DISSENTING OPINION OF JUDGE PADILLA NERVO

I cannot concur in the Judgment of the Court in the present pro-
ceedings.

1 am unable to agree with the manner and reasoning through which the
Court easily disposed of and rejected the objections and arguments raised
against its jurisdiction to deal with the merits of the Application.

The Court might give the impression by the development of too dog-
matic and formalistic assertions that its main concern has been the search
for juridical foundations to justify a previously admitted premise of
somewhat axiomatic character.

That of course is not the case, but, in my view, the objections raised
have not been answered convincingly.

The formulation of general principles and the invocation of a settled
practice of the Court regarding certain issues in former decisions, do not
necessarily solve the problem in a case like the present one, which has
exceptional characteristics and very special features, and where juris-
diction and merits are interdependent from several points of view.

All these circumstances were in fact apparent in the Fisheries Juris-
diction case, Interim Protection, Order of 17 August 1972. The views |
then expressed are still valid now.

In the present proceedings a judgment is given regarding a State which
denies its consent to jurisdiction of the Court, which is not a party to
such proceedings, and whose rights as a sovereign State are placed in
jeopardy.

The claim of the Republic of Iceland to extend its fisheries jurisdiction
to a zone of 50 nautical miles around Iceland, has not been proved to be
contrary to international law.

The Court relies mainly as a source of its jurisdiction on the Exchange
of Notes of 1! March 1961, an agreement which the Republic of Iceland
contends has fully achieved its purpose and object, and the provisions
of which, it considers no longer to be applicable and, consequently,
terminated.

The Minister for Foreign Affairs of Iceland sent to the Registrar on
29 May 1972 a letter regarding the filing on 14 April 1972 of an Appli-
cation by the Government of the United Kingdom, instituting proceedings
against Iceland.

With that letter were sent several documents dealing with the back-

37
37 FISHERIES JURISDICTION (DISS. OP. PADILLA NERVO)

ground and termination of the agreement of 11 March 1961, and “with
the changed circumstances resulting from the ever-increasing exploitation
of the fishery resources in the seas surrounding Iceland”’.

The letter refers to the dispute with the United Kingdom who opposed
the 12-mile fishery limit established by the Icelandic Government in 1958,
and to the 1961 Exchange of Notes.

Iceland states that “the 1961 Exchange of Notes took place under
extremely difficult circumstances, when the British Royal Navy had been
using force to oppose the 12-mile fishery limit”.

In paragraph 4 of the United Kingdom Application instituting pro-
ceedings, it is said:

“The validity of this action was not accepted by the United King-
dom and fishing vessels from the United Kingdom continued to
fish inside the twelve-mile limit. There then ensued a number of
incidents involving, on the one hand, Icelandic coastguard vessels
and, on the other hand, British fishing vessels and fisheries protection
vessels of the Royal Navy.”

It appears from the above-quoted statements, that such circumstances
were not the most appropriate to negotiate and conclude the 1961 Agree-
ment. The Foreign Minister of Iceland further indicates:

“The agreement by which that dispute was settled, and conse-
quently the possibility of such recourse to the Court (to which the
Government of Iceland was consistently opposed as far as concerns
disputes over the extent of its exclusive fisheries jurisdiction, as
indeed the United Kingdom recognizes), was not of a permanent
nature. In particular, an undertaking for judicial settlement cannot
be considered to be of a permanent nature. There is nothing in that
situation, or in any general rule of contemporary international law,
to justify any other view.

After the termination of the agreement recorded in the Exchange
of Notes of 1961, there was on 14 April 1972 no basis under the
Statute for the Court to exercise jurisdiction in the case to which the
United Kingdom refers.

The Government of Iceland, considering that the vital interests
of the people of Iceland are involved, respectfully informs the Court
that it is not willing to confer jurisdiction on the Court in any case
involving the extent of the fishery limits of Iceland, and specifically
in the case sought to be instituted by the Government of the United
Kingdom of Great Britain and Northern Ireland on 14 April 1972.”

The Exchange of Notes on which the Application founds the juris-
38
38 FISHERIES JURISDICTION (DISS. OP, PADILLA NERVO)

diction of the Court, dated 11 March 1961, makes reference to the
Resolution of the Parliament of Iceland of 5 May 1959, which declared
that a recognition of the rights of Iceland to fisheries limits extending to
the whole continental shelf ‘should be sought’.

In the Note of 11 March 1961 it is stated that: ‘The Icelandic Govern-
ment will continue to work for the implementation of the Althing reso-
lution of May 5, 1959, regarding the extension of fisheries jurisdiction
around Iceland . . .”” (italics added).

The claim of Iceland that its continental shelf must be considered to
be a part of the country itself, has support in the Convention on this
subject, done at Geneva on 29 April 1958.

This Court, in its Judgment of 20 February 1969, stated:

,,.the most fundamental of all the rules of law relating to the
continental shelf, enshrined in Article 2 of the 1958 Geneva Con-
vention, ... namely that the rights of the coastal State in respect of
the area of continental shelf that constitutes a natural prolongation
of its land territory into and under the sea exist ipso facto and ab
initio, by virtue of its sovereignty over the Jand, and as an extension
of it in an exercise of sovereign rights for the purpose of exploring
the seabed and exploiting its natural resources. In short, there is
here an inherent right. In order to exercise it, no special legal process
has to be gone through, nor have any special legal acts to be per-
formed. Its existence can be declared (and many States have done
this) but does not need to be constituted. Furthermore, the right
does not depend on its being exercised. To echo the language of the
Geneva Convention, it is ‘exclusive’ in the sense that if the coastal
State does not choose to explore or exploit the areas of shelf apper-
taining to it, that is its own affair, but no one else may do so without
its express consent.” (.C./. Reports 1969, p. 22, para. 19.)

The Government of Iceland in its information and documents sent to
the Court, has given well-founded reasons and explanations of its
sovereign right to extend its fisheries jurisdiction to the entire continental
shelf area.

The coastal fisheries in Iceland have always been the foundation of the
country’s economy.

The coastal fisheries are the conditio sine qua non for the Icelandic
economy; without them the country would not have been habitable.

Iceland rests on a platform or continental shelf whose outlines follow
those of the country itself. In these shallow underwater terraces, ideal
conditions are found for spawning areas and nursery grounds upon
whose preservation and utilization the livelihood of the nation depends.
It is increasingly being recognized that coastal fisheries are based on the
special conditions prevailing in the coastal areas which provide the
necessary environment for the fishstocks. This environment is an integral

39
39 FISHERIES JURISDICTION (DISS. OP. PADILLA NERVO)

part of the natural resources of the coastal State.

The continental shelf is really the platform ofthe country and must be
considered to be a part of the country itself.

The vital interests of the Icelandic people are therefore at stake. They
must be protected.

The priority position of the coastal State has then always been recog-
nized through the system of fishery limits. In the past these limits have
to a great extent not been established with any regard to the interests of
the coastal State. They owe their origin rather to the preponderant
influence of distant water fishery nations, who wished to fish as close as
possible to the shores of other nations, frequently destroying one area
and then proceeding to another.

In a system of progressive development of international law the
question of fishery limits has to be reconsidered in terms of the protection
and utilization of coastal resources regardless of other considerations
which apply to the extent of the territorial sea. The international com-
munity has increasingly recognized that the coastal fishery resources are
to be considered as a part of the natural resources of the coastal State.
The special situation of countries who are overwhelmingly dependent on
coastal fisheries, was generally recognized at both Geneva Conferences
in 1958 and 1960. Since then this view has found frequent expression
both in the legislation of various countries and in important political
statements. The course of events is decidedly progressing in this direction.

Reiterating the considerations which led the Government of Iceland
to issue new regulations relating to exclusive fisheries jurisdiction in
continental shelf areas, it stated the following:

“In the aide-mémoire of 31 August, 1971, it was intimated that
‘in order to strengthen the measures of protection essential to safe-
guard the vital interests of the Icelandic People in the seas sur-
rounding its coasts, the Government of Iceland now finds it essential
to extend further the zone of exclusive fisheries jurisdiction around
its coasts to include the areas of sea covering the continental shelf’.
Tt was further stated that in the opinion of the Icelandic Govern-
ment, the object and purpose of the provisions in the 1961 Exchange
of Notes for recourse to judicial settlement in certain eventualities
have been fully achieved. The Government of Iceland, therefore,
considers the provisions of the Notes exchanged no longer to be
applicable and consequently terminated.’ (Government of Iceland’s
aide-mémoire of 24 February 1972, Annex H to United Kingdom
Application.)

“In the period of ten years which has elapsed, the United King-
dom Government enjoyed the benefit of the Icelandic Government’s
policy to the effect that further extension of the limits of exclusive

40
40 FISHERIES JURISDICTION (DISS. OP. PADILLA NERVO)

fisheries jurisdiction would be placed in abeyance for a reasonable
and equitable period. Continuation of that policy by the Icelandic
Government, in the light of intervening scientific and economic
evolution (including the ever greater threat of increased diversion
of highly developed fishing effort to the Icelandic area) has become
excessively onerous and unacceptable, and is harmful to the main-
tenance of the resources of the sea on which the livelihood of the
Icelandic people depends.” (Italics added.) (Government of Iceland’s
aide-mémoire of 31 August 1971, Annex C to United Kingdom
Application.)

Not only Iceland but many coastal States in all regions of the world
know by experience the harmful effects of the ever greater threat of
highly developed fishing effort near their shores, by foreign fishing fleets
equipped—like the modern trawlers of the United Kingdom—with
sophisticated technical gear. Technical progress in this field implies a
change of circumstances which may fundamentally change the former
situation.

In the Exchange of Notes of 11 March 1961, the agreement already
envisaged the prospect that the Republic of Iceland would extend the
fisheries jurisdiction beyond the 12-mile limit.

If it is contrary to international law to envisage such extension, the
United Kingdom and the Federal Republic of Germany would not have
accepted the inclusion of such statement in the formal Exchange of Notes.

There is in such Exchange of Notes an implicit recognition of the right
of Iceland to extend its fisheries jurisdiction.

The United Kingdom, in view of its recognition of the exceptional
dependence of the Icelandic nation upon coastal fisheries for their
livelihood and economic development, accepted the proposals put for-
ward by the Government of Iceland, among them, the proposal contained
in the penultimate paragraph, which states that ‘the Government of
Iceland would continue to work for the implementation of the Althing
Resolution of May 5, 1959, regarding the extension of fisheries juris-
diction around Iceland” (italics added), which declares that a recognition
of its rights to the whole continental shelf should be sought, as provided
in the Law concerning the Scientific Conservation of the Continental
Shelf Fisheries of 1948.

The United Kingdom did not object to the existence of such rights; it
accepted the proposal which contained as counterpart or consideration
the obligation of Iceland to give six months’ notice of any such extension.

If a dispute did arise in respect of such extension, it would not affect
the previous implicit recognition of Iceland’s right to extend its fisheries
jurisdiction.

41
41 FISHERIES JURISDICTION (DISS. OP. PADILLA NERVO)

The most essential asset of coastal States is to be found in the living
resources of the sea covering their continental shelf and in the fishing
zone contiguous to their territorial sea.

The progressive development of international law entails the recog-
nition of the concept of the patrimonial sea, which extends from the
territorial waters to a distance fixed by the coastal State concerned, in
exercise of its sovereign rights, for the purpose of protecting the resources
on which its economic development and the livelihood of its people
depends.

This concept is not a new one. It has found expression in declarations
by many governments proclaiming as their international maritime policy,
their sovereignty and exclusive fisheries jurisdiction over the sea con-
tiguous to their shores.

There are nine States which have adopted a distance of 200 nautical
miles from their shores as their exclusive fisheries jurisdiction. Some of
them have enacted and enforced regulations to that effect since 20 years
ago, when the “Santiago Declaration” was signed by the Governments
of Chile, Ecuador and Peru in August 1952.

The text of the Notes dated 11 March 1961 is susceptible of different
interpretations as regards its duration, its purpose, and the obligations
it contains.

The compromissory clause cannot be said to be of a permanent nature,
or one binding Iceland for ever to freeze its fisheries jurisdiction to the
12-mile limit.

If the object and purpose of the provision to recourse to judicial
settlement has been fully achieved and validly terminated, there would
be no basis in that provision for the jurisdiction of the Court—and that
is in my opinion the case.

There are many valid arguments and reasons in favour of the Icelandic
thesis to the effect that the Exchange of Notes has /apsed.

Since the Exchange of Notes was negotiated, a fundamental change of
circumstances has taken place, and new customary international rules and
norms have emerged and developed, permitting coastal States to claim
fisheries jurisdiction over the waters covering their continental shelves.

At the present time (and since the two Conferences on the Law of the
Sea took place) it has been a universal understanding that any coastal
State has the right to extend to a distance of 12 miles its territorial waters.
Many States have adopted that limit, including the United Kingdom.
Iceland could not be legally bound to pay the price or quid pro quo for the
recognition of its own right. But it is more important that with respect
to exclusive or preferential rights regarding fisheries in waters beyond the
territorial sea, many States in America have claimed jurisdiction to a
distance of 200 nautical miles from their shores. In other regions several
States have made similar claims and new norms have been adopted in

42
42 FISHERIES JURISDICTION (DISS. OP. PADILLA NERVO)

that respect. Senegal, by a law dated 19 April 1972, claimed jurisdiction
to a distance of 110 nautical miles beyond the limit of its territorial sea.

Other instances regarding the emerging of new norms may be found
in the Conclusions and Recommendations of the African States’ Regional
Seminar on the Law of the Sea, among which is the following:

“The Participants: Recommend to African States to extend their
sovereignty over all the resources of the high sea adjacent to their
Territorial Sea within an economic zone to be established and
which will include at least the continental shelf.

Call upon all African States to uphold the principle of this exten-
sion at the next International Conference on the Law of the Sea.”

In the penultimate paragraph of the Exchange of Notes it was stated
that Iceland will go on working for the implementation of the Althing
Resolution. The admission of such a statement meant an implicit recog-
nition that if and when Iceland were to do so, no violation of interna-
tional law would take place.

In the submissions on the meaning and intention of the Exchange of
Notes, contained in the Memorial on Jurisdiction submitted by the
United Kingdom, it is said:

‘“,.. the Exchange of Notes of 1961 ... [had] effect ... as an
agreement which would remain valid until such time as either the
United Kingdom consented to an extension of fisheries jurisdiction
by Iceland beyond the limits fixed in the agreement or the Inter-
national Court of Justice should decide that such an extension was
consistent with international law.” (Italics added.)

The implication of that submission is that the consent of the United
Kingdom is enough to make consistent with international law any exten-
sion by Iceland of its fisheries jurisdiction.

In the Application it is said that there is no foundation in international
law for the claim by Iceland to extend its fisheries jurisdiction to 50
nautical miles from the baselines. If such extension was in itself contrary
to international Jaw, the consent of the United Kingdom could not make
it consistent with it.

The interest of the Government of Iceland in seeking the recognition
of its rights to fisheries limits extending to the whole continental shelf is
a continuous and permanent interest as affecting its own sovereignty and
is an interest which will be fortified each day by the will and resolve of
the people of Iceland and will endure for ever as the country itself.

43
43 FISHERIES JURISDICTION (DISS. OP. PADILLA NERVO)

The aim, the intention and the purpose of Iceland’s claim to exclusive
fishery rights over its entire continental shelf area was asserted since 1959
and in the 1961 Exchange of Notes such a claim was recognized to exist.
In my view Iceland’s right to seek the implementation of the Althing
Resolution cannot be denied.

I cannot subscribe therefore to the assertion in the Judgment that the
right of the United Kingdom to challenge such an extension would last
“so long as Iceland might seek to implement the Althing Resolution”.

The consequence appears to be (theoretically) that the right of the
United Kingdom to invoke the Court’s jurisdiction in this matter would
last for ever, regardless of fundamental changes of circumstances, the
emerging of new customary norms, and other factors which challenge the
actual validity of the so-called ‘‘compromissory clause”.

On 29 September 1972, in the general debate of the United Nations
General Assembly, the Foreign Minister of Iceland said.

“My Government’s view is that the absence of jurisdiction is
manifest since its consent no longer existed when the proceedings
were sought to be instituted” (italics added) (Art. 34, Vienna Con-
vention).

It may be concluded, therefore, that the circunistances existing in
1961 when the Exchange of Notes took place, have changed in many
fundamental respects, which Iceland has validly invoked to sustain that
the agreement is no longer is force.

In the last decades great changes have taken place in the political,
social, economic and technical fields. The need to strike a fair balance
between strong and weak nations, between industrial countries and those
in the course of development, is each day more urgent.

The struggle for freedom and self-determination of dependent peoples
has been successful. Many new States are now giving fresh views, force
and co-operation to the community of nations.

The struggle to assert their sovereign rights over the natural resources
belonging to them is a common denominator among the coastal States
the world over.

Old practices and unfair so-called traditional situations have already
ended or will soon disappear. The need and the will to liquidate the
unjust privileges obtained through the assertion of superior strength,
is each day more pressing. These facts have created new circumstances
producing new changes.

Emerging customary laws on the problems of the sea have found
expression in many political statements, in declarations of governments,

44
44 FISHERIES JURISDICTION (DISS. OP. PADILLA NERVO)

in laws and regulations implemented by coastal States in many parts of
the world, for the purpose of asserting their sovereign rights and juris-
diction not only over their territorial sea but over the waters covering
their continental shelves.

In international regional conferences, important declarations of prin-
ciples were proclaimed, which advance the progressive development of
the law of the sea.

The concepts and ideas which found new expression in the adoption of
such principles were prevalent among jurists and statesmen in America
more than two decades ago. Those principles apply to the situation of
other coastal States in other continents as well, and Iceland could not be
excluded.

The Specialized Conference of the Caribbean Countries formulated a
Declaration of Principles; some of them are quoted below because of
their relevance to the points in issue:

“Recalling: That the International American Conferences held
in Bogota in 1948, and in Caracas in 1954, recognized that the
peoples of the Americas depend on the natural resources as a means
of subsistence, and proclaimed the right to protect, conserve and
develop those resources, as well as the right to ensure their use and
utilization.

That the ‘Principles of Mexico on the Legal Régime of the Sea’
which were adopted in 1956 and which were recognized ‘as the
expression of the juridical conscience of the Continent and as
applicable, by the American States’, established the basis for the
evolution of the Law of the Sea which culminated, that year, with
the annunciation by the Specialized Conference in the Capital of the
Dominican Republic, of concepts which deserved endorsement by
the United Nations Conference on the Law of the Sea, Geneva,
1958.

Considering ... That the renewable and non-renewable resources
of the sea contribute:to improve the standard of living of the
developing countries and to stimulate and accelerate their pro-
gress;

That such resources are not inexhaustible since even the living
species may be depleted or extinguished as a consequence of irra-
tional exploitation or pollution; ...

Formulate the following Declaration of Principles:

Territorial Sea ... The breadth of the territorial sea and
the manner of its delimitation should be the subject of an inter-
national agreement, preferably of a worldwide scope. In the mean-
time, each State has the right to establish the breadth of its territorial
sea up to a limit of 12 nautical miles to be measured from the appli-
cable baseline...

Patrimonial Sea. The coastal State has sovereign rights over

45
45 FISHERIES JURISDICTION (DISS. OP. PADILLA NERVO)

the renewable and non-renewable natural resources, which are
found in the waters, in the seabed and in the subsoil of an area
adjacent to the territorial sea called the patrimonial sea.

The coastal State has the duty to promote and the right to regulate
the conduct of scientific research within the patrimonial sea, as
well as the right to adopt the necessary measures to prevent marine
pollution and fo ensure its sovereignty over the resources of the area.

The breadth of this zone should be the subject of an international
agreement, preferably of a worldwide scope. The whole of the area
of both the territorial sea and the patrimonial sea, taking into
account geographic circumstances, should not exceed a maximum of
200 nautical miles . . .

Continental Shelf: The coastal State exercises over the continental
shelf sovereign rights for the purpose of exploring it and exploi-
ting its natural resources.

The continental shelf includes the sea-bed and subsoil of the
submarine areas adjacent to the coast, but outside the area of the
territorial sea, to a depth of 200 metres or, beyond that limit, to
where the depth of the superjacent waters admits the exploitation of
the natural resources of the said areas.

In addition, the States participating in this Conference consider
that the Latin American Delegations in the Committee on the
Sea-bed and Ocean Floor of the United Nations should promote a
study concerning the advisability and timing for the establishment
of precise outer limits of the continental shelf taking into account
the outer limits of the continental rise.

In that part of the continental shelf covered by the patrimonial
sea the legal régime provided for this area shall apply. With respect
to the part beyond the patrimonial sea, the régime established for
the continental shelf by International Law shall apply.” (Italics
added.)

The obligation to negotiate is a principle of general international law.
The United Kingdom and Iceland agreed to negotiate with the aim of
arriving at an agreement by peaceful means. There were many reasonable
offers by Iceland during the negotiations. If the United Kingdom wanted
more concessions and unilaterally stopped the negotiating process, by
instituting proceedings before the Court, that does not mean that agree-
ment by negotiation was impossible and that all efforts in that direction
should be abandoned.

The United Kingdom sent to the Court information regarding the
proposals made by Iceland during their negotiations for a provisional
agreement.

No objection was then made by the United Kingdom to the right of
Iceland to exercise jurisdiction over fishing areas inside the 50-mile limit.
The United Kingdom does not dispute the right of Iceland to impose

46
46 FISHERIES JURISDICTION (DISS. OP. PADILLA NERVO)

restrictions and to establish conditions according to which British vessels
could be permitted to fish in the waters claimed by Iceland in implemen-
tation of the Althing’s Resolution.

In examining the first specific Icelandic proposal made in the course
of negotiations, the United Kingdom did not argue that it was contrary
to international law to claim jurisdiction over waters beyond the 12-mile
limit. The United Kingdom objected to the nature of the proposed
restrictions and their effects on the British vessels’ catch of fish. |

Iceland proposed that the arrangement should run until 1 January
1974.

In subsequent proposals Iceland modified its stand to the extent that
the area permanently closed to British vessels would be bounded by a
line whose distance from the baselines would vary between 14 and 27
miles. In this respect the United Kingdom informed the Court as follows:

“On this basis Her Majesty’s Government calculated that the
areas in question during the respective periods in which they would
be open currently produced only 20 per cent. of the United Kingdom
catch.”

Instead of continuing negotiation, the United Kingdom by its Appli-
cation to the Court and by requesting measures of protection expected
Iceland to give way to its demands in circumstances as difficult as those
which prevailed when the Exchange of Notes of 11 March {i961 put an
end to the opposition of the" United Kingdom to the 12-mile fishery limit.

The very fact of negotiating an arrangement which will allow the
United Kingdom and the Federal Republic of Germany to fish in certain
areas within the 50-mile zone of Iceland’s fishery jurisdiction, is an
explicit recognition of the right of Iceland to extend its fishery limit and
is an implicit admission that such extension is not contrary to international
law, because the right to do it either exists or does not exist, but cannot
be the subject of bilateral negotiation. If such extension was encroach-
ment on the freedom of the high seas, the consent of the United Kingdom
cannot make legal an illegal act, nor can its consent determine what
extension of the so-called “high seas” Iceland may take-—-12 nautical
miles in 1961 and 50 nautical miles now, provided that the United King-
dom gives its consent and a bilateral agreement is concluded to that
effect.

e

The assertion that the 1961 Exchange of Notes took place under
extremely difficult circumstances, when the British Royal Navy had been
using force to oppose the 12-mile fishery limit, is not denied (para. 4 of
the United Kingdom’s Application). The Court should not overlook that
fact, and does not need to request documentary evidence as to the kind,

47
47 FISHERIES JURISDICTION (DISS. OP. PADILLA NERVO)

shape and manner of force which was used (Art. 52, Vienna Convention
on the Law of Treaties).

A big power can use force and pressure against a small nation in
many ways, even by the very fact of diplomatically insisting in having
its view recognized and accepted. The Royal Navy did not need to use
armed force, its mere presence on the seas inside the fishery limits of the
coastal State could be enough pressure. It is well known by professors,
jurists and diplomats acquainted with international relations and foreign
policies, that certain “Notes” delivered by the government of a strong
power to the government of a small nation, may have the same purpose
and the same effect as the use or threat of force.

There are moral and political pressures which cannot be proved by the
so-called documentary evidence, but which are in fact indisputably real
and which have, in history, given rise to treaties and conventions claimed
to be freely concluded and subjected to the principle of pacta sunt servanda,

(Signed) Luis PADILLA NERVO.

48


         INTERNATIONAL COURT OF JUSTICE

           REPORTS OF JUDGMENTS,
        ADVISORY OPINIONS AND ORDERS

             APPLICATION
  OF THE INTERNATIONAL CONVENTION
  ON THE ELIMINATION OF ALL FORMS
      OF RACIAL DISCRIMINATION
       (QATAR v. UNITED ARAB EMIRATES)

         REQUEST FOR THE INDICATION
          OF PROVISIONAL MEASURES

            ORDER OF 14 JUNE 2019

                2019
         COUR INTERNATIONALE DE JUSTICE

             RECUEIL DES ARRÊTS,
      AVIS CONSULTATIFS ET ORDONNANCES

              APPLICATION
  DE LA CONVENTION INTERNATIONALE
SUR L’ÉLIMINATION DE TOUTES LES FORMES
       DE DISCRIMINATION RACIALE
        (QATAR c. ÉMIRATS ARABES UNIS)

           DEMANDE EN INDICATION
         DE MESURES CONSERVATOIRES

         ORDONNANCE DU 14 JUIN 2019

                             Oﬃcial citation :
                Application of the International Convention
         on the Elimination of All Forms of Racial Discrimination
         (Qatar v. United Arab Emirates), Provisional Measures,
            Order of 14 June 2019, I.C.J. Reports 2019, p. 361

                         Mode oﬃciel de citation :
                 Application de la convention internationale
       sur l’élimination de toutes les formes de discrimination raciale
          (Qatar c. Emirats arabes unis), mesures conservatoires,
          ordonnance du 14 juin 2019, C.I.J. Recueil 2019, p. 361

                                              Sales number
ISSN 0074-4441
ISBN 978-92-1-157372-5
                                              No de vente:    1170

                                  14 JUNE 2019

                                     ORDER

             APPLICATION
  OF THE INTERNATIONAL CONVENTION
  ON THE ELIMINATION OF ALL FORMS
      OF RACIAL DISCRIMINATION
   (QATAR v. UNITED ARAB EMIRATES)
     REQUEST FOR THE INDICATION
      OF PROVISIONAL MEASURES

              APPLICATION
  DE LA CONVENTION INTERNATIONALE
SUR L’ÉLIMINATION DE TOUTES LES FORMES
       DE DISCRIMINATION RACIALE
    (QATAR c. ÉMIRATS ARABES UNIS)
       DEMANDE EN INDICATION
     DE MESURES CONSERVATOIRES

                                  14 JUIN 2019

                                ORDONNANCE

361

                         TABLE OF CONTENTS

                                                    Paragraphs

Chronology of the Procedure                              1-14
    I. Prima Facie Jurisdiction                         15-16
II. The Provisional Measures Requested by the UAE       17-29

III. Conclusion                                         30-31
Operative Clause                                           32

4

               362

                              INTERNATIONAL COURT OF JUSTICE

   2019
                                                YEAR 2019
  14 June
General List                                    14 June 2019
 No. 172

                                APPLICATION
                     OF THE INTERNATIONAL CONVENTION
                      ON THE ELIMINATION OF ALL FORMS
                          OF RACIAL DISCRIMINATION
                               (QATAR v. UNITED ARAB EMIRATES)

                                 REQUEST FOR THE INDICATION
                                  OF PROVISIONAL MEASURES

                                                 ORDER

               Present: President Yusuf; Vice-President Xue; Judges Tomka, Abraham,
                        Bennouna, Cançado Trindade, Donoghue, Gaja, Bhandari,
                        Robinson, Crawford, Gevorgian, Salam, Iwasawa;
                        Judges ad hoc Cot, Daudet; Registrar Couvreur.

                   The International Court of Justice,
                 Composed as above,
                 After deliberation,
                 Having regard to Articles 41 and 48 of the Statute of the Court and
               Articles 73, 74 and 75 of the Rules of Court,
                   Makes the following Order:
                   Whereas:
                 1. On 11 June 2018, the State of Qatar (hereinafter referred to as
               “Qatar”) ﬁled in the Registry of the Court an Application instituting pro-

               5

363             application of the cerd (order 14 VI 19)

ceedings against the United Arab Emirates (hereinafter referred to as the
“UAE”) with regard to alleged violations of the International Conven-
tion on the Elimination of All Forms of Racial Discrimination of
21 December 1965 (hereinafter “CERD” or the “Convention”).
   2. At the end of its Application, Qatar
      “in its own right and as parens patriae of its citizens, respectfully
      requests the Court to adjudge and declare that the UAE, through its
      State organs, State agents, and other persons and entities exercising
      governmental authority, and through other agents acting on its
      instructions or under its direction and control, has violated its obli-
      gations under Articles 2, 4, 5, 6, and 7 of the CERD by taking,
      inter alia, the following unlawful actions:

      (a) Expelling, on a collective basis, all Qataris from, and prohibiting
          the entry of all Qataris into, the UAE on the basis of their national
          origin;
      (b) Violating other fundamental rights, including the rights to mar-
          riage and choice of spouse, freedom of opinion and expression,
          public health and medical care, education and training, property,
          work, participation in cultural activities, and equal treatment
          before tribunals;

      (c) Failing to condemn and instead encouraging racial hatred against
          Qatar and Qataris and failing to take measures that aim to com-
          bat prejudices, including by inter alia: criminalizing the expression
          of sympathy toward Qatar and Qataris; allowing, promoting, and
          ﬁnancing an international anti-Qatar public and social-media
          campaign; silencing Qatari media; and calling for physical attacks
          on Qatari entities; and

      (d) Failing to provide eﬀective protection and remedies to Qataris to
          seek redress against acts of racial discrimination through UAE
          courts and institutions.”

Accordingly,
      “Qatar respectfully requests the Court to order the UAE to take all
      steps necessary to comply with its obligations under CERD and,
      inter alia:
      (a) Immediately cease and revoke the Discriminatory Measures,
          including but not limited to the directives against ‘sympathizing’
          with Qataris, and any other national laws that discriminate de jure
          or de facto against Qataris on the basis of their national origin;

6

364             application of the cerd (order 14 VI 19)

      (b) Immediately cease all other measures that incite discrimination
          (including media campaigns and supporting others to propagate
          discriminatory messages) and criminalize such measures;

      (c) Comply with its obligations under the CERD to condemn pub-
          licly racial discrimination against Qataris, pursue a policy of elim-
          inating racial discrimination, and adopt measures to combat such
          prejudice;

      (d) Refrain from taking any further measures that would discriminate
          against Qataris within its jurisdiction or control;

      (e) Restore rights of Qataris to, inter alia, marriage and choice
          of spouse, freedom of opinion and expression, public health
          and medical care, education and training, property, work,
          participation in cultural activities, and equal treatment before tri-
          bunals, and put in place measures to ensure those rights are
          respected;

      (f) Provide assurances and guarantees of non-repetition of the UAE’s
          illegal conduct; and
      (g) Make full reparation, including compensation, for the harm
          suﬀered as a result of the UAE’s actions in violation of the
          CERD.”
   3. In its Application, Qatar seeks to found the Court’s jurisdiction on
Article 36, paragraph 1, of the Statute of the Court and on Article 22 of
CERD.
   4. On 11 June 2018, Qatar also submitted a Request for the indication
of provisional measures, referring to Article 41 of the Statute and to Arti-
cles 73, 74 and 75 of the Rules of Court.
   5. By an Order dated 23 July 2018, the Court, after hearing the Parties,
indicated the following provisional measures :
    “(1) The United Arab Emirates must ensure that
             (i) families that include a Qatari, separated by the measures
                 adopted by the United Arab Emirates on 5 June 2017, are
                 reunited;
            (ii) Qatari students aﬀected by the measures adopted by the
                 United Arab Emirates on 5 June 2017 are given the oppor-
                 tunity to complete their education in the United Arab Emir-
                 ates or to obtain their educational records if they wish to
                 continue their studies elsewhere; and
           (iii) Qataris aﬀected by the measures adopted by the United Arab
                 Emirates on 5 June 2017 are allowed access to tribunals and
                 other judicial organs of the United Arab Emirates; [. . .]

7

365             application of the cerd (order 14 VI 19)

      (2) Both Parties shall refrain from any action which might aggravate
          or extend the dispute before the Court or make it more diﬃcult
          to resolve.”
  6. By an Order dated 25 July 2018, the Court ﬁxed 25 April 2019 and
27 January 2020, respectively, as the time-limits for the ﬁling in the case
of a Memorial by Qatar and a Counter-Memorial by the UAE.

  7. On 22 March 2019, the UAE, also referring to Article 41 of the
Statute and Articles 73, 74 and 75 of the Rules of Court, in turn submit-
ted a Request for the indication of provisional measures, in order to “pre-
serve the UAE’s procedural rights” and “prevent Qatar from further
aggravating or extending the dispute between the Parties pending a ﬁnal
decision in th[e] case”.
  8. At the end of its Request, the UAE asked the Court to order that :

      “(i) Qatar immediately withdraw its Communication submitted to
           the CERD Committee pursuant to Article 11 of the CERD on
           8 March 2018 against the UAE and take all necessary measures
           to terminate consideration thereof by the CERD Committee;

       (ii) Qatar immediately desist from hampering the UAE’s attempts
            to assist Qatari citizens, including by un-blocking in its territory
            access to the website by which Qatari citizens can apply for a
            permit to return to the UAE;

      (iii) Qatar immediately stop its national bodies and its State-owned,
            controlled and funded media outlets from aggravating and
            extending the dispute and making it more diﬃcult to resolve by
            disseminating false accusations regarding the UAE and the
            issues in dispute before the Court; and
      (iv) Qatar refrain from any action which might aggravate or extend
            the dispute before the Court or make it more diﬃcult to resolve.”

  9. The Deputy-Registrar immediately communicated a copy of the
said Request to the Government of Qatar. He also notiﬁed the Secretary-
General of the United Nations of the ﬁling of the UAE’s Request for the
indication of provisional measures.
  10. Qatar ﬁled its Memorial in the case on 25 April 2019, within the
time-limit ﬁxed by the Court (see paragraph 6 above). On 30 April 2019,
within the time-limit prescribed by Article 79, paragraph 1, of the Rules
of Court, the UAE presented preliminary objections to the jurisdiction of
the Court and the admissibility of the Application. By an Order of 2 May
2019, the President of the Court ﬁxed 30 August 2019 as the time-limit
within which Qatar could present a written statement of its observations
and submissions on the preliminary objections raised by the UAE.

8

366             application of the cerd (order 14 VI 19)

   11. Public hearings on the UAE’s Request for the indication of provi-
sional measures were held from 7 to 9 May 2019, during which oral
observations were presented by :
On behalf of the UAE: H.E. Ms Hissa Abdullah Ahmed Al-Otaiba,

                         Mr. Robert G. Volterra,
                         Mr. W. Michael Reisman,
                         Mr. Dan Sarooshi,
                         Ms Maria Fogdestam-Agius.
On behalf of Qatar:      Mr. Mohammed Abdulaziz Al-Khulaiﬁ,

                          Mr. Vaughan Lowe,
                          Mr. Lawrence H. Martin,
                          Ms Catherine Amirfar,
                          Mr. Pierre Klein.
  12. At the end of its second round of oral observations, the UAE asked
the Court to order that :
      “(i) Qatar immediately withdraw its Communication submitted to
           the Committee on the Elimination of Racial Discrimination pur-
           suant to Article 11 of the International Convention on the Elim-
           ination of All Forms of Racial Discrimination on 8 March 2018
           against the UAE and take all necessary measures to terminate
           consideration thereof by that Committee;
      (ii) Qatar immediately desist from hampering the UAE’s attempts
           to assist Qatari citizens, including by un-blocking in its territory
           access to the website by which Qatari citizens can apply for a
           permit to return to the UAE;

      (iii) Qatar immediately stop its national bodies and its State-owned,
            controlled and funded media outlets from aggravating and
            extending the dispute and making it more diﬃcult to resolve by
            disseminating false accusations regarding the UAE and the
            issues in dispute before the Court; and
      (iv) Qatar refrain from any action which might aggravate or extend
            the dispute before the Court or make it more diﬃcult to resolve.”

  13. At the end of its second round of oral observations, Qatar requested
the Court “to reject the Request for the indication of provisional mea-
sures submitted by the United Arab Emirates”.

                                       *
  14. By a letter dated 23 May 2019, the UAE submitted “two new pieces
of evidence . . . relevant to [its] Request for the indication of provisional
measures”, stating that “[e]ach piece of evidence is part of a publication

9

367            application of the cerd (order 14 VI 19)

that is readily available”. For its part, by a letter dated 27 May 2019,
Qatar objected to the submission of the two items. By letters dated 7 June
2019, the Registrar informed the Parties that the Court considered that
the said items, produced after the closure of the oral proceedings, were
not material for deciding on the UAE’s Request for the indication of pro-
visional measures.

                                       *
                                   *       *

                       I. Prima Facie Jurisdiction

   15. The Court may indicate provisional measures only if there is, prima
facie, a basis on which its jurisdiction could be founded, but need not
satisfy itself in a deﬁnitive manner that it has jurisdiction as regards the
merits of the case. That is so whether the request for the indication of
provisional measures is made by the applicant or by the respondent in the
proceedings on the merits (see Pulp Mills on the River Uruguay (Argen-
tina v. Uruguay), Provisional Measures, Order of 23 January 2007,
I.C.J. Reports 2007 (I), p. 10, para. 24).
   16. The Court recalls that, in its Order of 23 July 2018 indicating pro-
visional measures in the present case, it concluded that, “prima facie, it
has jurisdiction pursuant to Article 22 of CERD to deal with the case to
the extent that the dispute between the Parties relates to the ‘interpreta-
tion or application’ of the said Convention” (I.C.J. Reports 2018 (II),
p. 421, para. 41). The Court sees no reason to revisit its previous ﬁnding
in the context of the present Request.

                II. The Provisional Measures Requested
                               by the UAE

   17. The power of the Court to indicate provisional measures under
Article 41 of the Statute has as its object the preservation of the respective
rights of the parties in a case, pending its decision on the merits thereof.
It follows that the Court must be concerned to preserve by such measures
the rights which may subsequently be adjudged by it to belong to either
party. Therefore, the Court may exercise this power only if it is satisﬁed
that the rights asserted by the party requesting such measures are at least
plausible (see, for example, Application of the International Convention on
the Elimination of All Forms of Racial Discrimination (Qatar v. United
Arab Emirates), Provisional Measures, Order of 23 July 2018,
I.C.J. Reports 2018 (II), pp. 421-422, para. 43).

10

368            application of the cerd (order 14 VI 19)

   18. At this stage of the proceedings, the Court is not called upon to
determine deﬁnitively whether the rights which the UAE wishes to see
protected exist ; it need only decide whether the rights claimed by the
UAE, and for which it is seeking protection, are plausible rights, taking
account of the basis of the Court’s prima facie jurisdiction in the present
proceedings (see paragraph 16 above) (Application of the International
Convention on the Elimination of All Forms of Racial Discrimination
(Qatar v. United Arab Emirates), Provisional Measures, Order of 23 July
2018, I.C.J. Reports 2018 (II), p. 422, para. 44). Thus, these alleged rights
must have a suﬃcient link with the subject of the proceedings before the
Court on the merits of the case (Pulp Mills on the River Uruguay (Argen-
tina v. Uruguay), Provisional Measures, Order of 23 January 2007,
I.C.J. Reports 2007 (I), pp. 10-11, paras. 27-30).

                                    * *
   19. With respect to the ﬁrst provisional measure requested, namely
that the Court order that Qatar immediately withdraw its Communica-
tion submitted to the Committee on the Elimination of Racial Discrimi-
nation (hereinafter the “CERD Committee”) and take all necessary
measures to terminate consideration thereof by that Committee, the UAE
argues that this request seeks to protect its rights “to procedural fairness,
to an equal opportunity to present its case and to proper administration
of justice”. More speciﬁcally, the UAE maintains that it has a right not to
be compelled to defend itself in parallel proceedings before the Court and
the CERD Committee.

   20. Concerning the second measure requested — that “Qatar immedi-
ately desist from hampering the UAE’s attempts to assist Qatari citizens,
including by un-blocking in its territory access to the website by which
Qatari citizens can apply for a permit to return to the UAE” — the UAE
asserts that Qatar’s actions compromise the UAE’s ability to implement
the provisional measures indicated by the Court on 23 July 2018 without
interference. It also contends that Qatar is manipulating and fabricating
evidence by “creating the false impression that the UAE has imposed in
eﬀect a travel ban on Qatari citizens”.

   21. The third and fourth provisional measures requested by the UAE
relate to the non-aggravation of the dispute. With regard to the third
provisional measure, the UAE argues that Qatar’s national bodies (in
particular its National Human Rights Committee) and its State-owned,
controlled and funded media outlets are disseminating false accusations
regarding the UAE and the issues in dispute before the Court. It requests
that Qatar be ordered to stop these actions, which it says have the eﬀect
of aggravating the dispute. As to the fourth measure — that “Qatar

11

369            application of the cerd (order 14 VI 19)

refrain from any action which might aggravate or extend the dispute
before the Court or make it more diﬃcult to resolve” — the UAE, refer-
ring to its factual allegations underpinning the ﬁrst three measures
requested, submits that, if that measure is not granted, Qatar will con-
tinue to “adversely aﬀect[ ] in a signiﬁcant way the prospects of the reso-
lution of the dispute”.

                                     *
   22. Qatar maintains that the Court should not grant any of the mea-
sures requested by the UAE. With regard to the ﬁrst measure, Qatar
asserts, inter alia, that the rights alleged by the UAE are not plausible
under CERD and that the proceedings in the CERD Committee and the
Court are neither duplicative nor abusive. Moreover, in its view, the mea-
sure requested by the UAE prejudges questions of jurisdiction and admis-
sibility, which should be decided at the preliminary objections stage.

   23. With respect to the second provisional measure requested, Qatar
submits that it blocked the visa application website for legitimate security
reasons and strongly denies any “manipulation and fabrication of evi-
dence”, maintaining that the UAE’s assertions in this regard are pure
speculation and concern issues to be determined at the merits stage. It
adds that there are in any event other means that could be used by the
UAE to comply with the provisional measures indicated in the 23 July
2018 Order, and that the question of whether it interfered with the UAE’s
ability to comply with these measures is also one for the merits. In any
case, Qatar states that it will unblock the website as soon as the security
risks have been addressed by the UAE.

   24. As to the third and fourth measures requested by the UAE, Qatar
contends that the Court’s jurisprudence makes clear that “non-
aggravation” of the dispute does not provide a stand-alone basis for pro-
visional measures and that such measures cannot be granted in the
absence of the indication of measures satisfying the Court’s settled cri-
teria and aimed at preserving the rights in dispute. It also observes that,
in its 23 July 2018 Order, the Court already indicated a non-aggravation
measure that binds both Parties ; the present requests concerning non-
aggravation are thus, in its view, without object. Qatar adds that any
claim that a Party is violating an existing provisional measure is a matter
for the merits phase.

                                    * *
  25. The Court considers that the ﬁrst measure requested by the UAE
does not concern a plausible right under CERD. This measure rather

12

370             application of the cerd (order 14 VI 19)

concerns the interpretation of the compromissory clause in Article 22 of
CERD and the permissibility of proceedings before the CERD Commit-
tee when the Court is seised of the same matter. The Court has already
examined this issue in its Order of 23 July 2018 on the Request for the
indication of provisional measures submitted by Qatar. In that context,
the Court noted that :

         “Although the Parties disagree as to whether negotiations and
      recourse to the procedures referred to in Article 22 of CERD consti-
      tute alternative or cumulative preconditions to be fulﬁlled before the
      seisin of the Court, the Court is of the view that it need not make a
      pronouncement on the issue at this stage of the proceedings . . . Nor
      does it consider it necessary, for the present purposes, to decide
      whether any electa una via principle or lis pendens exception are appli-
      cable in the present situation.” (Application of the International Con-
      vention on the Elimination of All Forms of Racial Discrimination
      (Qatar v. United Arab Emirates), Provisional Measures, Order of
      23 July 2018, I.C.J. Reports 2018 (II), pp. 420-421, para. 39.)

The Court does not see any reason to depart from these views at the cur-
rent stage of the proceedings in this case.
   26. The Court considers that the second measure requested by the
UAE relates to obstacles allegedly created by Qatar to the implementa-
tion by the UAE of the provisional measures indicated in the Order of
23 July 2018. It does not concern plausible rights of the UAE under
CERD which require protection pending the ﬁnal decision of the Court in
the case. As the Court has already stated, “[t]he judgment on the merits is
the appropriate place for the Court to assess compliance with the provi-
sional measures” (Certain Activities Carried Out by Nicaragua in the Bor-
der Area (Costa Rica v. Nicaragua) and Construction of a Road in
Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judg-
ment, I.C.J. Reports 2015 (II), p. 713, para. 126).

   27. Since the ﬁrst two provisional measures requested do not relate to
the protection of plausible rights of the UAE under CERD pending the
ﬁnal decision in the case, the Court considers that there is no need for it
to examine the other conditions necessary for the indication of provi-
sional measures.
   28. As to the third and fourth measures requested by the UAE, which
relate to the non-aggravation of the dispute, the Court recalls that, when
it is indicating provisional measures for the purpose of preserving speciﬁc
rights, it may also indicate provisional measures with a view to preventing
the aggravation or extension of a dispute whenever it considers that the
circumstances so require. Such measures can only be indicated as an addi-
tion to speciﬁc measures to protect rights of the parties (see, for example,
Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional

13

371            application of the cerd (order 14 VI 19)

Measures, Order of 23 January 2007, I.C.J. Reports 2007 (I), p. 16,
paras. 49-51). With regard to the present Request, the Court has not
found that the conditions for the indication of speciﬁc provisional mea-
sures are met and thus it cannot indicate measures solely with respect to
the non-aggravation of the dispute.

  29. The Court further recalls that it has already indicated in its Order
of 23 July 2018 that the Parties “shall refrain from any action which
might aggravate or extend the dispute before the Court or make it more
diﬃcult to resolve” (I.C.J. Reports 2018 (II), p. 434, para. 79 (2)). This
measure remains binding on the Parties.

                             III. Conclusion

  30. The Court concludes from the foregoing that the conditions for the
indication of provisional measures under Article 41 of its Statute are not
met.

                                      *
                                  *       *

   31. The decision given in the present proceedings in no way prejudges
the question of the jurisdiction of the Court to deal with the merits of the
case, any questions relating to the admissibility of the Application, or any
issues to be decided at the merits stage. It leaves unaﬀected the right of
the Governments of Qatar and the UAE to submit arguments in respect
of those questions.

                                      *
                                  *       *

  32. For these reasons,
  The Court,
  By ﬁfteen votes to one,
  Rejects the Request for the indication of provisional measures submit-
ted by the United Arab Emirates on 22 March 2019.
  in favour: President Yusuf; Vice-President Xue; Judges Tomka, Abraham,
    Bennouna, Cançado Trindade, Donoghue, Gaja, Bhandari, Robinson,
    Crawford, Gevorgian, Salam, Iwasawa; Judge ad hoc Daudet;
  against: Judge ad hoc Cot.

  Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this fourteenth day of June, two thou-

14

372           application of the cerd (order 14 VI 19)

sand and nineteen, in three copies, one of which will be placed in the
archives of the Court and the others transmitted to the Government of
the State of Qatar and the Government of the United Arab Emirates,
respectively.

                                  (Signed) Abdulqawi Ahmed Yusuf,
                                                  President.
                                     (Signed) Philippe Couvreur,
                                                   Registrar.

   Vice-President Xue appends a declaration to the Order of the Court;
Judges Tomka, Gaja and Gevorgian append a joint declaration to the
Order of the Court; Judges Abraham and Cançado Trindade append
separate opinions to the Order of the Court; Judge Salam appends a dec-
laration to the Order of the Court; Judge ad hoc Cot appends a dissenting
opinion to the Order of the Court.

                                                   (Initialled) A.A.Y.
                                                    (Initialled) Ph.C.

15


541

OPINION INDIVIDUELLE DE M. KOROMA
[Traduction ]

Question de la carence procédurale du point de vue de la violation — Conclu-
sions de la Cour — Doutes — Force obligatoire des ordonnances en indication
de mesures conservatoires aux termes du Statut de la Cour — Nécessité d’user
de prudence afin de ne pas jeter le doute sur les ordonnances rendues par le
passé.

1. Tout en souscrivant aux décisions de la Cour en l’espèce, je nour-
ris certains doutes quant à une ou deux conclusions, d’autant qu’elles
figurent également dans le dispositif de l’arrêt.

2. L'Allemagne a prié la Cour de dire et juger que

«en appliquant des règles de leur droit interne, notamment la doc-
trine dite de la «carence procédurale», qui ont empêché Karl et Wal-
ter LaGrand de faire valoir leurs réclamations au titre de la conven-
tion de Vienne sur les relations consulaires, et en procédant finale-
ment à leur exécution, les Etats-Unis ont violé obligation juridique
internationale, dont ils étaient tenus à l'égard de l'Allemagne en
vertu du paragraphe 2 de l’article 36 de la convention de Vienne, de
permettre la pleine réalisation des fins pour lesquelles sont prévus les
droits énoncés à l’article 36 de ladite convention».

3. Au paragraphe 125 de l'arrêt, la Cour constate

«quelle peut établir la violation d’une obligation internationale. Si
nécessaire, elle peut aussi constater qu'une loi interne a été la cause
de cette violation. La Cour, en la présente instance, a conclu,
lorsqu'elle a traité de la première et de la deuxième conclusion de
l'Allemagne, à la violation des obligations existant au titre de
l’article 36 de la convention de Vienne. Mais elle n'a pas trouvé de
loi américaine, de fond ou de procédure, qui, par nature, soit incompa-
tible avec les obligations que la convention de Vienne impose aux
Etats-Unis.» (Les italiques sont de moi.)

La Cour ajoute cependant que:

«En la présente instance, la violation du paragraphe 2 de l'ar-
ticle 36 a découlé des circonstances dans lesquelles a été appliquée la
règle de la carence procédurale, et non de la règle elle-même. » (Les
italiques sont de moi.)

Plus haut dans son arrêt, la Cour avait affirmé:

«Dans ces conditions, la règle de la carence procédurale a eu pour

79
LAGRAND (OP. IND. KOROMA) 542

effet d'empêcher «la pleine réalisation des fins pour lesquelles les
droits sont accordés en vertu du présent article ».» (Par. 91; les ita-
liques sont de moi.)

4. Au paragraphe 2 de son article 36, la convention de Vienne dispose:

«Les droits visés au paragraphe 1 du présent article doivent
s'exercer dans le cadre des lois et règlements de l'Etat de résidence,
étant entendu, toutefois, que ces lois et règlements doivent permettre
la pleine réalisation des fins pour lesquelles les droits sont accordés
en vertu du présent article.»

Cette disposition définit ainsi la manière dont les droits visés au para-
graphe | doivent être exercés et leurs conditions d'application.

5. Parmi les droits énoncés au paragraphe | de l’article 36 figurent: le
droit de demander aux autorités compétentes de l'Etat de résidence d’avi-
ser sans retard le poste consulaire de l'Etat d'envoi d’une arrestation ou
d’une mise en détention; le droit à ce que toute communication adressée
au poste consulaire par une personne arrêtée ou incarcérée soit transmise
sans retard par les autorités de l'Etat de résidence: le droit de l'Etat
d'envoi de voir ses ressortissants informés de leur droit de notification
consulaire, A mon sens, ces droits sont ceux qui sont visés au para-
graphe 2 de l’article 36 de la convention et ils obligent l'Etat de résidence.
Aussi leur violation suppose-t-elle que les autorités compétentes de l'Etat
de résidence ont manqué à l'obligation de les respecter. À l'évidence, la vio-
lation en question dans la présente affaire n’est imputable ni à la règle de
la carence procédurale, ni à son application. Ce n'est pas à cause de la
règle de la carence procédurale que les frères LaGrand n’ont pas été
informés en temps opportun de leurs droits à la protection ou à l’assis-
tance consulaires. Je ne pense pas que l’on puisse considérer que la règle
ou son application a constitué violation du paragraphe 2 de l'article 36 de
la convention, car ce n’est pas cette règle qui a empêché de donner plein
effet aux droits énoncés au paragraphe 1 de l’articie 36. Comme la Cour
l’a d’ailleurs dit elle-même, la doctrine de la carence procédurale n’est pas
en soi contraire aux obligations contractées par les Etats-Unis en vertu de
la convention. En revanche, dire que la violation du paragraphe 2 de
l'article 36 est due non pas à la règle en tant que telle, mais à son applica-
tion, est à la fois incohérent et injustifiable. En formulant ainsi sa conclu-
sion, la Cour semble dire que la règle est à la fois en conformité et en
contradiction avec les obligations imposées par la convention aux Etats-
Unis. Si, comme elle semble le penser, la Cour reconnaît que la règle fait
partie intégrante de la justice pénale aux Etats-Unis, elle ne peut en même
temps dire que c’est son application en l'espèce qui est à l’origine de la
violation par les Etats-Unis de leurs obligations. A mon avis, la question
sur laquelle la Cour aurait dû se prononcer était non pas celle de savoir si
certains aspects de la procédure pénale étaient à l’origine de la violation
des obligations, ce qui n’était pas le cas, mais plutôt celle de savoir si la
violation des obligations imposées par la convention était due au non-

80
LAGRAND (OP. IND. KOROMA) 543

respect des dispositions pertinentes. C'est-à-dire qu’il y aurait de toute
manière eu violation des obligations en question dans la mesure où la dis-
position pertinente de la convention n’avait pas été respectée, indépen-
damment des questions de procédure pénale.

6. Afin de dissiper tout malentendu quant à ma position, je tiens à pré-
ciser que J'adhère pleinement au principe selon lequel chacun a droit à
des garanties judiciaires, dont le droit d’interjeter appel contre une
condamnation ou une décision, principe adopté par les Etats du monde
entier. Pour moi, la question principale sur laquelle la Cour était appelée
à se prononcer était celle de savoir si les Etats-Unis — en n’informant pas
en temps opportun l'Allemagne et les frères LaGrand des droits qui leur
étaient reconnus par la convention — s'étaient soustraits à l’obligation
que la convention leur imposait à l'égard de l'Allemagne. La Cour devait
également déterminer le mode de réparation approprié de cette violation.

7. Je ne peux pas non plus souscrire totalement au raisonnement sur
lequel s’appuie la Cour pour parvenir à la conclusion qu’elle énonce sur
l’article 41 du Statut. La véritable question consistait à déterminer si
l'ordonnance en indication de mesures conservatoires rendue par la Cour
le 3 mars 1999 liait les Etats-Unis, et non à s'engager dans l'interprétation
de l’article 41 du Statut. Je ne pense pas que la jurisprudence de la Cour
à cet égard soit incertaine, pas plus que je n’adhére à la théorie de l’ambi-
guité linguistique de cette disposition. Pour moi, le sens en est clair et
sans équivoque et ni sa signification, ni son objet ne peuvent préter a
contresens. Cette disposition fait également partie du Statut de la Cour.
Une ordonnance en indication de mesures conservatoires a pour objet et
pour but de préserver et protéger Jes droits et intéréts des parties a une
instance devant la Cour en attendant que celle-ci rende une décision défi-
nitive. C’est la Cour qui accueille ou rejette une demande de mesures
conservatoires. Par voie de conséquence, lorsque la Cour rend une ordon-
nance en application du Statut, l'ordonnance a force obligatoire. Si tel
n’était pas le cas, il serait vain de rendre une ordonnance, puisqu'elle
serait vouée à l'échec. C’est ainsi que je comprends cette disposition et
c’est ainsi qu’il faut entendre le présent arrêt, et non comme jetant le
doute, bien qu’invclontairement, sur les ordonnances en indication de
mesures conservatoires que la Cour a rendues jusqu'ici.

8. Enfin, en ce qui concerne le point 7 du paragraphe 128 du dispositif
de l’arrêt, comme je l'ai déjà dit, je suis d’avis que chacun, quelle que soit
sa nationalité, a droit à des garanties judiciaires fondamentales, dont le
droit de faire appel d’une condamnation ou d’une peine ou d’en deman-
der la revision, sans qu'aucune considération de nationalité n’entre en
ligne de compte. Autrement dit, la procédure judiciaire doit être équitable
et régulière.

(Signé) Abdul G. Koroma.

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