1366

SEPARATE OPINION OF JUDGE KOOIJMANS

Reason for adding separate opinion to joint declaration — Issue of prima
facie jurisdiction in 1999 Orders on provisional measures — Position of Yugo-
Slavia in period 1992-2000 not substantiated in Judgment — Implication for
other pending cases in which Applicant is party — Consistency with earlier case
law ignored by the Court.

Options open to the Court — Dismissal in limine litis — Inconsistency of
Applicant’s behaviour with regard to jurisdictional grounds — Application no
longer meets requirement of Article 38, paragraph 2, of Rules of Court —
Inherent powers of the Court to strike case from General List — Judicial policy
and sound administration of justice.

1. With full conviction, I have subscribed to the joint declaration of
seven members of the Court. I strongly feel that the Court, in the present
Judgment, has failed to meet the criteria for a sound judicial policy, as
spelled out in paragraph 3 of the joint declaration, by basing itself on the
argument that Serbia and Montenegro has no access to the Court, and
that the Court consequently lacks jurisdiction ratione personae.

2. My present point of view may seem slightly surprising to those who
remember the separate opinion I appended to the Court’s Orders of
2 June 1999 on provisional measures in the same cases. There, I said that
the Court’s reasoning in basing itself on prima facie lack of jurisdiction
ratione temporis was flawed from a logical point of view (Legality of Use
of Force ( Yugoslavia v. United Kingdom), Provisional Measures, I.C.J.
Reports 1999 (II), p. 878, para. 2).

I was of the view that the decisions taken in 1992 by the competent
organs of the United Nations, with regard to the continued membership
of the Federal Republic of Yugoslavia and the events which had taken
place thereafter, had raised serious doubts as to whether the Federal
Republic of Yugoslavia was capable of accepting the compulsory juris-
diction of the Court as a party to the Statute, and that such doubts as a
matter of logic take precedence over other controversies with regard to
the Court’s jurisdiction. I therefore felt that, in respect of its finding that
it had no prima facie jurisdiction, the Court should have based itself on
the argument that the Applicant had doubtful locus standi, and thus that
there was a lack of jurisdiction ratione personae, rather than on the
ground of lack of jurisdiction ratione temporis. (I agreed with the Court’s
finding that with regard to the Genocide Convention it had no prima

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1367 LEGALITY OF USE OF FORCE (SEP. OP. KOOIJMANS)
facie jurisdiction ratione materiae.)

3. The Court took an approach different to the one I had suggested. It
opted for an approach that, in my view, was defensible and legally sound,
even if I preferred another approach from a logical point of view (para-
graph 30 of my opinion). The approach taken by the Court in 1999 has
now been abandoned in favour of the one suggested by me at the time
(see Judgment, para. 44). Far from being elated by this change of
approach, however, I feel concerned for a number of reasons, which are
mentioned in the joint declaration and elaborated upon in the following
paragraphs.

4. First, in 1999, I certainly did not assume that the issue of the
Court’s jurisdiction ratione personae was an open and shut case. I expli-
citly stated: “[nJot for a moment do I contend that the Court already at
the present stage of the proceedings should have taken a definitive stand
on what I called earlier a thorny question” (Legality of Use of Force
( Yugoslavia v. United Kingdom), Provisional Measures, I.C.J. Reports
1999 (IT), p. 883, para. 21). I went on to refer to the dossier on the Fed-
eral Republic of Yugoslavia’s continued membership of the United
Nations as being full of legal complications, and was of the opinion that
a thorough analysis and careful evaluation of the Federal Republic of
Yugoslavia’s status was required at a later stage of the proceedings (ibid,
p. 883, paras. 21 and 22). I am, however, not persuaded by the Court’s
conclusion in the present Judgment that this analysis and evaluation have
convincingly demonstrated that the events of 2000 have “clarified the
thus far amorphous legal situation concerning the status of the Federal
Republic of Yugoslavia vis-à-vis the United Nations” (para. 77).
Although this finding is undoubtedly correct as far as the situation after
the admission of the Federal Republic of Yugoslavia to the United
Nations is concerned (this admission did indeed bring to an end its sui
generis position vis-a-vis the United Nations), the Judgment does not
make clear what the legal effects of this “amorphous” situation were in
the period 1992-2000. The reader is left with the statement — in itself not
uncontroversial — that the sui generis position of the Federal Republic
of Yugoslavia cannot have amounted to its membership in the Organi-
zation (para. 76).

5. The Court’s finding does not seem to be based on a thorough analy-
sis and careful evaluation of, inter alia, the legal effects of the statements
made and positions taken by the Federal Republic of Yugoslavia before
2000, in particular its note of 27 April 1992 to the United Nations, in
which it — admittedly on the presumption of the continuity of the “inter-
national personality of Yugoslavia” — unilaterally committed itself to

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fulfil all the rights conferred on, and obligations assumed by, the Socialist
Federal Republic of Yugoslavia in its international relations, including
its membership in all international organizations and participation in
international treaties ratified or acceded to by Yugoslavia. Have these
commitments become meaningless (at least partially), merely as a result
of its admission to the United Nations as a new Member and the nega-
tion of the presumption of continuity implicit therein; and if so, on what
grounds? Have the “thick clouds which have packed around Yugosla-
via’s membership in the United Nations” (an expression I used in my
1999 opinion, para. 27) been fully dissipated by the Federal Republic of
Yugoslavia’s belated decision to act as a successor State to the Socialist
Federal Republic of Yugoslavia, leaving it in a legal vacuum for the
period 1992-2000 as far as its relationship vis-a-vis the United Nations
and thus its participation in certain treaties — in particular the Genocide
Convention — is concerned? In this respect, the Judgment does not give
the reader much by way of clarification.

6. Second, as regards the potential impact of the 1999 Orders on other
cases before the Court, in particular the 1993 case concerning the Appli-
cation of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), it
deserves mention that in 1999 both the Applicant and the Respondents
(with the possible exception of Portugal) considered themselves to be
party to the Genocide Convention, which had been found by the Court in
1996 to be the only basis of jurisdiction in the Genocide Convention case.
An impact of the orders on provisional measures in the instant cases on
the Genocide Convention case was therefore not foreseeable and — to say
the least — not very probable.

7. All this changed, however, when in 2000 a new Government came
into power in Belgrade. This Government no longer considered the Fed-
eral Republic of Yugoslavia to be the continuation of the former Socialist
Federal Republic of Yugoslavia, and it decided to apply for membership
of the United Nations as a successor State. Moreover, it was of the view
that the Federal Republic of Yugoslavia, at the time of its inception in
1992, had not been a party to the Genocide Convention, but only became
a party after its accession to the Convention on 6 March 2001.

8. These new perceptions in Belgrade led the Government to submit
an Application to the Court containing a Request for Revision of the
1996 Judgment on preliminary objections in the Genocide Convention

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1369 LEGALITY OF USE OF FORCE (SEP. OP. KOOIJMANS)

case on the basis of the “newly discovered facts” mentioned in the
previous paragraph.

The Court gave its decision rejecting the Federal Republic of Yugosla-
via’s Application for Revision in a Judgment dated 3 February 2003, in
which I did not participate. As recalled in paragraph 10 of the joint dec-
laration, the Court found that “resolution 47/1 did not inter alia affect
the Federal Republic of Yugoslavia’s right to appear before the Court...
under the conditions laid down by the Statute”, and that the Federal
Republic of Yugoslavia’s sui generis position vis-a-vis the United Nations
during the period 1992-2000 cannot have been changed retroactively by
its admission to the United Nations in 2000 (Application for Revision of
the Judgment of 11 July 1996 in the Case concerning Application of the
Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections ( Yugo-
Slavia v. Bosnia and Herzegovina}, I.C.J. Reports 2003, p. 31, paras. 70
and 71).

9. The arguments made by Serbia and Montenegro in the Application
for Revision case and in the present cases are virtually identical, and thus
establish a close link between the Genocide Convention case and the
present cases. Such a link did not exist in previous phases of the proceed-
ings in these cases. It is, therefore, all the more remarkable that, in spite
of the fact that this link is now undeniable, the Court, in its present Judg-
ment, has chosen an approach which is not in line with the approach
taken in 1999 and 2003 and which inevitably has implications for the
Genocide Convention case.

The Court’s statement that it “cannot decline to entertain a case
simply . . . because its judgment may have implications in another case”
(Judgment, para. 38) may be correct in general terms, but must be
deemed to lack the prudence and care which are called for in situations
where a variety of options exists.

10. Third, the decisions taken by the Court in the 1999 Orders on pro-
visional measures and in the 2003 Judgment in the Application for Revi-
sion case and its reasoning therein are part of the Court’s case law. As we
say in the joint declaration: “[cJonsistency is the essence of legal reason-
ing”. In my view, this consistency in reasoning in the Court’s case law is
of paramount importance and dwarfs any misgivings I personally may
have or may have had with regard to each and every argument used, as
long as I do not consider them legally untenable.

11. Although I do not consider the Court’s reasoning in the instant
cases legally untenable, I have, in some respects, serious doubts as to its
correctness; moreover, I find it judicially unsound for the reasons given
in the joint declaration and in the preceding paragraphs. What seemed to
me to be a logical ground for determining lack of prima facie jurisdiction

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does not automatically qualify as a proper ground for the definitive deter-
mination of the issue of jurisdiction.

« Ÿ +

12. The views expressed in my separate opinion appended to the 1999
Orders on provisional measures and my perception of them in the light of
today’s circumstances are, however, not the only reason why I deemed it
necessary to add a separate opinion to the joint declaration. I also wish
to indicate which of the options open to the Court and referred to in
paragraph 2 of the joint declaration would, in my view, have been the
better one.

13. These options were three in number. The first is the one chosen by
the Court in its Judgment and is based on its jurisdictional considerations
ratione personae. The second is the approach followed by the Court in
1999, which was founded on a lack of prima facie jurisdiction ratione
temporis and ratione materiae.

The third option would have been dismissal of the case in limine litis.
This option is explicitly rejected in the Judgment, but it would have
been my preference. I therefore find it useful to set out my views; they
are not necessarily shared by other colleagues who have signed the joint
declaration and who might have chosen the second option, which is
also plausible and conceivable for good reasons but with regard to
which the Court has not explicitly expressed itself.

14. The option of dismissal in limine litis logically precedes the other
two and it is therefore with good reason that the Court has dealt with it
first. Similarly, the relevant question has correctly been defined as

“whether in the light of the assertions by the Applicant . . . coupled
with the contentions of each of the respondent States, the Court
should take a decision to dismiss the case in limine litis, without
further entering into the examination of the question whether
the Court has jurisdiction under the circumstances” (Judgment,
para. 28).

15. I do not intend to deal with all the arguments given by the Court
in the relevant part of the Judgment (paras. 26-42), which contain mainly
a reply to the contentions of the Respondents. In a number of respects, I
agree with what is said by the Court; that is true particularly when it
states: “in certain circumstances the Court may of its own motion put an
end to proceedings in a case” (para. 31). I am, however, of the view that
the Court has refrained from exercising this proprio motu competence in
a well-considered way, and regrettably has confined itself first and fore-
most to responding to the arguments of the Parties in order to ultimately

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conclude that “[flor all these reasons, [it] cannot remove the cases...
from the [General] List, or take any decision putting an end to those
cases in limine litis” (para. 42). Though the Court explicitly stated that,
apart from the arguments of the Parties, it would also consider “any
other legal issue which it deems relevant” (para. 25), there is hardly any
evidence that it has done so. In the following, I will try to demonstrate
that such an approach would nevertheless have been the most appro-
priate one.

16. In its final submissions, Serbia and Montenegro asked the Court to
“adjudge and declare on its jurisdiction ratione personae in the present
cases” (CR 2004/23, p. 38). Such a request is highly unusual. Normally,
the applicant asks the Court to find that it has jurisdiction, not whether it
has jurisdiction.

17. The first time that Serbia and Montenegro asked the Court to
decide on its jurisdiction was when it submitted its Written Observations
on the preliminary objections of the Respondents on 20 December 2002.
In its Observations, Serbia and Montenegro summarily stated that, at the
time of the filing of its Applications in 1999, it had neither been a party to
the Statute nor to the Genocide Convention, thereby implying that the
Court could not base its jurisdiction on either Article 36, paragraph 2, of
the Statute or Article IX of the Genocide Convention, which were the
bases of jurisdiction it had invoked in its 1999 Applications.

18. Serbia and Montenegro explicitly stated in a letter to the Court,
dated 28 February 2003, that its Written Observations did not represent
a notice of discontinuance, and reiterated its request to decide on the
Court’s jurisdiction “considering the pleadings formulated in the Written
Observations”. What is striking — although perhaps not surprising in
view of the litigation tactics of Serbia and Montenegro with regard to the
various cases before the Court in which it is a party, as either applicant or
respondent — is that these Observations did not in any way refer to an
alternative basis of jurisdiction replacing the ones presented in 1999 but
no longer maintained by the Applicant.

19. It was only during the oral pleadings that the Applicant raised the
“key question” whether the sui generis position vis-a-vis the United
Nations (mentioned by the Court in the Judgment in the Application for
Revision case of 3 February 2003 and thus three weeks before the sending
of the letter to the Court) could have provided the link between the new
State and international treaties, in particular the Statute of the Court and
the Genocide Convention. In this respect, it is noteworthy that the Agent
for Serbia and Montenegro did not give any suggestion as to how this
could have happened. He merely stated that the question required a
definitive answer and that only a decision of the Court could bring
clarity. “A judgment on jurisdiction based on the elucidation of the
position of the Federal Republic of Yugoslavia between 1992 and 2000
could create an anchor point of orientation.” (CR 2004/14, pp. 26-27,

68
1372 LEGALITY OF USE OF FORCE (SEP. OP. KOOIJMANS)
paras. 63-64; emphasis added.)

20. Article 38, paragraph 2, of the Rules of Court states, inter alia,
that “[t]he application shall specify as far as possible the legal grounds
upon which the jurisdiction of the Court is said to be based” (emphasis
added). The Applications of 29 April 1999 met this requirement by
explicitly mentioning Article 36, paragraph 2, of the Statute and
Article IX of the Genocide Convention (supplemented in the cases
against Belgium and the Netherlands by letter of 12 May 1999, referring
to compromissory clauses in two bilateral conventions of 1930 and
1931 respectively).

In its Written Observations, filed on 20 December 2002, the Applicant
abandoned these jurisdictional grounds as being pertinent at the date the
Applications were filed without replacing them by another basis for the
Court’s jurisdiction (the Observations were silent as regards the two
bilateral treaties).

21. Therefore, Serbia and Montenegro’s Applications, as supplemented
by its Written Observations of 20 December 2002, no longer meet the
first requirement of Article 38, paragraph 2, of the Rules of Court. That
fact in itself, however, does not provide the Court with a ground to
remove the cases from the List. The provision that the Application shall
specify the legal grounds of jurisdiction was included in 1936; in order to
distinguish the requirements of paragraph 2 from those of paragraph 1,
which were prescribed by the Statute itself, the words “as far as possible”
were used (see G. Guyomar, Commentaire du Réglement de la Cour
internationale de Justice, 1983, pp. 234 et seq.). In contrast to the require-
ments of paragraph 1, non-compliance with those of paragraph 2 does
not lead eo ipso to non-admissibility. These requirements “were imposed
on the Parties by the Court simply because they were helpful to it, but
represented a mere recommendation” (ibid., p. 235 {translation by the
Registry ]). Likewise, Rosenne is of the view that “an application will not
be rejected in limine only because such specification [of the jurisdictional
grounds] is omitted” (The Law and Practice of the International Court
1920-1996, 1997, p. 705).

22. Serbia and Montenegro’s contention that only discontinuance in
conformity with Articles 88 and 89 of the Rules of Court may yield a
removal of a case from the List without a judgment on jurisdiction or on
the merits (CR 2004/14, p. 18, para. 29) is, however, not correct. The fact
that the Rules only speak of removing a case from the List by unilateral
action of the applicant (Art. 89) or joint action by the parties (Art. 88)
cannot deprive the Court of its inherent power, as master of its own pro-
cedure, to strike proprio motu a case from the List. This is also recog-
nized by Rosenne who, in this respect, refers to the general powers of the
Court under Articles 36 and 48 of the Statute (op. cit., p. 1478). This

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1373 LEGALITY OF USE OF FORCE (SEP. OP. KOOIJMANS)

power is not related to the intention of the parties but to the judicial task
of the Court. This is borne out by the Court’s reasoning in the Orders in
the cases brought by the Federal Republic of Yugoslavia against Spain
and the United States of America, where it said that

“within a system of consensual jurisdiction, to maintain on the
General List a case upon which it appears certain that the Court
will not be able to adjudicate on the merits would most assuredly
not contribute to the sound administration of justice” (Legality of
Use of Force ( Yugoslavia v. Spain), Provisional Measures, I.C.J.
Reports 1999 (II), p. 773, para. 35; emphasis added).

Such power has to be used sparingly and only as an instrument of judicial
policy to safeguard the integrity of the Court’s procedure. The present
cases, however, are without precedent and can truly be called excep-
tional.

23. The Court was, in my opinion, perfectly entitled to issue such an
order in the instant cases on the basis of the fact that the Applicant has
not provided the Court with any plausible information as to the basis of
its jurisdiction. It is not for the Court to ascertain in the preliminary
phase of a case whether it has jurisdiction if the applicant fails to sub-
stantiate in any persuasive manner what the basis for that jurisdiction
could be, and after it has explicitly admitted that the initial grounds it
invoked are no longer valid. Nor is it the Court’s task to provide a party,
which asks for the elucidation of an observation made by the Court in a
judgment in another case to which it was also a party, with “an anchor
point of orientation”, as this would be tantamount to rendering an advi-
sory opinion or giving an interpretation of a judgment in circumstances
and under conditions not warranted by the Statute.

24. It is incompatible with the respect due to the Court for a party not
to provide it with any substantive argument for the speculation that it
might have jurisdiction while explicitly withdrawing the previously
adduced jurisdictional grounds. It is not in conformity with judicial pro-
priety and a sound judicial policy to render a fully reasoned judgment on
jurisdiction when the Applicant bases its request to do so on grounds
which can only be called inadequate. The Applicant can, therefore, be
held to its statement that there are no recognized or generally accepted
grounds of jurisdiction.

25. In the second round of the oral pleadings, the Agent for France
stated that

“the party against whom the application is brought is not required
to prove that there is no basis for jurisdiction, which would require
it — and it would be absurd to ask this of it — as a matter of course
to examine all possible bases” (CR 2004/21, p. 13, para. 22).

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1374 LEGALITY OF USE OF FORCE (SEP. OP. KOOIJMANS)

What is true for the Respondent is also true for the Court and even more
so. The fact that the Court has the duty under certain circumstances to
ascertain proprio motu that it has jurisdiction cannot, by a contrario
reasoning, be turned into an obligation to explore grounds for its juris-
diction which have not been invoked by the Applicant. As Rosenne
states:

“There can be no doubt that the choice of a title of jurisdiction is
as much a political act as a decision to institute proceedings, and the
Court is following its usual attitude when faced with political ques-
tions of that character not to substitute itself for the party con-
cerned. It is for this reason that a principle such as curia jura novit
cannot appropriately be applied by the Court proprio motu to sub-
stitute a title of jurisdiction which has not been invoked for
another .. .” (Op. cit., p. 956.)

Neither does the Court have to rule on a title of jurisdiction which has
not been claimed.

26. In view of the fact that the Applicant has failed to demonstrate,
and has not even made an effort to demonstrate, that the Court has juris-
diction, I am of the opinion that the Court should have decided in limine
litis to remove the eight cases from the General List.

(Signed) Pieter H. KOOIMANS.

71


                     125

                                     SEPARATE, PARTLY CONCURRING
                                    AND PARTLY DISSENTING, OPINION
                                    OF JUDGE AD HOC ORREGO VICUÑA

                        Starting-point of maritime delimitation — Recognition of the parallel — Single
                     maritime boundary — “Maritime domain” governed by the 1982 United Nations
                     Convention on the Law of the Sea — Freedom of navigation beyond 12 nautical
                     miles — Misgivings about the maritime boundary following the parallel for only
                     80 nautical miles — Extensive practice of the Parties — Disproportionate effects
                     of equidistance and the “outer triangle” — Negotiated access to fisheries — Role
                     of equity in international law.

                         1. Judges Xue, Gaja, Bhandari and this judge ad hoc have submitted a
                      joint dissenting opinion concerning some legal aspects that are central to
                      the Judgment of the Court in this case, with particular reference to the
                      proper interpretation of the 1947 Presidential Proclamations (Memorial
                      of Peru, Ann. 6 and 27), the 1952 Santiago Declaration (ibid., Ann. 47)
                      and the 1954 Special Maritime Frontier Zone Agreement (ibid.,
                      Ann. 50), and to how these instruments lead to the conclusion that the
                      Parties agreed that their maritime boundary delimitation follows the
                      parallel of latitude up to a distance of 200 nautical miles from its
                     starting‑point.

                        2. In addition to that joint dissent, this judge believes that it is his duty
                     to address some other questions relevant for the resolution of the dispute
                     submitted to the Court. In respect of some of these questions, this judge
                     agrees with the reasoning and conclusions of the Judgment, as will be
                     noted below. In respect of some other questions, however, this judge has
                     an opinion different from that of the majority of the Court. This opinion
                     is submitted with the greatest respect for the Members of the Court and
                     its President, all of whom have made a significant effort to reach a com-
                     mon position on many difficult issues, although regrettably, not always
                     with success.

                       3. The first point on which this judge concurs with the Judgment is
                     that concerning the starting‑point of the maritime delimitation effected.
                     The Court has rightly decided that this point is the intersection of the
                     parallel of latitude passing through Boundary Marker No. 1 with the
                     low‑water line. As identified since 1930 in the Final Act concerning the
                     demarcation and marking of the land boundary agreed in the 1929 Treaty

                     126

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                     126 	          maritime dispute (sep. op. orrego vicuña)

                     between Chile and Peru (Memorial of Peru, Ann. 55), the parallel corres
                     ponding to Marker No. 1 is at 18° 21΄ 03˝ S. In its submissions, as in its
                     legislation concerning baselines, Peru had identified the starting‑point of
                     the maritime boundary at 18° 21´08˝ S, 70° 22´ 39˝ W. It follows from the
                     Judgment of the Court that the endpoint of these baselines cannot now be
                     located south of the intersection of the parallel of Boundary Marker
                     No. 1 with the low‑water line.

                        4. It is also important to note that the Court has concluded that
                     because it is concerned only with the starting‑point of the maritime delimi
                     tation, it is not called upon to take a position on the starting‑point of the
                     land boundary (Judgment, para. 175).
                        5. The Court has also rightly concluded that the maritime boundary
                     follows the parallel of latitude passing through Boundary Marker No. 1
                     westward. This is an important consequence of the Court having decided
                     that the 1954 Special Maritime Frontier Zone Agreement embodies the
                     recognition of this parallel. This in turn relates to the acknowledgment of
                     the legal significance of the 1952 Santiago Declaration as a treaty in force
                     in the light of the Parties’ common understanding in this respect. The
                     Court also recognizes that the 1968‑1969 lighthouse arrangements con-
                     firmed the prior existence of a maritime boundary following that parallel
                     (ibid., para. 130). As the joint dissent appropriately notes, the same holds
                     true of the 1955 Protocol of Accession to the Santiago Declaration
                     (Memorial of Peru, Ann. 52), although the Judgment takes a different
                     view on this point.

                        6. This finding of the Court, however, is based on the understanding
                     that the acceptance of the parallel by the Parties is the outcome of a tacit
                     agreement. Rather, as also noted in the joint dissent, this is the outcome
                     of the specific treaty commitments undertaken by the Parties in 1952 and
                     1954, which in turn are related to the meaning and extent of the 1947 Proc-
                     lamations. As treaty provisions, their interpretation is governed by the
                     1969 Vienna Convention on the Law of Treaties, in the light of which the
                     parallel reaching the 200‑nautical‑mile distance is the appropriate conclu-
                     sion.

                        7. The Court has also reached the right conclusion in respect of the
                     nature of the maritime boundary, deciding that it is a single all‑purpose
                     maritime boundary. Such a boundary shall thus be applicable not only to
                     some limited fishing activities taking place in the superjacent waters but
                     also to any activity related to the régime of the exclusive economic zone
                     and the continental shelf and its subsoil.
                        8. The question of the nature of the maritime boundary also has
                     important implications in respect of the kind of jurisdiction that Peru is
                     entitled to exercise over its maritime areas. For a long time, Peru had
                     been internally debating whether the “maritime domain” it claims over

                     127

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                     127 	          maritime dispute (sep. op. orrego vicuña)

                     the adjacent seas was in the nature of a territorial sea or of a functional
                     jurisdictional area concerning its resources. Distinguished jurists and
                     statesmen had a divided opinion in this respect. Legislation, including the
                     Secret Law No. 13508 enacted on 6 February 1961 (Law No. 13508,
                     “Secret Law”, promulgated on 6 February 1961, Peruvian Navy, Year
                     book of Peruvian Legislation, Vol. LII, Legislation of 1960, p. 89), and
                     constitutional provisions were introduced in support of the territorial sea
                     approach, but even then their interpretation was disputed in the light of
                     the alternative jurisdictional approach. Due to these differing opinions,
                     Peru did not become a signatory to the 1982 United Nations Convention
                     on the Law of the Sea.

                        9. The International Court of Justice has now settled this Peruvian
                     debate. The Judgment takes note of the formal declaration made on
                     behalf of the Government of Peru by its Agent in this case to the effect
                     that the term “maritime domain” used in its Constitution is “applied in a
                     manner consistent with the maritime zones set out in the 1982 Conven-
                     tion” (CR 2012/27, p. 22, para. 26 (Wagner)). The Court, following a
                     well‑established jurisprudence, further notes that this declaration
                     expresses a formal undertaking by Peru. It follows that Peru is entitled to
                     exercise jurisdiction over its maritime areas up to 12 nautical miles for the
                     territorial sea, 24 nautical miles for the contiguous zone and 200 nautical
                     miles for the exclusive economic zone and the continental shelf.
                        10. The resolution of this question is not only important for the clarity
                     of Peru’s legislation and its corresponding amendments but also in terms
                     of the proper implementation of the law of the sea by the Court. Had the
                     “maritime domain” been considered a territorial sea claim, the Court
                     would have had no alternative but to declare Peru’s Application inadmis-
                     sible, since it cannot proceed to delimitate maritime areas that are in
                     breach of the contemporary law of the sea, as the delimitation of a
                     200‑nautical‑mile territorial sea clearly is.

                        11. A more important consequence of this finding is to the benefit of
                     the international community as a whole. Vessels flying the flags of all
                     nations, including Chile, whether merchant or military, can now have full
                     freedom of navigation beyond the 12‑nautical‑mile territorial sea of Peru,
                     just as submarines will be able to navigate submerged. Aircraft will also
                     have the right of unrestricted overflight. Restrictions applied to such
                     activities will now have to be lifted.

                       12. Notwithstanding this positive contribution of the Court to the law
                     of the sea, there are, however, other aspects of the Judgment with which
                     this judge regrettably cannot agree. As appropriately noted in the joint
                     dissent, there is no support for the Judgment’s conclusion that the bound-
                     ary is composed of two segments, one running along the parallel up to
                     Point A situated at the distance of 80 nautical miles from the starting-

                     128

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                     128 	          maritime dispute (sep. op. orrego vicuña)

                     point, and the other following a line of equidistance from Point A until
                     meeting Point B and thereon to Point C.

                        13. It is apparent from the case record that the Parties did not plead
                     for such a distance or, in fact, any other distance short of 200 nautical
                     miles. More importantly, nothing in the record shows that any shorter
                     distance was ever considered throughout the long process of establishing
                     the 200‑nautical‑mile offshore zones. In fact, it would be surprising if the
                     Parties had chosen such a restricted boundary in the context of their res
                     pective individual and collective endeavours to establish a 200‑nautical-
                     mile zone and to ensure its international recognition. Had this been the
                     case, they would have made an express statement to that effect, which
                     they did not.
                        14. The recognition of the parallel in the 1954 Special Maritime Fron-
                     tier Zone Agreement was not so restricted and, although no endpoint is
                     expressly established, its context clearly shows that it was envisaged to
                     extend to the full 200‑nautical‑mile area that was subject to the Parties’
                     claims. Distinguished jurists, including the former President of the Court,
                     Judge Eduardo Jiménez de Aréchaga, as well as eminent geographers,
                     have all so concluded, as the record indicates.

                        15. The conclusion of the Judgment is mainly related to the view that
                     the 1954 Special Maritime Frontier Zone Agreement refers to its applica-
                     tion to small fishing boats lacking sophisticated navigational equipment,
                     and is premised upon the assumption that such boats could not operate
                     beyond a rather limited distance. While this could well be true for some
                     fishing vessels, it is not so for larger industrial vessels that have been oper-
                     ating in the area for some time. It is appropriate to recall that fishing
                     activities in this area are inextricably related to the biological and nutri-
                     tional characteristics of the Humboldt Current, which extends far beyond
                     the 200‑nautical‑mile limit.
                        16. It must also be noted that, even if the Special Maritime Frontier
                     Zone had been understood as extending to a limited distance, which was
                     not the case, the maritime boundary would still have extended to 200 naut
                     ical miles as it was established independently of any special zone that
                     could later be attached to it. Any interpretation to the contrary would
                     have to rely on an express understanding between the Parties, which does
                     not exist.
                        17. It is also appropriate to note that the Judgment has correctly
                     explained that even smaller fishing boats departing from Ilo, the main
                     Peruvian port in the area, in search of fishing grounds located some
                     60 nautical miles to the south-west would have crossed the parallel of the
                     agreed boundary at a distance of approximately 100 nautical miles from
                     its starting‑point (Judgment, para. 108). If such fishing grounds were
                     located at 80 nautical miles from Ilo, the crossing would take place at
                     about 120 nautical miles from the parallel starting‑point. While it is also

                     129

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                     129 	          maritime dispute (sep. op. orrego vicuña)

                     explained that the situation relating to Arica is different, this does not
                     detract from the fact that fishing grounds are located where they are and
                     the claimed fisheries interests of Ilo would have been equally protected at
                     distances greater than 80 nautical miles.

                        18. Because the Judgment follows the reasoning that the maritime
                     boundary was the outcome of a tacit agreement, the role of the various
                     instruments in the genesis and materialization of a treaty commitment
                     concerning the maritime boundary is somewhat lost. The relevance of the
                     1947 Presidential Proclamations is greater than that which the Judgment
                     appears to acknowledge. While these Proclamations lacked in some
                     respects the precise legal language of contemporary developments, they
                     nonetheless evidence that a 200‑nautical‑mile maritime boundary between
                     the two countries was not absent from their respective texts, as discussed
                     in the joint dissent.

                        19. The 1952 Santiago Declaration was still more explicit on the estab-
                     lishment of the boundary. The joint dissent explains this aspect in detail.
                     The reference in Article IV to a general maritime zone delimited by the
                     parallel of latitude can be no other than the expression of an understand-
                     ing that the boundary line separating the Parties’ respective jurisdictions
                     followed this parallel irrespective of the insular delimitation. Even if such
                     a general maritime zone would have been of relevance only for islands,
                     which was not the case, the use of the parallel in determining the bound-
                     ary around the islands in the vicinity of the Chile‑Peru maritime bound-
                     ary would have been applicable, as it is around the Ecuadorean islands.
                     The Declaration does not make a distinction between islands under the
                     jurisdiction of Ecuador, Peru or Chile, or between smaller and bigger
                     islands, and there is therefore no reason to exclude the relevance of some
                     islands in connection with the role of the general maritime zone following
                     the parallel.

                       20. The extensive legal practice and diplomatic exchanges that fol-
                     lowed the 1954 Special Maritime Frontier Zone Agreement offer clear
                     evidence of the Parties’ understanding of the 1952 and 1954 instruments.
                     Particularly relevant in this context is the resolution of the President of
                     Peru in 1955 (Supreme Resolution No. 23 of 12 January 1955, the Peru-
                     vian 200‑Mile Maritime Zone, Memorial of Peru, Ann. 9), which pro-
                     vided the technical criteria for drawing the maritime boundary with the
                     express statement that it was not to “extend beyond that of the corres
                     ponding parallel at the point where the frontier of Peru reaches the sea”,
                     and which relied on both the Santiago Declaration and the 1954 Special
                     Maritime Frontier Zone Agreement.

                     130

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                     130 	          maritime dispute (sep. op. orrego vicuña)

                       21. The abundant practice of the Parties also extends to enforcement
                     activities in relation to the boundary, including fisheries, navigation,
                     overflying, the laying of submarine cables and many other aspects that
                     are well recorded. Such practice is enough to show that, even if the Court
                     has considered a limited role for the agreements as the source of the
                     boundary parallel, there is, at the very least, acquiescence by the Parties
                     as to the existence and acceptance of such a parallel throughout its full
                     extent.

                        22. Notwithstanding the significance of this practice, which extends for
                     over six decades, the Judgment tends not to assign great importance to it,
                     and to dismiss it altogether. This limited role accorded to the law and the
                     practice of the Parties is the consequence of the fact that the Court started
                     from the premise that the 1947 Proclamations and their aftermath through
                     to 1954 were not in accordance with the law of the sea as understood at
                     the time, and hence, that a maritime boundary could not then be drawn
                     in relation to extended claims.

                        23. This judge regrets not to share such a limited understanding and,
                     as the joint dissent indicates, the early instruments were in any event
                     capable of agreeing on a maritime delimitation of the three States with
                     regard to their potential entitlements. In fact, the Proclamations and the
                     instruments that followed, like some that preceded them, were the trig
                     gering acts of a development that, after a systematic evolution, led to
                     the concept of the exclusive economic zone and other key concepts of
                     the present-day law of the sea as embodied in the 1982 United Nations
                     Convention on the Law of the Sea, and recognized by the Court as a part
                     of customary international law. The Third United Nations Conference on
                     the Law of the Sea recognized as much in rendering, in plenary session,
                     tribute to the memory of President González Videla on his passing
                     in 1980 (Extract from the Official Records of the Third United Nations
                     Conference on the Law of the Sea, Vol. XIV, United Nations
                     doc. A/CONF.62/SR.137, 137th Plenary Meeting (Thursday, 26 August
                     1980, at 3:25 p.m.), at para. 67).

                       24. It is to be noted that the Judgment attaches particular significance
                     to what came to be known as the Bákula Memorandum (Judgment,
                     paras. 136‑142). This judge had the privilege of working for many years
                     with Ambassador Juan Miguel Bákula, a distinguished Peruvian diplo-
                     mat and jurist, during the negotiations leading to the Convention on the
                     Law of the Sea. In its origins, the Bákula Memorandum was not a diplo-
                     matic initiative of the Government of Peru. Rather, it was a proposal
                     advanced on a personal basis by Ambassador Bákula to sound out the
                     feasibility of certain thoughts on maritime delimitation.

                     131

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                     131 	          maritime dispute (sep. op. orrego vicuña)

                        25. This character is reflected in the Note accompanying the text of
                     this Memorandum and sent by the Peruvian Embassy in Santiago de
                     Chile to the Chilean Ministry of Foreign Affairs on 23 May 1986, which
                     refers to the summary of the statements that the Ambassador “allowed
                     himself to make” during the audience with the Minister (Memorial of
                     Peru, Ann. 76). While it is true that the official communiqué issued by the
                     Chilean Foreign Ministry on 13 June 1986 mistakenly considers that the
                     initiative conveyed the “interest of the Peruvian Government” (ibid.,
                     Ann. 109) in starting negotiations on maritime delimitation (Judgment,
                     para. 138), the fact remains that if this had been its meaning, the Peruvian
                     Ministry of Foreign Affairs would not have taken 15 years to follow
                     up on this initiative. The importance of the practice following this
                     Memorandum is further minimized by the Judgment, as if its text were
                      capable of establishing some kind of critical date for the purposes of this
                      case.

                       26. The boundary thus drawn until Point A follows in its second seg-
                     ment the equidistance line as measured from that point until reaching
                     Point B, where the equidistance line ends, and then to Point C where it
                     meets the Peruvian “outer triangle” claim that will be discussed below.

                       27. The Judgment has adopted an unprecedented solution for effecting
                     maritime delimitation in the context of the complex circumstances of this
                     case. It appears to give satisfaction to one Party in following the parallel
                     to the distance noted and to the other Party in continuing along an equi-
                     distance line, which were of course the two main approaches to this dis-
                     pute, albeit with a different meaning and extent.

                        28. While the Court concludes that no significant disproportion is evi-
                     dent in this approach, such as would call into question the equitable
                     nature of the provisional equidistance line (ibid., para. 194), the real situ-
                     ation seems to be different. In point of fact, considering the relevant area
                     to be delimited as determined by a parallel extending to a distance of
                     80 nautical miles, Peru is assigned a significant number of square kilo
                     metres south of the 200‑nautical‑mile parallel, which are diminished from
                     Chile’s entitlement. True, this is less than what would have been the case
                     with the pure equidistance line claimed by Peru, but still the number of
                     square kilometres lost by Chile is sizeable. If this situation casts some
                     doubt on the meaning of proportionality, it cannot be fully assessed with-
                     out taking into account the effect of the “outer triangle” in the distribu-
                     tion of maritime areas, as will be discussed below.

                       29. In spite of the shortcomings noted above, the Judgment has appro-
                     priately held that in assessing the extent of the lateral maritime boundary,
                     the Court “is aware of the importance that fishing has had for the coastal

                     132

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                     132 	          maritime dispute (sep. op. orrego vicuña)

                     populations of both Parties” (Judgment, para. 109), thereby evidencing a
                     social and economic concern as to the effects the approach followed might
                     have on those communities. A manifestation of this concern is that the
                     maritime front of the port of Arica, while curtailed as a consequence of
                     the equidistance line drawn, is nonetheless not enclosed and has access to
                     the high seas. It is possible to find that this conclusion of the Court plays
                     a role somewhat similar to that of the consideration of “special circum-
                     stances” in the correction of a maritime boundary, only that it is not
                     explicitly stated as such.

                          30. More important still is that, in this light, the Parties are now
                     e ntitled to negotiate access by the affected fishermen to the fishing areas
                      brought under the jurisdiction of Peru in accordance with Article 62,
                      paragraph 2, of the United Nations Convention on the Law of the Sea,
                      which provides that the coastal State shall give other States access to the
                      surplus of the allowable catch. The legal régime of the exclusive economic
                      zone now applicable in Peru would thus be fully complied with. This
                      compliance extends to the area of the “outer triangle” as its fishing
                      resources have also been recognized of interest in the context of the South
                       Pacific Regional Fisheries Management Organisation in which both Chile
                       and Peru participate, the former as a State party and the latter as a signa-
                       tory.

                        31. The discussion concerning the extent of claims and their effects is
                     inseparable from the consideration of Peru’s second claim concerning the
                     “outer triangle”, in which it requests the Court to adjudge and declare
                     that Peru is entitled to exercise exclusive sovereign rights over the whole
                     of the maritime area up to a 200‑nautical‑mile distance from its baselines.
                     It is an accepted fact that Chile lays no jurisdictional claim to this area
                     under the concept of a “Presential Sea” or otherwise, but it has fishing
                     rights in an area which, until now, was part of the high seas. It must be
                     pointed out that, as a matter of principle, States are entitled to claim all
                     maritime areas as measured from their baselines up to the extent permis-
                     sible under international law. Because the Judgment uses an equidistance
                     line in its second segment, it concludes that it does not need to rule on
                     Peru’s second final submission concerning the “outer triangle”.

                        32. This judge is unable to share the Judgment’s conclusion in this
                     respect because of the following two reasons. The first is that the “outer
                     triangle” is the consequence of Peru having adopted the “arcs‑of‑circle”
                     method of delimitation in conjunction with the Law on Maritime Domain
                     Baselines of 3 November 2005 (Memorial of Peru, Ann. 23), which stands
                     in contrast to the method of “tracé parallèle” used in the 1950s. Although
                     it has been argued that the arcs‑of‑circle had been introduced earlier, this
                     assertion is not clearly supported by the evidence in the record, as the

                     133

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                     133 	         maritime dispute (sep. op. orrego vicuña)

                     joint dissent has noted. In fact, the joint dissent shows that the enact-
                     ments on which this argument is based prove rather the opposite, namely,
                     that tracé parallèle was the method chosen at earlier periods.

                        33. The resort to the arcs‑of‑circle in 2005 is well beyond the critical
                     date of 2000 and two decades after the Bákula Memorandum of 1986,
                     following which the Judgment diminishes the influence of practice in the
                     final outcome of the dispute. It would have been appropriate to apply the
                     same criterion to the 2005 law and to the related implementation mech
                     anisms on which the new method is based, and thus the influence of these
                     factors in the maritime delimitation would have been equally diminished.

                        34. The second reason why this judge cannot support the Judgment’s
                     conclusion in this matter is that the area of the “outer triangle” needs to
                     be considered in conjunction with the claim to an equidistance line. The
                     addition of both sectors allocates to one Party a far greater proportion of
                     the claimed maritime areas than that accorded to the other Party and
                     therefore does not seem to adequately meet the test of not being dispro-
                     portionate. There is no reason to consider the two claims as separate.
                     They are simply two legs of the same maritime domain claim extending
                     jurisdiction far into the Pacific Ocean and hence they should be con
                     sidered as a whole for the purpose of deciding on the role of equity. In
                     fact, the proportionality existing between the full parallel and the “outer
                     triangle” would have allowed for a more reasonable role of equity, con-
                     sistent with the governing law.

                        35. This leads to an additional concern in the light of this Judgment
                     which relates to the overall role of equity under international law. While
                     equity is generally accepted as a source of law under the Statute of the
                     Court, the Court has always considered that the role of equity is bound
                     by the law as a type of equity infra legem, that is, under the law and in
                     accordance with it, as opposed to equity preter legem or equity contra
                     legem.

                        36. Distinguished writers of international law have noted that, in its
                     first attempts to use equity in the context of maritime delimitation, the
                     Court did not clearly rely on this source in keeping within the bounds of
                     the law, which was largely left undetermined. Following the evolution of
                     its jurisprudence, the Court then turned to a more precisely bound form
                     of equity. This is the very understanding of Article 74, paragraph 1, of the
                     1982 United Nations Convention on the Law of the Sea in considering
                     equitable results of maritime delimitation, not in isolation from, but in
                     conjunction with agreements between the parties, all of it effected on the

                     134

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                     134 	         maritime dispute (sep. op. orrego vicuña)

                     basis of international law. This judge had the honour of proposing the
                     final text of the above‑mentioned Article when acting as the delegate for
                     Chile at the Third Conference, and can attest that this meaning was the
                     fundamental basis of the consensus that was finally reached on its con-
                     tent.

                        37. This judge is certainly in favour of solutions that might result in
                     the accommodation of the essential interests of the parties to a case, and
                     thus be met with greater acceptance, on the understanding that such exer-
                     cise is strictly bound by the governing law, which in this case is embodied
                     in treaties and other legal instruments. In the context of this Judgment,
                     however, this limitation placed on the role of equity appears blurred, as if
                     it were called to influence the outcome on its own standing. Consistency
                     with the meaning of the United Nations Convention on the Law of the
                     Sea could thus be compromised.

                        38. None of these considerations in any way detract from the respect
                     that this judge has for the role of the Court in ensuring effective dispute
                     settlement and its outstanding contribution to the prevalence of the rule
                     of law in the international community, a task that can always be per-
                     fected.

                                                       (Signed) Francisco Orrego Vicuña.

                     135

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COUR PERMANENTE DE JUSTICE INTERNATIONALE

CHAMBRE DE PROCÉDURE SOMMAIRE
e 26 mars.
ssier E. d. LV.
Rôle S. 2.

Audience du 26 mars I925.

Présents :

MM. LoDER, Ancien Président de la Cour, Président ;
HuBER, Président de la Cour;
Weiss, Vice-Président de la Cour.

AFFAIRE DE L'INTERPRÉTATION DU PARAGRAPHE 4
DE L'ANNEXE SUIVANT L'ARTICLE 179 DU TRAITE
DE NEUILLY

Entre
le Gouvernement de Sa Majesté le roi des Bulgares
et
le Gouvernement de la République hellénique.
INTERPRÉTATION DUDIT ARRÊT.

La Cour,
statuant en Chambre de procédure sommaire,
composée ainsi qu’il est dit ci-dessus;

CONSIDÉRANT que, par son arrêt du 12 septembre 1924, la Cour
a statué sur le différend visé au compromis signé à Sofia le 18 mars
1924, entre le Gouvernement de Sa Majesté le roi des Bul-
gares et le Gouvernement de la République hellénique, et né à
l’occasion de la compétence de l'arbitre nommé par M. Gustave
Ador en vertu du paragraphe 4 de l’annexe à la Section IV de la
Partie IX du Traité de paix signé à Neuilly le 27 novembre 1919;

CONSIDÉRANT que, par une lettre du 27 novembre 1924, l’Agent
du Gouvernement hellénique près la Cour en ladite affaire a prié
la Cour, au nom de son Gouvernement, de bien vouloir lui faire
tenir, conformément à l’article 60 du Statut, une interprétation
authentique et, autant que possible, détaillée, de l'arrêt du
5 ARRÊT N° 4

12 septembre 1924, notamment sur le point de savoir si, suivant
l'arrêt, les réclamations dont il s’agit ne sont payables que sur
les avoirs bulgares se trouvant en territoire grec ;

CONSIDÉRANT que la Cour, au reçu de cette demande, a invité
VAgent du Gouvernement hellénique à bien vouloir lui faire par-
venir toutes précisions utiles au sujet de l’objet de la demande
d'interprétation formulée dans la lettre du 27 novembre 1924;

CONSIDÉRANT que la Cour a communiqué le texte de cette lettre
à Agent du Gouvernement de Sa Majesté le roi des Bulgares en
ladite affaire, afin qu'il pût présenter les observations utiles ;

CONSIDÉRANT que, par une lettre du 30 décembre 1924, l’Agent
hellénique a informé la Cour que Il’interprétation que désire son
Gouvernement vise la portée exacte du second paragraphe du
dispositif de l’arrêt du 12 septembre 1924 et qu'il conviendrait
notamment d’éclaircir le sens de la partie de l’arrêt dont il s’agit
sous trois aspects, savoir :

a) «Vexistence éventuelle, selon Varrét, d’avoirs bulgares en
Gréce pouvant servir a réaliser les sommes que pourrait accorder
l’arbitre ; CU

b) «la possibilité, aux termes de l'arrêt, de liquider, en vue de
pareille réalisation, des propriétés foncières bulgares sises en Grèce ;

c) «la faculté, pour la Grèce, suivant l'arrêt, de s’adresser à la
Commission des Réparations en vue d’obtenir une redistribution
entre les Puissances alliées de la somme globale à laquelle a été
fixée l'obligation de réparer imposée à la Bulgarie) ;

CONSIDÉRANT que l’Agent du Gouvernement bulgare-a soumis à
la Cour, par lettre du 30 décembre 1924, un Mémoire contenant
ses observations au sujet de la demande d'interprétation dont il
s'agit ;

CONSIDERANT que la Cour n’a pas jugé nécessaire d’instituer en
l'espèce une procédure orale ;

Vu l'arrêt de la Cour du 12 septembre 1924 ;

Vu. les documents présentés par les Parties et mentionnés
ci-dessus ;

Vu l’article 60 du Statut de la Cour;

. Attendu que l’Agent du Gouvernement bulgare a formulé,
6 ARRÊT N° 4

dans sa lettre du 30 décembre 1924, des observations concernant
la demande d'interprétation du Gouvernement hellénique, sans
exciper de l’incompétence de la Cour pour donner pareille interpréta-
tion ; que, par conséquent, sa compétence pour la formuler résulte
déjà de l’accord des Parties, et qu’ainsi il n’y a pas lieu pour elle
d’examiner en l’espéce si, dans l’absence d’une contestation formelle
entre les Parties au sujet de Vinterprétation de l’arrêt du 12 sep-
tembre 1924, la compétence nécessaire aurait pu exister sur la base
exclusive de la demande unilatérale adressée à la Cour de la part
du Gouvernement hellénique ; |

ATTENDU que, aux termes du compromis du 18 mars 1924, la
Cour était appelée à préciser la véritable portée de la dernière
phrase du premier alinéa du paragraphe 4 de l’annexe à la Section
IV de la Partie IX du Traité de Neuilly, en répondant spécialement
à deux questions, savoir :

« x) Le texte susvisé autorise-t-il des réclamations pour des actes
commis même hors du territoire bulgare tel qu’il existait avant le
1x octobre 1915, notamment dans les régions occupées par la Bul-
garie après son entrée en guerre ?

« 2) Le texte susvisé autorise-t-il des réclamations pour des dom-
mages subis par les réclamants, non seulement dans leurs biens,
droits et intéréts, mais encore dans leur personne, par suite de
mauvais traitements, de déportations, d’internements ou d’autres
actes analogues ? »

Qu’étant donné cette manière de définir le litige, l'interprétation
désirée par les Parties ne portait que sur le siège et l'étendue des
obligations visées par la clause en question, dont l’applicabilité
était présumée dans le compromis ;

Que, dès lors, la question ne se posait pas dans l'espèce de savoir
si et dans quelle mesure la phrase dont il s'agissait. est effectivement
applicable dans les rapports entre les Parties, abstraction faite de
son applicabilité dans les rapports entre autres signataires du
Traité de Neuilly ;

ATTENDU que la demande hellénique, pour autant qu'elle tend
à obtenir une interprétation de l'arrêt du 12 septembre sur le
point de savoir s’il permet la liquidation par la Grèce d’avoirs
bulgares en territoire grec en vue de réaliser les sommes que pour-
rait accorder l’arbitre désigné par M. Ador, procède évidemment
7 ARRÊT N° 4

d’une conception différente, étrangère au compromis, savoir,
qu'il y a doute sur l’applicabilité, dans les rapports entre les
Parties, de la phrase dont il s’agit ;

Que cette manière de voir se trouve corroborée par les obser-
vations de l’Agent du Gouvernement bulgare concluant à l’inappli-
cabilité, dans l'espèce, de ladite phrase, inapplicabilité qui, selon
Ini, résulterait de l’article 177, litt. 1, dont l'interprétation n’a cepen-
dant pas été demandée à la Cour par le compromis du 18 mars 1924 ;

ATTENDU que la demande du Gouvernement hellénique, pour
autant qu'elle tend à obtenir une interprétation de l'arrêt du 12 sep-
tembre sur le point de savoir si, selon cet arrêt, les réclamations
dont il s’agit ne sont payables que sur les avoirs bulgares se trou-
vant en territoire grec, vise, tout en se plaçant en ce qui concerne
l’applicabilité de la phrase litigieuse sur le même terrain que le
compromis, une matière autre que la définition du siège et de l’éten-
due des obligations auxquelles se réfère la clause en question ;

Qu'il en est de même en ce qui concerne la demande relative
à la faculté pour la Grèce, suivant l'arrêt, de s’adresser à la Com-
mission des Réparations en vue d'obtenir une redistribution entre
les Puissances alliées de leur créance sur la Bulgarie au titre de
réparation ;

ATTENDU qu'une interprétation de l’arrêt du 12 septembre 1924,
donnée aux termes de l’article 60 du Statut, ne peut dépasser les
limites de cet arrêt même, lesquelles sont tracées par le compromis ;

PAR CES MOTIFS,

La Cour déclare

Qu'il n’y a pas lieu de donner suite à la demande du Gouverne-
ment hellénique tendant à obtenir, conformément à l’article 60
du Statut, une interprétation authentique de l'arrêt du 12 sep-
tembre 1924.
8 ARRET N° 4

La présente déclaration ayant été rédigée en francais et en anglais,
c'est le texte français qui fait foi.

Fait au Palais de la Paix, La Haye, le vingt-six mars mil neuf
cent vingt-cing, en trois exemplaires, dont un restera déposé
aux archives de la Cour et dont les autres seront transmis aux
Agents du Gouvernement de Sa Majesté le roi des Bulgares et du
Gouvernement de la République hellénique respectivement.

Le Président :
(Signé) LODER.

Le Greffier:
(Signé) À. HAMMARSKJÜLD.


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING THE LAND, ISLAND AND
MARITIME FRONTIER DISPUTE

(EL SALVADOR/HONDURAS)

ORDER OF 13 DECEMBER 1989

COMPOSITION OF CHAMBER

1989

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DU DIFFEREND FRONTALIER
TERRESTRE, INSULAIRE ET MARITIME

(EL SALVADOR/HONDURAS)

ORDONNANCE DU 13 DECEMBRE 1989

COMPOSITION DE LA CHAMBRE
| Official citation :
Land, Island and Maritime Frontier Dispute (El Salvador/Honduras),

Composition of Chamber, Order of 13 December 1989,
LCJ. Reports 1989, p. 162.

Mode officiel de citation :

Différend frontalier terrestre, insulaire et maritime (El Salvador/ Honduras),
composition de la Chambre, ordonnance du 13 décembre 1989,
C.LJ. Recueil 1989, p. 162.

Sales number 57 1
N° de vente :

162

INTERNATIONAL COURT OF JUSTICE
1989

13 December YEAR 1989

General List
No. 75

13 December 1989

CASE CONCERNING THE LAND, ISLAND AND
MARITIME FRONTIER DISPUTE

(EL SALVADOR/HONDURAS)

ORDER

COMPOSITION OF CHAMBER

Present: President RUDA; Judges ELIAS, ODA, AGO, SCHWEBEL, Sir Robert
JENNINGS, BEDJAOUI, NI, EVENSEN, TARASSOV, GUILLAUME,
SHAHABUDDEEN, PATHAK; Registrar VALENCIA-OSPINA.

The International Court of Justice,

Composed as above,
After deliberation,

Makes the following Order:

Having regard to Articles 31 and 48 of the Statute of the Court and to
Articles 17 and 35 of the Rules of Court,

Having regard to the Special Agreement concluded on 24 May 1986
between the Republic of El Salvador and the Republic of Honduras for
the submission of a land, island and maritime frontier dispute between the
two States to a chamber of the Court consisting of three Members of the
Court and two judges ad hoc chosen by the Parties,

4
163 . DISPUTE (EL SALVADOR/HONDURAS) (ORDER 13 XII 89)

Having regard to the notifications made by the Parties of the choice by
them of judges ad hoc, namely the choice by El Salvador on 7 March 1987
of Mr. Nicolas Valticos, and the choice by Honduras on 8 April 1987 of
Mr. Michel Virally,

Having regard to the Order made by the Court on 8 May 1987 whereby
it decided to accede to the request of the Governments of El Salvador and
Honduras to form a special chamber of five judges to deal with the case,
and further declared that at an election held on 4 May 1987 Judges Oda,
Sette-Camara and Sir Robert Jennings were elected to form, with the
judges ad hoc chosen by the Parties, a chamber to deal with the case, and
that accordingly such a Chamber was duly constituted by the Order, com-
posed of Judges Oda, Sette-Camara and Sir Robert Jennings, and Judges
ad hoc Valticos and Virally; and

Whereas Judge ad hoc Virally died on 27 January 1989;

Whereas by letter dated 9 February 1989 the Agent of Honduras
informed the Court that his Government had chosen Mr. Santiago
Torres Bernardez to sit as judge ad hoc in place of the late Judge ad hoc
Viraliy;

Whereas pursuant to Article 35, paragraph 3, of the Rules of Court a
copy of the letter of 9 February 1989 from the Agent of Honduras was on
13 February 1989 communicated by the Registrar to the Agent of El Sal-
vador, who was requested to furnish such observations as the Government
of El Salvador might wish to make;

Whereas after a number of communications had been addressed to the
Court by both Parties, the Agent of El Salvador informed the Court of the
final position of his Government by a letter received in the Registry on
30 October 1989 from which it appears that El Salvador has no objection
to the choice of Mr. Torres Bernärdez;

Whereas no objection to that choice appears to the Court itself,

THE COURT,
Unanimously,

Declares that the Chamber formed to deal with this case is composed as
follows : Judge Sette-Camara, President of the Chamber; Judges Oda and
Sir Robert Jennings; Judges ad hoc Valticos and Torres Bernardez.

Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this thirteenth day of December, one thou-
sand nine hundred and eighty-nine, in three copies, one of which will be

5
164 DISPUTE (EL SALVADOR/HONDURAS) (ORDER 13 XII 89)

placed in the archives of the Court and the others transmitted to the Gov-
ernment of El Salvador and the Government of Honduras, respectively.

(Signed) José Maria Rupa,
President.

(Signed) Eduardo VALENCIA-OSPINA,
Registrar.

Judge SHAHABUDDEEN appends a separate opinion to the Order of the
Court.

(Initialled) J.M.R.
(Initialled) E.V.O.


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING THE
AERIAL INCIDENT OF
27 JULY 1955

(UNITED KINGDOM v. BULGARIA)

ORDER OF 3 AUGUST 1959

1959

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE A
L’INCIDENT AERIEN DU
27 JUILLET 1955

(ROYAUME-UNI c. BULGARIE)

ORDONNANCE DU 3 AOÛT 1959
This Order should be cited as follows:

“Case concerning the Aerial Incident of 27 July 1955
(United Kingdom v. Bulgaria),
Order of 3 August 1959: I.C.J. Reports 1959, p. 264.”

La présente ordonnance doit étre citée comme suit:
« Affaire relative à l'incident aérien du 27 juillet 1955
(Royaume-Uni c. Bulgarie),
Ordonnance du 3 août 1959: C. I. ]. Recueil 1959, p. 264.»

Sales number 11
No de vente:

1959
3 August
General List:
No. 37

264

INTERNATIONAL COURT OF JUSTICE

YEAR 1959

3 August 1959

CASE CONCERNING THE
AERIAL INCIDENT OF

27 JULY 1955
(UNITED KINGDOM v. BULGARIA)

ORDER

The President of the International Court of Justice,

having regard to Article 48 of the Statute of the Court and to
Article 69 of the Rules of Court;

Having regard to the Application, dated 19 November 1957 and
filed in the Registry of the Court on 22 November 1957, by which
the Government of the United Kingdom of Great Britain and Nor-
thern Ireland instituted proceedings before the Court against the
Government of the People’s Republic of Bulgaria with regard to the
losses sustained by citizens of the United Kingdom and Colonies by
reason of the destruction, on 27 July 1955, by the Bulgarian anti-
aircraft defence forces, of an aircraft belonging to El Al Israel
Airlines Ltd.;

Having regard to the Order of 26 November 1957, whereby
2 June 1958 was fixed as the time-limit for the filing of the Memorial
of the Government of the United Kingdom;

Having regard to the Order of 27 January 1958, whereby 9 Decem-
ber 1958 was fixed as the time-limit for the filing of the Counter-
Memorial of the Government of Bulgaria;

Having regard to the Order of 1g May 1958, whereby, having
regard to a request of the Agent for the Government of the United
Kingdom, the time-limits so fixed were extended, for the Memorial,
to 2 September 1958 and, for the Counter-Memorial, to 9 June 1959;

4
265 AERIAL INCIDENT (U.K. v. BULGARIA) (ORDER 3 VIII 59)

Having regard to the Memorial filed by the Government of the
United Kingdom within the time-limit fixed;

Having regard to the Order of 27 May 1959, whereby, at the
request of the Agent for the Government of Bulgaria, the time-
limit for the filing of the Counter-Memorial of the Government of
Bulgaria was extended to 10 August 1959;

Whereas, in a letter dated 8 July 1959, and addressed to the
Registrar, the Agent for the Government of the United Kingdom
stated:

“By direction of Her Majesty’s Principal Secretary of State for
Foreign Affairs, and in accordance with Article 69 of the Rules of
Court, I have the honour to request you to inform the Court of the
decision of the Government of the United Kingdom to discontinue
the proceedings instituted by means of the Application dated
November 19, 1957.”

Whereas, by a letter of 10 July 1959, the Registrar informed the
Agent of the Government of Bulgaria that the President of the Court,
pursuant to Article 69, paragraph 2, of the Rules of Court, had
fixed a time-limit expiring on 7 August 1959, within which the
Bulgarian Government was to state whether it opposed the discon-
tinuance of the proceedings, and that if no objections were raised by
that Government within this time-limit, acquiescence would be
presumed ;

Whereas by a letter dated 25 July 1959 the Agent for the Govern-
ment of Bulgaria informed the Registrar that his Government did
not oppose the discontinuance of the proceedings;

Places on record the discontinuance by the Government of the
United Kingdom of the proceedings instituted by the Application
filed on 22 November 1957;

Orders that the case shall be removed from the Court’s list.

Done in English and in French, the English text being authori-
tative, at the Peace Palace, The Hague, this third day of August,
one thousand nine hundred and fifty-nine, in three copies, one of
which will be placed in the archives of the Court and the others
transmitted to the Government of the United Kingdom of Great
Britain and Northern Ireland and to the Government of the People’s
Republic of Bulgaria, respectively.

(Signed) Helge KLAESTAD,
President.

(Signed) S. AQUARONE,
Acting Registrar.