                                   SEPARATE OPINION OF JUDGE IWASAWA

       Where it is impossible to quantify the damage precisely, international courts and tribunals
have applied equity infra legem in determining the amount of compensation  In the present case,
the Court adopts this line of reasoning and awards compensation “in the form of a global sum, within
the range of possibilities indicated by the evidence and taking into account equitable
considerations”  The Court decides this case in accordance with international law and not
ex aequo et bono  Under the International Covenant on Civil and Political Rights, criminal
investigation and prosecution are necessary remedies for violations of human rights protected by
Articles 6 (right to life) and 7 (right not to be subjected to torture)  The Court could have given
this as an additional reason to reject the DRC’s request for satisfaction in the form of criminal
investigation and prosecution.

      1. I voted in favour of the Court’s decisions in the operative paragraph (paragraph 409 of the
Judgment) and generally agree with the reasoning set out in the Judgment. The purpose of this
opinion is to offer my views on certain aspects of the Judgment, namely its reliance on equitable
considerations and its reference to criminal investigation and prosecution.

                                            I. Equitable considerations

       2. The present case concerns one of the deadliest and most destructive armed conflicts ever to
take place in Africa. In its 2005 Judgment, the Court found that Uganda had violated the principle of
non-use of force in international relations and the principle of non-intervention, as well as its
obligations under international human rights law and international humanitarian law1. Its actions
resulted in extensive damage to persons, including loss of life, as well as damage to property and
damage related to natural resources. The armed conflict was also highly complex. There were
numerous actors present in the DRC during the relevant period, including the armed forces of a
number of States and irregular forces which acted in collaboration with some of those States
(paragraphs 64-65 of the Judgment).

       3. The Court observes that, when mass violations have occurred in the context of armed
conflict, judicial and other bodies have awarded compensation on the basis of the evidence at their
disposal. They have adopted less rigorous standards of proof for the quantification of damage and
have reduced the levels of compensation in order to balance the uncertainties stemming from the
application of lower standards of proof. In particular, the Court refers to the Final Award on Eritrea’s
Damages Claims rendered by the Eritrea-Ethiopia Claims Commission (the “EECC”) in 2009
(paragraphs 107 and 123 of the Judgment).

       4. In view of the magnitude and complexity of the armed conflict in the territory of the DRC
and given that a large amount of evidence has been destroyed or rendered inaccessible over the years,
the Court decides to proceed in the same manner in the present case. It observes that the standard of
proof required to establish responsibility is higher than in the reparation phase, which calls for some
flexibility (paragraphs 108 and 124 of the Judgment). The Court thus awards compensation “in the
form of a global sum, within the range of possibilities indicated by the evidence and taking into
account equitable considerations” (paragraphs 106, 166, 181, 193, 206, 225, 258 and 365). The Court
notes that such an approach may be called for “where the evidence leaves no doubt that an

        1 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment,

I.C.J. Reports 2005, p. 280, para. 345, subparas. (1) and (3).

                                                         -2-

internationally wrongful act has caused a substantiated injury, but does not allow a precise evaluation
of the extent or scale of such injury” (paragraph 106).

       5. It should be emphasized that, in adopting this approach, the Court does not decide this case
ex aequo et bono (Article 38, paragraph 2, of the Statute of the Court), as the Parties have not
authorized it to do so. It decides this dispute “in accordance with international law” (Article 38,
paragraph 1), determining the global sum on the basis of the legal principles and rules applicable to
the assessment of reparations. While the Court, as a court of law, is obligated to quantify the damage
based on the evidence before it, it is equally justified in taking into account equitable considerations.

       6. In Frontier Dispute (Burkina Faso/Republic of Mali), the Chamber of the Court
acknowledged that it could not decide the case ex aequo et bono because the parties had not
authorized it to do so. Nonetheless, it declared that it would have regard to “equity infra legem”,
describing it as “that form of equity which constitutes a method of interpretation of the law in force,
and is one of its attributes” 2. Equity infra legem, or equity under the law, refers to the power of courts
to select from among possible interpretations of the law the one which achieves the most equitable
result. International courts have the inherent power to apply equity infra legem without the specific
authorization of the parties.

       7. In Frontier Dispute, the Chamber recalled, in support of its position, a passage from the
Fisheries Jurisdiction Judgments, in which the Court, urging the parties to negotiate an “equitable
apportionment” of the fishing resources, stated: “It is not a matter of finding simply an equitable
solution, but an equitable solution derived from the applicable law.” 3

       8. In Fisheries Jurisdiction, the Court in turn referred to its Judgment in the North Sea
Continental Shelf cases, in which it observed that rules of law on the delimitation of adjacent
continental shelves were to be applied on a foundation of general precepts of justice and good faith,
and stated that “it is not a question of applying equity simply as a matter of abstract justice, but of
applying a rule of law which itself requires the application of equitable principles” 4. It further
stressed:

              “Whatever the legal reasoning of a court of justice, its decisions must by
       definition be just, and therefore in that sense equitable. Nevertheless, when mention is
       made of a court dispensing justice or declaring the law, what is meant is that the decision
       finds its objective justification in considerations lying not outside but within the rules,
       and in this field it is precisely a rule of law that calls for the application of equitable
       principles. There is consequently no question in this case of any decision ex aequo et
       bono” 5.

In Continental Shelf (Tunisia/Libyan Arab Jamahiriya), the Court further explained the function of
equitable principles as follows:

            “[T]he legal concept of equity is a general principle directly applicable as law . . .
       [W]hen applying positive international law, a court may choose among several possible

       2 Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, pp. 567-568, para. 28.

        3 Fisheries Jurisdiction (United Kingdom v. Iceland; Federal Republic of Germany v. Iceland), Merits, Judgment,

I.C.J. Reports 1974, p. 33, para. 78; p. 202, para. 69.
       4 North Sea Continental Shelf (Federal Republic of Germany/Denmark;                     Federal   Republic    of
Germany/Netherlands), Judgment, I.C.J. Reports 1969, pp. 46-47, para. 85.
       5 Ibid., p. 48, para. 88.

                                                             -3-

       interpretations of the law the one which appears, in the light of the circumstances of the
       case, to be closest to the requirements of justice. Application of equitable principles is
       to be distinguished from a decision ex aequo et bono . . . [The Court] is bound to apply
       equitable principles as part of international law” 6.

As these cases demonstrate, the equitable principles used by the Court in the context of maritime
delimitation are a form of equity infra legem 7.

       9. Similarly, having regard to equitable considerations in determining the amount of
compensation, as the Court has done in the present case, is an application of equity infra legem, not
a decision ex aequo et bono. This is also attested to by the Court’s Advisory Opinion in Judgments
of the Administrative Tribunal of the ILO upon Complaints Made against UNESCO. In that case, the
Executive Board of UNESCO alleged that the validity of the judgments of the ILO Administrative
Tribunal was vitiated by excess of jurisdiction “on the ground that it awarded compensation ex aequo
et bono” 8. The ILO Tribunal had stated in its judgment “[t]hat redress [would] be ensured ex aequo
et bono by the granting to the complainant of the sum set forth below” 9. It was unfortunate that the
Tribunal used the expression ex aequo et bono because it was in fact applying equity infra legem.
The Court explained this point as follows:

              “It does not appear from the context of the judgment that the Tribunal thereby
       intended to depart from principles of law. The apparent intention was to say that, as the
       precise determination of the actual amount to be awarded could not be based on any
       specific rule of law, the Tribunal fixed what the Court, in other circumstances, has
       described as the true measure of compensation and the reasonable figure of such
       compensation” 10.

      10. In many cases where it has been impossible to quantify the damage precisely, international
tribunals have applied equity infra legem in determining the amount of compensation. They have
done so when the treaty establishing the tribunal authorized it to decide in accordance with “equity”
or to award “equitable compensation” 11. However, even when they were not explicitly given

       6 Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982, p. 60, para. 71.

       7 See also Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America),

Judgment, I.C.J. Reports 1984, p. 278, para. 59, p. 303, para. 123; Continental Shelf (Libyan Arab Jamahiriya/Malta),
Judgment, I.C.J. Reports 1985, pp. 38-39, para. 45; Maritime Delimitation in the Area between Greenland and Jan Mayen
(Denmark v. Norway), Judgment, I.C.J. Reports 1993, p. 62, para. 54; Delimitation of the Continental Shelf
(United Kingdom/France), Decision of 30 June 1977, United Nations, Reports of International Arbitral Awards (RIAA),
Vol. XVIII, pp. 45-46, para. 70, pp. 47-48, para. 75.
        8 Judgments of the Administrative Tribunal of the ILO upon Complaints Made against UNESCO, Advisory Opinion,

I.C.J. Reports 1956, p. 100.
       9 Ibid.

       10 Ibid., referring to Corfu Channel, fn. 18 below.

        11 E.g. Affaire Yuille, Shortridge et Cie (Portugal contre Royaume-Uni), décision du 21 octobre 1861, in

A. Lapradelle and N. Politis, Recueil des arbitrages internationaux, Vol. II (1855-1872), 1923, p. 108; Affaire des
propriétés religieuses (France, Royaume-Uni, Espagne contre Portugal), décision du 2 septembre 1920, RIAA, Vol. I,
p. 16; John Gill (Great Britain) v. United Mexican States, Decision of 19 May 1931, RIAA, Vol. V, p. 162, para. 12;
Dennis J. and Daniel Spillane (Great Britain) v. United Mexican States, Decision of 3 August 1931, RIAA, Vol. V, p. 290,
para. 7. Some tribunals used the expression ex aequo et bono in doing so, e.g. The Orinoco Steamship Company Case
(United States of America/Venezuela), Decision of 25 October 1910, RIAA, Vol. XI, p. 240; Norwegian Shipowners’
Claims (Norway v. U.S.A.), Decision of 13 October 1922, RIAA, Vol. I, p. 339.

                                                           -4-

authority to decide in accordance with “equity”, they have not hesitated to apply equity infra legem
in determining the amount of compensation 12.

       In the Loan Agreement between Italy and Costa Rica arbitration, the Arbitration Agreement
provided that the arbitral tribunal should decide the dispute “in accordance with the relevant rules of
international law”, pursuant to Article 33 of the Permanent Court of Arbitration Optional Rules for
Arbitrating Disputes between Two States, which, in the tribunal’s words, “mirrors the well-known
Article 38 of the Statute of the International Court of Justice on the sources of jus gentium” 13. The
tribunal relied on equity infra legem in determining the global sum of compensation in this case,
noting that:

        “[t]he Arbitral Tribunal is called upon . . . to assess the global sum due . . . under the
        relevant rules of international law, and in particular the equitable principles deriving
        from the notion of justice, which govern international judicial and arbitral practice,
        taking account of all the circumstances” 14.

It emphasized that it was not deciding ex aequo et bono, stating that:

        “public international law is traditionally imbued with, or influenced by, equitable
        principles as modes of applying a rule infra legem, entailing the tangible adaptation of
        a norm to the particular circumstances of the case . . . It is important to avoid any
        confusion here between the role of equitable considerations within the system of
        applicable law and a decision ‘ex aequo et bono’, which ‘is something quite
        different’” 15.

       11. As concerns the EECC, Article 5, paragraph 13, of the 2000 Algiers Agreement, which
established the Commission, provided: “In considering claims, the Commission shall apply relevant
rules of international law. The Commission shall not have the power to make decisions ex aequo
et bono.” 16 In examining the compensation claims, the EECC recognized the difficulties associated
with questions of proof, the evidence often being uncertain or ambiguous. Accordingly, it determined
“the appropriate compensation for each . . . violation”, which “requir[ed] exercises of judgment and

         12 E.g. Affaire de l’attaque de la caravane du Maharao de Cutch (Royaume-Uni contre Ethiopie), décision du

7 octobre 1927, RIAA, Vol. II, p. 826; Affaire Chevreau (France contre Royaume-Uni), décision du 9 juin 1931, RIAA,
Vol. II, p. 1139; Trail Smelter Case (United States of America/Canada), Decision of 11 March 1941, RIAA, Vol. III,
pp. 1938-1939; LIAMCO v. Libya, Decision of 12 April 1977, International Law Reports (ILR), Vol. 62, pp. 150-151.
Some tribunals also used the expression ex aequo et bono in these cases, e.g. Affaire Lacaze (France contre Argentine),
décision du 19 mars 1864, in Lapradelle and Politis, op. cit., p. 298; Sapphire International Petroleums Ltd. v. National
Iranian Oil Company, décision du 15 mars 1963, ILR, Vol. 35, pp. 189-190.
        13 Loan Agreement between Italy and Costa Rica (Dispute Arising under a Financial Agreement), Decision of

26 June 1998, RIAA, Vol. XXV, p. 56, para. 16. [This and all subsequent excerpts from the tribunal’s decision have been
translated by the Registry.]
        14 Ibid., pp. 74-75, para. 76.

        15 Ibid., pp. 72-73, paras. 69-70, citing Judge Fitzmaurice, who stated that “[d]eciding a case on the basis of rules

of equity . . . is something quite different from giving a decision ex aequo et bono”. Barcelona Traction, Light and Power
Company, Limited (New Application: 1962), (Belgium v. Spain), Second Phase, Judgment, I.C.J. Reports 1970, separate
opinion of Judge Sir Gerald Fitzmaurice, p. 85, para. 36 (emphasis in the original). The original French of this part of the
tribunal’s decision reads as follows:
        “le droit international public est traditionnellement imprégné de, ou influencé par, des principes équitables
        comme modalités d’application infra legem de la règle, impliquant l’adaptation concrète d’une norme aux
        particularités de l’espèce . . . II convient d’éviter ici une confusion entre ce rôle des considérations
        équitables relevant du système de droit applicable, d’une part, et le cas de la décision ‘ex aequo et bono’,
        qui sont ‘deux choses entièrement différentes’”.
        16 Agreement between the Government of the State of Eritrea and the Government of the Federal Democratic

Republic of Ethiopia, 12 Dec. 2000, UN doc. A/55/686–S/2000/1183, 13 Dec. 2000, Annex, Art. 5, para. 13.

                                                        -5-

approximation”. It “made the best estimates possible on the basis of the available evidence” 17. While
not expressly referring to equitable considerations, it is clear that the EECC took account of them in
determining the amount of compensation.

      12. In Corfu Channel, in fixing the amount of compensation, the Court considered what would
be the “true measure of compensation”, “reasonable” figures, and a “fair and accurate” estimate of
the damage sustained 18. This language indicates that the Court took account of equitable
considerations in determining the amount of compensation.

      13. In more recent compensation judgments, the Court has explicitly referred to equitable
considerations. In Diallo, it stated that the “[q]uantification of compensation for non-material injury
necessarily rests on equitable considerations” and noted that “[e]quitable considerations have
guided” arbitral tribunals and regional human rights courts in “their quantification of compensation
for non-material harm” 19. In particular, it quoted a judgment of the European Court of Human Rights
which stated that, for determining damage, “[i]ts guiding principle is equity” 20. It also quoted a
judgment of the Inter-American Court of Human Rights which affirmed that the amount of
compensation for non-pecuniary damages may be determined “in reasonable exercise of its judicial
authority and on the basis of equity” 21. As for the material injury suffered by Mr. Diallo, given the
circumstances of the case, including the shortcomings in the evidence, the Court “consider[ed] it
appropriate to award an amount of compensation based on equitable considerations” 22.

       14. In Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v.
Nicaragua), the Court observed that in the Diallo case it had “determined the amount of
compensation due on the basis of equitable considerations”, recalling that “the absence of adequate
evidence as to the extent of material damage will not, in all situations, preclude an award of
compensation for that damage” 23. It thus awarded “an amount that it consider[ed] approximately to
reflect the value of the impairment or loss” 24.

      15. In the present case, the Court cites a decision of the ICC Trial Chamber in the Lubanga
case which “reckon[ed] ex aequo et bono” the harm suffered by each child soldier at US$8,000 25
(paragraph 205 of the Judgment). The Court refers to this decision merely as one example of the

        17 EECC, Eritrea’s Damages Claims, Final Award, Decision of 17 August 2009, RIAA, Vol. XXVI, p. 528,

para. 37; EECC, Ethiopia’s Damages Claims, Final Award, Decision of 17 August 2009, ibid., p. 655, para. 37.
        18Corfu Channel (United Kingdom v. Albania), Assessment of Amount of Compensation, Judgment, I.C.J.
Reports 1949, p. 249.
        19 Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Compensation, Judgment,

I.C.J. Reports 2012 (I), pp. 334-335, para. 24.
        20 ECtHR, Al-Jedda v. United Kingdom, Judgment of 7 July 2011 (Grand Chamber), Application No. 27021/08,

para. 114.
        21 IACtHR, Cantoral Benavides v. Peru, Judgment of 3 December 2001 (reparation and costs), Series C, No. 88,

para. 53.
        22 Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Compensation, Judgment,

I.C.J. Reports 2012 (I), p. 337, para. 33. See also ibid., p. 338, para. 36.
      23 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Compensation,

Judgment, I.C.J. Reports 2018 (I), pp. 26-27, para. 35.
        24 Ibid., pp. 38-39, para. 86.

        25 The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-02/06, Trial Chamber II, Decision Setting the Size of the

Reparation Award for which Thomas Lubanga Dyilo is Liable, 21 December 2017, para. 259.

                                                         -6-

methodologies for assigning a specific valuation of damage in respect of a child soldier. The Court
does not decide this case, or any aspect thereof, ex aequo et bono.

                                      II. Criminal investigation and prosecution

       16. In the present case, the DRC argues that compensation is not sufficient to remedy fully the
damage caused, and asks that Uganda be required to give satisfaction in the form of criminal
investigation and prosecution of UPDF officers and soldiers. The Court rejects this request,
explaining that there is no need to order such a specific measure because Uganda already has an
obligation to investigate, prosecute and punish those responsible for grave breaches of the Geneva
Conventions, pursuant to Article 146 of the Fourth Geneva Convention and Article 85 of the First
Protocol Additional to the Geneva Conventions (paragraph 390 of the Judgment).

       17. In its 2005 Judgment, the Court found that the UPDF had committed not only “grave
breaches of international humanitarian law” but also “massive human rights violations” on the
territory of the DRC26. The Court found inter alia that Uganda had violated Article 6, paragraph 1
(right to life), and Article 7 (right not to be subjected to torture) of the International Covenant on
Civil and Political Rights (hereinafter the “ICCPR”) 27. In light of this finding, in rejecting the DRC’s
request for satisfaction, the Court could have given as an additional reason that Uganda already has
an obligation to investigate, prosecute and punish those responsible for the violations of Articles 6
and 7 of the ICCPR, pursuant to Article 2, paragraph 3, of that instrument, read in conjunction with
Articles 6 and 7.

       18. Article 2, paragraph 3, of the ICCPR sets out the obligation of States parties to provide an
effective remedy to the victims of human rights violations. In accordance with this clause, read in
conjunction with Articles 6 and 7, criminal investigation and, where appropriate, prosecution are
necessary remedies for violations of human rights protected by Articles 6 and 7. This interpretation
of the ICCPR corresponds to the interpretation consistently maintained in the jurisprudence of the
Human Rights Committee, the body established by the ICCPR to monitor its implementation28.

                                                                  (Signed)        IWASAWA Yuji.

                                                    ___________

       26 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J.

Reports 2005, p. 239, para. 207.
       27 Ibid., p. 244, para. 219.

       28 E.g. Human Rights Committee, Sathasvam & Saraswathi v. Sri Lanka, 8 July 2008, Communication
No. 1436/2005, para. 6.4; Amirov v. Russian Federation, 2 Apr. 2009, Communication No. 1447/2006, para. 11.2. See also
General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant,
29 Mar. 2004, paras. 16, 18; General Comment No. 36: Right to Life, 30 Oct. 2018, para. 27.


43

OPINION DISSIDENTE DE M. SCHÜCKING.

JE, SOUSSIGNE, ne puis pas non plus me rallier à l’arrét
rendu par la Cour, et cela pour les raisons suivantes :

I. Le droit au libre passage par le Canal de Kiel me paraît
indubitablement se présenter sous la forme d’une servitus
juris publict volontuaria. Ce concept qui, pendant des siècles,
a rendu de grands services au droit international, n’est pas,
il est vrai, actuellement sans être contesté par la science du
droit des gens, mais en réalité son importance a grandi du
fait des traités de paix qui ont suivi la guerre mondiale. Car
ces traités ont donné lieu à de nombreuses situations juridiques
qui ne peuvent être classées ailleurs que dans la catégorie
des servitudes de droit international.

Si donc ledit droit de passage est considéré comme une
servitude, il en résulte des conséquences importantes pour la
présente affaire.

a) Selon la doctrine unanime du droit des gens, tous
traités stipulant des servitudes doivent être interprétés
restrictivement, de telle façon que la servitude, droit excep-
tionnel attaché au territoire d’un Etat étranger, ne limite qu'au
minimum la souveraineté de cet Etat. Si l’on s’en tient à une
interprétation purement littérale de l’article 380, le seul cas
où ne s'applique pas la servitude est celui où il s’agit de navires
appartenant à des nations elles-mêmes en guerre avec l’Alle-
magne. Pourtant, il est très douteux que Allemagne, lors-
qu'elle se trouve dans la situation d’un Etat belligérant ou
neutre, n’ait plus, en réalité, du fait de l’article 380, le droit,
pour sauvegarder ses intérêts, de prendre, relativement au
canal, des mesures spéciales non prévues par l'alinéa 2 de l’ar-
ticle 381, également à l'encontre de navires appartenant à des
Etats autres que ses ennemis. Car le canal est sous la juri-
diction de l'Allemagne et n'a pas été neutralisé comme l’a
été le Canal de Suez, et d’ailleurs dans une forme encore
moins complète, le Canal de Panama. C'est plutôt son usage
qui a été internationalisé ainsi que l’a été celui des grandes
voies d’eau intérieures. Il n'a pas été expressément renoncé au
droit de prendre des mesures spéciales en temps de guerre où
44

de neutralité ; et l’on ne peut déduire cette renonciation du
fait que le canal doit être « toujours libre et ouvert ». Que
ce droit soit accordé à perpétuité ne suffit pas à exclure la pos-
sibilité d’en réglementer ou même d’en suspendre temporaire-
ment l'exercice, et les mots essentiels employés pour la
neutralisation du Canal de Suez, reproduits dans le traité
relatif au Canal de Panama et qui sont : «en temps de guerre
comme en temps de paix » ne paraissent pas dans l’article 380.
Il se peut qu’une interprétation restrictive du traité établissant
la servitude aille à l’encontre du sens purement littéral de
l’article 380, interprétation selon laquelle le Reich, comme
belligérant ‘ou comme neutre, peut, en tant qu’il possède la
souveraineté sur la zone du canal, prendre, à l'égard de la
circulation des navires, des mesures que les articles 380 et sui-
. vants lui interdisent en temps normal. Cependant, deux
autres considérations viennent à l’appui de cette interprétation :
tout d’abord, l'alinéa 2 de l’article 381 démontre le bon-vouloir
des Etats victorieux de sauvegarder en temps normal les inté-
rêts administratifs de l'Etat riverain par rapport même au
droit de libre passage ; l’on peut en déduire que, puisqu'il se
trouve des dispositions pour répondre à ces intérêts d’impor-
tance moindre, les intérêts d'importance plus grande sont
également visés. En second lieu, au cours des négociations
de paix, l'Allemagne a expressément proposé, en présence
des stipulations manifestement insuffisantes de l’article 380, de
«conclure des arrangements précis»; cette proposition ne
fut faite, il est vrai, qu’à titre de réciprocité. Etant donné
que les Etats victorieux ne l’ont pas acceptée, ils doivent
laisser prévaloir contre eux le principe du droit romain selon
lequel «obscuritas pacti nocet ei qui apertius loqui potuit ».

b) De plus, selon la doctrine du droit des gens, les Etats
bénéficiant d'une servitude, sont, au profit des Etats qui y
_ sont soumis, sous l'obligation de -ciwiliter uti. Dans toutes
circonstances, doivent être respectés Les intérêts vitaux de
l'Etat soumis à la servitude. En partant de ce point de vue,
l'Etat bénéficiaire doit permettre que son droit se trouve par-
fois temporairement limité. Les intérêts vitaux allemands à
l'époque ont rendu nécessaire pour l’Allemagne l'observance
45

d'une neutralité stricte et absolue par rapport à la guerre qui
avait lieu immédiatement à sa frontière. À ce propos, la
situation politique intérieure de l'Allemagne, à l’époque,
n'est pas sans présenter une grande importance. Déjà, à
plusieurs occasions, le transit de trains chargés de munitions
et destinés à l’est, avait donné naissance en Allemagne —
par exemple à Giessen, Marburg et Untertiirkheim — à des
émeutes que la police et la Reichswehr n'avaient pas tou-
jours pu réprimer. En plusieurs endroits, les organisations
ouvrières avaient décidé d'employer la force afin d’em-
pêcher le transit du matériel de guerre. Des cas analogues
eussent pu se produire dans le Canal de Kiel où, du fait d’éclu-
ses et de portes, un navire ne peut passer sans l'assistance de la
main-d'œuvre allemande. Certes, le principe du respect des
traités exige qu’un Etat ayant assumé une obligation n’excipe
pas à la légère de difficultés intérieures pour ne pas observer
ses engagements extérieurs. Mais le Gouvernement allemand de
l’époque se trouvait en présence de difficultés très exception-
nelles provenant de la situation générale intérieure. Si tant
est qu’il soit possible d'appliquer la doctrine de civiliter uti
a une servitude de droit international, le Gouvernement alle-
mand, lorsqu’il a appliqué également au Canal de Kiella
prohibition relative au transit de contrebande, l’a fait afin de
sauvegarder ses intérêts vitaux. En ce faisant, l'Allemagne n’a
pas laissé prévaloir sur ses obligations conventionnelles
un droit de nécessité spécial ; elle s’est bornée à faire valoir
Vexistence des limites naturelles fixées à toute servitude.

IT. Des considérations d’un autre ordre justifient également
le refus opposé par l'Allemagne, malgré l’article 380, au passage
du Wimbledon par le Canal de Kiel. L'un des deux Etats
belligérants — la Russie — n’a pas participé au Traité de
Versailles ; il s'ensuit à mon avis que l Allemagne demeurait
obligée, 4 son égard, de remplir ses devoirs d’Etat neutre. Pour
réfuter cette thèse, l’on a allégué l'opinion juridique générale
suivant laquelle lorsqu'une voie. d’eau artificielle, mettant en
communication deux mers libres, a été affectée d'une manière
permanente à l’usage du monde entier, cette voie se trouve
assimilée aux détroits naturels en ce sens que l'Etat riverain
neutre ne peut plus être tenu responsable à l'égard de qui-
46

conque, soit du passage d’un navire de guerre belligérant, soit,
selon toute probabilité, du passage d’un navire portant des
munitions, et cela même lorsque cette affectation spéciale de
la voie d'eau n’a eu lieu qu’en vertu d’un accord particulier.
Mais l'existence de cette opinion générale ne me paraît pas
bien fondée. Afin de fournir une base à cette opinion juridique,
l’on invoque la pratique, en ce qui concerne les Canaux de
Suez et de Panama. Pour réfuter cette allégation, il y a lieu
de déclarer à nouveau que la situation juridique des Canaux
de Suez et de Panama est entièrement différente de celle du
Canal de Kiel, en ce sens que les uns ont été neutralisés en vertu
d’une « Befriedung» générale (neutralisation négative) de la
zone du canal, alors que l’article 380 ne prévoit pas de neutra-
lisation de cet ordre en ce qui concerne le Canal de Kiel. Méme
en admettant que le Canal de Panama est placé sous le con-
tréle exclusif des Etats-Unis, il n’en est pas moins vrai que le
traité Hay-Pauncefote du 18 novembre roor fait mention de
cette neutralisation générale et contient un certain nombre de
stipulations dans ce méme sens. Dans ces circonstances,
l'application de plano au Canal de Kiel de notions de droit
international qui ont été conçues à propos des Canaux de Suez
et de Panama, paraît soulever des objections, puisque, comme
il a déjà été dit, seul a été internationalisé l’usage du Canal de
Kiel, ce qui, sans aucun doute, tend plutôt à créer une ressem-
blance entre ce canal et les voies d’eau intérieures.

En raison de ces faits, je suis d’avis qu’il est, en tout cas,
nécessaire de répondre à la question de savoir si le passage
du vapeur Wimbledon était compatible avec les devoirs
de l’Allemagne neutre vis-à-vis de la Russie. Pour les raisons
suivantes, la réponse à cette question est dans la négative.
Une étude approfondie de la genèse des articles 2 et 7 de la
cinquième convention de La Haye de 1907 concernant lesdroits
et les devoirs des puissances et des personnes neutres en cas
de guerre sur terre, ainsi que de l'application de ces articles
pendant la guerre mondiale, notamment par la Hollande
neutre, montre que le transport de matériel de guerre, même
sans contrôle où escorte militaire, doit être considéré comme
un convoi, aux termes de l’article 2 dela convention, lorsque
47

ce transport n'est pas le résultat d’une transaction commer-
ciale, mais lorsque le belligérant lui-même se présente dans
la double capacité d’expéditeur et de destinataire, que le dit
transport soit ou non effectué par des navires particuliers.
Aucun Etat neutre ne peut tolérer le transit par son terri-
toire d’un convoi de cette nature. Il en résulte que le Reich
allemand n’était pas en droit de permettre le passage du
Wimbledon par le Canal de Kiel, puisque les munitions en
question, expédiées par la Mission polonaise à Salonique
et destinées à la Base maritime de l’Etat polonais à Dantzig,
étaient la propriété de ce pays et puisqu’ à cette époque, l’état
de paix n'était pas encore rétabli. Comme la Hollande neutre
l’a fait remarquer à juste titre au sujet du transport de sable
et de gravier sur le Rhin, et eu égard au fait qu’un des belli-
gérants avait, à ce propos, invoqué l’Acte de navigation
du Rhin, les devoirs de neutralité doivent avoir le pas sur
toute obligation conventionnelle. Tel est également le point
de vue de la doctrine du droit des gens (V. Richard Kleen :
Lois et usages de la neutralité. Paris 1898. Volume I, pp. 223—
224). La violation des devoirs de neutralité, même lorsque
l'on peut alléguer à leur appui des obligations convention-
nelles assumées à l'égard d'Etats tiers, est, sans doute pos-
sible, un délit de droit international. L’intention des Etats
victorieux ne saurait avoir été d’obliger le Reich, en vertu
du Traité de Versailles, à commettre des délits à l’encontre
d'Etats tiers. D'ailleurs cette intention n’eût pas pu être
réalisée, car il est impossible d’assumer par convention une
obligation juridiquement valable, et qui ait pour but l’accom-
plissement d’actes violant les droits de tierces parties.

(Signé) WALTHER SCHÜCKING.

a PONT TS eee RAY D ES YY VULEULL ALLÉE LED ULULLS


51

DISSENTING OPINION OF JUDGE SHAHABUDDEEN

The Judgment of the Court opens the way to the peaceful settlement of
a long-standing dispute between two neighbouring States. It is with regret
that I feel prevented by my appreciation of the legal issues from joining in
support of it. With many of its elements I do indeed agree. For example,
J accept that the Parties have conferred jurisdiction on the Court to adju-
dicate on the whole of the dispute. I have the misfortune, however, to be
of a different mind on the question whether the claims presented by
Qatar are within the jurisdiction so conferred and, even if they are,
whether the jurisdiction has been duly invoked by the method of seisin
employed. Pursuant to Article 57 of the Statute of the Court, the reasons
which disable me from accompanying the majority are respectfully set
out below.

J. PRELIMINARY

The limited nature of the Court’s Judgment of 1 July 1994 has to be
kept in view. The main question was one of jurisdiction. The Court
decided certain issues having a bearing on jurisdiction; it did not decide
the question of jurisdiction itself (see paragraph 23 of today’s Judgment).
What it decided was “to afford the Parties the opportunity”, in the light
of its decision on those issues, “to submit to the Court the whole of the
dispute” (.C.J. Reports 1994, p. 127, para. 41 (3)).

Although, as I then stated, my own “preference would have been for
the issue of jurisdiction to be fully decided at [that] stage” (ibid., p. 129),
I would not dispute the right of the Court to proceed as it did. True, there
is a “principle that it is the duty of the Court . .. to reply to the ques-
tions as stated in the final submissions of the parties . . .” (Request for
Interpretation of the Judgment of 20 November 1950 in the Asylum Case,
Judgment, .C_J. Reports 1950, p. 402). But the principle, I apprehend, is
not violated where, as in this phase of the case, the Court had not as yet
concluded its determination; the Court introduced an intermediate pro-
cedure prior to making its final decision.

Nor, despite an appearance of novelty, is the competence of the Court
to introduce that intermediate procedure open to serious question. In the
Free Zones of Upper Savoy and the District of Gex, the Court, being duly
seised of a matter and having heard arguments on the interpretation of a
treaty provision, gave “indications” of its reaction to the question of
interpretation, and then allowed the parties a period of time to come to a
consensual solution of the main problem in the light and with the benefit

49
52 DELIMITATION AND QUESTIONS (DISS. OP. SHAHABUDDEEN)

of those “indications”. When they failed, it resumed consideration of the
matter, and formally decided the question of interpretation along the
lines previously indicated (see P.C.I.J., Series A, No. 22, pp. 12, 13,
16-21; P.CIJ., Series A, No. 24; and P.CIJ., Series A/B, No. 46,
pp. 98, 102-105, 136, 141, 149, 152, 171). The distinguishing circumstance
that the “indications” were given and the deferment of a final decision
made at the request of the parties does not obscure a recognition by the
Court that it may adopt a procedure designed to enable the parties them-
selves to find a solution to the particular problem before it in the light of
its views on introductory issues.

As was pointed out by Sir Hersch Lauterpacht, the Court is “debarred
from directly acting as an important instrument of peace” (Sir Hersch
Lauterpacht, The Development of International Law by the International
Court, 1958, p. 5); it is a court of justice, and must remain within the
limits of such a body. But, as he also noted in the opening sentence of his
major work, “the primary purpose of the... Court .. . lies in its function
as one of the instruments for securing peace in so far as this aim can be
achieved through law” (ibid., p. 3). As it was put by President Basdevant,
“It is asked of the Court that it should contribute to peace by deciding
the disputes submitted to it” (1C.J. Pleadings, Reparation for Injuries
Suffered in the Service of the United Nations, p. 46; and see Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), Merits, .C.J. Reports 1986, p. 153, Judge Nagendra
Singh, separate opinion). The intermediate procedure introduced in this
case, though obviously to be resorted to sparingly and in special circum-
stances, did not exceed the function of a court charged with the mission
of applying the rule of law for the judicial settlement of international dis-
putes on a consensual jurisdictional basis.

However, it of course remains the responsibility of the Court to return
to the matter in due time in order to determine whether the intermediate
procedure has yielded a solution of the problem. In today’s Judgment,
the Court considers that an “Act” filed by Qatar at the end of that pro-
cedure has disposed of any difficulties. With much regret, I do not feel
persuaded.

II. WHETHER THE “Act” FILED BY QATAR SATISFIES THE JUDGMENT
oF | JULY 1994

Clause 4 of the dispositif of the Court’s Judgment of 1 July 1994 fixed
a time-limit within which the Parties were, “jointly or separately, to take
action” for the purpose of submitting to the Court “the whole of the dis-
pute” (C.J. Reports 1994, p. 127, para. 41 (3) and (4)). Did the word

50
53 DELIMITATION AND QUESTIONS (DISS. OP. SHAHABUDDEEN)

“separately” contemplate the possibility of “the whole of the dispute”
being submitted by one Party alone?

The dispositif may be interpreted in the light of the motifs (Polish
Postal Service in Danzig, Advisory Opinion, 1925, P.C.I.J., Series B,
No. 11, pp. 29-30). Hence, any doubt about the meaning of the word
“separately” in clause 4 of the dispositif may be resolved by recourse to
paragraph 38 of the Judgment, which reads:

“Such submission of the entire dispute could be effected by a joint
act by both Parties with, if need be, appropriate annexes, or by sepa-
rate acts.”

The term “separate acts” visualized acts done by each Party acting
separately, but not an act done by one Party alone where the other did
nothing; each Party would have to act so as to complement the act
of the other and in that way to submit “the whole of the dispute”.

This reading is consistent with the fact that it was to “the Parties” that
the Court decided “to afford... the opportunity to submit to the Court
the whole of the dispute” (LC.J. Reports 1994, p. 127, para. 41 (3)). It is
also in keeping with Qatar’s post-Judgment statement to Bahrain that
“the Court leaves an option to the Parties to take separate action to place
the whole of the dispute before the Court” and that, failing agreement
“on a joint compliance with the decision of the Court”, it “will of course
be open to our two countries to take appropriate separate action to com-
ply with the Court’s Judgment” (letter from the Agent of Qatar to the
Agent of Bahrain, dated 6 July 1994). The implication follows that the
Judgment rendered five days earlier was accepted as requiring action
from each Party.

There are reasons of substance why the Court could not have intended
that one Party alone could act. A special agreement, notified by one
party with the authority of the other, may submit the claims of both
sides; but that is not the mode pursued in this case. Also, if an agreement
so provides, a dispute may be submitted in its entirety by unilateral appli-
cation (e.g., Fisheries Jurisdiction (United Kingdom v. Iceland), Jurisdic-
tion of the Court, Judgment, C.J. Reports 1973, p. 3). That format
seems to explain the Court’s present Judgment; but does it correspond to
the thinking underlying its Judgment of 1 July 1994? Did that Judgment
contemplate that an acceptable course would be for Qatar to file another
unilateral document provided that “the form of words used [in it] ...
accurately described the subject of the dispute” (cf. paragraph 48 of
today’s Judgment)?

The real ground on which the Judgment of i July 1994 held that “the
whole of the dispute” was not before the Court was that the Court then
had “before it solely an Application by Qatar setting out the particular
claims of that State...” (CJ. Reports 1994, p. 123, para. 34; emphasis
added). It seems to me that the opportunity afforded by the Court to “the
Parties ... to submit . . . the whole of the dispute” visualized that all of

51
54 DELIMITATION AND QUESTIONS (DISS. OP. SHAHABUDDEEN)

the claims of each Party would be submitted by it or with its authority so
as to ensure that the dispute in all of its component elements would be
properly presented and considered. Bahrain’s claim to sovereignty over
Zubarah is referred to in Qatar’s Act; but it has not been submitted to
the Court by or with the authority of Bahrain. This is recognized in para-
graph 48 of the Judgment: although the Court takes the view that it is
now “seised of the whole of the dispute”, it also states

“that claims of sovereignty over the Hawar islands and over Zuba-
rah may be presented by either of the Parties, from the moment that
the matter of the Hawar islands and that of Zubarah are referred to
the Court”.

This looks to a possible future submission of such claims.

Meanwhile, however, the Court has held that Qatar’s unilateral Appli-
cation, read with its unilateral Act of 30 November 1994, is both within
jurisdiction and admissible. The Court could accordingly proceed to the
merits and determine Qatar’s request, presented in its Act, that the Court
should “adjudge and declare that Bahrain has no sovereignty or other
territorial right ... over Zubarah . . .”. That request is less in the nature
of a claim by Qatar than in the nature of the formal conclusion of its
defence to Bahrain’s claim to sovereignty over Zubarah. Were the Court
to grant the request, it would be upholding Qatar’s defence to Bahrain’s
claim without the latter having been submitted to it by or with the
authority of Bahrain. The Judgment of 1 July 1994 did not contemplate
that the right to sovereignty claimed by Bahrain would be submitted to
the judicial process in that indirect way.

I conclude that the Judgment of 1 July 1994 did not envisage action
being taken by one Party alone. In view of this, it is not necessary to go
on to consider a related argument by Bahrain as to whether Qatar is
attempting unilaterally to amend its original Application, and as to
whether it may competently do so. It is obvious, however, that such an
objection was not likely to be made if action had been taken by both Par-
ties, as in my opinion was contemplated by the Judgment of 1 July 1994.

TITI. JURISDICTIONAL CONSEQUENCE OF FAILURE TO MAKE
DUE SUBMISSION OF “THE WHOLE OF THE DISPUTE”

If Qatar’s unilateral Act of 30 November 1994 did not satisfy the
Court’s Judgment of 1 July 1994, it follows that all that the Court has
before it is Qatar’s unilateral Application of 8 July 1991. The Court has
already found “that the subject-matter of [that] Application corresponds
to only part of the dispute contemplated by the Bahraini formula” and
that this “was in effect acknowledged by Qatar” (LC.J. Reports 1994,
p. 124, para. 36). What is the jurisdictional consequence?

52
55 DELIMITATION AND QUESTIONS (DISS. OP. SHAHABUDDEEN)

The agreement finally reached on the subject-matter of the dispute falls
to be regarded as going back to and attracting the application of a 1983
principle that all matters in dispute were “to be considered as comple-
mentary, indivisible issues, to be solved comprehensively together”. Bah-
rain correctly argued that there was no agreement to confer jurisdiction
in such a way as to enable the Court to consider part of the dispute
without having to consider the remainder at the same time. Since the
Court has only part of the dispute before it, it follows that it has no juris-
diction.

IV. Dip QATAR HAVE A RIGHT OF UNILATERAL APPLICATION
UNDER THE DoHA MINUTES?

Assuming the foregoing to be wrong, the Court is still faced with the
fact that it is Qatar alone which has acted so far. It therefore remains
necessary to deal with Bahrain’s submission that Qatar has no right of
unilateral application under the Doha Minutes. To that submission,
Qatar responded that (i) the Parties agreed to a right of unilateral appli-
cation; (ii) alternatively, once consent has been given to jurisdiction, the
Court may be unilaterally seised unless this is shown to have been
excluded by the Parties, and that, in this case, even if the Doha Minutes
did not provide for a right of unilateral application, they did not exclude
it. Holding in favour of Qatar on (i), the Court did not pass on to (i).
Being of a different view on (i), completeness of treatment of Qatar’s case
requires me to deal with (ii) also.

(i) Did the Parties Agree to a Right of Unilateral Application?

It is, of course, necessary to consider the actual terms of the texts.
These include the Bahraini formula. The “Question” to be put to the
Court, as it was set out in the Bahraini formula, began with the words
“The Parties request the Court to decide .. .”. The implication was that
the case was to be submitted by both Parties.

I agree with the Court that the Bahraini formula has to be read not by
itself, but in the context of the Doha Minutes, in which it is referred to.
A main element of the context is set out in paragraph 2 of those Minutes.
This stated that “the two parties may submit the matter to the Interna-
tional Court of Justice in accordance with the Bahraini formula . . .”
(Judgment, para. 30; emphasis added). Hence, the Doha Minutes implied
that the act of submitting the matter to the Court was to be in accordance
with the Bahraini formula. At this point, the reader is thrown back by the
Doha Minutes on to the text of the Bahraini formula in order to see what
it required to be done for the matter to be submitted to the Court. On

53
56 DELIMITATION AND QUESTIONS (DISS. OP. SHAHABUDDEEN)

being so thrown back on to the text of the formula, he would of course
appreciate the need to respect the definition there laid down of the
subject-matter of the dispute; but he could not miss the meaning of the
opening words of the formula that the submission to the Court was to be
made by both Parties. Unless the submission was made in that way, the
requirement of the Doha Minutes that the submission of the matter to
the Court was to be “in accordance with the Bahraini formula” could not
be satisfied. Thus, the Doha Minutes themselves enjoined conformity
with the implication of the Bahraini formula that the submission to the
Court was to be made by both Parties.

On this point, paragraph 38 of the Judgment states that “[i]f the 1990
Minutes referred back to the Bahraini formula, it was in order to deter-
mine the subject-matter of the dispute which the Court would have to
entertain”, with the implication that the reference did not also operate to
import the requirement of the formula as to the mode of seisin. It seems to
me that more persuasive reasons speak for the prima facie meaning that
the reference to the matter being submitted to the Court “in accordance
with the Bahraini formula” included the admitted requirement of the for-
mula for the submission to be made by both Parties. Since it was Qatar
which introduced that reference, something in the nature of the principle
of interpretation contra proferentem applies to the resolution of any ambi-
guity. As the books caution, the principle needs to be applied with cir-
cumspection to the interpretation of treaties (Charles De Visscher,
Problémes d’interprétation judiciaire en droit international public, 1963,
pp. 110-112, referring to Brazilian Loans, P.C.L.J., Series A, No. 21,
p. 114); yet, a certain irreducible logic in its substance is not altogether
banished (see Polish Agrarian Reform and German Minority, Order of
29 July 1933, P.C.LJ., Series A/B, No. 58, p. 182, last paragraph, Judge
Anzilotti, dissenting opinion; and Lord McNair, The Law of Treaties,
1961, pp. 464-465).

The meaning suggested above seems clear. There is no need for recourse
to the travaux préparatoires. The latter do, however, supply confirmation
of that meaning. Alternatively, if indeed the text is not clear, such
recourse can help to resolve the difficulty to the extent permitted by
Article 32, paragraphs (a) and (b), of the Vienna Convention on the
Law of Treaties 1969.

In the course of drafting the Doha Minutes, the words “either of the
[two] parties” were changed by Bahrain, with the knowledge and consent
of Qatar, to read, in the Arabic original, “al-tarafan”, meaning “the
parties” (according to Qatar) or “the two parties” (according to Bah-
rain). Accepting Qatar’s version for present purposes, the question is
whether the agreed provision nevertheless visualized that “either of the
[two] Parties” could make an application, just as if no change had been
made.

The fact that the amendment was made, with the words “either of the
[two] parties” being consensually discarded, signified that Bahrain con-
tinued to adhere to its previous opposition to the idea of either of the two

54
57 DELIMITATION AND QUESTIONS (DISS. OP. SHAHABUDDEEN)

Parties having a right of unilateral application; nothing suggests that at
the last moment it capitulated on that important point. The situation
brings to mind the words of the Court in the Aegean Sea Continental
Shelf case:

“When read in that context, the terms of the Communiqué do not
appear to the Court to evidence any change in the position of the
Turkish Government in regard to the conditions under which it was
ready to agree to the submission of the dispute to the Court.” (1 C.J.
Reports 1978, p. 43, para. 105.)

Reaching further back, one might also recall the statement of the Perma-
nent Court of International Justice in the Free Zones of Upper Savoy and
the District of Gex:

“It is scarcely reasonable to suppose — indeed, such a supposition
would be irreconcilable with the documents before the Court —
that, at the moment when the dispute was about to be submitted to
a judicial organ, Switzerland abandoned the legal position which she
has constantly maintained in regard to the very point on which the
two Parties are now divided.” (P.C.I.J., Series A/B, No. 46, p. 138.)

Weighty circumstances are required to establish that a party intended
abruptly to abandon a position long held by it.

In Fisheries Jurisdiction (United Kingdom v. Iceland), Jurisdiction of
the Court, in the course of negotiating the terms of an agreement for
referring a possible dispute to the Court, the United Kingdom proposed
to insert, at the appropriate place in the text,

“the words ‘at the request of either party’ in order to make it clear
that the jurisdiction of the Court could be invoked by means of a
unilateral application and need not require a joint submission by
both parties” (.C.J. Reports 1973, p. 11, para. 19).

Iceland preferred the words “at the request of the several parties”. The
United Kingdom insisted on its own wording, and Iceland finally accepted
it as part of the agreed compromissory clause. It could scarcely be
suggested that the acceptance by Iceland of the United Kingdom wording
was a matter of no consequence to the meaning of the final text. In pro-
ceedings unilaterally instituted by the United Kingdom, the Court care-
fully recalled the exchanges between the parties relating to the alteration
which was made; it did so in a branch of the Judgment which, in the
absence of Iceland, concluded with a finding “that the Court has juris-
diction” (ibid., p. 14, para. 23). In the somewhat opposite situation here,
the amendment proposed by Bahrain and accepted by Qatar falls to be
interpreted as intended to exclude the possibility of a right of unilateral
application.

Comparison may also be made with the Act of Lima (Asylum case,
Judgment, .C.J. Reports 1950, pp. 267-268). The Act referred to the
inability of the parties to reach agreement on a joint reference and then

55
58 DELIMITATION AND QUESTIONS (DISS. OP. SHAHABUDDEEN)

recorded their agreement “that proceedings .. . may be instituted on the
application of either of the Parties”. It would have been natural for some
such language to be used in the Doha Minutes if this was intended to be
read as proposed by Qatar. On the contrary, an attempt to make the
Minutes read that way failed; it is difficult to read the text which finally
emerged as if the attempt had all the same succeeded.

The danger of relying on inadequate preparatory material must not be
overlooked. On the other hand, however full the material may be, it is
almost always possible to say that it could be still fuller. The travaux pré-
paratoires in this case are not as ample as they might be; but I am not
persuaded that, on the pertinent points concerning the fashioning of the
text of the Doha Minutes, they are so fragmentary as to be useless. They
show the state of the original draft; who presented it; who changed what;
and in what sequence the changes were made. Those are the steps which
normally occur in the drafting of a negotiated text. The material indicates
that Bahrain maintained its previous opposition to the idea of a right of
unilateral application. The travaux préparatoires are therefore confirma-
tory of the interpretation of the Doha Minutes proposed above; alterna-
tively, they operate to resolve any ambiguity in favour of that
interpretation.

The Court’s key argument is that paragraph 2 of the Doha Minutes
envisaged that the matter could be submitted to the Court as soon as the
period of good offices expired. I accept this view; but it does not follow
that a unilateral application was the only method by which that could be
done. The matter could be so submitted if the Parties were to proceed on
the basis that the Doha Minutes themselves constituted a special agree-
ment which could be jointly notified as soon as the period ended. The
Court is not limited to choosing between different interpretations pro-
posed by each side (Free Zones of Upper Savoy and the District of Gex,
Judgment, 1932, P.C.LJ., Series A/B, No. 46, p. 138; Corfu Channel,
Merits, Judgment, I.C.J. Reports 1949, p. 51, Judge Winiarski, dissenting
opinion; and South West Africa, Second Phase, Judgment, I.C.J. Reports
1966, p. 354, Judge Jessup, dissenting opinion). Elaborate provisions are
not needed for a special agreement (see the relevant elements of the
agreement in Territorial Dispute (Libyan Arab Jamarihiya/Chad), Judg-
ment, I.C.J. Reports 1994, pp. 9-10). Whether a case is brought by noti-
fication of a special agreement or by written application, all that Ar-
ticle 40, paragraph 1, of the Statute requires is that “the subject of the
dispute and the parties shall be indicated”. To use the language of Ar-
ticle 39, paragraph 2, of the Rules of Court, the Doha Minutes, together
with their incorporated instruments, make apparent “the precise subject
of the dispute and identify the parties to it”. Article 46, paragraph 2, of
the Rules of Court provides for a case in which a special agreement is
silent on the number and order of the pleadings.

The solution suggested (of treating the Doha Minutes as themselves

56
59 DELIMITATION AND QUESTIONS (DISS. OP. SHAHABUDDEEN)

constituting a special agreement) attracts the criticism that it offers an
in-built veto to one party over the other. That is so, but no more so
than in the case of any other special agreement which has to be jointly
notified. Account being taken of the principle of good faith, the veto is
not absolute; this helps to answer the questions raised in paragraph 36
of the Judgment relating to the continued availability of the mediation
process.

In any case, the criticism would not justify recourse to the principle of
effectiveness in order to support a right of unilateral application. The lit-
erature acknowledges the concept of “a treaty embodying a compromise
attempted but not actually achieved” (Sir Hersch Lauterpacht, The Devel-
opment of International Law by the International Court, 1958, p. 227).
The principle of effectiveness does not assist in such cases. Discussing the
principle, Lord McNair observed:

“Many treaties fail — and rightly fail — in their object by reason
of the words used, and tribunals are properly reluctant to step in and
modify or supplement the language of the treaty.” (Lord McNair,
The Law of Treaties, 1961, p. 383.)

Thus, the fact that a treaty has a discernible object does not mean that it
has to be interpreted so as to accomplish that object at all costs. A treaty
must of course be interpreted “in the light of its object and purpose”; but
it is not for the Court to make it more effective for achieving its apparent
purpose than the parties themselves saw fit to do (see De Visscher, op.
cit., p. 77). It is apposite to recall the words of Judge Lauterpacht in the
Admissibility of Hearings of Petitioners by the Committee on South West
Africa case:

“The clauses of the Peace Treaties of 1947 relating to settlement of
disputes were, as shown in their wording and the protracted history
of their adoption, formulated in terms which clearly revealed the
absence of agreement to endow them with a full measure of effec-
tiveness.” (C.J. Reports 1956, p. 58, separate opinion.) ~

(ii) Zs It Correct to Say that, Once Consent Has Been Given to
Jurisdiction, the Court May Be Unilaterally Seised unless the Right
to Do So Is Shown to Have Been Excluded by the Parties?

The argument for Qatar was put by counsel thus:

“As for the mode of seisin — notification of a special agreement or
filing of an application — it does not necessarily have the same
voluntarist basis. The method of seisin may, to be sure, be agreed
between the parties; but, in the absence of any agreement between
them on that point, as is the case here, it is for the Court to appreciate
the regularity of the seisin, the mode of submission of a case to the
Court being regulated by the provisions governing its functioning.

Appreciation of the regularity of the act by which proceedings are
instituted consist accordingly in verifying, as was done in the Corfu

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60 DELIMITATION AND QUESTIONS (DISS. OP. SHAHABUDDEEN)

Channel case (.C.J. Reports 1947-1948, p. 28), that a particular
method of seisin is not ruled out by a text that is binding on the par-
ties to the case.

In the light of that preliminary observation, one can say that
Qatar has been able validly to bring the present case before the
Court by an application instituting proceedings, because unilateral
seisin is the inevitable corollary of compulsory jurisdiction. For such
a seisin to be possible, it is necessary that the States concerned
should have accepted the jurisdiction of the Court and it suffices that
that possibility not be expressly or implicitly ruled out by the provi-
sions conferring compulsory jurisdiction on the Court.

In consequence, if Qatar has been able validly to seise the Court
by means of a unilateral application, it is because the competence of
the Court was definitively accepted by both States and because that
method of seisin was not ruled out by the relevant texts, even if the
latter have not expressly provided for it.” (CR 94/2, pp. 63-64, Pro-
fessor Quéneudec.)

The question whether, in a particular case, jurisdiction under
Article 36, paragraph 1, of the Statute is compulsory really depends on
whether the parties have: agreed, expressly or impliedly, to its being
capable of exercise by unilateral seisin. Thus, the proposition that “uni-
lateral seisin is the inevitable corollary of compulsory jurisdiction” does
not show that a right of unilateral seisin can rest on anything other than
the agreement of the parties. The question whether there is such an
agreement in this case has been examined and answered in the negative
under (i) above. Accordingly, I would now pass on to consider the alter-
native question whether, absent such an agreement, a right of unilateral
seisin is available provided jurisdiction has been accepted and the parties
have not excluded that right.

It is necessary to bear in mind the distinction between jurisdiction and
seisin. The use of the correct method of seisin is a condition-precedent to
the exercise of jurisdiction. If seisin is not properly effected in a case that
is sought to be brought, the agreed jurisdiction becomes unavailable to
the Court, with the result that, in that particular case, the Court has no
jurisdiction (see Aegean Sea Continental Shelf, Judgment, 1 C.J. Reports
1978, p. 45, para. 109; and Application for Revision and Interpretation of
the Judgment of 24 February 1982 in the Case concerning the Continental
Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jama-
hiriya), Judgment, I.C.J. Reports 1985, p. 216, para. 43). But, despite this
functional link between the concepts, it remains true that seisin is not
jurisdiction. Thus, consent to jurisdiction does not by itself include con-
sent to seisin being effected by any particular method.

This is so even in a case in which, the agreement to litigate being silent
on seisin, the parties proceed to effect seisin jointly; in such a case, they
are acting not pursuant to any right to act jointly which has been con-
ferred by the giving of consent to jurisdiction (such a right is scarcely

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61 DELIMITATION AND QUESTIONS (DISS. OP. SHAHABUDDEEN)

needed), but in exercise of their normal freedom to act as they both see
fit. This freedom is exercised through the consensual act by which the
case is jointly submitted; the mutual consents involved are distinct from
consent to jurisdiction. A right of unilateral application likewise depends
on consent other than consent to jurisdiction, even if, as is likely, consent
is in both respects given in the same instrument.

What, if anything, do the cases show? In Certain German Interests in
Polish Upper Silesia, Germany made a unilateral application under a
treaty which provided that “differences of opinion . . . shall be submitted
to the Permanent Court of International Justice”. On that wording, a
question could have arisen as to whether a joint submission or a uni-
lateral one was visualized. However Poland, the Respondent, did “not
dispute the fact that the suit [had] been duly submitted to the Court in
accordance with Articles 35 and 40 of the Statute” (P.C.LJ., Series A,
No. 6, p. 11). The case is slight authority for the proposition that the
mere existence of jurisdiction operates to confer a right of unilateral
application.

In the case of Application for Revision and Interpretation of the Judg-
ment of 24 February 1982 in the Case concerning the Continental Shelf
(Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya),
notwithstanding the words in a special agreement that “the two Parties
shall together go back to the Court .. .”, the Court held that there was a
right of unilateral application. It is clear, however, that the Court was
relying on Article 60 of the Statute, under which there is such a right and
under which the application was in fact made (ZCJ. Reports 1985,
p. 216, para. 43). The case is distinguishable.

À case more in point is that of United States Diplomatic and Consular
Staff in Tehran. There, as in Certain German Interests in Polish Upper
Silesia, the relevant treaty provision was silent on the specific method of
seisin to be used, merely stating that any dispute between the parties
“shall be submitted to the International Court of Justice . . .”. By con-
struing it as intended by the parties to operate in the same way as stand-
ard provisions in other treaties of the same character, the Court was,
however, able to interpret it as signifying that “what the parties intended”
was that “either party may bring a case to the Court by unilateral appli-
cation” (C.J. Reports 1980, p. 27, para. 52; and see Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), Jurisdiction and Admissibility, Judgment, I.CJ.
Reports 1984, p. 427, para. 81). The case betrays no hint that the
Court would have been prepared to regard the mere existence of juris-
diction as sufficient to confer a right of unilateral application; on the
contrary, in the absence of the respondent, the Court sought proprio
motu to satisfy itself that the applicant’s unilateral application rested on
the agreement of both parties that proceedings could be instituted by
such a method.

The Corfu Channel case is not helpful. First, the Court proceeded on

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the basis of forum prorogatum. In such a situation, the application has of
necessity to be made without the prior consent of the respondent; that is
because it is really in the nature of an offer to litigate. Second, even if the
respondent is prepared in principle to litigate, it could conceivably be
opposed to the idea of doing so on the basis of a unilateral application; in
this event, it is really because of its rejection of that method of seisin that
the respondent will be declining the offer to litigate. Where the respond-
ent accepts the applicant’s offer to litigate, it is therefore also acquiescing,
albeit ex post facto, in the bringing of the case by unilateral application;
thus, absence of consent is more apparent than real. Third, when the
Court in that case said that it “cannot... hold to be irregular a proceed-
ing which is not precluded by any provision in these texts”, what it was
considering at that point of its reasoning was not the regularity of the
seisin as such, but only its use as part of a two-stage procedure for con-
ferring jurisdiction on the Court: could jurisdiction be conferred “by two
separate and successive acts, instead of jointly and beforehand by a spe-
cial agreement” (.C.J. Reports 1947-1948, p. 28)? It was in that context
that the Court observed that “the method of submitting the case to the
Court is regulated by the texts governing the working of the Court . . .”.
The statement first mentioned possessed no such property of universality
as would qualify it to lend support to the materially different proposition
that, in a case in which jurisdiction already exists, the existence of that
jurisdiction is enough to confer a right to make a unilateral application
unless the right to do so has been excluded by the parties.

It is difficult to see how a right to make an application without the
consent of the respondent can co-exist with the right of a State not to
have its case determined without its consent if this means that, at the
stage when it appears before the Court, it should be there because it con-
sented to be there, even if it did so reluctantly. Conceivably, it may be
prepared to be there on the basis of the case being submitted jointly, but
not unilaterally; it may have legitimate concerns in these respects. It is
not for the Court to assess the sufficiency of the concerns; the judge of
that is the State involved. It exercises its judgment by way of consenting
to seisin being effected in a particular manner. Consent may be impliedly
given, but it is always required. For the reasons offered above, even
forum prorogatum cases are not true exceptions.

In sum, the role of consent is not the negative one of excluding a right
of unilateral application which would exist once jurisdiction has been
accepted, but the positive one of creating a right of unilateral application
which could not otherwise exist. In my opinion, it has not been shown
that the Parties to this case consented to such a right.

V. THE STANDARD OF PROOF

It would not be correct to suggest that all of the evidence points in one
direction; on certain aspects, the material lies on both sides of the
dividing line. Not surprisingly, one of the things discussed at the Bar was

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63 DELIMITATION AND QUESTIONS (DISS. OP. SHAHABUDDEEN)

the standard of proof (see paragraph 43 of the Judgment). It is important
to consider this, both as it applies to jurisdiction proper and as it applies
to seisin in relation to jurisdiction.

It is of course the law that acceptance of jurisdiction is not “subordi-
nated to the observance of certain forms” (Rights of Minorities in Upper
Silesia (Minority Schools), Judgment No. 12, 1928, P.C.LJ., Series A,
No. 15, p. 23). But that relates to the form in which consent is given; it is
without consequence for the need to establish consent itself, whatever the
form it takes. What is the applicable standard of proof?

Generally speaking, the standard of proof varies with the character of
the particular issue of fact. A higher than ordinary standard may, for
example, be required in the case of a charge of “exceptional gravity
against a State” (Corfu Channel, Merits, Judgment, I.C.J. Reports 1949,
p. 17). What, then, is the importance of the matter in this case? The
Court lacks the compulsory jurisdiction of municipal courts; judicial
settlement is an optional means, among others, of settling international
disputes. A State has a right not to have its case submitted to the Court
unless it consents to that particular means of settlement; it may not prop-
erly be held to have given up that important right unless its consent is
clearly established. How clearly?

The received test is whether, in the opinion of the Court, “the force of
the arguments militating in favour of [jurisdiction] is preponderant”
(Factory at Chorzôw, Jurisdiction, Judgment No. 8, 1927, P.CIJ.,
Series A, No. 9, p. 32). The precise meaning of this is another matter.

Two questions arise. First, how “preponderant” should the force of the
arguments be? Counsel for Qatar cited the Oxford English Dictionary
definition of the word “preponderant” as “meaning, in the first place,
‘surpassing in weight; outweighing, heavier’ and, in the second place,
‘surpassing in influence, power, or importance; predominant’” (CR 94/1,
p. 44, Sir Ian Sinclair, Q.C.). That is not materially different from judicial
dictionary definitions (see Vocabulaire juridique, 3rd ed., p. 621; Black’s
Law Dictionary with Pronunciation, 6th ed., p. 1182; and West’s Law and
Commercial Dictionary in Five Languages, Vol. “K-Z”, pp. 328-329). But
“surpassing” by what margin?

In the same case in which the test of preponderance was put forward,
the Permanent Court of International Justice went on to indicate that the
intention to confer jurisdiction had been “demonstrated in a manner con-
vincing to the Court” (P.C.I.J., Series A, No. 9, p. 32). A year later it
spoke of consent being “inferred from acts conclusively establishing it”,
and of submission of arguments on the merits failing to be “regarded as
an unequivocal indication of the desire of a State to obtain a decision on
the merits of the suit” (Rights of Minorities in Upper Silesia (Minority
Schools), Judgment No. 12, 1928, P.C.I.J., Series A, No. 15, p. 24). In

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64 DELIMITATION AND QUESTIONS (DISS. OP. SHAHABUDDEEN)

the Corfu Channel case, this Court described Albania’s letter as consti-
tuting “a voluntary and indisputable acceptance of the Court’s jurisdic-
tion” (C.J. Reports 1947-1948, p. 27). Nor did the test of preponder-
ance stand in the way of its more recent reaffirmation of the criterion of
“‘an unequivocal indication’ of a ‘voluntary and indisputable’ acceptance
of the Court’s jurisdiction” (Convention on the Prevention and Punish-
ment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia
(Serbia and Montenegro) ), Provisional Measures, I.C.J. Reports 1993,
p. 342, para. 34). A similarly high test had been proposed by Judge
Lauterpacht in 1957, when he spoke of

“the established practice of the Court — which, in turn, is in accord-
ance with a fundamental principle of international judicial settle-
ment — that the Court will not uphold its jurisdiction unless the
intention to confer it has been proved beyond reasonable doubt”
(Certain Norwegian Loans, I.C.J. Reports 1957, p. 58, separate
opinion; and see Sir Gerald Fitzmaurice, The Law and Procedure of
the International Court of Justice, 1986, Vol. IT, p. 437).

The test of preponderance has to be construed in accordance with this
established jurisprudence.

The second question is how does the preponderance test impact on a
situation in which the Court is in a state of doubt. When the Permanent
Court of International Justice said that the

“fact that weighty arguments can be advanced to support the
contention that it has no jurisdiction cannot of itself create a doubt
calculated to upset its jurisdiction”,

it obviously recognized that the Court could find itself in a state of
“doubt calculated to upset its jurisdiction” (Factory at Chorzow, Juris-
diction, Judgment No. 8, 1927, P.C.I.J., Series A, No. 9, p. 32). That
recognition was also apparent when it went on to say:

“The question as to the existence of a doubt nullifying its jurisdic-
tion need not be considered when . . . this intention [to confer juris-
diction] can be demonstrated in a manner convincing to the Court.”
(Ibid. )

Counsel for Bahrain, however, spoke of case-law having “rejected
what a judgment called ‘a doubt nullifying . . . jurisdiction’” (CR 94/6,
p. 12, Professor Prosper Weil). Could that have happened in Border and
Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and
Admissibility, Judgment (I.C.J. Reports 1988, p. 76, para. 16}? There the
Court had before it the “question . .. whether in case of doubt the Court
is to be deemed to have jurisdiction or not”. It answered by citing the
jurisprudence of the Factory at Chorzow to the effect (already alluded to)
that

“the Court will, in the event of an objection — or when it has auto-
matically to consider the question — only affirm its jurisdiction pro-

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65 DELIMITATION AND QUESTIONS (DISS. OP. SHAHABUDDEEN)

vided that the force of the arguments militating in favour of it is
preponderant” (P.C.LJ., Series A, No. 9, p. 32).

What this means is that in all situations, other than those in which “the
force of the arguments militating in favour of [jurisdiction] ts preponder-
ant”, the Court will rot affirm its jurisdiction. These other situations, in
which the force of the arguments militating in favour of jurisdiction is not
preponderant, will logically include situations in which the Court is in
doubt. Accordingly, where there is doubt the Court will not affirm its
jurisdiction.

I have considered the references to “doubt” in the Free Zones of Upper
Savoy and the District of Gex (P.C.I.J., Series A, No. 22, p. 13) and the
Corfu Channel, Merits (1.C.J. Reports 1949, p. 24). The way in which the
matter was considered in those cases does not overthrow the conclusion
to be drawn from the Court’s jurisprudence that the Court can be in a
state of “doubt nullifying its jurisdiction”. The point is not academic. In
my opinion, the attempt to establish jurisdiction in this case does not
meet the requisite standard of proof; and thus the Court has no jurisdic-
tion. At best, however, on that standard, it is doubtful that it has; in this
event also, it cannot find in favour of jurisdiction.

VI. CONCLUSION

I am of opinion that the Court lacks jurisdiction. The reasons are that
(i) “the whole of the dispute” is not before the Court in the substantial
sense that Bahrain’s claim to sovereignty over Zubarah has not been
duly submitted to the Court; and (ii) there is no right of unilateral appli-
cation.

If I am wrong on jurisdiction, I would hold against admissibility on the
ground that, even if Bahrain’s claim to Zubarah is before the Court, it
has not been submitted in a manner which enables the Court to deal with
it judicially.

Thus, on either view, the Court may not act. In the special circum-
stances of the case, it afforded the Parties an opportunity, by action to be
taken “jointly or separately”, to place the whole of the dispute before it.
That opportunity could have been used to adjust the situation; this has
not happened.

It has been rightly said that

“it is the duty of the Court at all costs to safeguard the fundamental
purpose which it is designed to achieve, namely, the advancement of
the application between nations of the principle and method of judi-
cial decision” (Consistency of Certain Danzig Legislative Decrees
with the Constitution of the Free City, Advisory Opinion, P.C.LJ.,
Series A/B, No. 65, p. 60, separate opinion of Judge Anzilotti, refer-
ring to a memorandum of Judge Moore).

However, in pursuing that high purpose, care needs to be used not to

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import the principle beni judicis est ampliare jurisdictionem ; it is not
considered to be applicable to the Court (Right of Passage over Indian
Territory, Preliminary Objections, Judgment, I.C.J. Reports 1957, p. 180,
Judge ad hoc Chagla, dissenting opinion; and Fisheries Jurisdiction (Fed-
eral Republic of Germany v. Iceland), Merits, Judgment, .C_J. Reports
1974, p. 226, Judge de Castro, separate opinion). Rather, there is sub-
stance in Judge Armand-Ugon’s view that “[tlo attempt to force the
meaning of texts relating to the jurisdiction of the Court would be to risk
consequences that might affect its authority and prestige” (Barcelona
Traction, Light and Power Company, Limited, Preliminary Objections,
Judgment, I.C.J. Reports 1964, p. 147, dissenting opinion). The risk
should not be exaggerated; but neither should it be underestimated. A
prudent regard for it regretfully disables me from concurring with the
Judgment of the Court.

This conclusion has been reached with great deference to the Judg-
ment. The respect due to the authority of the Court from which it pro-
ceeds obliges recognition that it pomts the way to a resolution of the
dispute between two neighbouring countries being at last achieved.

(Signed) Mohamed SHAHABUDDEEN.

64