisaged by the Parties.

However, the fact that I do not regard the third finding in the dispositif
of the Judgment as compensating for the erroneous decision in favour of
the northern channel, has not prevented me from voting in favour of that
finding. I agree with the reasons for the finding which are given in para-
graphs 100 and 103 of the Judgment and the attribution, in the channels
around Kasikili/Sedudu Island, of equal, national treatment to the nation-
als of both Parties and the boats flying their flags may be of some help to
the Parties and contribute to avoiding or lessening tensions.

I have also come to the conclusion that the Court had jurisdiction to
make the finding, as the Court is mandated by Article I of the Special
Agreement by virtue of which it was seised with this dispute, “to determine
... the legal status of the island”; that mandate comprises the determina-
tion of the legal status of the waters around Kasikili/Sedudu Island.

THI. FINAL REMARK: THE ROLE OF PRESCRIPTION
IN THIS CASE

11. As a final remark, I would like to add with regard to the role of
prescription in this case, that I agree with the conclusion of the Judgment
that acquisitive prescription does not play a role. I also agree with the
reasons given for that conclusion. However, there is an additional and
quite decisive reason why acquisitive prescription could not come into
play in this case.

As the Court states, Botswana and Namibia

“agree between themselves that acquisitive prescription is recognized
in international law and they further agree on the conditions under
which title to territory may be acquired by prescription, but their
views differ on whether those conditions are satisfied in this case”
(Judgment, para. 96).

“For present purposes, the Court need not concern itself with the
status of acquisitive prescription in international law or with the
conditions for acquiring title to territory by prescription. It considers
... that the conditions cited by Namibia itself are not satisfied in this
case and that Namibia’s argument on acquisitive prescription there-
fore cannot be accepted.” (Judgment, para. 97.)

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These conclusions are not objectionable in themselves. The Court
should however have gone into the conditions under which title to terri-
tory may be acquired by prescription, far enough to state that South
Africa could not have acquired title to the Island by prescription. South
Africa, whose presence in the Caprivi Strip including the Island lasted
longer than the presence there of Germany or Britain, prior to the termi-
nation of the Mandate by the General Assembly in 1966 exercised
authority there not à titre de souverain but à titre de mandataire. As
mandatory, South Africa certainly was vested by virtue of the Mandate
instrument of 17 December 1920 (League of Nations, Journal Officiel,
2nd Year, No. 1, p. 89) with the “full power of administration and legis-
lation over the territory subject to the present Mandate as an integral
portion of the Union of South Africa”; however, as the Court observes in
its Advisory Opinion on the International Status of South West Africa
(1. C.J. Reports 1950, p. 128, at p. 132):

“On the other hand, the Mandatory was to observe a number of
obligations, and the Council of the League was to supervise the
administration and see to it that these obligations were fulfilled.”

And the Court added:

“The terms of this Mandate, as well as the provisions of Article 22
of the Covenant and the principles embodied therein, show that the
creation of this new international institution did not involve any
cession of territory or transfer of sovereignty to the Union of South
Africa. The Union Government was to exercise an international
function of administration on behalf of the League, with the object
of promoting the well-being and development of the inhabitants.”
(Ibid. )

This perception of the nature of the Mandate is incompatible with
acquisitive prescription working in favour of the Mandatory. After the
termination of the Mandate, the continued presence of South Africa in
South West Africa (Namibia) was no longer “peaceful”, i.e., uncontested,
as is confirmed by Security Council resolution 276 (1970) and by the
Court’s Advisory Opinion on the Legal Consequences for States of the
Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970) (1 C.J. Reports
1971, p. 16).

I agree that the present case is not a suitable occasion for the Court to
concern itself with the status of acquisitive prescription in international
law or with the general conditions under which title to territory may be
acquired by prescription. Nevertheless, in order to further clarify the law

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governing mandates or trusteeships, a statement of the Court that acquisi-
tive prescription does not work in favour of a Mandatory would have

been desirable.

(Signed) Carl-August FLEISCHHAUER.

166


703

SEPARATE OPINION OF JUDGE PARRA-ARANGUREN

1. Notwithstanding my agreement with the operative part of the Order,
I consider it necessary to make the following observations.

2. Article IX of the Genocide Convention is in force between the
Parties. It prescribes:

“Disputes between the Contracting Parties relating to the interpre-
tation, application or fulfilment of the present Convention, including
those relating to the responsibility of a State for genocide or for any
of the other acts enumerated in article III, shall be submitted to the
International Court of Justice at the request of any of the parties to
the dispute.”

3. Yugoslavia maintains that the Respondent has violated:

“the obligation contained in the Convention on the Prevention and
Punishment of the Crime of Genocide not to impose deliberately on
a national group conditions of life calculated to bring about the
physical destruction of the group .. .” (Application of Yugoslavia,

p. 12).

Furthermore, during the public hearings Yugoslavia stated “in the cir-
cumstances the intensive bombing of Yugoslav populated areas consti-
tutes a breach of Article II of the Genocide Convention” (CR 99/25,
p. 12, Brownlie).

4. The Respondent considers that it has not violated the Genocide
Convention, because no genocide crimes have been committed during or
as a result of the military intervention of the NATO countries in Yugo-
slavia.

5. In its Judgment of 11 July 1996 the Court admitted prima facie the
existence of a legal dispute between the Parties because of the existence
of:

“‘a situation in which the two sides hold clearly opposite views
concerning the question of the performance or non-performance
of certain treaty obligations’ (Interpretation of Peace Treaties
with Bulgaria, Hungary and Romania, First Phase, Advisory Opin-
ion, C.J. Reports 1950, p. 74)

and that, by reason of the rejection by Yugoslavia of the complaints
formulated against it by Bosnia and Herzegovina, ‘there is a legal
dispute’ between them (East Timor { Portugal v. Australia), L.C.J.
Reports 1995, p. 100, para. 22)” (Application of the Convention on

SI
704 LEGALITY OF USE OF FORCE (SEP. OP. PARRA-ARANGUREN)

the Prevention and Punishment of the Crime of Genocide, Prelimi-
nary Objections, C.J. Reports 1996 (IT), pp. 614-615, para. 29).

6. Consequently, taking into account the allegations of the Parties in
these incidental proceedings, there appears to exist, prima facie, a “legal
dispute” between them regarding the interpretation and application of
the Genocide Convention. For this reason, Article IX of the Genocide
Convention is applicable and, in my opinion, the Court has prima facie
jurisdiction to entertain the request for provisional measures presented
by Yugoslavia.

7. Article IX of the Genocide Convention is the only prima facie basis
for jurisdiction of the Court in the present case. Therefore the only pro-
visional measures that it can indicate are those aiming to guarantee the
rights of the Applicant under the Genocide Convention.

8. Yugoslavia is requesting the Court to indicate that the Respondent
“shall cease immediately the acts of use of force and shall refrain from
any act of threat or use of force against the Federal Republic of Yugo-
slavia” (CR 99/14, p. 63, Etinski). However, the threat or use of force
against a State cannot in itself constitute an act of genocide within the
meaning of the Genocide Convention. Consequently the provisional
measures requested by Yugoslavia do not aim to guarantee its rights
under the Genocide Convention, i.e., the right not to suffer acts which
may be qualified as genocide crimes by the Convention. Therefore, in my
opinion, the measures requested by Yugoslavia shall not be indicated.

(Signed) Gonzalo PARRA-ARANGUREN.

52


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING
THE VIENNA CONVENTION
ON CONSULAR RELATIONS

(PARAGUAY v. UNITED STATES OF AMERICA)

ORDER OF 9 APRIL 1998

1998

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE
A LA CONVENTION DE VIENNE
SUR LES RELATIONS CONSULAIRES

(PARAGUAY c. ETATS-UNIS D’AMERIQUE)

ORDONNANCE DU 9 AVRIL 1998
Official citation:

Vienna Convention on Consular Relations
(Paraguay v. United States of America), Order of 9 April 1998,
I CT. Reports 1998, p. 266

Mode officiel de citation:

Convention de Vienne sur les relations consulaires
(Paraguay c. Etats-Unis d’ Amérique), ordonnance du 9 avril 1998,
CLI. Recueil 1998, p. 266

| Sales number
ISSN 0074-4441 N° de vente: 705
ISBN 92-1-070769-9

266

COUR INTERNATIONALE DE JUSTICE

ANNÉE 1998

9 avril 1998

AFFAIRE RELATIVE
À LA CONVENTION DE VIENNE
SUR LES RELATIONS CONSULAIRES

(PARAGUAY c. ÉTATS-UNIS D’AMERIQUE)

ORDONNANCE

Le vice-président de la Cour internationale de Justice, faisant fonction
de président en l'affaire,

Vu l’article 48 du Statut de la Cour et les articles 13, paragraphe 1, 31,
32, paragraphe 1, 44 et 45, paragraphe 1, de son Règlement,

Vu la requête déposée au Greffe de la Cour le 3 avril 1998, par laquelle
la République du Paraguay a introduit une instance contre les Etats-Unis
d’Amérique en raison de «violations de la convention de Vienne [du
24 avril 1963] sur les relations consulaires» qui auraient été commises par
les Etats-Unis d’Amérique,

Vu la demande en indication de mesures conservatoires présentée par
le Paraguay le 3 avril 1998,

Vu Vordonnance du 9 avril 1998 par laquelle la Cour a indiqué des
mesures conservatoires et dans laquelle elle a notamment déclaré qu’«il
convient que la Cour, avec la coopération des Parties, fasse en sorte
que toute décision sur le fond soit rendue avec la plus grande célérité pos-
sible»;

Considérant que, au cours d’une réunion que le vice-président, faisant
fonction de président en l’affaire, a tenue avec les représentants des
Parties le 9 avril 1998, les Parties sont convenues des délais indiqués ci-
dessous,

1998

9 avril
Rôle général

n° 99
CONVENTION DE VIENNE (ORDONNANCE 9 IV 98) 267

Fixe comme suit les dates d’expiration des délais pour le dépôt des
pièces de la procédure écrite:

Pour le mémoire de la République du Paraguay, le 9 juin 1998;

Pour le contre-mémoire des Etats-Unis d'Amérique, le 9 septembre
1998;

Réserve la suite de la procédure.

Fait en anglais et en français, le texte anglais faisant foi, au Palais de la
Paix, à La Haye, le neuf avril mil neuf cent quatre-vingt-dix-huit, en trois
exemplaires, dont l’un restera déposé aux archives de la Cour et les autres
seront transmis respectivement au Gouvernement de la République du
Paraguay et au Gouvernement des Etats-Unis d'Amérique.

Le vice-président,
(Signé) Christopher G. WEERAMANTRY.

Le greffier,
{Signé) Eduardo VALENCIA-OSPINA.


                    46

                                          JOINT SEPARATE OPINION
                                     OF JUDGES TOMKA AND CRAWFORD

                    [Original English Text]

                       Preliminary objections — United States’ objection that Bank Markazi is not a
                    “company” for the purposes of the Treaty of Amity — Disagreement with the
                    Court’s decision to join this objection to the merits — Predecessor to Article 79 of
                    the Rules of Court allowed Court great latitude to defer objections to the merits
                    phase — Delay caused by unnecessary deferral of objections — 1972 change to the
                    Rules of Court limited the option of deferring objections to the merits — The Court
                    has the necessary information about Bank Markazi to determine this preliminary
                    objection now — Not necessary to characterize particular transactions of Bank
                    Markazi in order to decide whether it is a “company” for the purposes of the
                    Treaty of Amity.

                       1. We regret that the Court has decided to join the third preliminary
                    objection to jurisdiction raised by the United States of America to the
                    merits. In our view, whether Bank Markazi is a “company” within the
                    meaning of Article III, paragraph 1, of the Treaty of Amity is an exclu-
                    sively preliminary question of treaty interpretation, on which the Court
                    should have ruled now.
                       2. We do not deal here with the substantive issue of whether Bank
                    Markazi is a “company” for the purpose of the Treaty of Amity. How-
                    ever, we wish to express our serious doubts as to the appropriateness of
                    the decision to defer the question. If Bank Markazi is not a “company”
                    as defined in the Treaty, its key provisions, notably Articles III and IV,
                    do not apply to it. The point has been fully argued and the Court has the
                    necessary information about Bank Markazi to decide the question at this
                    stage. To defer deciding the question is not an appropriate use of Arti-
                    cle 79, paragraph 9, as we will explain.

                      3. The predecessor to Article 79 allowed the Court greater latitude to
                    defer objections to the merits phase of a case. Pursuant to Article 62,
                    paragraph 5, of the 1946 Rules of Court, after hearing the parties’ argu-
                    ments on preliminary objections, the Court had two options : rule on the
                    objection or join it to the merits of the case 1. That Article repeated the
                    language of the identical provision in the 1936 Rules of the Permanent
                    Court of International Justice 2.

                       1 Article 62, paragraph 5, of the 1946 Rules of Court read: “After hearing the parties

                    the Court shall give its decision on the objection or shall join the objection to the merits.”
                       2 1936 Rules of the Permanent Court of International Justice, Art. 62, para. 5.

                    43

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                    47 	                certain iranian assets (joint sep. op.)

                       4. Acting under Article 62, paragraph 5, of the 1946 Rules of Court, in
                    Barcelona Traction the Court joined the Respondent’s third preliminary
                    objection, concerning the Applicant’s standing, to the merits of the case
                    by a narrow margin of nine votes to seven (Barcelona Traction, Light and
                    Power Company, Limited (New Application: 1962) (Belgium v. Spain),
                    Preliminary Objections, Judgment, I.C.J. Reports 1964, pp. 46‑47). The
                    decision on the preliminary objections was handed down in 1964. Six
                    years later, in 1970, the Court determined that the Applicant lacked
                    standing to bring its case, effectively upholding the Respondent’s third
                    preliminary objection, and concluded that the Court could not “pro-
                    nounce upon any other aspect of the case” (Barcelona Traction, Light and
                    Power Company, Limited (New Application: 1962) (Belgium v. Spain),
                    Second Phase, Judgment, I.C.J. Reports 1970, p. 51, para. 102).
                       5. The Court was criticized for the delay in the determination of the
                    Barcelona Traction case in the context of a review of the role of the Court
                    by the Sixth Committee of the United Nations General Assembly, which
                    began in 1970. The views of governments expressed in the context of this
                    review are reflected both in the 1970 and 1971 reports of the Sixth Com-
                    mittee on the question and in two reports of the Secretary-General, pub-
                    lished in 1971 and 1972, which record the replies to a questionnaire sent
                    to States. The 1970 report of the Sixth Committee records feedback from
                    State representatives that “it would be useful for the Court to decide
                    expeditiously on all questions relating to jurisdiction and other prelimi-
                    nary issues”, as well as criticism of the Court’s “practice of reserving deci-
                    sions on such questions pending consideration of the merits of the case”
                    (A/8238, para. 48). In the Sixth Committee’s report of 1971, representa-
                    tives put forward “a suggestion that the Court should be encouraged to
                    take a decision on preliminary objections as quickly as possible and to
                    refrain from joining them to the merits unless it was strictly essential”
                    (A/8568, para. 47).

                       6. To some extent the Court had pre-empted such criticism by embark-
                    ing, in 1967, on a revision of its Rules 3. The Court took note of the views
                    expressed in the Sixth Committee during the revision process. That pro-
                    cess of revision produced significant changes to the Rules and in 1972
                    Article 62, paragraph 5, was extensively amended and renumbered as
                    Article 67, paragraph 7 4. The provision was renumbered twice more in
                    1978 and 2000 but was not further amended in substance 5. Today the
                    relevant provision, Article 79, paragraph 9, reads: “After hearing the par-

                       3 Report of the International Court of Justice, 1 August 1969-31 July 1970, A/8005,

                    para. 31.
                       4 International Court of Justice, Yearbook 1971-1972, p. 8. See also S. Rosenne, Proce-

                    dure in the International Court: A Commentary on the 1978 Rules of the International Court
                    of Justice, The Hague, Martinus Nijhoff, 1983, pp. 164‑167.
                       5 Article 67, paragraph 7, became Article 79, paragraph 7, in 1978, then Article 79,

                    paragraph 9, in 2000. International Court of Justice, Yearbook 1977-1978, p. 118, and
                    Yearbook 2000-2001, p. 3.

                    44

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                    48 	                certain iranian assets (joint sep. op.)

                    ties, the Court shall give its decision in the form of a judgment, by which
                    it shall either uphold the objection, reject it, or declare that the objection
                    does not possess, in the circumstances of the case, an exclusively prelimi-
                    nary character.”
                       7. According to the Court, a distinct advantage of the new rule is “that
                    it qualifies certain objections as preliminary, making it quite clear that
                    when they are exclusively of that character they will have to be decided
                    upon immediately” (Military and Paramilitary Activities in and against
                    Nicaragua (Nicaragua v. United States of America), Merits, Judgment,
                    I.C.J. Reports 1986, p. 31, para. 41). The new rule does not foreclose alto-
                    gether the option for the Court to postpone its ruling on a preliminary
                    objection to the merits stage, but limits this option “by laying down the
                    conditions more strictly” (Questions of Interpretation and Application of
                    the 1971 Montreal Convention arising from the Aerial Incident at Locker-
                    bie (Libyan Arab Jamahiriya v. United Kingdom), Preliminary Objections,
                    Judgment, I.C.J. Reports 1998, p. 28, para. 49 ; Questions of Interpretation
                    and Application of the 1971 Montreal Convention arising from the Aerial
                    Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of Amer-
                    ica), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 133,
                    para. 48). The effect of the 1972 amendment was therefore intended to be
                    substantive : it was not a mere matter of drafting. Most importantly, as
                    one member of the Court wrote extracurially, “[t]he easy way out which
                    was represented by the neutral, and in some cases diplomatic answer of a
                    joinder but which really constituted a postponement of any decision is
                    now excluded” 6.

                       8. Since the changes to the Rules in 1972, the Court has found that a
                    preliminary objection does not possess an exclusively preliminary charac-
                    ter in only five cases. In Military and Paramilitary Activities and in Land
                    and Maritime Boundary between Cameroon and Nigeria, the Court found
                    that an objection that third States might be “affected” by the Court’s
                    decision did not possess an exclusively preliminary character because it
                    was possible to identify the effect on other States “only when the general
                    lines of the judgment to be given become clear” (Military and Paramili-
                    tary Activities in and against Nicaragua (Nicaragua v. United States of
                    America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984,

                        6 Eduardo Jiménez de Aréchaga, “The Amendments to the Rules of Procedure of the

                    International Court of Justice”, American Journal of International Law, Vol. 67, No. 1,
                    January 1973, p. 16. Judge Jiménez de Aréchaga was a member of the Committee for the
                    Revision of the Rules of Court from February 1970 until February 1976, including at the
                    time of adoption in 1972 of amendments to the Rules of Court. International Court of
                    Justice, Yearbook 1977-1978, pp. 111‑112. See also Military and Paramilitary Activities in
                    and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissi-
                    bility, Judgment, I.C.J. Reports 1984, p. 425, para. 76: “the procedural technique formerly
                    available of joinder of preliminary objections to the merits has been done away with since
                    the 1972 revision of the Rules of Court”.

                    45

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                    49 	                 certain iranian assets (joint sep. op.)

                    p. 425, paras. 75‑76 7; see also Land and Maritime Boundary between Cam-
                    eroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections, Judg-
                    ment, I.C.J. Reports 1998, pp. 324‑325, paras. 116-117). In the two
                    Lockerbie cases, the Court held that the objection according to which
                    Libya’s claims were rendered “without object” by two Security Council
                    resolutions dealing with the aerial incident had the character of a defence
                    on the merits, and was “inextricably interwoven” with the merits (Libyan
                    Arab Jamahiriya v. United Kingdom, Preliminary Objections, Judgment,
                    I.C.J. Reports 1998, pp. 28‑29, para. 50 ; Libyan Arab Jamahiriya v.
                    United States of America, Preliminary Objections, Judgment, I.C.J. Reports
                    1998, pp. 133‑134, para. 49). Finally, in Application of the Genocide
                    Convention, the Court determined that Serbia’s objection ratione temporis
                     did not possess an exclusively preliminary character because the Court
                     “need[ed] to have more elements before it” to make relevant findings and
                     “[i]t would . . . be impossible to determine the questions raised by the
                     objection without to some degree determining issues properly pertaining
                     to the merits” (Application of the Convention on the Prevention and
                     Punishment of the Crime of Genocide (Croatia v. Serbia), Preliminary
                      Objections, Judgment, I.C.J. Reports 2008, pp. 459‑460, paras. 127,
                      129‑130) 8.
                         9. The decision of the Court in the present case to join the third pre-
                      liminary objection of the United States to the merits marks a departure
                      from the Court’s previous adherence to the régime set out in Article 79,
                      paragraph 9. The Court has held that
                         “[i]n principle, a party raising preliminary objections is entitled to
                         have these objections answered at the preliminary stage of the pro-
                         ceedings unless the Court does not have before it all facts necessary
                         to decide the questions raised or if answering the preliminary objec-
                         tion would determine the dispute, or some elements thereof, on the
                         merits” (Territorial and Maritime Dispute (Nicaragua v. Colombia),
                         Preliminary Objections, Judgment, I.C.J. Reports 2007 (II), p. 852,
                         para. 51).

                       7 The Court determined that “obviously the question of what States may be ‘affected’

                    by the decision on the merits is not in itself a jurisdictional problem” (I.C.J. Reports 1984,
                    p. 425, para. 76). The examination by the Court of jurisdictional questions in that case was
                    opened by the Court proprio motu and not by the United States formally raising prelimi-
                    nary objections. However the Court dealt with the objection pursuant to Article 79, para-
                    graph 7, of the original version of the 1978 Rules of Court (ibid.).
                       8 This decision was adopted by 11 votes to 6. See I.C.J. Reports 2008, p. 466,

                    para. 146 (4). In their dissenting opinions, two judges briefly explained their reasons
                    for voting against this decision of the Court. Ibid., p. 547, para. 4, dissenting opinion
                    of Judge Skotnikov and ibid., pp. 633‑635, paras. 192‑194, dissenting opinion of Judge
                    ad hoc Kreća. In his separate opinion, another judge was particularly critical of the Court’s
                    joinder decision, ibid., pp. 515‑523, paras. 7‑17, separate opinion of Judge Tomka.

                    46

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                    50 	                 certain iranian assets (joint sep. op.)

                    The presumption is therefore in favour of a decision at the preliminary
                    stage, rather than joinder to the merits. Article 79, paragraph 8, of the
                    Rules of Court, the substance of which was added in 1972 9, reinforces
                    this view, at least in relation to objections to the jurisdiction of the
                    Court 10. Article 79, paragraph 8, provides that “[i]n order to enable the
                    Court to determine its jurisdiction at the preliminary stage of the pro-
                    ceedings, the Court, whenever necessary, may request the parties to argue
                    all questions of law and fact, and to adduce all evidence, which bear on
                    the issue”. Members of the Court have previously highlighted the impor-
                    tance of limiting instances in which objections are joined to the merits to
                    circumstances contemplated by Article 79, paragraph 9 11.
                       10. Whether Bank Markazi is a company for the purpose of the Treaty
                    of Amity is a question of treaty interpretation on which different views
                    may be held. However, the Court is in possession, already at this stage of
                    the proceedings, of all the facts which might have a bearing on the ques-
                    tion. The Applicant has supplied the Court with evidence of the creation
                    of Bank Markazi and its functions 12. Both Parties have had the opportu-
                    nity to put forward their arguments in relation to whether Bank Markazi
                    is a “company” for the purpose of the Treaty of Amity, supported by
                    evidence such as records of negotiations during the elaboration of the
                    Treaty 13. In order to decide whether Bank Markazi is a company, it is not
                    necessary “to determine whether Bank Markazi was carrying out, at the
                    relevant time, activities of the nature of those which permit characteriza-
                    tion as a ‘company’ within the meaning of the Treaty of Amity”, as the
                    Court states in justifying its decision to join the third preliminary objec-
                    tion to the merits (Judgment, para. 97). The activities of Bank Markazi,
                    “at the relevant time”, are not the subject‑matter of the dispute before the
                    Court. This is rather the enforcement measures taken by the United States
                    against the property and assets of the Bank in order to satisfy judgments
                    of federal courts against Iran and its Government. Moreover, the defini-
                    tion of the term “companies”, in Article III, paragraph 1, of the Treaty of

                       9 Article 79, paragraph 8, was previously Article 67, paragraph 6, in 1972 and Article 79,

                    paragraph 6, in 1978.
                       10 S. Rosenne, op. cit., p. 163.
                       11 See, for example, Obligation to Negotiate Access to the Pacific Ocean (Bolivia v.

                    Chile), Preliminary Objection, Judgment, I.C.J. Reports 2015 (II), pp. 612‑614, declaration
                    of Judge Bennouna; Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974,
                    p. 304, separate opinion of Judge Petrén; Nuclear Tests (New Zealand v. France), ibid.,
                    pp. 488‑489, separate opinion of Judge Petrén.
                       12 Specifically, Iran has supplied the domestic legislation which created Bank Markazi

                    and regulates the bank’s functions (Memorial of Iran (MI), Ann. 73).
                       13 See, for example, Letter of the US Embassy in Tehran to the US Department of

                    State, 16 October 1954 (MI, Ann. 2) and Aide‑Memoire of the US Embassy in Tehran,
                    20 November 1954 (MI, Ann. 3), discussed in the Written Statement of Iran on the Prelim-
                    inary Objections of the United States, p. 43. The United States has also supplied two
                    volumes of Documents Unsealed in the Peterson proceedings which it argues are relevant
                    to the determination of the question, CR 2018/32, p. 12, para. 7 (Bethlehem).

                    47

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                    51 	                    certain iranian assets (joint sep. op.)

                    Amity does not refer to “activities” as a criterion for determining whether
                    an entity is a company for the purposes of the Treaty.

                       11. If the Court had ruled on the objection at this stage of the proceed-
                    ings, it would not have been ruling on matters pertaining to the merits of
                    the case. The Applicant’s case, as relevant to this objection, is that Bank
                    Markazi has been denied its rights guaranteed by the Treaty of Amity
                    because of measures taken by the Respondent 14. The preliminary ques-
                    tion is whether Bank Markazi is entitled, as a “company”, to those Treaty
                    rights. That question is separate from the Court’s assessment, at the mer-
                    its stage, of whether the Respondent has violated those rights, if they
                    exist.
                       12. It follows from the above that the Court should have decided at
                    the preliminary stage of these proceedings whether Bank Markazi is a
                    “company” for the purpose of the Treaty of Amity. To decline to do so
                    involves a misapplication of Article 79, paragraph 9, of the Rules of
                    Court.

                                                                              (Signed) Peter Tomka.
                    (Signed) James Crawford.

                         14   Application of Iran, para. 1; CR 2018/30, p. 10, para. 3 (Mohebi).

                    48

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