PUBLICATIONS DE LA COUR PERMANENTE DE JUSTICE
INTERNATIONALE

SERIE A — N° 13
Le 16 décembre 1927

INTERPRÉTATION
DES ARRETS N% 7 ET 8

(USINE DE CHORZOW) ©

PUBLICATIONS OF THE PERMANENT COURT
OF INTERNATIONAL JUSTICE,

SERIES A.—No. 13
December 16th, 1927

COLLECTION OF JUDGMENTS

No. 11

INTERPRETATION |
OF JUDGMENTS Nos. 7 AND 8

(THE CHORZOW FACTORY)

LEYDEN
A. W. SIJTHOFF’S
PUBLISHING COMPANY
1927

LEYDE
SOCIÉTÉ D’EDITIONS
A.W. SIJTHOFF
1927

PERMANENT COURT OF INTERNATIONAL JUSTICE.

ee 1927.
December 16th.
File E. e. XIV.
Docket XIL. 5.

TWELFTH (ORDINARY) SESSION.

Before :

MM. Huser, President,
Lover, Former President,

Lord FINLAY,

MM. NYHOLM,
ALTAMIRA, > judges,
ODA, |
ANZILOTTI,

BEICHMANN,
NEGULESCO,

MM. RABEL,
ERLICH,

Deputy- Judges,

National Judges.

JUDGMENT No. 11.

INTERPRETATION

OF JUDGMENTS Nos. 7 AND 8
CONCERNING THE CASE
OF THE FACTORY AT CHORZOW.

The Government of Germany, represented by Dr. Erich
Kaufmann, Professor at Bonn,
Applicant,
Versus
The Government of Poland, represented by Dr. Thadeus.
Sobolewski, Agent of the Polish Government before the
Polish-German Mixed Arbitral Tribunal,
| Respondent.
JUDGMENT No. II1.— JUDGMENTS Nos.77 & 8 (INTERPRETATION) 5

THE CouRT,
composed as above,
having heard the observations and conclusions of the Parties,

r

delivers the following judgment :

The German Government, by an Application filed with the
Registry of the Court on October 18th, 1927, in conformity
with Article 60 of the Statute and Article 66 of the. Rules
of Court, has submitted to the Permanent Court of Inter-
national Justice a request for an interpretation of Judgments
Nos. 7 and 8 given by the Court on May 25th, 1926, and
July 26th, 1927, respectively, in suits between the German
and Polish Governments, a divergence of opinion having, accord-
ing to the Application, arisen between the two Governments in
regard to the meaning and scope of these two judgments.

It is submitted in the Application:

“that the contention

(1) that in Judgment No. 7 the Court reserved to the
Polish Government. the right to annul by process of
law, even after the rendering of that judgment, the
Agreement of December 24th, 1919, and the entry,
based on that agreement, of the name of the Ober-
schlesische as owner in the land registers ;

(2) that the action brought by the Polish Government
against the Oberschlesische Stickstoffwerke A.-G. before
the Civil Tribunal of Kattowitz, with a view to effect-
ing this annulment, is of international importance in
connection with the suit concerning the Chorzéw
factory (claim for indemnity) now pending before the
Court,

is not in accordance with the true construction of Judgments
Nos. 7 and 8.”

Notice of the German Government’s Application was given,
on the date of filing, in conformity with the terms of Art-
icle 66, paragraph 2, of the Rules, to the Polish Government,
which was at the same time informed that it might, if it
desired to do so, submit its observations upon the request for
an interpretation within a time-limit subsequently fixed by
the Court to expire on November 7th, 1927. When notifying
JUDGMENT No. II. JUDGMENTS Nos. 7 & 8 (INTERPRETATION) 6

the Parties of the decision in regard to this time-timit,
the Court duly drew their attention to the fact that it corre-
sponded, as regards the proceedings for an interpretation,
to the time-limit for the submission of the Counter-Case
provided for, in the case of ordinary proceedings, by Article 38,
paragraph 1, of the Rules of Court. |
On November 7th, 1927, the Polish Government filed with
the Registry “Observations” upon the request for an inter-
pretation of Judgments Nos..7 and 8 made by the German
Government. In these observations it was submitted.

“that effect should not be given to the Request of the
German Government dated October 17th, 1927”.

On receipt of this submission and of the observations leading
up to it, the Court, on November goth, adopted the following
Resolution which was in due course communicated to the
Parties in the case: .

“The Court, having regard to Article 60 of the Statute
and Articles 38 and 66 of the Rules of Court, decides:

(1) to invite the German Government to submit, should
it so desire, on or before November 21st, a written
statement containing, together with further explanations
regarding the submissions of its Application of Octo-
ber 17th, 1927, its observations and conclusions in regard
to the observations filed by the Polish Government ;

(2) to invite the Polish Government to submit, should
it so desire, within the same limit of time, further explana-
tions regarding the submissions of the German Applica-
tion of October 17th, 1927.”

Within the time laid down, the German Government, in
accordance with the Court’s decision, filed a ‘Statement’
in which it was submitted

“(1) that the proceedings in regard to the preliminary
objections raised by the Polish Government should be joined
to the proceedings on the merits ;

(2) that effect should be given to the request made by
the German Government with a view to obtaining an inter-
pretation of Judgments Nos. 7 and 8 in conformity with
Article 60 of the Statute ;

(3) that judgment should be given in accordance with the
submissions of the German Application.”
JUDGMENT No. II.— JUDGMENTS Nos. 7 & 8 (INTERPRETATION) 7

The Polish Government, for its part, announced that it

“did not intend to file further explanations in regard to the
request for an interpretation of Judgments Nos. 7 and 8”.

_ In these circumstances, the Court, in accordance with its.
Resolution of November gth, 1927, held a public sitting on
November 28th, 1927, at which.it heard the oral statements
of MM. Kaufmann and Sobolewski, the Agents of the Govern-
ments concerned in the case. At the conclusion ‘of these
statements, the Court decided to close the hearing, after
having given the Agents an opportunity of replying; where-
upon M. Kaufmann replied briefly, and M. Sobolewski, stating
that in his opinion the previous discussions had completely
exhausted the question, waived his right to reply.

*
+ -*

THE FACTS.

‘In the terms of Judgment No. 7 given by the Court on
May 25th, 1926, in the case between the German and Polish
Governments, in regard to “‘certain German interests in Polish
Upper Silesia’’—which interests, according to the Judgment,
related, amongst other things, to the ‘deletion from the land
registers of the name of the Oberschlesische Stickstoffwerke
A.-G, as owner of certain landed property at Chorzéw, and
the entry, in its place, of the Polish Treasury’—it was
declared ‘‘that the attitude of the Polish Government in regard
to the Oberschlesische Stickstoffwerke .... was not in conformity
with.... the Geneva Convention” concluded on May 15th,
1922, between Germany and Poland.

On the basis of this decision of the Court, the two Govern-
ments entered upon negotiations with a view to a settlement
by friendly arrangement in regard to the claims of the
above-mentioned Company amongst others, by means of the
payment of pecuniary compensation.

These negotiations failed, and the German Government,
having informed the Polish Government that the points of
view of the two Governments seemed so different that it
appeared impossible to avoid recourse to an international
JUDGMENT No. II. JUDGMENTS Nos. 7 & 8 (INTERPRETATION) 8

‘tribunal, filed with the Court on February 8th, 1927, an
Application submitting, amongst other things, “that the
Polish Government is under an obligation to make good the
injury sustained” by the Oberschlesische. in consequence of
the attitude of that Government in respect of the Company
mentioned. The. Polish Government having disputed the
jurisdiction of the Court to entertain the suit thus brought,
the Court, on July 26th, 1927, delivered judgment (No. 8)
upon this objection, deciding to reserve the suit for judgment
-on the merits, and to instruct the President to fix the times
for the deposit of the documents of the written proceedings ;
these times were subsequently fixed m such a way as to
enable the suit on the merits to be ready for hearing on
March ist, 1928. |

According to the Application deposited. by the German
‘Government with the Registry on October 18th, 1927, the
Polish Government: had filed with the District Court of Kato-
‘wice, within the jurisdiction of which are situated the landed
properties in question, known as “the factory of Chorzéw’,
a claim against the Oberschlesische, which claim was served
upon that Company on September 16th, 1927. In this claim
it is—according to the German Government’s Application—
submitted :

“(z) that it should be declared that. the defendant Company
has not become the owner of the landed property at
Chorzéw (vol. XXIII, fol. 725, etc.) ;

(2) that it should be declared that the entry of the
change of ownership in favour of the defendant Com-
pany, made on January 20th, 1920, was null and
void, and that the landed properties mentioned under
No. (1) of these submissions remained the property
of the German Reich, notwithstanding the Auflassung
and entry in the register on January 29th, 1920,
of the defendant Company as owner ;

(3) that it should be declared that, independently of the
laws of July x4th, 1920 (Legal Gazette of the Polish
Republic—pos. 400), and of June 16th, 1922 (Gazette—
pos. 388), the ownership of the landed properties
mentioned under No. (1) falls to the Polish Treasury.”

The statement of the grounds on which these submissions
are based is said to contain the following passage amongst
others :
JUDGMENT No. II.—JUDGMENTS Nos. 7 & 8 (INTERPRETATION) 9Q,

:&“The Judgment fie. No. 7 of the Court] has decided the
dispute from the standpoint of the rules of international law ;
and the Court observes in its reasoning that it does not .
pass any opinion. on the question whether the transfer of
ownership and entry in the land registers. were valid at
municipal“law. The Polish argument based on the objection
that the transaction of December 24th, 1919, was not valid
at municipal law and that consequently the entry of January
29th, 1920, was also invalid, is not discussed by the Court,
which simply rélies on the mere fact of the existence of the
entry. At the same time, however, the Court says that if
Poland wishes to dispute the validity of this entry, it can,
in any case, only be annulled in pursuance of a decision given
by the competent tribunal.

Relying on this judgment, the German Reich, on Febru-
ary 8th, 1927, filed with the Permanent Court of International
Justice at The Hague a new application respecting the indemn-
ity due in consequence of the violation of the rights of the
defendant Company and of those of the Bayerische Stickstoff-
werke, which violation consisted in the taking over of the
factory by the Polish State.

In these circumstances, the Treasury avails itself of the
possibility, reserved to it by the judgment of the Hague
Court, of disputing before the competent tribunal both the
validity of the change of ownership and the entry in the
land register.”

The correctness of these quotations has not been disputed
hy the Polish Government. |

On the other hand, the complete text of the claim served
upon the Oberschlesische on September 16th, 1927, has not
been laid before the Court in the present proceedings. Sim-
ilarly, the text of the decision which, according to information
given during the oral proceedings, has been rendered by
default by the District Court of Katowice upon this claim,
and which is said to have granted to the Polish Government
the relief sought, has not been placed before the Court.

*
* *

THE LAW.

: The request for an interpretation submitted by the German
Government, the conclusions of which are reproduced above,
JUDGMENT No. II.— JUDGMENTS Nos. 7 & 8 (INTERPRETATION) 10

was made under Article 60 of the Statute of the Court, which
runs as follows:

“The judgment is final and without appeal. In the
event of dispute as to the meaning or scope of the judgment,
the Court shall construe it upon the request of any Party.”

The Polish Government having refused to admit the exist-
ence in this case of the conditions required by the article
in question in order that a request for interpretation may be
proceeded with, it is necessary in the first place to consider
whether this contention is well-founded.

From the article it appears that these conditions are the
following :

(x) there must be a dispute as to the meaning and scope
of a judgment of the Court;

(2) the request should have for its object an interpretation
of the judgment. |

As regards the latter condition, the Court is of the opinion
that the expression “to construe” must be understood as |
meaning to give a precise definition of the meaning and
scope which the Court intended to give to the judgment in
question, and the Polish Government does not appear to
claim that this is not its meaning. But it denies the exist-
ence of a dispute between the two Governments as to the
meaning and scope of the judgments referred to in the
German Request, and its submission is that there is no
‘ground for proceeding with the Request.

*

Before examining the question which has thus been raised,
the Court thinks it advisable to define the meaning which
should be given to the terms “dispute’’ and “meaning. or
scope of the judgment’, as employed in Article 60 of the.
Statute.

In so far as concerns the word “dispute”, the Court observes
that, according to the tenor of Article 60 of the Statute, the
manifestation of the existence of the dispute in a specific
manner, as for instance by diplomatic negotiations, is not
required. It would no doubt be desirable that a State
should not proceed to take as serious a step as summoning
JUDGMENT No. II.— JUDGMENTS Nos. 7 & 8 (INTERPRETATION) II

another State to appear before the Court without having
previously, within reasonable limits, endeavoured to make it
quite clear that a difference of views is in question which
has not been capable of being otherwise overcome. But in
view of the wording of the article, the Court considers that
it cannot require that the dispute should have manifested
itself in a formal way; according to the Court’s view, it
should be sufficient if the two Governments have in fact
shown themselves as holding opposite views in ‘regard to the
meaning or scope of a judgment of the Court. The Court
in this respect recalls the fact that in its Judgment No. 6
{relating to the objection to the jurisdiction raised by Poland
in regard to the application made by the German Govern-
ment under Article 23 of the Geneva Convention concerning
Upper Silesia), it expressed the opinion that, the article in
question not requiring preliminary diplomatic negotiations as
a condition precedent, recourse could be had to the Court as
soon as one of the Parties considered that there was a differ-
ence of opinion arising out of the interpretation and application
of Articles 6 to 22 of the Convention.

In order to realize the meaning of the expression “meaning
or scope of the judgment” in Article 60 of the Statute, this
expression should be compared with the terms of the preceding
article of the Statute, which states that a decision of the
Court has no binding force except between the Parties and ©
in respect of the particular case decided.

The natural inference to be drawn is that the second
sentence of Article 60 was inserted in order, if necessary,
to enable the Court to make quite clear the points which had
been settled with binding force in a judgment, and, on the
other hand, that a request which has not that object does not
come within the terms of this provision. In order that a
difference of opinion should become the subject of a request
for an interpretation under Article 60 of the Statute, there
must therefore exist a difference of opinion between the
Parties as to those points in the judgment in question which
have been decided with binding force. That does not imply
that it must be beyond dispute that the point the meaning
of which is questioned is related to a part of the judgment
having binding force. A difference of opinion as to whether

2
JUDGMENT No. II.—-JUDGMENTS Nos. 7 & 8 (INTERPRETATION) 12

a particular point has or has not been decided with binding
force also constitutes a case which comes within the terms of
the provision in question, and the Court cannot avoid the
duty incumbent upon it of interpreting the judgment in so
far as necessary, in order to adjudicate upon such a difference
of opinion.

It thus becomes necessary to ascertain whether such a
difference of opinion has in fact become manifest in the
present case between the two Governments, as regards the
meaning or scope of Judgments Nos. 7 and 8. The Court
will deal with this question separately in relation to each of
the judgments in question and each of the two contentions
which the conclusions of the German Government impute to
the Polish Government. ‘

In this respect, the facts which preceded the submission
of the Application for an interpretation by the German
Government should be recalled.

In the course of the negotiations entered upon on the basis
of Judgment No. 7, the Polish Government, by a letter of
September gth, 1926, addressed to the German Government, |
had already expressed the opinion that—in so far as the
compensation of the Oberschlesische for the damages which
they claimed to have sustained was concerned—the question
whether, at municipal law, the entry in the land register of
the Company in question as owners of the factory of Chorzéw °
was valid, remained open, independently of the judgment of
the Court. The German Government replied, on October and,
pointing out that the Court had expressly decided that there
was no ground justifying the contention that the transfer of
the factory of Chorzéw to the Oberschlesische did not constitute
an alienation valid at law, and that, consequently, at the
time when the transfer of sovereignty to Poland took place,
the ownership of the factory unquestionably belonged to that
Company and not to the German Reich. “The whole matter”,
the German Government stated, “has been finally settled and
decided by the judgment of the Permanent Court at The
Hague.” The negotiations having failed, and the question of
indemnities having been brought before the Court by the
German Government, Counsel for the Polish Government, in
the course of his pleadings on June 22nd, 1927, in relation
JUDGMENT No. II.—-JUDGMENTS Nos. 7 & 8 (INTERPRETATION) 13

to the jurisdiction of the Court to adjudicate upon this
question, again took up the point of view put forward by
the Polish Government in its letter of September gth, 1926;
and hé then expressly stated that the principle of the right of
the Oberschlesische to compensation was still in dispute, on
the very basis of the said Judgment (Judgment No. 7),
which was said to have reserved to Poland “the right to
dispute the validity of this entry’. From that he inferred
that the question relating to the recognition of the principle
of the compensation claimed did not as yet constitute an
issue as far as concerned the Oberschlesische, pending the
decision by the competent tribunals, that is to say by the
Polish tribunals—before which the Polish Government was on
the point of bringing the matter—, of the question of the
validity of the registration of its title as owner, a question
said to have been reserved by the Court.

The German Agent replied in his pleadings on June 24th:
he disputed the contention that the Court had not so far
given a definite ruling and that it had made a reservation
as to the lawful character under municipal law of the trans-
actions which took place in 1919; he maintained that, in his
opinion, having regard to the grounds and the operative part
of the Judgment, there could be no doubt that the phrase
invoked by Counsel for the Polish Government could not have
the meaning which it was given by that Government, and
that consequently that phrase could not be quoted in argu-
ment against the claims of the German Government. It
should be observed that the Agent for the Polish Government,
who was present at these pleadings before the Court, said
nothing calculated to impugn or modify the said remarks of
Counsel for that Government. On the contrary, he alluded
to them in his own statement before the Court. There is
thus no room for doubt that at the time those were the
views of the Polish Government.

Shortly after the question of jurisdiction had been decided
‘by the Court (Judgment No. 8), the Polish Government
brought against the Oberschlesische the application announced
by its representative during the hearings in June; and the
grounds upon which this application is based, which are given
above, appear to confirm the view that it was indeed brought
JUDGMENT No. II.—JUDGMENTS Nos. 7 & 8 (INTERPRETATION) I4

for the purpose indicated at the time of the hearing in
question. |
From a consideration of these facts, it follows that—whereas

the German Government contends that Judgment No. 7 of
the Court finally decided, with binding effect as concerns the
claim for compensation put forward on behalf of the Ober-
schlesische, the question relating to the right of ownership
possessed by that Company over the factory at Chorzôw,
also under municipal law—the Polish Government supported
the opposite view and, at the same time, relied on a certain
passage in the judgment in question (p. 42) which, according
to its opinion, showed the soundness of this view, and which
might in one sense be described as a reservation. There is
therefore, in so far as the first of the submissions of the
German Government is concerned, a true dispute over a point
which, in accordance with the explanations set out above,
relates to the meaning and scope of Judgment No. 7.

. The Polish Government contends that the passage in question
was not invoked by it as conferring a right of bringing
before the Tribunal of Katowice the Application actually
submitted to that Tribunal, but only as an affirmation by
the Court of a right which that Government already possessed,
apart from any reservation. The Polish Government also
contends that the German request for an interpretation does not
relate to the operative part of the judgment (which, according to
the former Government, can alone be the subject of a request
for interpretation), and asserts that it does not claim that
the operative part contains a reservation of the kind referred
to in submission No. x of the German Government. The
Court, however, is unable to take this view. For it is clear
-in any case that, although it is not contested that the terms
of the operative part of the judgment do not contain the
reservation in question, the fact that the grounds for the
judgment contain a passage which one of the Parties construes
as a reservation (the effect of which would be to restrict the
binding force of Judgment No. 7) or as affirming a right
inconsistent with the situation at law which the other Party
. considers as. established with binding force, allows of the
Court’s being validly requested to give an interpretation fixing
the true meaning and scope of the judgment in question.
JUDGMENT No. II.—JUDGMENTS Nos. 7 & 8 (INTERPRETATION) 15

On the other hand, as regards Judgment No. 8, the Court
considers that the meaning and scope of that Judgment are
not directly affected by the first of the German submissions.
For that Judgment only decides as to the jurisdiction of the
Court to entertain the case submitted by the German Applica-
tion of February 8th, 1927. It may, however, be stated
that certain passages of that Judgment may in this connection
be taken into account as showing the meaning and scope
which the Court, when it pronounced Judgment No. 8,
attributed to Judgment No. 7.

The second of the submissions of the German Government
appears to raise the question of the effect which the applica-
tion made to the Katowice Tribunal might have on the
case pending before the Court with regard to the indemnity
claimed by Germany on the basis of Judgment No. 7. Accord-
ing to the reasoning put forward, it is nevertheless clear
that this submission relates to the application to a particular
case of a point which the German Government considers as
having been settled with binding effect by the judgments
already rendered, but which, according to the Polish Govern-
ment, leaves open the question as to the validity under muni-
cipal law of the transfer of the ownership to the Oberschle-
sische and of its entry in the land register. This second
submission thus also refers, implicitly, to a disputed question
relating to the meaning and scope of Judgment No. 7. On
the other hand, as regards Judgment No. 8, the Court confines
itself to a reference to what it has stated on this subject -in
relation to the first of the German submissions. .

eg

Having thus shown that the submissions of the German
Government both comprise requests for the interpretation of
the Court’s Judgment No. 7, the Court must now proceed to |
consider what may be regarded as the merits of the suit.

In so doing, the Court does not consider itself as bound
simply to reply ‘‘yes” or “no” to the propositions formulated
in the submissions of the German Application. It adopts
this attitude because, for the purpose of the interpretation
of a judgment, it cannot be bound by formule chosen by the
JUDGMENT No. II. JUDGMENTS Nos. 7 & 8 (INTERPRETATION) 16

Parties concerned, but must be able to take an unhampered
decision. This view is consistent with the present terms of
Article 66 of the Rules of Court. In fact, according to this
article—which was intended by the Court to furnish informa-
tion indispensable in regard to proceedings for interpreta-
tion—, the application submitting the request for an inter-
pretation shall contain:

“{a) a specification of the judgment the interpretation of
which is requested ;
“(b) an indication of the precise point or points in dispute.”

Whereas Article 35 of the Rules, which deals with an applica-
tion instituting ordinary proceedings, requires ‘‘an indication
of the claim”, Article 66 provides for “an indication of the
.... points in dispute”. And whereas, in the case of ordinary
procedure, Article 40 of the Rules provides for the compulsory
submission of Cases containing, as an essential part, ‘“a
statement of conclusions’, Article 66 only mentions optional
“observations’ and “further explanations’ to be furnished
upon the invitation of the Court.

The Court therefore considers that it should interpret the
“submissions” of the German Application of October 18th,
1927, as simply constituting an indication, within the meaning
of Article 66 of the Rules, of the points the meaning and
scope of which are in dispute between the Parties. Construed
in any other way, the Application in question would not
satisfy the express conditions laid down by the above-
mentioned article; and the Court, as it has already had occa-
sion to observe in previous judgments, may within reasonable
limits disregard the defects of form of documents placed
before it. . .
| Adopting the standpoint indicated above, it is to be observed
that, on analysis, the two submissions formulated in the
German Application are seen to refer to the same disputed
point regarded from two different aspects. This point, which
has been sufficiently defined above, relates to the passage
appearing on page 42 of Judgment No. 7, which passage
the Polish Government has cited in the claim brought by it
before the Tribunal of Katowice; this passage is as follows:
JUDGMENT No, II.— JUDGMENTS Nos. 7 & 8 (INTERPRETATION) 17

“Tf Poland wishes to dispute the validity. of this entry,
it can, in any case, only be annulled in pursuance of a
decision given by the competent tribunal.”

In reality, therefore, what the German Government seeks
is an interpretation of this passage—considered in relation
to the Judgment as a whole—from two aspects, namely that
of its meaning and that of its scope.

Proceeding first of all to consider the first of these aspects,
the Court observes that, considered by themselves, the terms
of the passage above quoted may give the impression that
the Court meant to reserve to Poland the right to obtain
from the Polish Courts a decision whicli would apply to the
case settled by Judgment No. 7, to the effect that the Ober-
schlesische was not, from the point of view of municipal
law, validly entered as owner of the Chorzéw factory.

The argument, in the course of which the lines quoted
above occur, is as follows (p. 42):

“With regard to the argument of the Respondent to the
effect that the contract of December 24th, 1919, and the
transfer of ownership on the following January 28th-zoth,
by means of Auflassung and entry in the land register,
are fictitious or fraudulent, it should in the first place be
observed that the Court cannot consider this argument,
in so far as it may be assumed that the intention of the
Respondent is to support it, by considerations of German
municipal law, as an independent one; for the Polish
law, the application of which in regard to the Chorzéw
factory has led to the present dispute between the two.
Powers, is based neither directly nor indirectly on the
validity or invalidity, from the standpoint of German
municipal law, of the transfer of the properties covered
by it; it is based exclusively on the date of the transfer
in ‘relation to November rith, 1918. In the next place,
it must be observed that the Court, in the exercise of the
jurisdiction granted by Article 23 of the Geneva Convention,
will not examine, save as an incidental or preliminary
point, the possible existence of rights under German
municipal law.

The Court has already observed that from the point .of
view of international law, the transaction under considera-
tion must, in its opinion, be regarded as effective and
as entered into in good faith. The Court has found
in the arguments advanced by Poland in support of the
above-mentioned contention no reasoning calculated to
JUDGMENT No. 11.— JUDGMENTS Nos. 7 & 8 (INTERPRETATION) 18

modify, from the standpoint of municipal law, the conclu-
sion at which it has thus arrived on the basis of interna-
tional law. In the present case, in fact, the Court holds
that the Oberschiesische’s right of ownership of the
Chorzé6w factory must be regarded as established, its
name having been duly entered as owner in the land
register. If Poland wishes to dispute the validity of
this entry, it can, in any case, only be annulled in
pursuance of a decision given by the competent tribunal ;
this follows from the principle of respect for vested rights,
a principle which, as the Court has already had occasion
to observe, forms part of generally accepted international
law, which, as regards this point, amongst others, consti-
tutes the basis of the Geneva Convention.

This is true, though, as is pointed out by Poland, the
contracts of December 24th, 1010, had been concluded
at a time when, not having been entered in the commercial
register, the Oberschlesische possessed as yet no legal
personality. The Court, in fact, notes that the contracts
in question were concluded after the creation of the
Oberschlesische and by its regularly appointed Directors ;
it further notes that the transfer of the Chorzéw factory
was effected by means of the Auflassung, a transaction
of the nature of a contract, and of the entry in the
land register, which formality took place only after the
entry of the Oberschlesische in the commercial register.
Moreover, by acts extending over a period of more than
two years, all the Parties concerned have clearly shown
that they still recognized the validity of the contracts
in question.” |

In the first place—and this is expressly stated earlier in
the Judgment (p. 35)—it follows from this reasoning that
the Court found it necessary,.in order to reply to submission
2a of the German Government’s Application in the suit then
under consideration, to decide, though as an incidental and
preliminary point, the question raised by Poland’s contention
that the contract of December 24th, 1019, the transfer of
ownership (i.e. of the Chorzéw factory to the Oberschlesische)
effected on January 28th-29th following, the Auflassung and
the entry in the land register, were fictitious and fraudulent.

Again it follows, amongst other things, that the Court
found in the arguments of Poland nothing calculated to modify,
from the standpoint of municipal law, the conclusion at
JUDGMENT No. II,— JUDGMENTS Nos. 7 & 8 (INTERPRETATION) IQ

which it arrived on the basis of.international law; but that,
on the contrary, the Oberschlesische’s right of ownership
of the Chorzéw factory was established, “its name having
been duly entered as owner in the land register’. This
latter part of the sentence cannot be regarded either as
constituting the only reason upon which the Court based
the result at which it arrived, nor as dependent upon failure
to act in the manner indicated in the lines which follow it
in the above quotation. These lines are rather to be regarded
as containing an additional argument, drawn from generally
accepted international law. Though from the use of the
present tense it may be concluded that the Court had:in
view the possibility of the institution by Poland, even after
the judgment, of proceedings with a view to obtaining the
annulment of the entry by means of a decision of the com-
petent municipal tribunals, it would be contrary to the whole
of the reasoning to construe it as a reservation implying that
the binding effect of the Judgment given—and more espe- .
cially of paragraph 2a of the operative part thereof (“that
the attitude of the Polish Government in regard to the
‘Oberschlesische Stickstoffwerke and Bayerische Stickstoffwerke
Companies was not in conformity with Article 6 and the
following articles of the Geneva Convention”’)—were to depend
on the result of such proceedings instituted subsequently.
Such a reservation would in fact have the result of depriving
conclusion 2a of the Judgment of its logical and necessary
foundation, and would thus give that conclusion merely the
character of a provisional decision. |

And the Court has also expressed itself to this effect in
Judgment No. 8 (p. 15). It there stated, in regard to
the transfer of the factory to the Oberschlesische, that it
held—amongst other things—‘“that the Oberschlesische’s right
of ownership must be regarded as established, and could have
been disputed only before a competent tribunal”. As regards
the passage appearing on page 31 of Judgment No. 8, which
runs as follows:

“"... it follows that once dispossession has taken
place without previous investigation of the right of owner-
ship, the possible undertaking of this investigation in
order to justify such dispossession after it has taken

3
JUDGMENT No. II.—-JUDGMENTS Nos. 7 & 8 (INTERPRETATION) 20

place, cannot undo the fact that a breach of the Geneva
Convention has already taken place, or affect the Court’s
jurisdiction”,

this also seems to show that, in the intention of the Court,
subsequent action on the part of the Polish Government to
justify, after the event, its attitude in respect of the Ober-
schlesische, could not enter into account.

. Having thus established the meaning to be attributed to
the passage in regard to which it has been requested to
construe Judgment No. 7, the Court. will now proceed to
consider the scope of the Judgment, which scope forms the
subject of submission No. 2 of the German Application.

As has been recalled above, the Court, by that Judgment,
decided that the attitude of the Polish Government in regard
to the Oberschlesische was not in conformity with the pro-
visions of the Geneva Convention. This conclusion, which has
now indisputably acquired the force of ves judicata, was based,
amongst other things, firstly, on the finding by the. Court
that, from the standpoint of international law, the German
Government was perfectly entitled to alienate the Chorzéw
factory, and, secondly, on the finding that, from the stand-
point of municipal law, the Oberschlesische had validly acquired
the right of ownership to the factory—and these findings
constitute a condition essential to the Court’s decision. The
finding that, in municipal law, the factory did belong to the
Oberschlesische. is consequently included amongst the points
decided by the Court in Judgment No. 7, and possessing
binding force in accordance with the terms of Article 59 of
the Statute. The very context in which the passage in question
occurs is calculated to establish the right of ownership of the
Oberschlesische from the standpoint of municipal law.

The Court’s Judgment No. 7 is in the nature of a declara-
tory judgment, the intention of which is to ensure recognition
of a situation at law, once and for all and with binding force
as between the Parties; so that the legal position thus estab-
lished cannot again be called in question in so far as the
legal effects ensuing therefrom are concerned. .

The Court has had occasion in Judgment No. 7 (p. 19) to
state its opinion upon the question whether Article 59
of the Court’s Statute prevents it from rendering purely
JUDGMENT No. II.— JUDGMENTS Nos. 7 & 8 (INTERPRETATION) 21

declaratory judgments; it answered this question in the
negative, stating that the object of Article 59 is simply to prevent
legal principles accepted by the Court in a particular case
‘from being binding also upon other States or in other disputes.

In this connection, the Court thinks it right to make the
following statement: The proceedings on the merits in the case
concerning the compensation claimed by the German Govern-
ment on the basis of Judgment No. 7 are still pending, and the
written procedure will not be terminated until March Ist,
1928. Judging from the observations of the Agent for the
Polish Government, it is possible that that Government may
wish in this suit to rely. on the result of the action brought
by it before the Tribunal of Katowice against the Oberschlesische.
No plea of litispendency has been formulated in this connec-
tion. At all events, the obligation incumbent upon the Court
under Article 60 of the Statute to construe its judgments
at the request of any Party, cannot be set aside merely
because the interpretation to be given by the Court might
possibly be of importance in another case which is pending.
The interpretation adds nothing to the decision, which has
acquired the force of ves judicata, and can only have binding
force within the limits of what was decided in the judgment
construed. |

Moreover, the Court, when giving an interpretation, refrains
from any examination of facts other than those which it
has considered in the judgment under interpretation, and
consequently all facts subsequent to that judgment. Sim-
ilarly, the Court abstains from any consideration of the effect
which the judgment to be construed might exercise upon
submissions made by the Parties in another case or otherwise
brought to its knowledge. It confines itself to explaining, by
an interpretation, that upon which it has already passed
judgment.

FOR THESE REASONS,
The Court, having heard both Parties,
gives judgment as follows, by eight votes to three:
JUDGMENT No. II.— JUDGMENTS Nos. 7 & 8 (INTERPRETATION) 22

That, in Judgment No. 7, the Court did not reserve to
the Polish Government the right of asking by process of
law, even after the rendering of that Judgment and with
application to that particular case, for a declaration that the
entry, in pursuance of the Agreement of December 24th, 1919,
of the name of the Oberschlesische Stickstoffwerke A.-G. in
the land registers as owners of the Chorzéw factory is null
and void; but that, by the aforesaid Judgment, the Court
meant to recognize, with binding effect between the Parties
concerned and in respect of that particular case, amongst other
things, the right of ownership of the Oberschlesische Stick-
stoffwerke A.-G. in the Chorzéw factory under municipal law.

Done in English and French, the French text being author-
itative, at the Peace Palace, The Hague, this sixteenth day of
December 1927, in three copies, one of which is to be placed
in the archives of the Court and the others te be forwarded
to the Agents of the applicant and respondent Parties respect-
ively,

(Signed) Max HUBER,

President.

(Signed) À. HaMMARSKJOLD,
Registrar.

Mr. Moore, Judge, took part in the discussion and voted
for the adoption of the present Judgment, but had to leave
The Hague before judgment was delivered.

M. Anzilotti, Judge, declaring that he is unable to concur
‘in the Judgment delivered by the Court, and availing him-
self of the right conferred on him by Article 57 of the Statute,
has delivered the separate opinion which follows hereafter.

(Initialled) M. H.
(Initialled) À. H.


305

SEPARATE OPINION OF JUDGE FLEISCHHAUER

I have voted in favour of all of the Court’s Conclusions as contained in
paragraph 105 of the Advisory Opinion, although these Conclusions do
not give a complete and clear-cut answer to the question asked of the
Court by the General Assembly. In their incompleteness and vagueness
the Court’s Conclusions — and in particular their critical point 2E —
rather reflect the terrible dilemma that confronts persons and institutions
alike which have to deal with the question of the legality or otherwise of
the threat or use of nuclear weapons in international law. At present,
international law is still grappling with, and has not yet overcome, the
dichotomy that exists between the international law applicable in armed
conflict and, in particular, the rules and principles of humanitarian law,
on the one side, with which principles and rules the use of nuclear weap-
ons — as the Court says in paragraph 95 of its Opinion — seems scarcely
reconcilable; and, on the other side, the inherent right of self-defence
which every State possesses as a matter of sovereign equality. That basic
right would be severely curtailed if for a State, victim of an attack with
nuclear, chemical or bacteriological weapons or otherwise constituting a
deadly menace for its very survival, nuclear weapons were totally ruled
out as an ultimate legal option in collective or individual self-defence.

1. In explaining my views more in detail, I would like to begin by
stating that, in my view, the Court is right in its reasoning that the
humanitarian rules and principles apply to nuclear weapons (para. 86)
and in its conclusion that

“A threat or use of nuclear weapons should also be compatible
with the requirements of the international law applicable in armed
conflict particularly those of the principles and rules of international
humanitarian law .. .” (Point 2D of the Conclusions.)

This is so, because of the intrinsically humanitarian character of those
rules and principles and in spite of the fact that they essentially evolved
much before nuclear weapons were invented. This finding is also not
altered by the fact that the Geneva Conferences, which were held after
the appearance on the international scene of nuclear weapons and which
adopted the four Geneva Conventions of 12 August 1949 on the Protec-
tion of War Victims as well as the Protocol I of 8 June 1977 to those
Conventions, did not address nuclear weapons specifically. The same is
true for other principles of the law applicable in armed conflict, such as

83
306 THREAT OR USE OF NUCLEAR WEAPONS (SEP. OP. FLEISCHHAUER)

the principle of neutrality which likewise evolved much before the advent
of nuclear weapons.

2. The rules and principles of humanitarian law applicable in armed
conflict are expression of the — as the Court puts it (para. 95) — “over-
riding consideration of humanity” which is at the basis of international
law and which international law is expected to uphold and defend. The
humanitarian rules and principles remind States that whatever the
weaponry used, notwithstanding the regrettable inevitability of civilian
losses in times of war, civilians might never be the object of an attack. So
far as combatants are concerned, weapons may not be used that cause
unnecessary suffering. Similarly, the respect for the neutrality of States
not participating in an armed conflict is a key element of orderly
relations between States. The nuclear weapon is, in many ways, the nega-
tion of the humanitarian considerations underlying the law applicable in
armed conflict and of the principle of neutrality. The nuclear weapon
cannot distinguish between civilian and military targets. It causes
immeasurable suffering. The radiation released by it is unable to respect
the territorial integrity of a neutral State.

I therefore agree with the Court’s finding in the first paragraph of
point 2E of the Conclusions, to the effect that

“the threat or use of nuclear weapons would generally be contrary to
the rules of international law applicable in armed conflict, and in
particular the principles and rules of humanitarian law”.

3. As the Court rightly sees it, the answer to the question asked of it by
the General Assembly does not lie alone in a finding that the threat or use
of nuclear weapons would be contrary to the rules of international law
applicable in armed conflict, and in particular the principles and rules of
humanitarian law. Through the use of the word “generally” in the first
paragraph of point 2E of the Conclusions and through the addition of
the second paragraph to that point, the Court points to qualifications
that apply or may apply to its findings regarding irreconcilability between
the use of nuclear weapons and humanitarian law. The word “generally”
limits the finding as such; and according to the second paragraph,

“in view of the current state of international law, and of the elements
of fact at its disposal, the Court cannot conclude definitively whether
the threat or use of nuclear weapons would be lawful or unlawful in
an extreme circumstance of self-defence, in which the very survival
of a State would be at stake”.

To end the matter with the simple statement that recourse to nuclear
weapons would be contrary to international law applicable in armed con-
flict, and in particular the principles and rules of humanitarian law,
would have meant that the law applicable in armed conflict, and in par-
ticular the humanitarian law, was given precedence over the inherent
right of individual or collective self-defence which every State possesses
as a matter of sovereign equality and which is expressly preserved in

84
307 THREAT OR USE OF NUCLEAR WEAPONS (SEP. OP. FLEISCHHAUER)

Article 51 of the Charter. That would be so because if a State is the victim
of an all-out attack by another State, which threatens the very existence
of the victimized State, recourse to the threat or use of nuclear weapons
in individual (if the victimized State is a nuclear-weapon State) or collec-
tive (if the victim is a non-nuclear-weapon State allied to a nuclear-
weapon State) self-defence could be for the victimized State the last and
only alternative to giving itself up and surrender. That situation would in
particular exist if the attack is made by nuclear, bacteriological or chemi-
cal weapons. It is true that the right of self-defence as protected by
Article 51 of the Charter is not weapon-specific (paragraph 39 of the con-
siderations of the Opinion). Nevertheless, the denial of the recourse to the
threat or use of nuclear weapons as a legal option in any circumstance
could amount to a denial of self-defence itself if such recourse was the
last available means by way of which the victimized State could exercise
its right under Article 51 of the Charter.

A finding that amounted to such a denial therefore would not, in my
view, have been a correct statement of the law; there is no rule in inter-
national law according to which one of the conflicting principles would
prevail over the other. The fact that the attacking State itself would act in
contravention of international law, would not alter the situation. Nor
would recourse to the Security Council, as mandated by Article 51, guar-
antee by itself an immediate and effective relief.

4. It is true that the qualifying elements in point 2 E of the Conclusions
have been couched by the Court in hesitating, vague and halting terms.
The first paragraph of point 2E does not explain what is to be under-
stood by “generally .. . contrary to the rules of international law appli-
cable in armed conflict” (emphasis added), and the wording of the second
paragraph of point 2E avoids taking a position when it says that,

“in view of the current state of international law, and of the elements
of fact at its disposal, the Court cannot conclude definitively whether
the threat or use of nuclear weapons would be lawful or unlawful in
an extreme circumstance of self-defence, in which the very survival
of a State would be at stake”.

Nor is the reasoning of the Court in the considerations of its Opinion
leading up to the qualifications of the main finding in point 2E very
clear. As far as the term “generally” in the first paragraph of point 2 E of
the Conclusions is concerned, the Court’s explanations in paragraph 95
of its Opinion are limited to the statement

“that it [i.e. the Court] does not have sufficient elements to enable it
to conclude with certainty that the use of nuclear weapons would
necessarily be at variance with the principles and rules of law appli-
cable in armed conflict in any circumstance”.

The considerations leading to the second paragraph of point 2 E are con-
tained in paragraph 96. They refer to Article 51 of the Charter, the State

85
308 THREAT OR USE OF NUCLEAR WEAPONS (SEP. OP. FLEISCHHAUER)

practice referred to as “policy of deterrence” and the reservations which
certain nuclear-weapon States have appended to the undertakings they
have given, notably under the Protocols to the Treaties of Tlatelolco and
Rarotonga, and also under the declarations made by them in connection
with the extension of the Treaty on the Non-Proliferation of Nuclear
Weapons (paragraph 59 of the Opinion). The hesitating terms in which
the Court has couched the qualifying elements in point 2E of the Con-
clusions witness, in my view, the legal and moral difficulties of the terri-
tory into which the Court has been led by the question asked of it by the
General Assembly.

5. Nevertheless, the Court, by acknowledging in the considerations of
its Opinion as well as in point 2E of the Conclusions the possibility of
qualifying elements, made it possible for me to vote in favour of that par-
ticularly important point of its Conclusions. The Court could however —
and in my view should — have gone further. My view on this is the fol-
lowing:

The principles and rules of the humanitarian law and the other prin-
ciples of law applicable in armed conflict, such as the principle of neutrality
on the one side and the inherent right of self-defence on the other, which
are through the very existence of the nuclear weapon in sharp opposition
to each other, are all principles and rules of law. None of these principles
and rules is above the law, they are of equal rank in law and they can be
altered by law. They are justiciable. Yet international law has so far not
developed — neither in conventional nor in customary law — a norm on
how these principles can be reconciled in the face of the nuclear weapon.
As I stated above (paragraph 3 of this separate opinion), there is no rule
giving prevalence of one over the other of these principles and rules.
International politics has not yet produced a system of collective security
of such perfection that it could take care of the dilemma, swiftly and
efficiently.

In view of their equal ranking this means that, if the need arises, the
smallest common denominator between the conflicting principles and
rules has to be found. This means in turn that, although recourse to
nuclear weapons is scarcely reconcilable with humanitarian law appli-
cable in armed conflict as well as the principle of neutrality, recourse to
such weapons could remain a justified legal option in an extreme situa-
tion of individual or collective self-defence in which the threat or use of
nuclear weapons is the last resort against an attack with nuclear, chemi-
cal or bacteriological weapons or otherwise threatening the very existence
of the victimized State.

The same result is reached if, in the absence of a conventional or a cus-
tomary rule for the conciliation of the conflicting legal principles and
rules, it is accepted that the third category of law which the Court has to
apply by virtue of Article 38 of its Statute, that is, the general principles
of law recognized in all legal systems, contains a principle to the effect

86
309 THREAT OR USE OF NUCLEAR WEAPONS (SEP. OP. FLEISCHHAUER)

that no legal system is entitled to demand the self-abandonment, the
suicide, of one of its subjects. Much can be said, in my view, in favour
of the applicability of such a principle in all modern legal systems and
consequently also in international law.

Whichever of the two lines of reasoning is followed, the result that the
smallest common denominator, as I see it, is the guiding factor in the
solution of the conflict created by the nuclear weapon between the law
applicable in armed conflict and the right of self-defence, is confirmed by
the important role played by the policy of deterrence during all the years
of the Cold War in State practice of nuclear-weapon States as well as in
the practice of non-nuclear-weapon States, supporting or tolerating that
policy. Even after the end of the Cold War the policy of deterrence has
not altogether been abandoned, if only in order to maintain the balance
of power among nuclear-weapon States and in order to deter non-
nuclear-weapon States from acquiring and threatening or using nuclear
weapons. Nuclear-weapon States have found it necessary to continue
beyond the end of the Cold War the reservations they have made to the
undertakings they have given, notably to the Treaties of Tlatelolco and
Rarotonga (paragraph 59 of the Opinion), and to add similar reserva-
tions under the declarations given by them in connection with the un-
limited extension of the Non-Proliferation Treaty. These reservations are
tolerated by the non-nuclear parties concerned as well as, in the case of
the unlimited extension of the Non-Proliferation Treaty, by the Security
Council. Of course, as the Court itself has stated (North Sea Continental
Shelf, Judgment, I C.J. Reports 1969, p. 44), not every act habitually per-
formed or every attitude taken over a prolonged period of time by a
plurality of States is a practice relevant for the determination of the state
of the law. In the words of the Court:

“There are many international acts, e.g., in the field of ceremonial
and protocol, which are performed almost invariably, but which are
motivated only by considerations of courtesy, convenience or tradi-
tion, and not by any sense of legal duty.” (Jbid., p. 44, para. 77.)

But the practice embodied in the policy of deterrence is based specifically
on the right of individual or collective self-defence and so are the reser-
vations to the guarantees of security. The States which support or which
tolerate that policy and those reservations are aware of this. So was the
Security Council when it adopted resolution 984 (1995). Therefore, the
practice which finds expression in the policy of deterrence, in the reser-
vations to the security guarantees and in their toleration, must be regarded
as State practice in the legal sense.

87
310 THREAT OR USE OF NUCLEAR WEAPONS (SEP. OP. FLEISCHHAUER)

6. For a recourse to nuclear weapons to be lawful, however, not only
would the situation have to be an extreme one, but the conditions on
which the lawfulness of the exercise of self-defence generally depends
would also always have to be met. These conditions comprise, as the
Opinion states expressis verbis (para. 41) that there must be proportion-
ality. The need to comply with the proportionality principle must not
a priori rule out recourse to nuclear weapons; as the Opinion states
(para. 42): “The proportionality principle may thus not in itself exclude
the use of nuclear weapons in all circumstances.” The margin that exists
for considering that a particular threat or use of nuclear weapons could
be lawful is therefore extremely narrow.

The present state of international law does not permit a more precise
drawing of the border-line between unlawfulness and lawfulness of
recourse to nuclear weapons.

7. In the long run the answer to the conflict which the invention of the
nuclear weapon entailed between highest values and most basic needs of
the community of States, can only lie in effective reduction and control of
nuclear armaments and an improved system of collective security. This is
why I have supported point 2 F of the Conclusions of the Opinion on the
existence of a general obligation of States to pursue in good faith and
bring to a conclusion negotiations leading to nuclear disarmament in all
its aspects under strict and effective international control — although this
pronouncement goes, strictly speaking, beyond the question asked of the
Court.

(Signed) Carl-August FLEISCHHAUER.

88


67

               DISSENTING OPINION OF JUDGE ROBINSON

   1. I do not agree with the decision of the majority in paragraph 134 of
the Judgment rejecting the ﬁrst basis advanced by Kenya for its ﬁrst pre-
liminary objection on the ground that the Memorandum of Understand-
ing (MOU) does not fall within the scope of the reservation to Kenya’s
optional clause declaration.
   2. I also do not agree with the decision of the majority in the same
paragraph rejecting the second basis advanced by Kenya for its ﬁrst pre-
liminary objection on the ground that Part XV of the United Nations
Convention on the Law of the Sea (UNCLOS) does not fall within the
scope of the reservation to Kenya’s optional clause declaration.
   3. However, in this opinion I focus on the rejection of the second basis
advanced by Kenya for its ﬁrst preliminary objection since, in my view, it
is more problematic because of the very serious implications it has for the
interpretation and application of the carefully elaborated provisions of
Part XV of UNCLOS.
   4. Just about the only ﬁnding that I agree with in this Judgment is the
majority’s rejection in paragraph 120 of Kenya’s argument that its reser-
vation “attaches special signiﬁcance to an agreement to a method of dis-
pute settlement that is lex specialis and lex posterior in relation to the
Parties’ optional clause declarations”. However, this ﬁnding has no con-
sequences for the outcome of this case.

  I also make it plain that had paragraph 145, subparagraph 2, been
worded diﬀerently I would have voted in favour of rejecting Kenya’s
unclean hands argument in its second preliminary objection.

   5. Under Article 36, paragraph 2, of the Court’s Statute, both Kenya
and Somalia accepted the Court’s jurisdiction subject to certain reserva-
tions. With regard to the reservation relevant to this case, Kenya accepted
the Court’s jurisdiction over all disputes other than: “Disputes in regard
to which the parties to the dispute have agreed or shall agree to have
recourse to some other method or methods of settlement.” 1

  6. The essence of Kenya’s argument for the second basis of its ﬁrst
preliminary objection is that its reservation excludes from the Court’s
jurisdiction disputes in relation to which the States parties agree to have
recourse to some other method of settlement; as both Kenya and Somalia
are States parties to UNCLOS, Part XV is applicable to them; under
     1   United Nations, Treaty Series (UNTS), Vol. 531, p. 114.

69

68                maritime delimitation (diss. op. robinson)

Article 287, paragraph 1, of UNCLOS — a provision within Part XV —
States parties may make a written declaration selecting one of four means
“for the settlement of disputes concerning the interpretation or applica-
tion of this Convention” 2; neither State has made such a declaration;
therefore, by virtue of Article 287, paragraph 3, they are “deemed to have
accepted arbitration in accordance with Annex VII” of UNCLOS. The
logic of this argument is that since it is beyond question that all four
means identiﬁed are methods of settlement for disputes, including the
maritime delimitation dispute between the two States, they fall within the
terms of the reservation as a method of settlement other than the Court,
thereby depriving the Court of jurisdiction. I ﬁnd this argument persua-
sive. The majority does not.

  7. The majority oﬀers a main and a subsidiary argument for rejecting
Kenya’s submission on this point. The main argument turns on the inter-
pretation of Article 282 of UNCLOS, which provides:

        “If the States Parties which are parties to a dispute concerning the
     interpretation or application of this Convention have agreed, through
     a general, regional or bilateral agreement or otherwise, that such dis-
     pute shall, at the request of any party to the dispute, be submitted to
     a procedure that entails a binding decision, that procedure shall apply
     in lieu of the procedures provided for in this Part, unless the parties
     to the dispute otherwise agree.”
   To exclude the application of Part XV of UNCLOS there must be,
according to this article, an agreement, general, regional, bilateral or
otherwise, between the States parties to submit the dispute to a procedure
that entails a binding decision. There is no such general, regional or bilat-
eral agreement between Kenya and Somalia. The question therefore is
whether the phrase “or otherwise” becomes applicable as between those
States. The relevant area of enquiry is whether there exists in the relation-
ship between the two States some arrangement which could be said to
reﬂect their agreement to a procedure entailing a binding settlement.
Absent such an arrangement reﬂecting an agreement, Article 282 does not
apply and the application of Part XV of UNCLOS is not excluded. It has
to be stressed that since the word “agree” in Article 282 also governs the
phrase “or otherwise”, the enquiry should result in something that,
although not a general, regional or bilateral agreement, nonetheless has
features that warrant it being considered an agreement.

   2 The four fora listed in Article 287 are the International Tribunal for the Law of the

Sea; the International Court of Justice; “an arbitral tribunal constituted in accordance with
Annex VII”; and “a special arbitral tribunal constituted in accordance with Annex VIII for
one or more of the categories of disputes speciﬁed therein”.

70

69                maritime delimitation (diss. op. robinson)

   8. It is generally accepted from a reading of the travaux préparatoires
that the phrase “or otherwise” in that article includes optional clause dec-
larations under Article 36, paragraph 2, of the Court’s Statute. Thus, The
United Nations Convention on the Law of the Sea, 1982: A Commentary
(Virginia Commentary) states:

         “Article 282 mentions that an agreement to submit a dispute to a
      speciﬁed procedure may be reached ‘otherwise’. The reference was
      meant to include, in particular, the acceptances of the jurisdiction
      of the International Court of Justice by declarations made under Art-
      icle 36, paragraph 2, of the Statute of that Court.” 3
   Signiﬁcantly, the phrase “in particular” in the Virginia Commentary
clariﬁes that instruments other than acceptances of the Court’s jurisdic-
tion may constitute an agreement that falls within the scope of Article 282
of UNCLOS.

 9. Other scholarly works reﬂect the same conclusion:
— P. Gautier states in relation to the phrase “or otherwise” that “[t]his
  option is generally understood as covering the declarations made by
  States under Article 36, paragraph 2, of the Statute of the ICJ . . .” 4.

— Y. Tanaka: “There appears to be little doubt that the optional clause
  under Article 36 (2) of the Statute of the ICJ is ‘a procedure that
  entails a binding decision’ set out in Article 282. It would seem to fol-
  low that between two States which have accepted the optional clause,
  the jurisdiction of the ICJ prevails over procedures under Part XV of
  [UNCLOS] by virtue of Article 28[2].” 5

— T. Treves, in commenting on Article 282 and optional clause declara-
  tions, states that “the consensual aspect — which seems to be the fun-
  damental requirement of Article 36, paragraph 2 — undoubtedly
  exists, so that it is reasonable to conclude that the parties have agreed
  ‘otherwise’” 6.

   3 Myron H. Nordquist (Editor-in-Chief), Shabtai Rosenne and Louis B. Sohn (Volume

Editors), United Nations Convention on the Law of the Sea, 1982: A Commentary, Vol. V,
Dordrecht, Boston, London, 1989, pp. 26-27, para. 282.3.
   4 Philippe Gautier, “The Settlement of Disputes”, The IMLI Manual on International

Maritime Law, Volume I: The Law of the Sea, First Edition, 2014, p. 539.
   5 Yoshifumi Tanaka, The International Law of the Sea (Cambridge University Press,

Second Edition, 2015), pp. 423-424. Cited in CR 2016/11, pp. 63-64, para. 33 (Sands).
   6 Tullio Treves, “Conﬂicts between the International Tribunal for the Law of the Sea and

the International Court of Justice”, New York University Journal of International Law and
Politics, Vol. 31, Issue 4 (Summer 1999), p. 812. Cited in CR 2016/11, p. 64, para. 34 (Sands).

71

70               maritime delimitation (diss. op. robinson)

— P. C. Rao: “The agreement referred to in Article 282 UN Convention
    on the Law of the Sea may be recorded ‘otherwise’, for example,
    through separate declarations, such as declarations made under Arti-
    cle 36 (2) ICJ Statute.” 7
— A. E. Boyle: “Thus, two States which have made declarations in simi-
    lar terms under Article 36 (2) of the ICJ Statute will remain subject to
    the compulsory jurisdiction of the ICJ even in the LOS Convention
    cases.” 8
   10. Particular care must be taken in examining the travaux prépara-
toires to ascertain exactly what they say about the term “or otherwise”
since the Court’s understanding of that term is substantially reliant on the
preparatory work to clarify its meaning. Quite obviously neither the Vir-
ginia Commentary nor any of the ﬁve scholarly citations above can rea-
sonably be read as meaning that any and every set of acceptances of the
Court’s jurisdiction by optional clause declarations with reservations con-
stitutes an agreement that falls within the scope of Article 282. For such
a reading would be tantamount to saying that reservations have no
impact on optional clause declarations, a conclusion that is clearly con-
trary to the Court’s jurisprudence 9.

   11. What the relevant passages relating to the travaux préparatoires as well
as the scholarly comments do tell us is that at a general level optional clause
declarations are included in the reference to “or otherwise” in Article 282,
that is, optional clause declarations may, like some other instruments, consti-
tute an agreement that falls within the scope of Article 282. However, whether
in light of a particular reservation to an optional clause declaration there is
nonetheless an agreement that falls within the scope of Article 282 is a ques-
tion that has to be answered on the basis of a case-by-case examination of the
impact of the reservation on the optional clause declaration.
   12. There is nothing in the Virginia Commentary or the scholarly com-
ments to suggest that their references to optional clause declarations were
meant to go beyond the substance of the text of Article 36, paragraph 2,
of the Court’s Statute to include reservations. Article 36, paragraph 2,
provides as follows:
       “The States parties to the present Statute may at any time declare
     that they recognize as compulsory ipso facto and without special

   7 P. C. Rao, “Law of the Sea, Settlement of Disputes”, Max Planck Encyclopaedia of

Public International Law, para. 11. Cited in CR 2016/11, p. 64, para. 35 (Sands).
   8 A. E. Boyle, “Problems of Compulsory Jurisdiction and the Settlement of Disputes

relating to Straddling Fish Stocks”, International Journal of Marine and Coastal Law,
Vol. 14, Issue 1 (1999), p. 7. Cited in CR 2016/11, p. 64, para. 37 (Sands).
   9 See for example Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court,

Judgment, I.C.J. Reports 1998, pp. 452-454, paras. 44 and 47 and Anglo-Iranian Oil Co.
(United Kingdom v. Iran), Preliminary Objection, Judgment, I.C.J. Reports 1952, p. 105.
See also paragraphs 13, 14 and 16 of the present opinion.

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71               maritime delimitation (diss. op. robinson)

     agreement, in relation to any other State accepting the same
     obligation, the jurisdiction of the Court in all legal disputes concern-
     ing:
     (a) the interpretation of a treaty;
     (b) any question of international law;
     (c) the existence of any fact which, if established, would constitute a
          breach of an international obligation;
     (d) the nature or extent of the reparation to be made for the breach
          of an international obligation.”
   The language used in Article 282 of UNCLOS, “[i]f the States Parties
which are parties to a dispute . . . have agreed . . .” (emphasis added),
evidences the conditional nature of the provision. Whether the optional
clause declarations in this case are to be treated as constituting an agree-
ment between Kenya and Somalia must be determined by an examination
of the relevant optional clause declarations and reservation in light of the
Court’s jurisprudence.
   13. Optional clause declarations are neither contracts nor treaties. The
Court has explained that once a State has deposited a unilateral declara-
tion, a “consensual bond” is created with each State that has previously,
or proceeds subsequently, to do the same 10. The “compulsory” element of
an optional clause declaration ﬂows from this bond or mutuality of com-
mitment. The Court has previously stated, “[i]n fact, the declarations,
even though they are unilateral acts, establish a series of bilateral engage-
ments with other States accepting the same obligation of compulsory
jurisdiction . . .”. 11
   14. In Certain Norwegian Loans the Court held that in relation to
optional clause declarations “jurisdiction is conferred upon the
Court only to the extent to which the Declarations coincide in confer-
ring it” 12.
   15. What must therefore be ascertained is whether the optional clause
declarations of Kenya and Somalia, along with Kenya’s reservation, con-
stitute a “consensual bond”, a mutuality of commitment suﬃcient to be
considered an agreement between them that falls within the scope of Arti-
cle 282 of UNCLOS.
   16. The Court’s jurisprudence is replete with dicta on the interpreta-
tion of optional clause declarations and reservations. The Court held in a
case between the United Kingdom and Iran that in construing a declara-
tion, “[i]t must seek the interpretation which is in harmony with a natural

   10 Right of Passage over Indian Territory (Portugal v. India), Preliminary Objections,

Judgment, I.C.J. Reports 1957, p. 146.
   11 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United

States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 418,
para. 60.
   12 Certain Norwegian Loans (France v. Norway), Judgment, I.C.J. Reports 1957, p. 23.

Cited in present Judgment, para. 115. See also Anglo-Iranian Oil Co. (United Kingdom v.
Iran), Preliminary Objection, Judgment, I.C.J. Reports 1952, p. 103.

73

72              maritime delimitation (diss. op. robinson)

and reasonable way of reading the text, having due regard to the inten-
tion of the Government of Iran at the time when it accepted the compul-
sory jurisdiction of the Court” 13. In Fisheries Jurisdiction, the Court held
that reservations “should be interpreted in a manner compatible with the
eﬀect sought by the reserving State” 14. In the same case, the Court rejected
an interpretation that “[ran] contrary to a clear text” 15. It also held that
“there is no reason to interpret [reservations] restrictively” 16.

   17. Kenya’s reservation excludes the jurisdiction of the Court in
“[d]isputes in regard to which the parties to the dispute have agreed or
shall agree to have recourse to some other method or methods of
settlement” 17. Given this lucid and unambiguous text, it would be wholly
unreasonable to conclude that the optional clause declarations between
Kenya and Somalia constitute an agreement that falls within the scope of
Article 282 when Part XV of UNCLOS sets out in Article 287 other
methods of settlement. Such a conclusion is plainly not compatible “with
the eﬀect sought by the reserving State” — Kenya. It ﬂies in the face of
the “natural and reasonable way of reading the text” 18 of the reservation,
which is an integral part of Kenya’s declaration. The consensual element
necessary for an agreement on the basis of the optional clause declarations
cannot take root in the environment disturbed by Kenya’s reservation.

   18. The majority’s main argument has two subsets. The ﬁrst relates to
the question of circularity in reasoning. The majority appears to accept
Somalia’s argument that Kenya’s approach to the interpretation of Arti-
cle 282 leads to circularity in reasoning, because, according to Somalia,
Kenya’s reservation to its optional clause declaration leads to Part XV of
UNCLOS, “which, in turn (by virtue of Article 282) could lead back to
the optional clause declaration, with the back and forth continuing indef-
initely” (Judgment, para. 113).

   19. In my view this argument is unmeritorious. Once Article 282 is
reached in the circle, the reasoning ends with the conclusion that the Arti-
cle does not apply, leaving undisturbed the application of Kenya’s reser-
vation. There is no circularity.

   13 Anglo-Iranian Oil Co. (United Kingdom v. Iran), Preliminary Objection, Judgment,

I.C.J. Reports 1952, p. 104.
   14 Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment,

I.C.J. Reports 1998, p. 455, para. 52. Cited in present Judgment, para. 118.
   15 Ibid., p. 464, para. 76.
   16 Ibid., p. 453, para. 44.
   17 See supra note 1.
   18 See supra note 13.

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73              maritime delimitation (diss. op. robinson)

   20. The second subset of the main argument of the majority is set out
in paragraph 129 of the Judgment. It makes the point that up to the time
the Third United Nations Conference on the Law of the Sea ended
in 1982,
     “more than half of the then-existing optional clause declarations con-
     tained a reservation with an eﬀect similar to that of Kenya’s reserva-
     tion . . . there is no indication in the travaux préparatoires of an
     intention to exclude from the scope of Article 282 the majority of
     optional clause declarations, i.e., those containing such reservations.
     It remains the case today that such reservations are found in more
     than half of the optional clause declarations in eﬀect.” (Judgment,
     para. 129.)
   21. This is a weak argument and it is the only substantial one advanced
in the Judgment to support the conclusion that the phrase “or otherwise”
was intended to cover optional clause declarations with the Kenyan-type
reservation.

   22. In 1973, at the start of the Law of the Sea negotiations, of the
46 optional clause declarations 26 (56.5 per cent) had reservations with an
eﬀect similar to that of Kenya’s (Kenyan-type reservations), a little more
than half of the optional clause declarations; in 1982 at the end of the
United Nations Conference on the Law of the Sea, of the 47 optional
clause declarations 26 (55.3 per cent) had Kenyan-type reservations, a
little more than half of the optional clause declarations. In the nine-year
period Kenyan-type reservations amounted to somewhere between
54.3 per cent (25 October 1979 — 31 July 1980) and 56.5 per cent
(26 November 1973 — 9 January 1974) of optional clause declarations 19.
It is on this slender and wholly unreliable basis that the majority mounts
its argument that the phrase “or otherwise” was intended to cover decla-
rations with Kenyan-type reservations.
   23. Although the majority’s numerical focus is deeply ﬂawed, one can-
not help but engage with that approach if only to observe that the major-
ity to which it clings is not a signiﬁcant one; the majority is not one that
reﬂects 70 per cent, 80 per cent, or 90 per cent of the optional clause dec-
larations in existence at the relevant time; it does not even reﬂect
60 per cent. It is somewhere between 54.3 per cent and 56.5 per cent,
barely a majority.
   But let us examine the soundness of the conclusion in paragraph 129.
What if the Kenyan-type reservations amounted to less than half of the
optional clause declarations, say 49 per cent? The mechanical approach
of the majority would seem to require that the travaux préparatoires be
construed as intending to exclude those reservations from the scope of

   19 I.C.J. Yearbook 1972-1973, No. 27, pp. 52-82; I.C.J. Yearbook 1973-1974, No. 28,

pp. 49-80; I.C.J. Yearbook 1979-1980, No. 34, pp. 51-84; and I.C.J Yearbook 1982-1983,
No. 37, pp. 56-89.

75

74             maritime delimitation (diss. op. robinson)

Article 282, with the result that the Court would lack jurisdiction. How-
ever, there is no rational basis for this distinction. The travaux prépara-
toires cannot properly be construed as not intending to exclude the
Court’s jurisdiction in relation to Kenyan-type reservations constituting
54.3 per cent to 56.5 per cent of the optional clause declarations while
intending to exclude the Court’s jurisdiction when those reservations con-
stitute 49 per cent of the optional clause declarations.

   24. The approach of the majority is untenable. Whether the travaux
préparatoires are to be understood as including or excluding reservations
to optional clause declarations does not depend on the number of
Kenyan-type reservations made between 1973 and 1982. It is an oversim-
pliﬁcation and an error to reduce the issue to one of numbers. What is
called for is not a quantitative assessment but a qualitative evaluation of
the impact of the reservation on the optional clause declarations and
thus, on whether there is an agreement that falls within the scope of Arti-
cle 282 of UNCLOS.
   The signal failure of this Judgment is its refusal to carry out such an
evaluation.
   25. The Kenyan-type reservation exists in a universe of reservations
made between 1973 and 1982. It should not be considered in isolation.
Since the majority has a majoritarian ﬁxation it would seem that the rea-
soning in paragraph 129 would also lead to the conclusion that the
travaux préparatoires should be construed as evidencing an intention to
exclude from the scope of Article 282 optional clause declarations with
reservations diﬀerent from that of Kenya, but which, unlike Kenya’s, do
not constitute the majority of the universe of declarations in the relevant
period. For example, of the many reservations to optional clause declara-
tions that existed in 1973, 21 States had reservations regarding disputes
relating to questions which fall exclusively within the domestic jurisdic-
tion of a State and nine States had reservations regarding disputes relat-
ing to hostilities, armed conﬂict and belligerent activities 20. These are
weighty reservations and I note that the former set of reservations consti-
tuted 45.7 per cent of the then-existing optional clause declarations — a
not insubstantial percentage. Again, the numerical criterion of the major-
ity cannot provide a rational basis for distinguishing between Kenyan-type
reservations and the last mentioned reservations.
   26. It is not reasonable to conclude that the States parties intended the
phrase “or otherwise” to include optional clause declarations with such
weighty reservations, because they must be taken as knowing that reser-
vations do have an impact on optional clause declarations. It is more
reasonable to conclude that the intention was that the phrase “or other-
wise” included optional clause declarations that reﬂect the substance of
the text of Article 36, paragraph 2, without more, that is, without reserva-

  20 I.C.J. Yearbook 1972-1973, No. 27, pp. 52-82 and I.C.J. Yearbook 1973-1974,

No. 28, pp. 49-80.

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75                 maritime delimitation (diss. op. robinson)

tions. I note that in 1982, there were 16 such optional clause declarations
in existence 21.
   27. It is as though the majority takes the position that the intention of
the States parties to UNCLOS should be ascertained on the basis that
they treated reservations as having no legal signiﬁcance. It is improbable
that this could have been their approach.
   28. In paragraph 128, the majority instances a situation in which a res-
ervation to an optional clause declaration “excluded disputes concerning
a particular subject” such as “disputes relating to maritime delimitation”.
The majority is, of course, correct in concluding that in such a situation
there would be no agreement to the Court’s jurisdiction and that the pro-
cedures under Part XV of Section 2 would apply. However, it is impor-
tant to appreciate why that conclusion is correct. It is not correct merely
because the language used is express and speciﬁc in identifying the
subject-matter of the reservation. Rather, it is correct because the eﬀect
of the reservation is to prevent the emergence of the “consensual bond” 22,
“consensual aspect” 23 or mutuality of commitment, the vital element of
optional clause declarations conferring jurisdiction on the Court. The
point is that irrespective of how the reservation is worded, the Court must
examine its impact on the optional clause declaration and in particular
must determine whether, in light of that impact, it can be maintained that
the States in question have consented to the jurisdiction of the Court. The
Court must carry out this examination even when, as in the case of the
example given, the language is speciﬁc and apparently crystal clear.

  29. According to the Court’s jurisprudence, a reservation is an integral
part of an optional clause declaration and, as previously noted 24, the
Court has pronounced on how reservations are to be interpreted. It is
only after interpreting Kenya’s reservation that a conclusion could be
arrived at as to whether its optional clause declaration, inclusive of its
reservation, in conjunction with the optional clause declaration of
Somalia, constitute an agreement within the scope of Article 282 of
UNCLOS.
  30. In my view, as stated earlier 25, the scope of the phrase “or other-
wise” is conﬁned to optional clause declarations that reﬂect the substance
of the text of Article 36, paragraph 2, of the Court’s Statute. Therefore, if
two States have optional clause declarations that are, in substance, con-
ﬁned to the provisions of paragraph 2, those optional clause declarations
constitute an agreement that falls within the scope of Article 282 and it is
entirely reasonable to understand the travaux préparatoires to refer to
such optional clause declarations. But it is wrong to understand the refer-

     21 I.C.J. Yearbook 1982-1983, No. 37, pp. 56-89.
     22 Supra note 10.
     23 Supra note 6.
     24 Paragraphs 13, 14 and 16 of the present opinion.
     25 Paragraph 12 of the present opinion.

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76                  maritime delimitation (diss. op. robinson)

ences in the travaux préparatoires to cover optional clause declarations
with reservations when there is not a scintilla of evidence to indicate that
the drafters of UNCLOS had given any thought whatsoever to those res-
ervations.
   31. In this regard, I ﬁnd inarguable the point made in the oral proceed-
ings that optional clause declarations only prevail over Part XV of
UNCLOS when they are made “in the same terms” 26. Clearly this conclu-
sion, which calls for substantive rather than literal similarity, excludes
optional clause declarations to which one party has attached a
Kenyan-type reservation. It is signiﬁcant that in none of the passages of
the ﬁve authors cited earlier 27 is there any mention of a reservation to an
optional clause declaration. I ﬁnd persuasive the explanation for that
omission oﬀered in oral argument: there was no need to elaborate because
it was obvious to the authors that Article 282 would not apply to an
optional clause declaration with the Kenyan-type reservation 28.

  32. The subsidiary argument advanced by the majority for rejecting
Kenya’s position is set out in paragraph 132 of the Judgment, where it is
held that
             “A ﬁnding that the Court has jurisdiction gives eﬀect to the intent
          reﬂected in Kenya’s declaration, by ensuring that this dispute is sub-
          ject to a method of dispute settlement. By contrast, because an agreed
          procedure within the scope of Article 282 takes precedence over the
          procedures set out in Section 2 of Part XV, there is no certainty that
          this intention would be fulﬁlled were this Court to decline jurisdiction
          (see also Article 286 of UNCLOS).”
   33. The Court has also cited the Permanent Court of International Jus-
tice’s (PCIJ) Judgment in Factory at Chorzów in which that Court held
that
          “the Court, when it has to deﬁne its jurisdiction in relation to that of
          another tribunal cannot allow its own competency to give way unless
          confronted with a clause which it considers suﬃciently clear to pre-
          vent the possibility of a negative conﬂict of jurisdiction involving the
          danger of a denial of justice” 29.
  34. The Court has to be careful that it does not employ reasoning that
defeats one of the main goals of the UNCLOS States parties in construct-
ing the dispute settlement system in Part XV. The States parties did not
wish to give any particular prominence to the International Court of Jus-

     26
      CR 2016/10, Kenya (Boyle), p. 56, para. 8.
     27
      Paragraph 9 of the present opinion.
   28 CR 2016/12, Kenya (Boyle), p. 28, para. 5.
   29 Factory at Chorzów, Jurisdiction, Judgment No. 8, 1927, P.C.I.J., Series A, No. 9,

p. 30 (Claim for Indemnity).

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77              maritime delimitation (diss. op. robinson)

tice in the dispute settlement system. In fact, a proposal by Switzerland
and the Netherlands to place the ICJ at the head of the list of fora in
Article 287 “did not ﬁnd suﬃcient support . . . and was withdrawn” 30.
The UNCLOS States parties did not wish the ICJ to be the only dispute
settlement mechanism nor did they wish it to be the default mechanism.
Hence, Article 287 of UNCLOS sets out a menu of options, including the
ICJ, and the default mechanism is arbitration under an Annex VII Tribu-
nal set up pursuant to Part XV of UNCLOS.
   35. It is of course correct as a statement of law that an agreed proce-
dure within the scope of Article 282 prevails over the procedures of
Part XV of UNCLOS. But that does not necessarily mean that, should
the Court decline jurisdiction, an Annex VII Tribunal would not ﬁnd that
it has jurisdiction. The Tribunal’s decision will depend on whether it ﬁnds
that in the circumstances of this case there is an agreed procedure that
falls within the scope of Article 282. It will only decline jurisdiction if it
ﬁnds that there is such a procedure. In my submission, it is most probable
that, by reason of the unambiguous wording of Kenya’s reservation and
the existence of alternative fora in Article 287 of UNCLOS, an Annex VII
Tribunal would ﬁnd that it has jurisdiction. In any event, the Court
should not indulge in speculation. The Court’s function is to determine
whether on the basis of the law and facts the Annex VII Tribunal or the
Court itself has jurisdiction. Speculation that the Tribunal will not accept
jurisdiction is not a suﬃcient reason for the Court to conclude that it has
jurisdiction; neither is it a suﬃcient reason for the Court to determine
that the Annex VII Tribunal does not have jurisdiction. It is simply not a
proper consideration.
   36. Paragraph 132 of the Judgment may be viewed by some as merely
a self-serving ﬁnding favouring the jurisdiction of the Court. The Court’s
Judgment has, in eﬀect, turned Article 287, paragraph 3, of UNCLOS on
its head by treating the ICJ as the default mechanism, when that provi-
sion assigns that role to the Annex VII Tribunal.

   37. In the circumstances of this case the dictum of the PCIJ set out in
paragraph 33 of this opinion is inapplicable since the provisions of
Part XV, in particular Article 287, are suﬃciently clear “to prevent the
possibility of a negative conﬂict of jurisdiction involving the danger of a
denial of justice”. As we have seen, Kenya and Somalia will, by virtue of
Article 287, paragraph 3, have access to arbitration under Annex VII.
Thus, there is no possibility of a “denial of justice” on the basis that,
should the Court ﬁnd that it has no jurisdiction, the two States would be
left without a dispute settlement mechanism.
   38. In conclusion, the analysis in this opinion shows that, by reason of
Kenya’s reservation, the optional clause declarations of the Parties do not

   30 Doc. SD/1 (1978, mimeo.) (Netherlands and Switzerland). Reproduced in Vol. XII,

Platzöder, p. 234. Cited in Virginia Commentary, supra note 3, p. 44, para. 287.6.

79

78                   maritime delimitation (diss. op. robinson)

constitute an agreed procedure under Article 282 of UNCLOS; Kenya’s
purposeful reservation becomes applicable with the result that, within the
meaning of Certain Norwegian Loans 31, there is no coincidence between
the optional clause declarations of Kenya and Somalia in conferring
jurisdiction on the Court; Article 282 does not provide a basis for the
Court’s jurisdiction; in terms of Kenya’s reservation, the procedures set
out in Article 287 constitute methods of settlement other than the Court;
since neither Kenya nor Somalia has selected a procedure under Arti-
cle 287, paragraph 1, by virtue of Article 287, paragraph 3, they are
deemed to accept Annex VII arbitration as a method of settlement.

  39. In light of the foregoing, I would have ruled in favour of Kenya’s
submission that the reservation it made to its optional clause declaration
under Article 36, paragraph 2, of the Court’s Statute excludes the Court’s
jurisdiction in this case.

                                               (Signed) Patrick Robinson.

     31   See supra note 12.

80