136

DISSENTING OPINION OF JUDGE HACKWORTH

The controversy between the United Kingdom and Iran in its
present stage relates exclusively to the question whether the Court
has jurisdiction to entertain the complaint of the United Kingdom
that its national, the Anglo-Iranian Oil Company, has been denied,
through the nationalization of its properties in Iran in 1951, treat-
ment in conformity with international law. Iran denies, and the
United Kingdom affirms, that the Court is competent to entertain
the complaint.

The Iranian Declaration accepting compulsory jurisdiction of the
Permanent Court of International Justice, under Article 36 of its
Statute (now applicable to this Court under Article 36 (5) of the
present Statute) was signed on October 2nd, 1930. It was approved
by a legislative act on June 14th, 1931, and ratification of the
Declaration was notified to the League of Nations on Septem-
ber 19th, 1932.

The pertinent part of the Declaration states that compulsory
jurisdiction of the Court is accepted, on condition of reciprocity,
with respect to:

“\... any disputes arising after the ratification of the present decla-
ration with regard to situations or facts relating directly or indirectly
to the application of treaties or conventions accepted by Persia
and subsequent to the ratification of this declaration”.

The present controversy revolves around the question whether
this Declaration relates to treaties and conventions generally, to
which Iran is a party, or only to those to which that country has
become a party since the ratification of the Declaration.

%
* *

I agree with the conclusion of the Court that the Declaration
applies only to treaties and conventions accepted by Iran subsequent
to the ratification of its Declaration. I do not, however, consider
that, in reaching this conclusion, it was necessary or even permis-
sible for the Court to rely upon the Iranian Parliamentary Act of
approval as evidence of the intention of the Iranian Government,
since that was a unilateral act of a legislative body of which other
nations had not been apprised. National courts may, as a matter
of course, draw upon such acts for municipal purposes, but this
Court must look to the public declarations by States made for inter-
national purposes, and cannot resort to municipal legislative enact-

47
137 DISSENTING OPINION OF JUDGE HACKWORTH

ments to explain ambiguities in international acts. The fact that
this was a public law which was available after 1933 to people who
might have had the foresight and the facilities to examine it, is no
answer. When a State deposits with an international organ a docu-
ment, such as a declaration accepting compulsory jurisdiction of
the Court, upon which other States are expected to rely, those
States are entitled to accept that document at face value ; they are
not required to go back to the municipal law of that State for expla-
nations of the meaning or significance of the international instru-
ment. Such a procedure would in many cases lead to utter confusion.
This is not a case of drawing upon the travaux préparatoires of a
bilateral or multilateral agreement to explain ambiguities. Had the
Act of Parliament been attached to the instrument of ratification
filed by Iran with the League of Nations, a different situation would
have been presented. Other States would thus have been on notice
of the discrepancy between the Declaration and the act of approval.
But this was not done.

I also agree with the Court that the Concession Agreement
between Iran and the Anglo-Iranian Oil Company, Limited, of 1933,
cannot be regarded as a treaty or convention in the international
law sense, and consequently cannot be regarded as coming within
the purview of the Iranian Declaration.

*
* *

I regret that I cannot agree with the conclusion of the Court
that the United Kingdom is not entitled for jurisdictional purposes,
to invoke, by virtue of the most-favoured-nation clauses in earlier
treaties between that country and Iran, provisions of treaties
concluded by Iran with other countries subsequent to the ratifi-
cation of its Declaration accepting jurisdiction of the Court.

The conclusion that the treaty containing the most-favoured-
nation clause is the basic treaty upon which the United Kingdom
must rely amounts, in my judgment, to placing the emphasis on
the wrong treaty, and losing sight of the principal issue. The
gravamen of the complaint of the United Kingdom Government
is that Iran has not accorded to a British national, the Anglo-
Iranian Oil Company, the benefits of international law and that,
as a result, the Company has suffered a denial of justice. The
provisions with respect to the application of the principles of
international law are not to be found in the most-favoured-nation

48
138 DISSENTING OPINION OF JUDGE HACKWORTH

clause of the earlier treaties of 1857 and 1903 between Iran and the
United Kingdom, but are embodied in the later treaties between
Iran and Denmark of 1934 ; between Iran and Switzerland of that
same year, and between Iran and Turkey of 1937. It is to these
treaties and not to the most-favoured-nation clause that we must
look in determining the rights of British nationals in Iran. These then
are the basic treaties. The most-favoured-nation clause in the earlier
treaties is merely the operative part of the treaty structure involved
in this case. It is the instrumentality through which benefits under
the later treaties are derived. It is in these later treaties that we
find the ratio decidendi of the present issue.

This conclusion will the more clearly appear if we further examine
the treaty provisions in the light of what has just been said.

Article IX of the Treaty of Peace of March 4th, 1857, between
Great Britain and Persia, provides :

“The High Contracting Parties engage that, in the establishment
and recognition of Consuls-General, Consuls, Vice-Consuls and
Consular Agents, each shall be placed in the dominions of the
other on the footing of the most-favoured nation ; and that the
treatment of their respective subjects, and their trade, shall also,
in every respect, be placed on the footing of the treatment of the
subjects and commerce of the most-favoured nation.”

Similar provisions are contained in Article 2 of the Commercial
Convention of May 27th, 1903, between the two countries.

This is not a unique most-favoured-nation clause, peculiar to a
capitulatory régime, such as obtained in Persia during that era.
It is wholly reciprocal in character. It is the sort of provision that
is to be found in many treaties of commerce and navigation,
ancient and modern. But that which is even more significant is the
fact that in 1928, at a time when Persia was terminating the extra-
territorial privileges of aliens, there was an exchange of notes, on
May Ioth, between the British Minister to Persia and the Persian
Acting Foreign Minister, by which it was agreed that the most-
favoured-nation provisions of Article IX of the Treaty of 1857
should remain in force. This has not been questioned by Iran.

The Treaty of Friendship, Establishment and Commerce,
concluded between Iran and Denmark on February zoth, 1934,
provides in Article IV that :

“The nationals of each of the High Contracting Parties shall,
in the territory of the other, be received and treated, as regards
their persons and property, in accordance with the principles and

49
139 DISSENTING OPINION OF JUDGE HACKWORTH

practice of ordinary international law. They shall enjoy therein
the most constant protection of the laws and authorities of the
territory, for their persons, property, rights and interests.”

Similar provisions are contained in Article I of the Establishment
Convention of April 25th, 1934, between Iran and Switzerland, and
in Article I of the Establishment Convention of March 14th, 1937,
between Iran and Turkey.

It will thus be apparent, using the Danish Treaty as the criterion,
that Danish nationals in the territory of Iran and their property
are entitled by Article IV of the Treaty of 1934 to be treated “in
accordance with the principles and practice of ordinary inter-
national law’.

The United Kingdom is entitled, by virtue of the most-favoured-
nation provisions quoted above, to claim for British nationals in
Iran no less favourable treatment than that promised by Iran to
Danish nationals.

The Government of the United Kingdom has contended that the
treatment accorded by Iran to the Anglo-Iranian Oil Company is
not in keeping with the requirements of international law, and has
invoked the Danish Treaty.

The Court is not called upon to say whether this contention is
or is not warranted. It need only say, for present purposes, whether
these treaty provisions to which Iran has subscribed bring the case
within the purview of the Iranian Declaration accepting compul-
sory jurisdiction of the Court.

I readily agree with the majority that the most-favoured-nation
provisions of the earlier treaties and the provisions of the later
treaties are interrelated and must be considered together in order
that benefits under the latter may be claimed. But I cannot accept,
for reasons which follow, the conclusion that the necessity for
invoking the earlier treaties as a means of claiming benefits under
the later ones, constitutes a bar to the exercise of jurisdiction by
the Court under the Iranian Declaration. This it seems to me is
giving far more weight to the restrictive features of the Iranian
Declaration than is warranted.

One cannot dispute the fact that the jurisdiction of the Court is
a limited one. Acceptance of jurisdiction by States is purely a
voluntary act on their part; and it necessarily follows that, unless
a State has by special agreement, by treaty or convention, or by a
declaration made under the Optional Clause of Article 36, para-
graph 2, of the Statute, accepted jurisdiction, the Court is without
jurisdiction.

On the other hand, when a State has filed a declaration under the
Optional Clause of Article 36 of the Statute accepting jurisdiction,
it has performed a voluntary act. It has voluntarily and unilaterally

50
140 DISSENTING OPINION OF JUDGE HACKWORTH

notified the world that it is prepared to submit certain classes of
disputes to judicial examination by this Court.

Iran took full advantage of its liberty of action under the Statute
by submitting a declaration, adroitly drafted, limited in scope to a
comparatively narrow category of cases, and further safeguarded
by three specific exceptions and a reservation, not pertinent to the
present discussion. We are concerned with the meaning and scope
of this Declaration. Precisely we are concerned with the meaning of
the undertaking by Iran to accept the jurisdiction of the Court with
respect to disputes arising after ratification of the Declaration with
regard to situations or facts

‘... relating directly or indirectly to the application of treaties or
conventions accepted by Persia and subsequent to the ratification
of this declaration”.

It is common knowledge that this dispute arose after ratification
of the Declaration. It is also common knowledge that it relates
“directly or indirectly” to the application of treaties or conventions
accepted by Iran. The pivotal question is whether the treaties or
conventions relied upon by the United Kingdom were accepted by
Iran “‘subsequent to ratification” of the Declaration.

It is no part of the functions of the Court to give to such a decla-
ration a broader meaning or a more restrictive meaning than the
State itself has seen fit to prescribe. Our duty is to find that plain
and reasonable meaning which more nearly comports with the
purpose of the State as disclosed by the language which it itself
has employed.

I find nothing in the Iranian Declaration to suggest that it is
necessary that action under it shall be premised exclusively on a
single treaty. I find nothing to suggest that it is necessary that such
an action shall be based on a treaty between the plaintiff State and
the defendant State. The Declaration, though drafted with meticu-
lous safeguards, does not specify any such condition, nor does it
specify that in considering a dispute as to the application of a
treaty or convention accepted by Iran subsequent to the ratification
of the Declaration, an earlier treaty may not be drawn upon. This
would indeed have been a strange limitation. All that the Declara-
tion requires in order that the dispute shall fall within the com-
petence of the Court, is that it shall relate to the application of
treaties or conventions accepted by Iran subsequent to the ratifica-
tion of the Declaration, and nothing more.

The Danish Treaty answers this description. It is in that Treaty
and not in the most-favoured-nation clause that the substantive

51
I4I DISSENTING OPINION OF JUDGE HACKWORTH

rights of British nationals are to be found. Until that Treaty was
concluded, the most-favoured-nation clauses in the British-Persian
treaties were but promises, in effect, of non-discrimination, albeit
binding promises. They related to rights in futuro. There was a
right to claim something but it was an inchoate right. There was
nothing to which it could attach itself unless and until favours should
be granted to nationals of another country. But when Iran conferred
upon Danish nationals by the Treaty of 1934 the right to claim
treatment ‘“‘in accordance with the principles and practice of ordi-
nary international law”, the right thereupon 2pso facto became
available to British nationals. This new right—based on inter-
national law concepts—came into existence not by virtue of the
earlier treaties alone or even primarily, but by them plus the new
treaties which gave them vitality. The new treaty is, in law and in
fact, the fountain-head of the newly-acquired rights.

*
* *

To summarize, the United Kingdom has a right to claim the
benefits of the Danish Treaty of 1934. It matters not that that
right was acquired through the operation of a most-favoured-nation
clause of a treaty anterior to the ratification of the [ranian Declara-
tion. The important thing is that it is a right acquired subsequent
to ratification of that Declaration. It is the later treaty, and not the
most-favoured-nation clause, that embraces the assurance upon
which reliance is sought to be placed. A conclusion that jurisdiction
does not lie, amounts, in my judgment, to giving to the restrictive
features of the Iranian Declaration a more far-reaching scope than
is warranted by the language there used.

(Signed) HACKWORTH.

52


212

SEPARATE OPINION OF JUDGE SHAHABUDDEEN

[have voted in favour of the Advisory Opinion but consider it necessary
to explain my position on four aspects. These relate to: (i) the priority
basis of the request; (ii) Romania’s reservation to the Convention on the
Privileges and Immunities of the United Nations, 1946; (iii) Romania’s
case relating to Mr. Mazilu’s state of health; and (iv) the applicability of
the Convention to enable an expert to leave his State of nationality or resi-
dence in connection with his mission.

J. THE PRIORITY BASIS OF THE REQUEST

The first aspect concerns the Order of Court of 14 June 1989, as referred
to in paragraph 3 of the Advisory Opinion. As appears from the Order, “in
fixing time-limits for the proceedings” it was found “necessary to bear in
mind that the request for opinion was expressed to be made ‘on a priority
basis’” (.C.J. Reports 1989, p. 10). The dossier shows that the introduction
of those last four quoted words in the formulation of the request was the
subject of specific challenge in the proceedings of ECOSOC on the
ground “that the Council was not empowered to give the Court guidelines
with regard to priorities when it did not know what other questions the
Court had before it ...” (Dossier, doc. No. 98, p. 2, per Mr. Mikulka,
Czechoslovakia, May 1989). I do not think that the challenge was well
founded, but it does raise a point of sufficient importance to require me to
say that, in my opinion, it is always for the Court, while giving due and
proper weight to any representations by a requesting body, to decide in its
own discretion whether the circumstances of any particular case justify a
priority hearing. The question has been helpfully noticed by the commen-
tators, but I would like to state an approach limited to the level of certain
general principles.

As is suggested by the case of the Trial of Pakistani Prisoners of War,
Interim Protection (I.C.J. Reports 1973, p. 330, paras. 10-14), the eligibility
of a new case to be heard in priority to other pending cases presupposes
urgency, and the Court remains competent to adjudicate on urgency even
where a case formally falls within a category of priority prescribed by the
Rules of Court. This, I apprehend, is because of the overriding judicial
character of the Court as established by the Charter and the Statute, with

39
213 PRIVILEGES AND IMMUNITIES (SEP. OP. SHAHABUDDEEN)

both of which the Rules of Court must of course conform in their provi-
sions, as well as in their interpretation and operation.

As I read the travaux préparatoires relating to the establishment of the
Permanent Court of International Justice, they show that, in contradis-
tinction to the Permanent Court of Arbitration accommodated under the
same roof, the former was intended to be a court of justice as normally
understood. That key concept, though derived from municipal law, was
intended to be generally controlling and, indeed, its primacy has been
repeatedly affirmed both by that Court and by this. The chief character-
istic of a court of justice is that it is invested with judicial power. In the
normal case, some external agency possessed of appropriate legislative
competence over the jurisdiction of a court, or, failing that (as in this
case), the machinery competent to amend the constitution of the court,
may well have authority to modify the extent of the court’s original
endowment of judicial power; but, however that may be, the court itself
is powerless to alienate any part of its grant. Even when account is
taken of the usual caution relating to the transposition of municipal
law concepts to the plane of international law, it seems unpersuasive to
appeal to the international status of an international court of justice to
suggest that on so fundamental a matter such a court is exempt from the
restraints applicable to courts of justice as generally understood.

A decision to hear a new case in priority to other pending cases has
consequences both for the hearing of the new case and for that of the
others, and hence for the good administration of justice. Such a decision
pertains to, and forms part of, the Court’s judicial power. Accordingly,
the Court’s rule-making competence would not embrace the transfer to a
party or to an entity in an analogous position, of any part of the power of
the Court to determine questions relating to priority (the right to submit
any views being another matter). This would be so even in an advisory
case, given the essential judicial character of the Court. True, in such cases
“the reply of the Court, itself an ‘organ of the United Nations’, represents
its participation in the activities of the Organization” (Interpretation of
Peace Treaties with Bulgaria, Hungary and Romania, I.C.J. Reports 1950,
p. 71); but, of course, it is as a court of justice that the Court participates.
The Court no doubt has autonomy in the exercise of its rule-making
competence; but, however extensive its autonomy, its competence is not
unbounded. A clear and definite limit is discovered by the reflection that,
however generously it may be construed, the Court’s rule-making compe-
tence was intended to be used for the purpose of regulating the exercise of
the Court’s judicial power, not for the purpose of disposing of it. The
Rules of Court are made, and are intended to be read, on the basis of.this
understanding. The Court remains free, therefore, to determine the need
for priority in all cases.

40
214 PRIVILEGES AND IMMUNITIES (SEP. OP. SHAHABUDDEEN)
Il. THE ROMANIAN RESERVATION TO THE GENERAL CONVENTION

Paragraphs 29 to 36 of the Advisory Opinion deal with Romania’s con-
tention that the absence of its consent bars recourse to the advisory juris-
diction of the Court under Article 96 of the Charter. As the Advisory
Opinion suggests, Romania logically can only be taking that position if it
is also taking the position that its reservation to Section 30 of the General
Convention is applicable to the Charter so as to impose a requirement for
consent as a pre-condition to recourse to that jurisdiction. I agree with the
Court in not accepting this contention but would like to give my reasons.

Aside from the question whether the Charter admits of reservations and
apart from the difficulty presented by the notion of a reservation being
made to a treaty (in this case, the Charter) by a State after it has become a
party to the treaty, it seems to me that the idea of a reservation to one treaty
operating also as a reservation to another treaty is essentially not right. In
the Nuclear Tests (Australia v. France) case (I.C.J. Reports 1974, p. 253) the
Court had before it a contention that certain reservations contained in a
declaration by France accepting the compulsory jurisdiction of the Court
under Article 36, paragraph 2, of the Statute applied also to its obligations
under the General Act for the Pacific Settlement of International Dis-
putes, 1928. Referring to this contention and to Article 2, paragraph 1 (d),
of the Vienna Convention on the Law of Treaties, 1969, the joint minority
opinion (Judges Onyeama, Dillard, Jiménez de Aréchaga and Sir
Humphrey Waldock) observed:

“in principle, a reservation relates exclusively to a State’s expression
of consent to be bound by a particular treaty or instrument and to the
obligations assumed by that expression of consent. Consequently,
the notion that a reservation attached to one international agreement,
by some unspecified process, is to be superimposed upon or trans-
ferred to another international instrument is alien to the very concept
of a reservation in international law; and also cuts across the rules
governing the notification, acceptance and rejection of reserva-
tions.” (Ibid, p. 350.)

The correctness of this statement of principle is scarcely open to
challenge.

The effect of the Romanian reservation is on Section 30 of the Conven-
tion alone. By contrast, competence to request an advisory opinion is
regulated exclusively by Article 96 of the Charter. Section 30 of the Con-
vention does not and cannot confer a competence on anyone to request
an advisory opinion; the Section is hinged on any such competence con-
ferred by or under Article 96 of the Charter. All that Section 30 of the
Convention does is to make it compulsory for the body vested with
appropriate competence by or under Article 96 of the Charter to exercise
that competence in relation to certain differences, and incumbent on the

41
215 PRIVILEGES AND IMMUNITIES (SEP. OP. SHAHABUDDEEN)

parties to such differences to accept the resulting advisory opinion as
“decisive”. The action of the reservation is exerted on these two addi-
tional features and not on the Court’s jurisdiction under Article 96 of the
Charter. If, because of the reservation, these two features fall away in
the case of Romania, the jurisdiction under Article 96 of the Charter
remains, as before, unaffected by the reservation. And this, it should be
added, is putting at its highest Romania’s view of the extent to which
the reservation affects Section 30 of the Convention — a view that is
open to dispute but which I agree with the Court it is not necessary to
examine (see paragraph 34 of the Advisory Opinion).

In sum then, while agreeing with paragraph 36 of the Advisory Opinion
that “the reservation made by Romania to Section 30 of the General Con-
vention does not affect the Court’s jurisdiction to entertain the present
request”, I would like to add that the reservation does not affect that juris-
diction because it simply cannot.

TIT. ROMANIA’S CASE RELATING TO MR. MAZILU’S
STATE OF HEALTH

On the question of Mr. Mazilu’s state of health, I agree with the finding
made in paragraph 59 of the Advisory Opinion to the effect “that it was for
the United Nations to decide whether in the circumstances it wished to
retain Mr. Mazilu as special rapporteur .. .”; but, apart from the circum-
stance that that proposition is so self-evident that I hesitate to interpret the
material as credibly evidencing an intention by Romania to dispute it, it
appears to me that the Romanian argument on this branch of the case does
not necessarily depend on who has the right to retain Mr. Mazilu as
special rapporteur or to terminate his appointment on grounds of illness
(governmental appointments being another matter). What Romania
seems to be saying in its written statement to the Court, as I understand
it, is something different which may be expressed this way:

(i) even assuming that Mr. Mazilu was and continues to be an expert on
mission (as is found by the Court, with which I agree), illness so
wholly incapacitated him from carrying out his functions as to pre-
clude him from having any need for, and therefore any entitlement to,
the privileges and immunities provided for by the Convention, these
being functionally based; and

(ii) Romania has exclusive domestic jurisdiction over the health of its
nationals, with the consequence that, Romania having made its own
determination of Mr. Mazilu’s state of health, that determination is

42
216 PRIVILEGES AND IMMUNITIES (SEP. OP. SHAHABUDDEEN)

final for all purposes, and any attempt by the United Nations to
verify it within Romania or to act contrary to it would be an inter-
ference in Romania’s internal affairs (paras. 19 and 26 of the Advisory
Opinion; Dossier, doc. No. 61, para. 53, and doc. No. 64, para. 42;
Romania’s written statement to the Court, pp. 7-8; United States
written statement to the Court, p. 10; and the Secretary-General’s
written statement to the Court, paras. 17, 19 and 67).

If indeed this is the Romanian argument, it would not appear to be free
from difficulty. Mr. Mazilu’s status as a special rapporteur is based on a
relationship subsisting exclusively as between himself and the Sub-Com-
mission on Prevention of Discrimination and Protection of Minorities. A
decision as to whether a special rapporteur is in such a state of health as to
be incapable of functioning is one to be made by the Sub-Commission as
the employer. As a stranger in law to the relationship between the Sub-
Commission and Mr. Mazilu, Romania had no juridical basis for inter-
vening to impose its own opinion on the point. No doubt States ordinarily
have exclusive domestic jurisdiction over questions concerning the health
of their nationals and can and do intervene on such questions as between
employer and employee. But the settled jurisprudence of the Court makes
it clear that a matter which would normally be within a State’s domestic
jurisdiction ceases to be exclusively so to the extent to which it has come to
be also governed by any international obligations undertaken by the State
(see the Nationality Decrees Issued in Tunis and Morocco case, P.C.I.J.,
Series B, No. 4, pp. 21-24; the Acquisition of Polish Nationality case, P.C.LJ.,,
Series B, No. 7, p. 16; the Certain Norwegian Loans case, I.C.J. Reports
1957, pp. 37-38, per Judge Lauterpacht; and the Aegean Sea Continental
Shelf case, I.C.J. Reports 1978, pp. 24-25).

In my view, in agreeing to accord privileges and immunities to their
nationals for the purpose of enabling them to carry out their functions
when appointed as experts on missions, alternatively, by reason of their
being parties to the Charter and committed to promoting its objectives,
Member States by necessary implication conceded to the United Nations
aright in good faith (not questioned in this case) to determine the capacity
of such nationals, on grounds of ill health or otherwise, to continue to
carry out their functions. If the Romanian position is correct, the United
Nations would be wholly excluded from exercising that right once the
view was expressed by the State of nationality that an expert was too ill to
perform: It is not necessary, in my view, to consider what settlement
procedures might be available if a dispute were to arise as to whether the
United Nations was acting in good faith.

43
217 PRIVILEGES AND IMMUNITIES (SEP. OP. SHAHABUDDEEN)

IV. APPLICABILITY OF THE GENERAL CONVENTION TO ENABLE AN EXPERT TO
LEAVE His STATE OF NATIONALITY OR RESIDENCE IN CONNECTION WITH HIs
MISSION

The circumstance that the Court’s Advisory Opinion specifies some of
the more important privileges and immunities available to experts on
missions, and therefore to Mr. Mazilu as such an expert, does not perhaps
mesh entirely with the view presented by the Secretary-General to the
effect that “the Court ... has not been asked ... about what privileges and
immunities Mr. Mazilu might enjoy as a result of his status...” (Advisory
Opinion, para. 27). If the Court has in fact acted on a less sparing concep-
tion of the scope of the request, this is because, as it appears to me, the view
referred to is admissible not by way of modification of the scope of the
request, but only by way of interpretation, as it was of course intended;
and possible interpretations advanced before the Court do not restrict the
range of choice open to it as to the meaning of the governing text of the
resolution presenting the request (see the analogous approach taken in the
Factory at Chorzéwcase, P.C.LJT. Series A, No. 13, pp. 15-16; the Free Zones
of Upper Savoy and the District of Gex case, P.C.I.J., Series A, No. 22, p. 15,
and P.C.LJ., Series A/B, No. 46, p. 138; the South West Africa case,
I.C.J. Reports 1966, p. 354, per Judge Jessup, dissenting; 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 Jamahiriya), Judgment, I.C.J. Reports 1985,
p. 223).

In settling what interpretation is to be placed on the question before the
Court, it would seem best to approach the question “in the light of
the actual framework of fact and law in which it falls for consideration”
(Interpretation of the Agreement of 25 March 1951 between the WHO and
Egypt, I.C.J. Reports 1980, p. 76). That framework may be gathered from
the terms of the request viewed against the background material sub-
mitted by the Secretary-General in relation to the Sub-Commission’s own
resolution to which the request expressly refers (see the approach taken
by Judge Lauterpacht in the South West Africa case, I.C.J. Reports 1956,
p. 36). Interpreted this way, it is reasonably clear that the request is
intended to invite an answer not only as to whether Article VI, Section 22,
of the General Convention is applicable in principle “in the case of
Mr. Dumitru Mazilu as Special Rapporteur of the Sub-Commission”,
but also, if it is applicable, as to the way in which it is applicable in the
particular circumstances of that particular case. When the context and
structure of the request are considered, technical distinctions between the
concepts of “applicability” and “application” do not have the effect of
excluding these aspects, provided that the answer does not trench on any
question as to whether any particular privilege or immunity was violated.

In my view, therefore, the Advisory Opinion has correctly gone on to
identify particular privileges and immunities available to experts on

44
218 PRIVILEGES AND IMMUNITIES (SEP. OP. SHAHABUDDEEN)

missions, and hence to Mr. Mazilu as such an expert. But there is one par-
ticular right, namely, that relating to travel, which, I believe, merits closer
attention. This aspect is linked to paragraph 55 of the Advisory Opinion
which states that rapporteurs or special rapporteurs

“enjoy, in accordance with Section 22, the privileges and immunities
necessary for the exercise of their functions, and in particular for the
establishment of any contacts which may be useful for the prepara-
tion, the drafting and the presentation of their reports ...”.

I understand this as conveying, among other things, that experts on
missions, whether or not assigned to any particular place, are entitled to
invoke the privileges and immunities conferred by the Convention to
enable them to leave their State of nationality or residence in connection
with the performance of their missions. With this view I agree, but I should
like to give my reasons for supporting it with a degree of specificity com-
mensurate with the special, if not primary, interest which it manifestly has
for the requesting organ, as may be gathered from the several references to
it, on one aspect or another, in the Advisory Opinion itself (see paras. 11,
13, 14, 16, 17, 18, 21, 22, 24, 26, 49 and 52).

My reasons may be conveniently set out in relation to the Romanian
contention by which the issue was presented. Treating Mr. Mazilu as an
expert present in his own State but assigned to function elsewhere (a
position which I will assume for the sake of analysis), Romania submitted
that —

“Section 22 of the Convention provides that ‘experts . .. performing
missions for the United Nations shall be accorded such privileges
and immunities as are necessary for the independent exercise of their
functions’. Those provisions make it clearly apparent that an expert
is not accorded such privileges and immunities anywhere and every-
where, but only in the country to which he is sent on mission and
during the time spent on the mission, and also in the countries to
which he must transit when travelling to meet the requirements of the
mission. In the same way, the privileges and immunities only come
into existence from the expert’s time of departure, when he travels to
accomplish the mission. In so far as the expert’s journey to carry out
the mission for the United Nations has not begun, for reasons
entirely unconnected with his activity as an expert, there is no legal
basis upon which to lay claim to privileges and immunities under
the Convention, regardless of whether he is in his country of residence
or in another country, in a capacity other than that of an expert.

In the country of which he is a citizen, in the country where he has
his permanent residence, or in other countries where he may be for
reasons unconnected with the mission in question, the expert is only

45
219 PRIVILEGES AND IMMUNITIES (SEP. OP. SHAHABUDDEEN)

accorded privileges and immunities in relation to the content of the
activity in which he engages during his mission (including his spoken
and written communications).” (Romania’s written statement to the
Court, p. 6. And see Advisory Opinion, para. 24.)

I accept as accurate Romania’s statement “that an expert is not
accorded such privileges and immunities anywhere and everywhere” : their
functional character clearly excludes so wholesale and undiscriminating
an application. Where I have difficulty is in so far as it would seem to
follow from Romania’s position that an expert present in a Member State
who, for reasons entirely unconnected with his activity as an expert, has
not in fact begun his outward journey to carry out a mission falling to be
discharged elsewhere but who wishes to embark on such a journey, can-
not, as a matter of law, invoke those privileges and immunities to enable
him to commence the journey. This is because, on Romania’s argument,
so long as he has not begun his journey, he is not entitled to any privileges
and immunities apart from the limited and not relevant exception men-
tioned in its statement. So, the limited exception apart, not having begun
the journey, the expert has no privileges and immunities, and, not having
any privileges and immunities, he cannot enforce a right to begin the jour-
ney. Locked in within this system, the expert may well be unable to per-
form the mission which the privileges and immunities were intended to
enable him to perform. Possibly, so strange a result could collide with the
position taken by the Court as to the “duty [of a party to a treaty] not to
deprive [it] of its object and purpose” (Military and Paramilitary Activities
in and against Nicaragua, I.C.J. Reports 1986, p. 140, para. 280; cf. ibid.
p. 249, para. 79, per Judge Oda, dissenting). I propose, however, to
approach the matter in the following way.

In conferring privileges and immunities on experts “during. . . the time
spent on journeys in connection with their missions”, Article VI, Sec-
tion 22, of the Convention obviously regards the making of such a journey
as an essential step in the discharge of an expert’s mission, as, indeed, it
plainly is. Equally obviously, an expert may need to commence such a
journey from any Member State in which he happens to be, even if he is
there for a purpose wholly unconnected with his mission. Accordingly, his
entitlement under that provision to “such privileges and immunities as are
necessary for the independent exercise of [his] functions during the period
of” his mission would extend to enable him to embark on such a journey
undertaken in connection with the discharge of those functions. The
express reference to “privileges and immunities ... during ... the time
spent on journeys in connection with” his mission cannot be read as
meaning that privileges and immunities are available only if and when
such a journey is in fact in progress but not also for the purpose of en-
forcing a right to commence the journey in the first place.

46
220 PRIVILEGES AND IMMUNITIES (SEP. OP. SHAHABUDDEEN)

Under Article VII, Section 26, of the General Convention (referred to in
paragraph 43 of the Advisory Opinion) an expert is entitled to travelling
facilities (including the issue of any necessary visas) from a Member State
to which or through which he intends to go in connection with his mission.
In exercise of this entitlement, the expert may have applied to such a State
for visas and other facilities and secured them only to discover that he
cannot use them if he cannot rely on the privileges and immunities con-
ferred by Article VI, Section 22, of the Convention to enable him to leave a
Member State in which he happens to be present for a purpose uncon-
nected with his mission.

However strict may be the construction to be placed on provisions pro-
viding for privileges and immunities (see Alain Plantey, Droit et pratique
de la Fonction publique internationale, Paris, 1977, p. 409, para. 1298),
results as surprising as those indicated above suggest that the privileges
and immunities conferred on an expert by Article VI, Section 22, of the
Convention must, subject to the limitations prescribed in that Article,
be construed as extending to afford protection against all acts which
could frustrate their operation or empty them of real content, with the
consequence of effectively preventing the expert from embarking on or
resuming his mission. The dangers which proverbially lurk in the use of
maxims do not seem to forbid recourse in this case to the well-known
words quando lex aliquid alicui concedit concedere videtur et id sine quo
res ipsa esse non potest — when the law gives a man anything, it gives
him that also without which the thing itself cannot exist.

Explaining the rarity of references in the judgments of the Court to
arbitral decisions, Judge Charles De Visscher wrote:

“The rarity of such references is a matter of prudence; the Court
is careful not to introduce into its decisions elements whose hetero-
geneous character might escape its vigilance” (Charles De Visscher,
Theory and Reality in Public International Law, rev. ed., 1968, p. 391).

Judge Jessup’s interesting explanation was: “The Court, qua Court,
naturally hesitates to cite individuals or national courts lest it appear
to have some bias or predilection” (Judge Philip C. Jessup, letter dated
16 August 1979, Annuaire de l’Institut de droit international, 1985, Vol. 61,
I, p. 253). No doubt these words of caution extend to other decisions
as well. But, apart from the fact that there is some flexibility in the case
of individual judges, I do believe that the judicial policy concerning such
citations, wise as it is, is not of such rigidity as in practice to disable the
Court from benefiting from other experience, particularly where
specific guidance in its own jurisprudence is lacking, as seems to be the
case here.

Without suggesting that it is wholly applicable, I turn accordingly to the
general approach taken in the majority opinion of the European Court

47
221 PRIVILEGES AND IMMUNITIES (SEP. OP. SHAHABUDDEEN)

of Human Rights in the Golder case (Judgment of 21 February 1975,
Series A, Vol. 18) in which that Court had to construe Article 6, para-
graph 1, of the European Convention on Human Rights, reading:

“In the determination of his civil rights and obligations or of any
criminal charge against him, everyone is entitled to a fair and public
hearing within a reasonable time by an independent and impartial
tribunal established by law...”

Recognizing that this provision did not in terms confer a right of access to
the courts, the European Court of Human Rights nevertheless affirmed
the existence of such a right in these words:

“While the right to a fair, public and expeditious judicial pro-
cedure can assuredly apply only to proceedings in being, it does
not, however, necessarily follow that a right to the very institution of
such proceedings is thereby excluded . . .” ({bid., p. 15, para. 32.)

In effect, if it was correct to say that Article 6, paragraph 1, of the Euro-
pean Convention excluded an antecedent right to institute proceedings in
a court, it would follow that the right conferred by that provision to a fair,
public and expeditious judicial procedure could prove to be largely
devoid of substance. Likewise in this case, if it is correct to say that
Article VI, Section 22, of the General Convention excludes an ante-
cedent right to commence a journey from a Member State in connection
with the performance of the expert’s mission where the expert’s presence
in that State was for a purpose unconnected with the mission, it would
follow that the right conferred on him by that provision to privileges and
immunities “during ... the time spent on journeys in connection with”
such a mission (not to speak of other privileges and immunities) could
turn out to be illusory, with the further result that the mission itself
could remain undischarged.

While the situation in the Goldercase differs in several respects from that
here, at the level of principle it would seem to me that the reasoning
in that case supports the conclusion that Article VI, Section 22, of the Gen-
eral Convention is applicable to enable an expert to leave any Member
State for the purpose of carrying out his mission even if his presence in that
State was for a purpose entirely unconnected with the mission.

(Signed) Mohamed SHAHABUDDEEN.

48


                                                                        1175

               DÉCLARATION DE M. LE JUGE GAJA

[Traduction]

   Au ﬁl des années, les délibérations de la Cour ont gagné en transpa-
rence. Lorsqu’elle rend un arrêt, la Cour consigne ainsi toutes ses grandes
décisions, aussi bien en ce qu’elle accepte qu’en ce qu’elle rejette les
demandes des parties ; pour chacune, elle consigne en outre le vote de
chaque juge. Toutefois, s’agissant de ses ordonnances en indication de
mesures conservatoires, la transparence laisse encore à désirer. Car si elle
fait ﬁgurer dans le dispositif de ce type d’ordonnances les décisions par
lesquelles elle accueille, le cas échéant sous une forme modiﬁée, les
demandes de l’une des parties, la Cour, lorsqu’elle n’indique que certaines
des mesures conservatoires sollicitées, n’y fait pas état du rejet des autres.
Nulle part, dans l’ordonnance, n’est-il donc fait mention de la position
que pourrait avoir tel ou tel juge à cet égard.
   Suivant cette pratique, le dispositif de la présente ordonnance ne men-
tionne que les mesures indiquées par la Cour ou, plus exactement, l’essen-
tiel de ces mesures, puisque c’est à peine s’il couvre le sursis, prescrit au
paragraphe 95, à l’exécution de toute mesure de conﬁscation de l’im-
meuble sis au 42 avenue Foch, à Paris. Ce qui apparaît tout particulière-
ment frappant, c’est qu’il n’y soit pas fait état de la décision concernant la
demande relative à l’immunité de juridiction pénale de M. Teodoro
Nguema Obiang Mangue, alors même qu’une partie importante de la
motivation est consacrée à cette question. Cette façon de procéder peut
permettre à la Cour, comme c’est ici le cas, d’obtenir un vote unanime,
mais non d’occulter le fait que des divergences se soient exprimées en son
sein, ainsi qu’en témoignent certaines opinions individuelles dont l’exposé
est joint à l’ordonnance.
   Il serait excessif de vouloir que toutes les décisions, mêmes relatives à
des demandes en indication de mesures conservatoires de moindre impor-
tance, soient consignées dans le dispositif. Cependant, lorsqu’une partie
importante d’une ordonnance est consacrée à une question donnée, il
serait raisonnable, dans l’intérêt d’une plus grande transparence, que la
Cour accorde la place voulue à sa décision y relative et précise quels juges
ont voté pour et quels juges ont voté contre.

                                                  (Signé) Giorgio Gaja.

                                                                           31


                                                                                65

          DÉCLARATION DE M. LE JUGE AD HOC KRESS

[Traduction]

  Critère de plausibilité — Intention génocidaire — Groupe protégé au titre de la
convention sur le génocide.

   1. J’ai voté en faveur de tous les points énoncés dans le dispositif de
l’ordonnance. Je souscris également, pour l’essentiel, au raisonnement de
la Cour. Aussi me contenterai-je de formuler quelques observations au
sujet du critère de plausibilité et, en particulier, du lien qui existe entre
celui-ci et les questions de l’intention génocidaire et des groupes protégés
au titre de la convention sur le génocide.
   2. La plausibilité des droits invoqués, en tant que condition préalable
à l’indication de mesures conservatoires, apparaît désormais assez solide-
ment ancrée dans la jurisprudence de la Cour. Toutefois, il semblerait que
certaines questions subsistent quant à la portée exacte de cette condition
et qu’il demeure diﬃcile de déﬁnir précisément le critère appliqué par la
Cour en la matière 1.
   3. Le fait que certains droits revendiqués dans l’aﬀaire Ukraine c. Fédé-
ration de Russie n’aient pas été jugés plausibles ((Application de la conven-
tion internationale pour la répression du financement du terrorisme et de la
convention internationale sur l’élimination de toutes les formes de discrimi-
nation raciale), mesures conservatoires, ordonnance du 19 avril 2017,
C.I.J. Recueil 2017, p. 131-132, par. 75) a donné lieu à l’interprétation
selon laquelle la Cour a élargi la portée de la condition à l’examen, de
sorte que celle-ci s’applique aussi, au moins partiellement, à la violation
de droits 2. Se pose en outre la question de savoir si l’ordonnance rendue
par la Cour dans l’aﬀaire précitée pourrait avoir établi un critère de plau-
sibilité relativement exigeant pour ce qui concerne les éléments moraux
des crimes en cause (voir notamment l’exposé de l’opinion individuelle de
M. le juge Owada qui a été joint à ladite décision, ibid., p. 147-148,
par. 21-23). C’est dans ce contexte que le Myanmar, en la présente procé-
dure, a pris soin de mettre en avant l’aﬀaire Ukraine c. Fédération de Rus-
sie pour faire valoir que le critère de plausibilité s’étendait à la question
de l’intention génocidaire et qu’il n’y était pas satisfait (CR 2019/19,
p. 24-25, par. 9-11 (Schabas)). A cet égard, le défendeur a par ailleurs
estimé que, « [d]ans une aﬀaire telle que la présente espèce, dans laquelle
sont formulées des allégations d’une exceptionnelle gravité », la Cour
   1 Pour une analyse pertinente publiée récemment, voir Cameron Miles, « Provisional
Measures and the « New » Plausibility in the Jurisprudence of the International Court of
Justice », British Yearbook of International Law (2018, à paraître), accessible à l’adresse
suivante : https://doi.org/10.1093/bybil/bry011.
   2 Ibid., p. 32-39 (pagination provisoire).

                                                                                66

           application de convention génocide (décl. kress)                   66

devrait appliquer « un critère de plausibilité plus strict » (CR 2019/19,
p. 25, par. 13 (Schabas)).
   4. Au paragraphe 56 de son ordonnance, la Cour rejette cette idée d’un
critère plus rigoureux. Je souscris à cette conclusion et tiens à ajouter que,
alors que le Myanmar a soutenu que le strict critère appliqué au stade de
l’examen au fond en cas d’allégations d’une exceptionnelle gravité devrait
être appliqué « a fortiori » « au stade des mesures conservatoires » (ibid.),
il est permis de se demander si la fonction particulière des mesures conser-
vatoires — à savoir leur fonction protectrice —, ne va pas à l’encontre de
cette position, et ce, précisément parce que des valeurs fondamentales
sont en cause.
   5. Indépendamment de cette dernière considération, il appert du para-
graphe 56 de l’ordonnance, lu dans son contexte immédiat, que la Cour a
appliqué à la question de l’existence d’une intention génocidaire un critère
peu strict. En eﬀet, quelle que soit l’interprétation correcte de celui qui a
été appliqué dans l’ordonnance rendue en l’aﬀaire Ukraine c. Fédération
de Russie, la Cour est loin, en la présente espèce, d’avoir procédé à un
examen approfondi de cette question. A cet égard, il n’est sans doute pas
inutile de rappeler que, dans l’exposé de son opinion individuelle qui a été
joint à l’ordonnance rendue en l’aﬀaire relative à des Usines de pâte à
papier, M. le juge Abraham a établi une distinction entre fumus boni juris
et fumus non mali juris (Usines de pâte à papier sur le fleuve Uruguay
(Argentine c. Uruguay), mesures conservatoires, ordonnance du 13 juil-
let 2006, C.I.J. Recueil 2006, p. 140-141, par. 10). A mon sens, c’est cette
dernière expression qui rend le mieux compte de l’approche adoptée par
la Cour dans la présente ordonnance en ce qui concerne la question de
l’intention génocidaire. Si, comme le précise M. le juge Abraham dans
son exposé, la distinction entre les termes « boni » et « non mali » est aﬀaire
de « nuances », il peut toutefois s’agir, et tel est au moins le cas en l’espèce,
de nuances importantes. Je formule également cette observation parce
que, même sur la base du critère de plausibilité peu strict qui a été appli-
qué dans l’ordonnance, ce n’est pas sans quelque hésitation que je suis
parvenu à la conclusion que les éléments produits jusqu’à présent par la
Gambie suﬃsaient à permettre à la Cour de juger qu’il avait été satisfait
audit critère s’agissant de l’intention génocidaire.
   6. Quoiqu’elle ne justiﬁe pas l’application d’un critère de plausibilité
strict en tant que condition préalable à l’indication de mesures conserva-
toires, l’exceptionnelle gravité des violations alléguées en la présente
aﬀaire justiﬁe en revanche, voire exige, qu’il soit souligné que la conclu-
sion énoncée en ce qui concerne la plausibilité ne préjuge en rien le
fond de l’aﬀaire.
   7. Ceci vaut aussi bien pour la question de l’intention génocidaire que
pour celle de savoir si les Rohingya au Myanmar constituent un groupe
protégé au titre de la convention sur le génocide. La Cour ne fait allusion
à ce second point que dans une seule phrase de son ordonnance, au para-
graphe 52, indiquant que « les Rohingya au Myanmar semblent consti-
tuer un groupe protégé au sens de l’article II de la convention ». J’aurais

                                                                              67

          application de convention génocide (décl. kress)              67

préféré la voir exprimer d’une manière plus claire que par le seul emploi
du terme « semblent » qu’elle ne pouvait, à ce stade de la procédure, aller
au-delà de l’élément de plausibilité dans son examen de la question, ne
serait-ce que parce que celle-ci n’a guère été abordée au cours de la pro-
cédure.

                                                    (Signé) Claus Kress.

                                                                        68


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DU DIFFEREND FRONTALIER
(BURKINA FASO/REPUBLIQUE DU MALI)

ORDONNANCE DU 9 AVRIL 1987

DESIGNATION D’EXPERTS

1987

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING THE FRONTIER DISPUTE
(BURKINA FASO/REPUBLIC OF MALI)

ORDER OF 9 APRIL 1987
NOMINATION OF EXPERTS
Mode officiel de citation :

Différend frontalier,
désignation d'experts, ordonnance du 9 avril 1987,
C.LJ. Recueil 1987, p. 7.

Official citation :

Frontier Dispute,
Nomination of Experts, Order of 9 April 1987,
I.C.J. Reports 1987, p. 7.

N° de vente : 5 2 7
Sales number

INTERNATIONAL COURT OF JUSTICE

YEAR 1987 1987
9 April
. General List
9 April 1987 No. 69

CASE CONCERNING THE FRONTIER DISPUTE

(BURKINA FASO/REPUBLIC OF MALI)

ORDER
NOMINATION OF EXPERTS

Present: Judge BEDJAOUI, President of the Chamber ; Judges LACHS, RUDA;
Judges ad hoc LUCHAIRE, ABI-SAAB; Registrar VALENCIA-OSPINA.

The Chamber of the International Court of Justice formed to deal with
the above-mentioned case,

Composed as above,
After deliberation,
Having regard to Article 48 of the Statute of the Court,

Makes the following Order:

Having regard to Article IV of the Special Agreement concluded be-
tween the Parties on 16 September 1983 for the submission of their fron-
tier dispute to a chamber of the Court, whereby the Parties agreed to effect
the demarcation of their common frontier in the disputed area within one
year following the Judgment of the Chamber, and to request the Chamber
“to nominate, in its Judgment, three experts to assist them in the demarca-
tion operation”,

Having regard to the Judgment delivered by the Chamber on 22 De-
cember 1986, paragraph 176 of which states:

“The Chamber is ready to accept the task which the Parties have
entrusted to it. However, having regard to the circumstances of the
present case, the Chamber is of the opinion that it is inappropriate at
this juncture to make the nomination requested by the Parties. It will
do so later by means of an Order, after ascertaining the views of the
Parties, particularly as regards the practical aspects of the exercise by
the experts of their functions”,
FRONTIER DISPUTE (ORDER 9 IV 87) 8

Whereas the Parties are requesting the Chamber, not to order an expert
opinion within the meaning of Article 50 of the Statute of the Court, the
purpose of which would be “to assist the Court in giving judgment upon
the issues submitted to it for decision” (Application for Revision and Inter-
pretation of the Judgment of 24 February 1982 in the case concerning the
Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan
Arab Jamahiriya), C.J. Reports 1985, p. 228, para. 65), and any costs of
which would be borne by the Court under Article 68 of its Rules, but to
exercise a power, conferred upon it by the Special Agreement, of nomin-
ating three persons whom the Parties have themselves decided to entrust
with the task of giving an expert opinion for the purpose of implementing
the Judgment of the Chamber; |

Whereas there is nothing in the Statute of the Court nor in the settled
jurisprudence to prevent the Chamber from exercising this power, the
very purpose of which is to enable the Parties to achieve a final settlement
of their dispute in implementation of the Judgment which it has delivered;

THE CHAMBER

1. Nominates, pursuant to Article IV, paragraph 3, of the Special
Agreement, the following three experts who will assist the Parties in the
operation of demarcation of their frontier in the disputed area:

Mr. Gilbert Mangin, of French nationality, conseiller at the Cour de cas-
sation of France;

Mr. Zaki Belcaid, of Algerian nationality, ingénieur des travaux géo-
graphiques et cartographiques de l’Etat (Ecole nationale des sciences
géographiques de Paris);

Mr. Petrus Richardus, of Dutch nationality, Geodetic Consultant, former
Chief Scientist of the Agricultural University of Wageningen (Nether-
lands).

2. Authorises its President, in the event of a vacancy in the group of

three experts thus appointed, to nominate a substitute to carry out or com-
plete the demarcation.

Done in French and in English, the French text being authoritative, at
the Peace Palace, The Hague, this ninth day of April, one thousand nine
hundred and eighty-seven, in three copies, of which one will be placed in
the archives of the Court and the others transmitted respectively to the
Government of Burkina Faso and to the Government of the Republic of
Mali.

(Signed) Mohammed BEDJAOUI,
President of the Chamber.

(Signed) Eduardo VALENCIA-OSPINA,
Registrar.