309

DÉCLARATION DE M. SCHWEBEL, VICE-PRÉSIDENT
[Traduction]

Bien que je souscrive à la décision prise par la Cour quant au fond des
demandes de la Nouvelle-Zélande, je fais des réserves sur certaines des
procédures qui ont été suivies.

A mon avis, il était d'emblée évident que la Nouvelle-Zélande était
fondée à agir en vertu de l'autorisation expresse que la Cour avait énoncée
au paragraphe 63 de son arrêt du 20 décembre 1974 en l’affaire des Essais
nucléaires (Nouvelle-Zélande c. France). En conséquence, il était erroné
de prétendre qu’il n’y avait pas d’affaire, que la Nouvelle-Zélande pouvait
seulement demander l'interprétation ou la revision de l’arrêt ou introduire
une nouvelle instance, qu’il n’y avait pas lieu de désigner des agents ou un
juge ad hoc, que le Président n’avait pas le droit d'exercer le pouvoir que
le Règlement lui confère d’inviter les Parties à agir de manière que toute
ordonnance de la Cour sur la demande en indication de mesures conser-
vatoires puisse avoir les effets voulus, et que la Cour ne pouvait tenir
d’audiences. La démarche de la Nouvelle-Zélande était singulière, s’inscri-
vant dans le cadre d’une disposition singulière de l’arrêt rendu par la Cour
le 20 décembre 1974. Mais à mon sens, la réaction de la France équivalait
à une exception à la recevabilité des demandes présentées par la Nouvelle-
Zélande et elle aurait dû être traitée comme telle.

En fin de compte, et pour l’essentiel, la Cour a effectivement assimilé
les objections opposées par la France aux demandes de la Nouvelle-
Zélande à une exception d’irrecevabilité, en ce qu’elle a fait siéger le juge
ad hoc désigné par la Nouvelle-Zélande et tenu des audiences au cours
desquelles les Parties ont fait valoir leurs moyens sur la question liminaire
que la Cour leur avait posée. Quelles qu’aient été les réserves exprimées,
il est clair que, lorsque quinze juges revêtus de leur robe se sont rassem-
blés dans la grande salle de justice du Palais de la Paix et que sir Geoffrey
Palmer, juge ad hoc, a fait sa déclaration solennelle, les membres de la
Cour n’étaient pas, à la manière de Pirandello, à la recherche d’un pré-
toire ou d’une affaire, mais qu’ils tenaient audience sur une phase d’une
affaire.

(Signé) Stephen SCHWEBEL.

25


          INTERNATIONAL COURT OF JUSTICE

           REPORTS OF JUDGMENTS,
        ADVISORY OPINIONS AND ORDERS

   CASE CONCERNING APPLICATION
 OF THE INTERNATIONAL CONVENTION
 ON THE ELIMINATION OF ALL FORMS
     OF RACIAL DISCRIMINATION
       (GEORGIA v. RUSSIAN FEDERATION)

           ORDER OF 2 DECEMBER 2008

                 2008
          COUR INTERNATIONALE DE JUSTICE

             RECUEIL DES ARRE| TS,
      AVIS CONSULTATIFS ET ORDONNANCES

   AFFAIRE RELATIVE A v L’APPLICATION
  DE LA CONVENTION INTERNATIONALE
SUR L’E
      u LIMINATION DE TOUTES LES FORMES
      DE DISCRIMINATION RACIALE
       (GE
         u ORGIE c. FE
                     u DE
                        u RATION DE RUSSIE)

       ORDONNANCE DU 2 DE
                        u CEMBRE 2008

                            Official citation :
 Application of the International Convention on the Elimination of All
  Forms of Racial Discrimination (Georgia v. Russian Federation),
       Order of 2 December 2008, I.C.J. Reports 2008, p. 642

                       Mode officiel de citation :
Application de la convention internationale sur l’élimination de toutes les
  formes de discrimination raciale (Géorgie c. Fédération de Russie),
      ordonnance du 2 décembre 2008, C.I.J. Recueil 2008, p. 642

                                               Sales number
ISSN 0074-4441
ISBN 978-92-1-071053-4
                                               No de vente :   944

                                  2 DECEMBER 2008

                                       ORDER

     APPLICATION OF THE INTERNATIONAL
CONVENTION ON THE ELIMINATION OF ALL FORMS
         OF RACIAL DISCRIMINATION
      (GEORGIA v. RUSSIAN FEDERATION)

APPLICATION DE LA CONVENTION INTERNATIONALE
   SUR L’E
         u LIMINATION DE TOUTES LES FORMES
          DE DISCRIMINATION RACIALE
      (GE
        u ORGIE c. FE
                    u DERATION DE RUSSIE)

                                  2 DE
                                     u CEMBRE 2008

                                    ORDONNANCE

               642

                            INTERNATIONAL COURT OF JUSTICE

   2008                                      YEAR 2008
2 December
General List
  No. 140                                  2 December 2008

                       CASE CONCERNING APPLICATION
                     OF THE INTERNATIONAL CONVENTION
                     ON THE ELIMINATION OF ALL FORMS
                         OF RACIAL DISCRIMINATION
                             (GEORGIA v. RUSSIAN FEDERATION)

                                               ORDER

               The President of the International Court of Justice,
                  Having regard to Article 48 of the Statute of the Court and to Arti-
               cles 44 and 45, paragraph 1, of the Rules of Court,
                  Having regard to the Application filed in the Registry of the Court on
               12 August 2008, whereby Georgia instituted proceedings against the Rus-
               sian Federation for alleged violations of the International Convention on
               the Elimination of All Forms of Racial Discrimination,
                  Having regard to the request for the indication of provisional measures
               submitted by Georgia on 14 August 2008, as amended on 25 August
               2008, and to the Order by which the Court indicated provisional meas-
               ures on 15 October 2008 ;
                  Whereas, at a meeting held by the President of the Court with the
               Agents of the Parties on 25 November 2008 pursuant to Article 31 of the
               Rules of Court, H.E. Ms Tina Burjaliani, Agent of Georgia, and H.E.
               Mr. Kirill Gevorgian, Agent of the Russian Federation, referred to an
               agreement between the Parties with a view to requesting the Court to set
               a time-limit of nine months for the preparation of a Memorial by the
               Applicant and a time-limit of ten months for the preparation of a Counter-
               Memorial by the Respondent ;
               4

643      CONVENTION ON RACIAL DISCRIMINATION (ORDER 2 XII 08)

    Taking account of the agreement of the Parties,
    Fixes the following time-limits for the filing of the written pleadings :

    2 September 2009 for the Memorial of Georgia ;
    2 July 2010 for the Counter-Memorial of the Russian Federation ; and
    Reserves the subsequent procedure for further decision.

  Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this second day of December, two thou-
sand and eight, in three copies, one of which will be placed in the archives
of the Court and the others transmitted to the Government of Georgia
and the Government of the Russian Federation, respectively.

                                            (Signed) Rosalyn HIGGINS,
                                                        President.
                                           (Signed) Philippe COUVREUR,
                                                         Registrar.

5

PRINTED IN THE NETHERLANDS

                       ISSN 0074-4441
                       ISBN 978-92-1-071053-4


COUR PERMANENTE DE JUSTICE INTERNATIONALE

SERIE A!B
ARRETS, ORDONNANCES ET AVIS CONSULTATIFS

FASCICULE N° 76

AFFAIRE DU CHEMIN DE FER
PANEVEZYS-SALDUTISKIS

ARRET DU 28 FEVRIER 1939

1939

JUDGMENT OF FEBRUARY 28th, 1939

PERMANENT COURT OF INTERNATIONAL JUSTICE

SERIES A./B.
JUDGMENTS, ORDERS -AND ADVISORY OPINIONS

FASCICULE No. 76

THE PANEVEZYS-SALDUTISKIS
RAILWAY CASE

SOCIÉTÉ D’EDITIONS A. W. SIJTHOFF’S

LEYDE LEYDEN
A. W. SIJTHOFF PUBLISHING COMPANY
PERMANENT COURT OF INTERNATIONAL JUSTICE

1939.

. Feb: 8th.
JUDICIAL YEAR 1939. | General List :

Nos. 74 and 76.
February 28th, 1939.

THE PANEVEZYS-SALDUTISKIS
RAILWAY CASE

I. Preliminary objection based on the rule that a claim must be
a national claim not only at the time of its presentation, but also at
the time when the injury was suffered. This objection not held to
constitute a preliminary objection within the meaning of Article 62
of the Rules; impossibility in this case of adjudicating on this

objection without adjudicating on the merits.

2. Preliminary objection based on the local vemedies rule. This

objection held to be well founded.

JUDGMENT,

Present : M. GUERRERO, President ; Sir Ceci Hurst, Vice-Presi-
dent ; Count RostworowskKI1, MM. FROMAGEOT, ALTAMIRA,
NEGULESCO, Jhr. VAN Eysinca, MM. Nacaoxka, CHENG,
Hupson, DE VisscHerR, Ericu, Judges ; MM. STRAND-
MAN and ROMER’Is, Judges ad hoc.
A./B. 76.—THE RAILWAY LINE PANEVEZYS-SALDUTISKIS 5
In the case concerning the Panevezys-Saldutiskis railway,

between

the Government of the Republic of Estonia, represented by
Baron Boris Nolde, as Agent,

and

the Government of the Republic of Lithuania, represented
by M. André Mandelstam, as Agent,

The Court,
composed as above,
delivers the following judgment :

By an Application filed with the Registry of the Court on
November 2nd, 1937, under Article 40 of the Statute, the
Estonian Government instituted proceedings before the ‘Court
against the Lithuanian Government owing to the refusal of the
latter Government to recognize the proprietary and conces-
sionary rights claimed by a Company known as the Esimene
Juurdeveo Raudteede Selis Venemaal in respect of the Pane-
vezys-Saldutiskis railway, which had been seized and operated
by the Lithuanian Government. The Applicant, in submitting
the case, relies upon the declarations of Estonia and Lithuania
accepting the compulsory jurisdiction of the Court as provided
in. Article 36, paragraph 2, of the Statute of the Court.

After a succinct statement of the facts and arguments adduced
in support of the claim, the Application prays the Court to
adjudge and declare :

ce

1. That the Lithuanian Government has wrongfully refused
to recognize the rights of the Esimene Juurdeveo Raudteede
Selis Venemaal Company, as owners and concessionaires of the
Panevezys-Saldutiskis railway line, and to compensate the Com-
pany for the illegal seizure and operation of this line.

2. That the Lithuanian Government is under an obligation
to make good the prejudice which has been thus sustained by
the Esimene Juurdeveo Raudteede Selts Venemaal Company, and
which is estimated, the proposals for a compromise made by
that Company having been withdrawn, at the sum of 14,000,000
Gold Lits, with interest at 6% per annum as from January st,

1937.”

On November 2nd, 1937, notice of the Application of the
Estonian Government was given to the Lithuanian Government,
and on November 5th the communications provided for in
Article 40 of the Statute and Article 34 of the Rules of Court
were duly despatched.

5
A./B. 76.—THE RAILWAY LINE PANEVEZYS-SALDUTISKIS 6

As the Court does not include upon the Bench any judge
of the nationality of either of the Parties to the case, the
Estonian Government and the Lithuanian Government availed
themselves of their right under Article 31 of the Statute each
to nominate a judge, and nominated respectively M. Otto
Strandman and M. Mykolas Rémer’is. The two Governments
appointed as Agents: the Estonian Government, Baron Boris
Nolde, and the Lithuanian Government, M. André Mandelstam.

By an Order made on November 15th, 1937, the President
of the Court fixed the time-limits for the filing of the Memorial,
Counter-Memorial, Reply and Rejoinder.

In its Memorial, duly filed within the prescribed time-limit,
the Estonian Government prays the Court to adjudge and
declare :

“rx. That the Lithuanian Government has wrongfully refused
to recognize the rights of the Esimene Juurdeveo Raudteede
Selts Venemaal Company, as owners and concessionaires of the
Panevezys-Saldutiskis railway line, and to compensate the Com-
pany for the illegal seizure and operation of this line.

2. That the Lithuanian Government is under an obligation to
make good the prejudice which has been sustained by the Es
mene Juurdeveo Raudieede Selts Venemaal Company, and which
is estimated at (I) the sum of 6,850,000 Gold Lits, representing
the price of the railway, plus (II) a sum representing the annual
payments due in respect of the exploitation of the railway by
the Lithuanian authorities from the date of seizure to the date
of payment, each annual payment being reckoned as equal to
six per cent on the price of the railway fixed as above.”’

On March 15th, 1938, the date fixed for the filing of its
Counter-Memorial, the Lithuanian Government submitted pre-
liminary objections accompanied by a preliminary Counter-
Memorial.

The objections raised by the Lithuanian Government to the
claims of the Estonian Government were two in number, the
first being based on “the non-observance by the Estonian
Government of the rule of international law to the effect that
a claim must be a national claim not only at the time of its
presentation but also at the time when the injury was suffered’,
and the second. “‘on the non-observance by the Estonian Govern-
ment of the rule of international law requiring the exhaustion
of the remedies afforded by municipal law’. The Lithuanian
Government prayed the Court to declare that the claims of
the Estonian Government cannot be entertained.

The proceedings on the merits having, under Article 62, para-
graph 3, of the Rules of Court, been suspended by the filing
of the objections, the President of the Court, on March 15th,
1938, made an Order fixing April 30th, 1938, as the date of

6
A./B. 76.—THE RAILWAY LINE PANEVEZYS-SALDUTISKIS 7

expiration of the time allowed to the Estonian Government
for the presentation of a written statement of its observations
and submissions in regard to the objections raised by the
Lithuanian Government.

The written proceedings in regard to the objections were
brought to a close by the filing within the prescribed time-
limit of this statement in which it was submitted that the
Court should “overrule the objections”.

After hearings held on June 13th, 14th, 15th, 317th and
18th, 1938, the Court, on June 30th, 1938, made an Order
whereby, under Article 62, paragraph 5, of the Rules, it joined
“the objections raised by the Lithuanian Government to the
merits of the proceedings instituted by the Application of
the Estonian Government filed with the Registry on Novem-
ber 2nd, 1937, in order that it may adjudicate in one and the
same judgment upon these objections and, if need be, on the
merits’. At the same time the Court fixed new time-limits
for the filing of the Counter-Memorial, Reply and Rejoinder.

These documents were duly filed within the prescribed time-
limits, the last of which, that for the Rejoinder, expired on
November 25th, 1938. Accordingly on that date the case became
ready for hearing.

In its Counter-Memorial, the Lithuanian Government presented
the following submissions :

“The Lithuanian Government, reserving the right subsequently
to present any further arguments or submissions,

Prays the Permanent Court of International Justice to dis-
miss the claims of the Estonian Government.

Alternatively,

And subject to the subsequent presentation of any further
arguments and evidence,

In case the Court should hold that the legal personality of
the former First Russian Company persists in the Esimene Com-
pany and should recognize that the latter is entitled to repar-
ation, the Lithuanian Government, in accordance with Article 63
of the Rules of Court, now presents a counter-claim’ against the
Estonian Government, estimating the amount of the prejudice
sustained at the sum of 7,337,271 Lits 98 cents, with interest
at 6% per annum as from September ist, 1938, ‘until the date
of payment,

And prays the Permanent Court of International Justice to
award it the amount of this counter-claim.’’

In its Reply, the Estonian Government maintained. the sub-
missions contained in its Memorial and written statement and
prayed the Court ‘‘to overrule the counter- claim of the Lithu-
anian Government”.

7
A./B. 76.—THE RAILWAY LINE PANEVEZYS-SALDUTISKIS 8

In its Rejoinder, the Lithuanian Government maintained the
submissions which it had already made.

In the course of public sittings held on January rgth, 2oth,
24th, 25th, 27th and 30th, 1939, the Court heard the Agents
of the two Parties, who at the conclusion of their oral argu-
ments presented the following final submissions.

The Agent for the Estonian Government prayed the Court

“To dismiss the counter-claim of the Lithuanian Government
presented in its Counter-Memorial of August 30th, 1938,

To adjudge and declare

That the Lithuanian Government has wrongfully refused to
recognize the tights of the Esimene Juurdeveo Raudteede Selts
Venemaal Company, as owners and concessionaires of the Pane-
vezys-Saldutiskis railway line, and to competisate the Company
for the illegal seizure and operation of this line ;

That the Lithuanian Government is under an obligation to
make good the prejudice which has thus been sustained by the
Esimene Juurdeveo Raudteede Selis Venemaal Company, and
which is estimated at (1) the sum of 6,850,000 Gold Lits repre-
senting the price of the railway, plus (2) interest on this sum
calculated at the rate of six per cent per annum from the date
of seizure to the date of payment;

That the above payment shall be made in the course of the
month following delivery of the judgment by means of a pay-
ment in pounds sterling to the account of the Estonian State
Bank (Eesti Pank) with the Royal Scotland Bank in London,
for the compensation of the Esimene Juurdeveo Raudteede Selts
Venemaal Company ; |

That the said payment will involve total and final release of
the Panevezys-Saldutiskis railway and all the movable and immov-
able property appertaining thereto, from all mortgages or liens
which may belong to the bondholders of the First Company of
Secondary Raïlways in Russia (or the Esimene Juurdeveo Raud-
teede Selts Venemaal Company).

The Agent for the Lithuanian Government, maintaining all
submissions and arguments previously presented by his Govern-
ment, prayed the Permanent Court of International Justice

“to declare that the claims of the Estonian Government
cannot be entertained.

With regard to the merits, to dismiss the claims of the Estonian
Government.

Alternatively,.

In case the Court should hold that the legal personality of
the former First Russian Company persists in the Esimene
Company and should recognize that the latter is entitled to
compensation,

8
A./B. 76.—THE RAILWAY LINE PANEVEZYS-SALDUTISKIS 9

To award to the Lithuanian Government the amount of its
counter-claim, assessing the prejudice sustained at the sum of
7,337,271 Lits 98 cents, with interest at 6% per-annum from
September Ist, 1038, until the date of payment.”’

Documents in support of their contentions were filed on
behalf of each Party.

The above being the state of the proceedings, the Court
must now adjudicate.

*
* *

The facts are as follows:

In 1892 a company was founded at St. Petersburg under
the name of the “First Company of Secondary Railways in
Russia”, and its statutes were approved by Imperial decree
on March 26th, 1892.

Under § 1 of its statutes, the Company had for its object
“the construction and operation of broad and narrow gauge
approach and secondary railways in general for public and
private use, and the construction, operation and sale of trans-
portable railways’. Under § 2, the Company was authorized,
subject to obtaining where necessary the sanction of the com-
petent administrative body, inter alia, to construct and operate
railways of every kind and type on its own account and at
its own risk. The Company might engage in these activities
throughout the whole of the Russian Empire. Under § 26, the
registered offices of the Company were established at St. Petersburg.

By an Imperial decree of November 21st, 1897, the Company
was authorized to construct and operate (under the conditions
fixed by a decree of June 27th, 1894, for another line, the
Sventziany to Gloubokoie line) a railway between the station
at Sventziany, on the St. Petersburg-Warsaw railway, and the
station at Panevezys, on the Libau-Romny railway. The Com-
pany also possessed other lines in various parts of the Russian
Empire, in particular in the Baltic provinces and in the Ukraine.

The statutes of the Company were revised and received
Imperial sanction on July 3rd, 1898, and subsequently various
partial amendments were approved by Imperial decrees of
April rith, 1900, November 6th, 1907, and April 24th, x9r2.

A general meeting of shareholders appears to have taken
place in July 1917. Three months later, the Bolshevist revo-
Jution—the so-called October revolution—took place. Almost

1 See list in annex,
A./B. 76.—THE RAILWAY LINE PANEVEZYS-SALDUTISKIS 10

immediately afterwards, December 14th, 1017, a decree of the
Central Executive Committee concerning the nationalization of
banks placed in the hands of the Soviet Government the shares,
assets and liabilities of companies existing in Russia. Among
these companies was the “First Company of Secondary Railways’.

Political events then followed in rapid succession: on Febru-
ary 16th, 1018, Lithuania proclaimed itself an independent
State; on February 24th the same thing happened in Estonia,
and some days later, March 3rd, the Treaty of Brest-Litovsk
between Germany and her allies and Russia confirmed the
abandonment of Russian sovereignty over the former Baltic
provinces and Lithuania which, however, remained in the occu-
pation of German troops. |

Furthermore, the Bolshevist leaders hurried on measures
intended to establish the communist Soviet régime confiscating
private property throughout Russian territory. On June 28th,
I9I8, a decree was promulgated declaring “to be the property
of the Russian Socialist Federated Soviet Republic” all indus-
trial and commercial undertakings in Soviet Russia including
“all the undertakings of private and secondary railway com-
panies, whether in operation or under construction” (Art. I).
The competent sections of the Supreme Council of National.
Economy were instructed to work out and carry through as
speedily as possible the organization of the administration of
the nationalized undertakings; in so far as railways were con-
cerned, the task was entrusted to the Commissariat of the
People for Communications, subject to the approval of the
Council of Commissaries of the People (Art. II}. Until special
orders were issued, undertakings which had been declared the
property of the Soviet Republic. were “‘regarded as leased rent
free to the former owners; the Boards of Directors and former
owners financing them under the old conditions and receiving
the revenues as before” (Art. III). The directors and other
managers responsible for nationalized undertakings were respon-
sible for the maintenance, upkeep and operation of the under-
taking. If they abandoned their posts or showed negligence,
they incurred criminal liability (Art. IV). The responsible
administrators were declared to be in the service of the Russian
Socialist Federated Soviet Republic. If they abandoned their
posts, members of the technical and administrative staff were.
to be held responsible before the Revolutionary Tribunal “with
the utmost rigour of the law” (Art. V). Finally, all moneys.
belonging personally to members of Boards, tc the shareholders.
and owners of nationalized undertakings were provisionally
attached:

IO
A./B. 76.—THE RAILWAY LINE PANEVEZYS-SALDUTISKIS II

Shortly afterwards, on September 4th, 1918, a second Soviet
decree was promulgated which was designed “to supplement’
the preceding decree, particularly with regard to railways.
The Boards of former private railways which now became the
property of the Republic were abolished and replaced by a
so-called liquidation commission for each line.

Some months later, March 4th, 1919, a third Soviet decree
provided as follows: “Article 1.—The shares and foundation
shares of joint-stock companies the undertakings of which have
been nationalized or sequestrated are annulled even in cases
where such undertakings have not yet passed under the control
of governmental boards and where they have been leased to
the former owners rent free.”

In September 1910, the Lithuanian Government took’ posses-
sion of the Panevezys-Sventziany railway which was situated
in territory which had become part of the State of Lithuania.

Some months later, on February 2nd, 1920, the Russian Socialist
Federated Soviet Republic signed its first treaty with the new
Baltic States: the Treaty of Tartu with Estonia+, which was
followed on July rath, 1920, by the Treaty concluded at Moscow
with Lithuania? and, on August 11th, 1920, by the Treaty with
Latvia 8, also signed at Moscow..

In the present case, the Treaty of Tartu of February 2nd,
1920, concluded between the Soviet Republic and Estonia
merits special attention for the reason that, unlike the two
other treaties which followed it, it contains detailed provisions
as to the fate of private property situated in Estonian terri-
tory, particularly as to the property of joint-stock companies.

Under Article XI of this Treaty, of which the meaning and
perhaps even the translation are disputed between the Parties,
Russia renounces “‘all the rights of the Russian Treasury to
the movable and immovable property of individuals which
previously did not belong to her, in so far as such property may
be situated in Estonian territory”. All such property became
“the sole property of Estonia” and was freed from all obli-
gations as from December 14th, 1917, which, as has been seen,
was the date of the decree nationalizing the banks.

Further, an article supplementary to this Article XI pro-
vides that: “The Russian Government will hand over to the
Estonian Government inter alia the shares of those joint-stock
companies which had undertakings in Estonian territory, in so
far as such shares may be at the disposal of the Russian

1 League of Nations, Treaty Series, Vol. XI, pp. 29-71.
2 League of Nations, Treaty Series, Vol. III, pp. 105-137.
3 League of Nations, Treaty Series, Vol. II, pp. 195-231.

2 Ii
A./B. 76.—-THE RAILWAY LINE PANEVEZYS-SALDUTISKIS 12

Government as a result of the decree of the Central Executive
Committee regarding the nationalization of the banks of Decem-
ber xr4th, 1917... Similarly, the Russian Government agrees
that the registered offices of the joint-stock companies above
mentioned shall be regarded as transferred to Reval and that
the Estonian authorities shall be entitled to amend the stat-
utes of such companies in accordance with the rules to be laid
down by those authorities.” But the Treaty points out that
“the above-mentioned shares shall only confer on Estonia rights
in respect of those undertakings of the joint-stock companies
which may be situated in Estonian territory and that in no
case shall the rights of Estonia extend to undertakings of the
same companies outside the confines of Estonia”. |

The Treaty then expressly mentions the “First Company of
Secondary Railways’ as included amongst ‘these joint-stock
companies.

The exchange of ratifications of the Treaty of Tartu took
‘place on March 2oth, 1920.

In October 1920, some kilometres of the Panevezys-Sventziany
railway line situated between the latter station and Saldutis-
kis ceased to be under Lithuanian sovereignty and passed sub-
sequently into that of Poland.

Some days after the coming into force of the Treaty of
Tartu, the relevant provisions of which have been quoted above,
the Estonian Government promulgated, on April 7th, 1920, a
first set of provisional regulations regarding joint-stock com-
panies whose statutes had been approved by the Russian Govern-
ment, and which possessed undertakings or property in Estonian
territory and had hitherto not had themselves registered
by the Estonian courts in accordance with the regulations laid
down. These companies apparently had to hold general meet-
ings within two months after the decree, since the decree pro-
vided that, if they did not do so, all the powers of members
of the Board of Directors would be held to have lapsed, and
that curators appointed by the courts would undertake the
administration and, if need be, the liquidation of the under-
takings.and property of such companies, such undertakings and
property being treated as ownerless property.

In order to establish the validity of a general meeting, the
documentary evidence was to be accompanied by the statutes
which had been approved by the Russian Government; the
purpose of such general meeting was to be the bringing of
the statutes into conformity with Estonian law and a decision to
have them “registered by the judicial authorities of Estonia”.

A second Estonian ordinance, dated October Ist, 1921, provided
that a company would be no longer subject to curatorship
when the general meeting of its shareholders had elected its

12
A./B. 76.—THE RAILWAY LINE PANEVEZYS-SALDUTISKIS 13

officers in accordance with the statutes approved by the former
Russian Government and had had its statutes registered in
accordance with Estonian law.

On May 21st, 1922, the “First Company of Secondary Rail-
ways in Russia”, which had been sequestrated: on April 7th,
was placed under curatorship by order of the District Court of
Tallinn-Hapsal.

It does not appear that any general meeting of this Com-
pany was held at this period in Estonia. On the other hand,
the documents produced to the Court show that, on Novem-
ber 23rd, 1922, a general meeting of the Company—the first
since the meeting of July 1917—was held, not in Estonia, but
at Riga in Latvia, with the sanction of the Latvian Govern-
ment and under Latvian law, and that at this meeting the
Board of Directors was instructed to take the necessary steps
to reacquire possession of and to operate the property of the
Company in Lithuania and Poland; while the portion of the
system situated in Latvia was to be ceded to a Latvian com-
pany which was to be formed.

On August 4th, 1923, a law was promulgated in Estonia
declaring that, ‘‘in accordance with § 19 of the concession of
the ‘First Company of Secondary Railways in Russia’, all railways
of this Company in the territory of the Estonian Republic
shall be bought out and become the property of the Treasury
as from October Ist, 1923”. The concession referred to is that
granted by the Czar in 1897, and $ 19 concerns the Imperial
Government’s right of redemption.

The next thing that happened was that the Estonian Govern-
ment, on September 7th, 1923, authorized the holding of a
general meeting of the Company (which, as has been seen, had
been under curatorship since May 21st, 1922) and the curators,
“in accordance with the statutes ($ 60)’’, proceeded to convene
a general meeting for October rgth of the same year.

This general meeting was actually held in Tallinn on Novem-
ber 2nd, 1923. It proceeded to revise and amend the statutes
in accordance with Estonian law and with a view to the exer-
cise of the powers thenceforward to be enjoyed by the Com-
pany in Estonia: namely in respect of operation, works, tariffs,
exemption from taxes, the right of expropriation, subjection to
the laws and regulations in regard to railways, etc. The regist-
ered offices of the Company were fixed in Tallinn.

These new statutes were approved on November 8th, 1923,
and registered on November 23rd.

As stated in the Estonian Memorial, the “First Company of
Secondary Railways in Russia” was thus transformed “into an
Estonian company having its registered offices in Estonia. under
the name of the Esimene Juurdeveo Raudteede Selts Venemaal

13
A./B. 76.—THE RAILWAY LINE PANEVEZYS-SALDUTISKIS  I4

—a translation into Estonian of the name of the Russian com-
pany.

On March roth, 1924, a general meeting of the Esimene held
in Tallinn authorized the Board of Directors to sell the line
situated in Lithuania and the lines in Latvia and Poland. On
October 3rd, 1924, another general meeting appears to have
been held at which particular consideration was given to the
question of the Panevezys-Saldutiskis railway.

On March 5th, 1925, a request was sent on behalf of the
Board of the Esimene to the Lithuanian Government, asking
it “to give instructions for the necessary steps to be taken
for the handing over of the Panevezys-Saldutiskis line to its
legal owners’.

It does not appear that any answer was made to this peti-
tion, and several years elapsed in the course of which further
petitions were made.

On November 14th, 1031, a memorandum accompanied by a
petition from the Board of the Esimene was transmitted to
the Lithuanian Government. In this memorandum the Esimene
pointed out that it was the former Russian company trans-
formed into an Estonian company with the same titles and
rights, and accordingly it claimed “in that capacity” fair com-
pensation for the Panevezys line which belonged to it and of
which it had been unjustifiably deprived.

On April 29th, 1932, after the chairman of the Company had
approached the Lithuanian Government, the Board of Directors,
in a further petition of May zoth, 1932, stated that they
consented to the non-restitution of the line in question but
hoped on the other hand that some equitable method would
be found of compensating the Company for the property of
which it had been deprived.

Further petitions were sent by the Board of Directors of
the Esimene, in particular one on May 2oth, 1932.

On January 25th, 1933, the Lithuanian Government referred
to its Council of State, which, under the organic law of
August 21st, 1928, is an advisory body, the question whether
the Esimene Company was justified in putting forward a claim
in law against the Lithuanian Government in respect of the
Panevezys railway. The opinion given was in the negative.

On September 15th, 1933, and October 25th, 1933, the Esv-
mene Company presented further petitions to which the Lithu-
anian Government replied, refusing to admit the claim of the
Company to be entitled to the rights of the former company
which, in its contention, no longer existed.

The negotiations were thenceforward continued between the
Estonian Minister in Kaunas and the Lithuanian Government,
the Company proposing the purchase of its line by the Lithuanian
Government (proposals of September 7th, 1934, September 14th,

14
A./B. 76.—THE RAILWAY LINE PANEVEZYS-SALDUTISKIS 15

1936, and letter of December 3rd, 1036, addressed by the
Estonian Minister to the Lithuanian Government).

In a letter of December 30th, 1936, the Lithuanian Govern-
ment replied that the dispute was a matter of civil law and
within the jurisdiction of the Lithuanian courts.

On February ist, 1937, the Estonian Government renewed
its representations, the dispute bearing as before both on the
question of the recogtiition of the Esimene as entitled to the
rights of the Russian company and on the question of the
jurisdiction of the Lithuanian courts. It was also argued that
there had been a violation of the Commercial Convention
concluded on January 13th, 1934, between Estonia and Lithuania
and a denial of justice.

On May 5th, 1937, the Lithuanian Government replied that
it could not entertain the Estonian claim.

On August 2oth, 1937, the Estonian Government informed
the Lithuanian Government that it intended to bring the case
before the Permanent Court of International Justice. The
Lithuanian Government then replied that, while maintaining
its own view on the question of law, the friendly relations
between the two States might make it possible to reach a
friendly settlement of the dispute, should the Esimene Company
not win its case before the Lithuanian courts.

Such are the facts, which moreover do not appear to be
disputed by the Parties, and on the basis of which the Estonian
Government on November 2nd, 1937, filed with the Court the
Application instituting the proceedings referred to at the begin-
ning of this judgment.

#
# *

Within the time-limit fixed for the filing of the Counter-
Memorial by the Lithuanian Government, the Agent for that
Government submitted two preliminary objections. After the
usual proceedings and hearings in connection with these objec-
tions, the Court, as has been explained, joined these objections
to the merits by its Order of June 30th, 1938, saying in the
course of that Order that at the then stage of the proceedings
the Court could not take a decision either as to the prelimin-
ary character of the objections or as to whether they were
well founded, for any such decision would raise questions of
fact and law in regard to which the Parties were in several
respects in disagreement and which were too closely linked to
the merits for the Court to adjudicate upon them at that
stage. Now that it has heard the arguments of the Parties
on the merits of the case as well as on the objections, the
Court is in a position to give its decision on the objections.

15
A./B. 76.—THE RAILWAY LINE PANEVEZYS-SALDUTISKIS 16

Both the objections were submitted as preliminary objec-
tions under Article 62 of the Rules of Court. It is clear that
Article 62 covers more than objections to the jurisdiction of
the Court. Both the wording and the substance of the Article
show that it covers any objection of which the effect will be,
if the objection is upheld, to interrupt further proceedings in
the ‘case, and which it will therefore be appropriate for the
Court to deal with before enquiring into the merits.

The Lithuanian objections are based on the non-observance by
the Estonian Government: (1) of the rule of international law
that a claim must be national not only at the time of its
presentation but also at the time of the injury; and (2) of
the rule requiring the exhaustion of the remedies afforded by
municipal law.

In the opinion of the Court, the rule of international law on
which the first Lithuanian objection is based is that in taking
up the case of one of its nationals, by resorting to diplomatic:
action or international judicial proceedings on his behalf, a
State is in reality asserting its own right, the right to ensure
in the person of its nationals respect for the rules of interna-
tional law. This right is necessarily limited to intervention on
behalf of its own nationals because, in the absence of a spe-
cial agreement, it is the bond of nationality between the State
and the individual which alone confers upon the State the
right of diplomatic protection, and it is as a part of the func-
‘tion of diplomatic protection that the right to take up a claim
and to ensure respect for the rules of international law must
be envisaged. Where the injury was done to the national of
some other State, no claim to which such injury may give rise
falls within the scope of the diplomatic protection which a
State is entitled to afford nor can it give rise to a claim which
that State is entitled to espouse.

The Estonian Agent both in the written pleadings and in
the oral arguments has endeavoured to discredit this rule of
international law, if not to deny its existence. He cited a
certain number of precedents, but when these precedents are
examined it will be seen that they are cases where the govern-
ments concerned had agreed to waive the strict application of
the rule, cases where the two governments had agreed to estab-
lish an international tribunal with jurisdiction to adjudicate
on claims even if this condition ‘as to nationality were not
fulfilled. In the present case no grounds exist for holding that
the Parties intended to exclude the application of the rule. ~
The Lithuanian Agent is therefore right in maintaining that
Estonia must prove that at the time when the injury. occurred
which is alleged to involve the international responsibility of

16
A./B. 76.—THE RAILWAY LINE PANEVEZYS-SALDUTISKIS 17

Lithuania the company suffering the injury possessed Estonian
nationality.

Though it is true that an objection disputing the national
character of a claim is in principle of a preliminary character,
this is not so in the actual case before the Court. This is
because the grounds on which Lithuania disputes Estonia’s
right to take up the case on behalf of the Company, viz. that
the claim lacks national character, cannot be separated from
those on which Lithuania disputes the Company’s alleged right
to the ownership of the Panevezys-Saldutiskis railway.

The question whether the Esimene Company is to be regarded
as the owner or concessionaire of the Panevezys-Saldutiskis
railway undoubtedly forms part of the merits of the dispute.
The ground on which the Company claims the railway is that
it is the same as, or the successor to, the Russian company.
The issue as to whether or not it is so involves a decision
with regard to the effect of the events and the legislation in
Russia at the time of the Bolshevist revolution, for it has been
argued that the events and the legislation in Russia put
an end to the company’s existence and left the devolution
of its property outside Russia to be governed by the law of
the country in which the property was situated. This ques-
tion, however, closely affects also the question whether or not
there was in existence at the time of the Lithuanian acts
giving rise to the present claim an Estonian national whose
ceuse the Estonian Government was entitled to espouse.

Similarly it would be necessary for the Court in dealing with
the merits of the Estonian claim to adjudicate on the inter-
pretation of the Treaty of Tartu, for it has been argued that
the effect of that Treaty was to preserve the existence of the
Russian company and convert it automatically into an Estonian
company. Here again this same question has an intimate
bearing on the nationality issue raised by the first Lithuanian
objection. If for the purpose of deciding the Lithuanian objec-
tion the Court were to give a decision on the effect on Russian
companies of the measures of the Soviet Government at the
time of the Russian revolution, and as to the meaning and
effects of the Treaty of Tartu, it would also have decided
questions which form an important part of the merits of the
dispute.

For these reasons the Court cannot regard the first Lithu-
anian objection as one which in the particular circumstances of
the case can be decided without passing on the merits. The

17
A./B. 76.—THE RAILWAY LINE PANEVEZYS-SALDUTISKIS 18

Court cannot thereforé admit the objection as a preliminary
objection within the meaning of Article 62 of the Rules of
Court.

The second Lithuanian objection is based on the non-observ-
ance by the Estonian Government of ‘‘the rule of interna-
tional law requiring the exhaustion of the remedies afforded
by municipal law’’. The existence of this rule which in prin-
ciple subordinates the presentation of an international claim
to such an exhaustion is not contested by the Estonian Agent ;
his contention is that the case falls within one or more of the
admitted exceptions to the rule.

First it is maintained that the courts in Lithuania cannot
entertain a suit in this case. Secondly it is said that on one
point—and that a point which constitutes an essential element
in the Estonian case—the highest court in Lithuania has
already given a decision adverse to the Estonian company’s
claim.

If either of these points could be substantiated, the Court
would be bound to overrule the second Lithuanian objection.
There can be no need to resort to the municipal courts if
those courts have no jurisdiction to afford relief; nor is it
necessary again to resort to those courts if the result must be
a repetition of a decision already given.

Before examining in detail the second Lithuanian objection,
it should be observed that the Estonian submission in this
case is based on Lithuania’s refusal to recognize the Es¢mene
Company’s proprietary and concessionary rights in the Pane-
vezys-Saldutiskis railway, i.e, it is based on a dispute as to
the non-recognition of a claim by an individual to a property
right and to a contractual right. In principle, the property
tights and the contractual rights of individuals depend in every
State on municipal law and fall therefore more particularly

within the jurisdiction of municipal tribunals.

The Estonian Agent has argued. that the Lithuanian courts
have no jurisdiction to entertain a suit by the ÆEsimene
Company to establish the Company’s title to the Panevezys-
Saldutiskis railway. His allegation is met with an emphatic
assertion by the Lithuanian Agent that the courts in Lithuania
possess such jurisdiction. The Lithuanian Agent also points to
Article 2 of the Lithuanian Code of Civil Procedure where it is
laid down that ‘private persons .... whose legal rights are
infringed by decisions of administrative institutes or persons
may bring an action in the courts”.

18
A./B. 76.—THE RAILWAY LINE PANEVEZYS-SALDUTISKIS 19

The question whether or not the Lithuanian courts have
jurisdiction to entertain a particular suit depends on Lithu-
anian law and is one on which the Lithuanian courts alone can
pronounce a final decision. It is not for this Court to consider
the arguments which have been addressed to it for the purpose
either of establishing the jurisdiction of the Lithuanian tribu-
nals by adducing particular provisions of the laws in force in
Lithuania, or of denying the jurisdiction of those tribunals by
attributing a particular character (seizure jure imperit) to the
act of the Lithuanian Government. Until it has been clearly
shown that the Lithuanian courts have no jurisdiction to enter-
tain a suit by the Esimene Company as to its title to the
Panevezys-Saldutiskis railway, the Court cannot accept the con-
tention of the Estonian Agent that the rule as to the exhaustion
of local remedies does not apply in this case because Lithuanian
law affords no means of. redress.

The second ground on which the Estonian Agent has main-
tained that the rule as to the exhaustion of local remedies
does not apply in this case is that the highest court, the
Supreme Court in Lithuania, has already held that there is no
continuity between the Russian company and the Estonian
company, and has therefore already given an adverse decision
on a point which constitutes an essential element in the Esimene
Company’s claim’ to the Panevezys-Saldutiskis railway. The rule
of international law as to the exhaustion of local remedies has
never, it is contended, been held to require that a claimant
should be bound to institute proceedings on a point on which
the highest court has already given a decision.

The Court does not regard the argument as applicable in this
instance.

The case in which it is alleged that the Supreme Tribunal
in Lithuania gave such a decision on March 26th, 1934,.is a.
suit brought against the Esimene Company in the Lithuanian
courts by one Jeglinas to recover the capital value and the
arrears of interest due on one of the bonds issued by the
Russian company for the construction of the railway in ques-
tion, and to obtain a decision that holders of the bonds were
entitled to be paid in priority to other creditors, and also to
obtain a ruling as to the rate of exchange as between roubles
and lits.

The Lithuanian Agent stated that the Jeglinas case was not
a genuine case. Whatever may be the case on this point, it is
sufficient for the Court to make the following observations.

3 19
A./B. 76.—THE RAILWAY LINE PANEVEZYS-SALDUTISKIS 20

After the case had been dealt with in the Court of the juge
de paix and the Tribunal d'arrondissement, Jeglinas entered an
appeal to the Supreme Court in Lithuania. The judges in that
court ignored the contentions and admissions of the parties,
annulled the judgment of the Tribunal d'arrondissement and
quashed all the proceedings upon the ground that there was
no properly qualified defendant before the court. The following
are the important paragraphs of the judgment according to the
French translation supplied to the Court:

“The defendant cited in this case as liable for the bond is
not the First Company of Secondary Railways in Russia, with
its Board of Directors in Petrograd, but the First Company of
Secondary Railways in Russia, with its Board of Directors at
Tallinn in Estonia and whose managing director, Paul Klompus,
at present resides in Kaunas, at the Lithuania Hotel, No. 9,
Daukant Street. Consequently, in order to bring this case
within the jurisdiction of the Lithuanian courts, a domicile has
been artificially created in breach of Article 220 of the Code
of Civil Procedure which indicates where a company is to be
sued.

More especially since, as may be seen from the evidence pro-
duced by the defendant, no company exists in Estonia in
whose name the bond was issued and whose statutes were in
force in 1892, but there is a company newly founded under
the name of Esimene Juurdeveo Raudieede Selts Venemaal (which,
translated, may mean: ‘First Company of Secondary Railways
in Russia’).

Evidence has not been produced in this case that the said
Estonian company can be recognized by our laws or by inter-
national treaties as successor to the old Russian company, and
the Court knows of no such laws or treaties. Only companies
whose statutes are registered in accordance with our laws and
duly published (law concerning joint-stock companies, ‘Govern-
ment Gazette’, No. 179) may operate in Lithuania. And only
such joint-stock companies are entitled to have their enterprises
there, especially enterprises of such great importance as rail-
ways. Moreover the Tribunal d'arrondissement, with the parti-
cipation of the representative of the Estonian company and
on the basis of § 14 of the bond, gave the claimant a preferential
right of execution upon the movable and immovable property
of the Sventziany-Ponévége railway, although, as has been stated,
part of this line is in the possession of the Lithuanian Ministry
of Communications.

In view of the foregoing, there is no ground for regarding
Paul Klompus, the director of the Esimene Juurdeveo Raud-
teede Selis Venemaal Company, as a defendant entitled to
answer for bond No. 0742, issued by the ‘First Company of
Secondary Railways in Russia’, ie., as qualified to be the
defendant in accordance with Article 4 of the Code of Civil
Procedure, and consequently the whole of the proceedings in
this case which have taken place without the real defendant

20
A./B. 76,—THE RAILWAY LINE PANEVEZYS-SALDUTISKIS 21

having been summoned or heard must be annulled and the
appeal in cassation cannot be considered?.”’

The passage quoted above in which it is said that the proofs
had not been submitted in the case to show that the Estonian
company could be recognized as the successor of the former
Russian company has been thought to mean that the Supreme
. Tribunal examined the evidence and gave a decision as to its
. effect. An examination of the judgment shows however that
the passage in the judgment means no more than that no
evidence had been submitted to the Lithuanian courts to show
the identity of the two companies.

It must also be pointed out that if the Esimene Company
instituted proceedings in the Lithuanian court as to their right
to be regarded as the owners and concessionaires of the
Panevezys-Saldutiskis railway, the parties to the suit would
not be the same as those in the Jeglinas case—so that no
question of ves judicata could arise; nor is there anything to
show that the Esimene Company would find itself confronted
by a course of decisions (jurisprudence constante) of the Lithu-
anian courts which would render the Company’s suit hopeless,
despite the difference of the parties.

The Estonian Agent has also drawn the attention of the Court
to an opinion rendered by the Lithuanian Council of State on
January 25th, 1933, as to the juridical basis of the Esimene
Company’s claim to the Panevezys-Saldutiskis railway. The
conclusion reached by the Council of State was that the Esimene
Company was neither the same as nor the successor to the
Russian company and therefore had no claim to the railway.

The function of the Council of State in Lithuania is among
others to notify to the Council of Ministers or to the parti-
cular Minister concerned any case in which the orders, regulations
or instructions of the executive authorities are inconsist-
ent with the laws in force. It is not a judicial authority
the opinions of which would be binding on the Lithuanian
courts. For this reason the fact that in 1933 it rendered an
opinion to the Lithuanian Government adverse to the validity
of the Esimene Company’s claim cannot be regarded as excus-
ing that Company from seeking redress in the Lithuanian
courts.

Neither of the reasons put forward by the Estonian Agent
for the non-application of the rule as to the exhaustion of the
local means of redress can therefore be regarded as holding
good in the present case.

1 Translation by the Registry.
; 2I
A./B. 76.—THE RAILWAY LINE PANEVEZYS-SALDUTISKIS 22

In consequence, on the one hand, the second Lithuanian pre-
liminary objection having been submitted for the purpose of exclud-
ing an examination by the Court of the merits of the case, and
being one upon which the Court can give a decision without
in any way adjudicating upon the merits, must be accepted as
a preliminary objection within the meaning of Article 62 of
the Rules. On the other hand, as regards the merits of the
objection, it is common ground between the Parties that the
Estonian company has not instituted any legal proceedings
before the Lithuanian courts in order to establish its title to
the Panevezys-Saldutiskis railway.

The objection must therefore be regarded as one that can
be entertained as an objection of a preliminary character and
as well-founded as regards its substance.

For THESE REASONS,
The Court,
by ten votes to four,

Declares that the objection regarding the non-exhaustion
of the remedies afforded by municipal law is well founded,
and declares that the claim presented by the Estonian Govern-
ment cannot be entertained.

The present judgment has been drawn up in French and
English, the French text being authoritative.

Done at the Peace Palace, The Hague, this twenty-eighth
day of February, one thousand nine hundred and thirty-nine,
in three copies, one of which will be deposited in the archives
of the Court and the others will be communicated to the
Estonian Government and to the Lithuanian Government
respectively.

(Signed) J. G. GUERRERO,

President.

(Signed) J. LOPEZ OLIvAN,

Registrar.

22
A./B. 76.—THE RAILWAY LINE PANEVEZYS-SALDUTISKIS 23

Count Rostworowski and M. DE VisscHER, Judges, declare
that they are unable to concur in that part of the judgment
given by the Court concerning the first objection raised by the
Lithuanian Government and, availing themselves of the right
conferred upon them by Article 57 of the Statute, have appended
to the judgment the separate opinion which follows.

M. ALTAMIRA, Judge, declares that he is unable to concur in
this judgment in regard either to the operative clause or to
the grounds on which it is based.

Jonkheer van Eysinca, Mr. Hupson and M. Ericu, Judges,
declare that they are unable to concur in the judgment given
by the Court and, availing themselves of the right conferred
upon them by Article 57 of the Statute, have appended to the.
judgment the respective separate opinions which follow.

M. ROMER’Is, Judge ad hoc, while in agreement with the
operative clause of the judgment, declares, with regard to the
fact that the Court has refrained from adjudicating upon
the first Lithuanian preliminary objection on the ground that it
would be impossible to do so without entering into the merits,
that he is unable to concur in the opinion of the Court on this
point and is in agreement with the separate opinion delivered
by M. De Visscher and Count Rostworowski, . Judges.

(Initialled) J. G. G.

(Initialled) J. L. O.

23


                                                                           575

   DÉCLARATION DE M. LE JUGE ABRAHAM, PRÉSIDENT

[Texte original en français]

   1. J’ai voté en faveur du présent arrêt, par lequel la Cour décide qu’elle
ne peut examiner au fond la requête des Iles Marshall contre le Pakistan,
car je considère qu’une telle décision est en pleine conformité avec la
jurisprudence de la Cour relative à l’exigence qu’un « diﬀérend » existe
entre les parties, telle que cette jurisprudence a été établie par une série
d’arrêts rendus au cours de la période récente, particulièrement l’arrêt du
1er avril 2011 rendu en l’aﬀaire relative à l’Application de la convention
internationale sur l’élimination de toutes les formes de discrimination raciale
(Géorgie c. Fédération de Russie), l’arrêt du 20 juillet 2012 rendu en l’af-
faire relative à des Questions concernant l’obligation de poursuivre ou d’ex-
trader (Belgique c. Sénégal) et l’arrêt du 17 mars 2016 rendu en l’aﬀaire
relative à des Violations alléguées de droits souverains et d’espaces mari-
times dans la mer des Caraïbes (Nicaragua c. Colombie).
   2. Cette jurisprudence est selon moi clairement et correctement expo-
sée aux paragraphes 33 à 40 de l’arrêt.
   3. On pourrait la résumer dans les trois propositions suivantes.
   En premier lieu, l’existence d’un diﬀérend entre les parties à une ins-
tance n’est pas seulement une condition de l’exercice par la Cour de sa
compétence, mais, plus fondamentalement, une condition de l’existence
même de cette compétence.
   En deuxième lieu, et cette proposition découle en grande partie de la
précédente, il convient, pour apprécier la réalisation de cette condition, de
se placer non point à la date à laquelle la Cour rend sa décision, mais à la
date d’introduction de l’instance, les éléments postérieurs à cette dernière
date pouvant permettre de conﬁrmer, le cas échéant, l’existence du diﬀé-
rend, mais non de l’établir.
   Enﬁn, pour que la Cour constate l’existence d’un diﬀérend entre les
parties à la date pertinente, il est nécessaire que ce diﬀérend se soit mani-
festé par des échanges entre les parties — quelle qu’en soit la forme —
antérieurement à cette date, dans des conditions telles que chaque partie
ait été consciente — ou ait dû l’être — de ce que les vues de l’autre partie
étaient opposées aux siennes. En particulier, le défendeur ne doit pas
découvrir l’existence d’une prétention du demandeur à son égard en pre-
nant connaissance de l’acte introductif d’instance ; il doit en avoir été
informé avant.
   4. Dans le passé, il ne me semble pas que la Cour ait toujours fait
preuve d’une pareille rigueur en ce qui concerne la condition tenant à
l’existence d’un diﬀérend.
   A vrai dire, avant 2011, la jurisprudence de la Cour n’était pas parfai-
tement univoque et on pourrait sans doute trouver des décisions allant

                                                                            27

          armes nucléaires et désarmement (décl. abraham)                  576

dans des sens assez variés. Néanmoins, plusieurs précédents pourraient
être cités dans le sens d’une approche plus souple et pragmatique : je les
ai moi-même mentionnés dans mon opinion individuelle en l’aﬀaire
Géorgie c. Fédération de Russie (exceptions préliminaires, arrêt, C.I.J.
Recueil 2011 (I), opinion individuelle de M. le juge Abraham, p. 224).
   5. Cette approche plus souple pouvait être comprise comme reposant
sur l’idée que l’existence d’un diﬀérend n’était pas, à proprement parler,
une condition de la compétence même de la Cour, mais plutôt une condi-
tion de l’exercice par la Cour de sa compétence ; sur la conclusion qui en
découlait que cette condition devait être appréciée à la date de la décision
de la Cour, et que la date d’introduction de l’instance ne revêtait à cet
égard aucune pertinence particulière ; et qu’en conséquence, puisqu’il fal-
lait et suﬃsait que le diﬀérend existât à la date de la décision de la Cour, il
y avait lieu de tenir compte des positions exprimées par les parties dans le
cours même de l’instance tout autant que des échanges qui avaient eu lieu
entre elles — le cas échéant — avant le début de la procédure.
   6. Selon moi, la Cour a commencé à se départir de cette approche dans
son arrêt en l’aﬀaire Géorgie c. Fédération de Russie, qui marque un inﬂé-
chissement, certes encore ambigu, en ce qui concerne les conditions néces-
saires pour constater l’existence du diﬀérend.
   Je m’en suis inquiété, car je n’étais pas favorable à un tel inﬂéchisse-
ment, dans mon opinion individuelle jointe à cet arrêt (précitée).
   7. C’est avec son arrêt en l’aﬀaire Belgique c. Sénégal (précité) que la
Cour a clairement ﬁxé le nouveau cours de sa jurisprudence, en se décla-
rant incompétente sur l’une des demandes de la Belgique (celle relative à
une prétendue obligation du Sénégal de poursuivre ou d’extrader His-
sène Habré pour des « crimes internationaux » autres que les actes de tor-
ture, en vertu du droit international coutumier). La raison donnée par la
Cour pour justiﬁer son incompétence était que la Belgique n’avait pas,
dans les protestations qu’elle avait adressées au Sénégal avant l’introduc-
tion de l’instance, mentionné une telle prétention juridique. Pourtant, les
positions adoptées par les parties sur le fond devant la Cour rendaient
manifeste l’existence d’un diﬀérend entre elles sur la question en cause ;
mais la Cour a refusé d’en tenir compte.
   8. J’ai voté contre le point du dispositif de l’arrêt Belgique c. Sénégal
par lequel la Cour s’est déclarée incompétente pour connaître de la
demande susmentionnée, motif pris de l’absence de diﬀérend entre les
parties sur l’objet de cette demande à la date d’introduction de l’instance.
Dans une opinion individuelle jointe à l’arrêt (C.I.J. Recueil 2012 (II),
opinion individuelle de M. le juge Abraham, p. 471), j’ai expliqué les rai-
sons de ce vote, en regrettant que la Cour ne se soit pas placée à la date
de sa propre décision pour apprécier la réalisation de la condition, ce qui
l’aurait conduite à une conclusion opposée.

   9. J’estime cependant que, même si un juge a exprimé les réserves que
lui inspire une solution jurisprudentielle, voire son désaccord avec elle, au
moment où la Cour a ﬁxé sa jurisprudence, il doit se considérer par la

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          armes nucléaires et désarmement (décl. abraham)                577

suite comme lié par cette jurisprudence (non pas juridiquement, certes,
mais moralement), tout autant que s’il l’avait approuvée.
   10. Il est en eﬀet un impératif judiciaire que la Cour a toujours reconnu,
et qui s’impose selon moi à chacun de ses membres, à savoir qu’elle doit
faire preuve d’une grande continuité dans sa jurisprudence, à la fois dans
l’intérêt de la sécurité juridique et pour éviter de prêter le ﬂanc au soup-
çon d’arbitraire.
   11. Il est vrai que la jurisprudence n’est pas intangible, et que la Cour
a toujours le pouvoir de l’inﬂéchir ou de la renverser si elle estime, excep-
tionnellement, qu’il existe pour cela des raisons impérieuses, tenant par
exemple à l’évolution d’un contexte général dans lequel s’insère telle ou
telle solution particulière.
   12. Je ne suis pas sûr que la Cour ait eu raison, avec les arrêts Géorgie
c. Fédération de Russie et surtout Belgique c. Sénégal, d’inﬂéchir notable-
ment son approche antérieure de la condition relative à l’existence du dif-
férend. Mais dès lors qu’elle l’a fait en adoptant une solution claire en
connaissance de cause, je considère que rien ne justiﬁerait à présent qu’elle
s’écartât de cette dernière.
   13. C’est pourquoi dans l’aﬀaire Nicaragua c. Colombie (précitée), je
me suis joint à la majorité (à cet égard l’unanimité) en votant en faveur du
point 1) c) du dispositif, qui faisait application des mêmes critères que
dans l’arrêt Belgique c. Sénégal.
   Et, dans la présente aﬀaire, j’approuve également l’arrêt en ce qu’il s’en
tient à l’application de ces critères.
   14. Quant à l’application au cas d’espèce de la jurisprudence — désor-
mais ﬁxée — concernant l’existence du diﬀérend à la date d’introduction
de l’instance, je considère que, pour les raisons exposées aux para-
graphes 42 à 53 de l’arrêt, il n’a pas été démontré qu’un diﬀérend s’était
clairement manifesté entre les Parties, à la date pertinente, sur la question
faisant l’objet de la requête soumise à la Cour par les Iles Marshall.

                                              (Signé) Ronny Abraham.

                                                                          29


37

INDIVIDUAL OPINION BY JUDGE READ

In this case, while I am in agreement with the operative provisions
of the Judgment and, in general, with the reasoning by which they
are justified, I am unable to concur in one finding which has been
made by the Court. This is a finding that in the relation between
the respondent States and Italy, the Application is in conformity
with the offer to submit to the jurisdiction of the Court contained
in the Washington Statement.

While there can be no doubt that the Court is competent to
deal with this question, I do not think that it should be decided at
this stage.

To begin with, it is unnecessary to make this finding in order to
justify the operative judgment of the Court.

There is, however, a much more compelling reason for not
deciding the point at this stage. It is not dealt with in the final
submissions of the Parties and none of the Parties has requested
a finding on this point. Further, it has not been fully argued during
the written or oral proceedings. I am bound by the principle of
international law which was adopted by this Court—in the
Ambatielos case (jurisdiction), I.C.J. Reports 1952, p. 45—and
stated as follows:

“The point raised here has not yet been fully argued by the
Parties, and cannot, therefore, be decided at this stage.”

Accordingly, I am of the opinion that this point should not be
decided at this stage. Nevertheless, as it has been dealt with, and
as I do not agree with the conclusion which has been reached on
this point, it is necessary for me to state my reasons.

The Washington Statement prescribes the subject-matter of the
dispute and the scope of the proposed application by Italy. The
Application complies with the offer in this regard. This aspect of
the problem has been fully argued and, indeed, it has given rise
to no dispute. But the Statement does not prescribe the Parties to
the procedure which it made available to Italy. It contained the
following provision :

“The Governments of the French Republic, the United Kingdom
and the United States declare that they will accept as defendants
the jurisdiction of the Court for the purpose of the determination
of such applications by Italy or by Albania or by both.”

It is clear that this provision does not require or even suggest
that the three Governments were intended to be the sole respondents.

22
38 MONETARY GOLD CASE (INDIV. OPIN. BY JUDGE READ)

An examination of the entire Statement shows that there is nothing
therein contained to preclude Italy from naming in the Application
all of the Parties necessary to enable the Court to dispose of the
questions which are set forth in clause (0).

On the other hand, the Statement prescribes, in precise language,
the nature of the application that Italy must make in order to
comply with its terms. The offer of the three Governments to
accept as defendants the jurisdiction of the Court was not general :
it was solely “‘for the purpose of the determination of such appli-
cations by Italy or by Albania or by both”. The words ‘such
applications” refer to clause {b) of the Statement, which uses the
following words :

“{b) Italy makes an application to the International Court of
Justice for the determination of the question”

and then proceeds to ‘state the subject-matter and scope of the
question. These words are clear and unambiguous. They require
Italy to make an application for the determination of the question.
They have an ordinary and natural meaning: an application of
such a nature that the question can be determined. They cannot,
in their ordinary and natural meaning, be construed as authorizing
or requiring Italy to make an application of such a nature that it
is legally impossible for the Court to decide the question.

There was no legal difficulty preventing Italy from making an
application in which the Court would be able to determine the
question.

Accordingly, I am compelled to reach the conclusion that Italy,
in making an application in which Albania was not named as a
party, failed to make an application for the determination of the
questions and consequently failed to comply with the terms of the
offer set forth in the Washington Statement. At the same time, as
Albania was a necessary and indispensable party to the proceedings,
the Application did not comply with the provisions of Article 40 (1)
of the Statute and Article 32 (2) of the Rules. Accordingly, there
was a fundamental defect in the Application by which these
proceedings were commenced.

(Signed) John E. Reap.

23