243

SEPARATE OPINION OF JUDGE PADILLA NERVO

In its Judgment of 24 July 1964 the Court joined to the merits the third
preliminary opjection raised by the Spanish Government to the Applica-
tion of Belgium.

The Court then stated that:

“the third objection involves a number of closely interwoven strands
of mixed law, fact and status, to a degree such that the Court could
not pronounce upon it at this stage in full confidence that it was in
possession of all the elements that might have a bearing on its
decision” (I.C.J. Reports 1964, p. 46).

In the present proceedings the Parties have dealt fully with questions
of merits, in the course of their written and oral pleadings.

The Spanish Government contests the Belgian Government’s capacity
to act, its jus standi, its right to intervene on behalf of Belgian nationals
(natural or artificial persons) whom the Belgian Government claims to
have been injured by a breach of international law, for which liability is
attributed to the Spanish authorities.

The Belgian Government asserts that it is exercising protection ex-
clusively and directly on behalf of persons of Belgian nationality and
contends that the legal question which arises when examining its jus
standi in the present case is that of the diplomatic judicial protection,
“not of foreign trading companies, but of natural and artificial persons”
who, having invested their funds in the said companies, suffered losses as
shareholders in these companies, as a result of illegal actions committed
against the companies.

The respondent Government contends that—

“international law does not recognize, in respect of injury caused by
a State to a foreign company, any diplomatic protection of share-
holders exercised by a State other than the national State of the
company”.

The applicant Government asserts its right to intervene on behalf of
Belgian nationals, shareholders in the company, and contends that such
right is conferred on it in respect of its nationals by the rules of inter-
national law concerning the treatment of foreigners.

The real issue is whether international law recognizes for the share-
holders in a company “‘a separate and independent right or interest in
respect of damage done to the company by a foreign government”.

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The Belgian Government, in its first submission, asked the Court to
adjudge and declare that the Spanish State is under an obligation towards
Belgium to make reparation for the damage caused to “Belgian nationals,
individual or legal persons, being shareholders of Barcelona Traction”.

In the second submission, it asks that the Court will—

‘“adjudge and declare that this reparation should, as far as possible,
annul all the consequences which these acts, contrary to international
law, have had for the said nationals, and that the Spanish State is
therefore under an obligation to secure, if possible, the annulment
by administrative means of adjudication in bankruptcy and of the
judicial and other acts resulting therefrom, obtaining for the said
injured Belgian nationals, all the legal effects which should result
from this annulment . . .”. (Application filed 19 June 1962, second
submission.)

What is then the real meaning and scope of the present Belgian claim?
The new Application presents as the object of Belgium’s protection, not
the Canadian commercial company of Barcelona Traction but Belgian
nationals who are said to be shareholders of Barcelona Traction.

The Spanish Government disputes the Belgian Government’s capacity
to act—

“in view of the fact that the Barcelona Traction Company does not
possess Belgian nationality and that, in the case in point, it is not
possible to allow diplomatic action or international judicial pro-
ceedings on behalf of the alleged Belgian shareholders of the com-
pany on account of the damage which the company asserts it has
suffered’’. (P.O., submissions on third objection.)

I do concur in the view that, in the present case, diplomatic action or
international judicial proceedings on behalf of the shareholders in the
company on account of damage which the company alleges it has suffered,
could not be allowed.

It has not been proved that there exists a special customary rule which,
by derogation of the basic principles of international law with regard to
the status of aliens, would have helped the Belgian contention.

Nor has it been demonstrated that there exists an alleged general rule
establishing, in all circumstances, the lawfulness of the protection of
shareholders following damage caused to the company.

I believe it is right to say that international law does not recognize the
right of diplomatic protection of shareholders as such if their rights
stricto sensu have not been violated.

Nor does any rule of international law give support to the admissibility
of a double diplomatic protection, one for the corporation and another
for the shareholders in that corporation.

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245 BARCELONA TRACTION (SEP. OP. PADILLA NERVO)

To say that the corporation and the shareholders have parallel interests
does not make admissible a concurrent diplomatic intervention.

No State could be safe from the pressure and danger of a plurality of
diplomatic interventions by States protecting their nationals, share-
holders in a given corporation, if the right of diplomatic protection of
shareholders were recognized.

For the time being, the principle which recognizes the capacity of a
State to intervene, by way of diplomatic protection of a company of its
own nationality, has proved to be a fair and well-balanced safeguard or
insurance, both for the investor and for the State, where foreign com-
panies operate.

This regime, whose consequences are well known, has no surprises and
establishes a legal order which, so far, has proved to be generally adequate
and satisfactory.

There seems to be no fundamental reason or essential need to depart
from it. If a door is open to the intervention, by way of diplomatic
protection of shareholders, of a plurality of States—as many as could
claim to have shareholders of their nationality—a chaotic situation of the
gravest international consequences would, in time, develop.

Private investments, needed for economic development, will be en-
couraged if the States receiving them are convinced that the national
State of the investor will not use the so-called right of diplomatic protec-
tion as a pretext for political or economic pressure, dangerous to the
sovereignty and independence of weaker or less developed States, who
cherish more their national dignity than the speed of their development.
In the relation between the investor and the State where the investment
takes place, a just balance should be aimed at, for it is good for the inter-
national community that capital which goes abroad in search of gain
should not be a potential threat to the essential values and dignity of
States.

The lessons of history and past experience are, after all, the source of
the law and of judicial precedents and must have place and weight in the
conscience of the judge.

Mervyn Jones, in his work Claims on behalf of nationals who are share-
holders in foreign companies, makes the following historic remarks by way
of introduction:

“The era of foreign investment on a large scale reached its height
during the fifty years or so preceding the First World War, when
British and American capital poured into all parts of the world,
financing railway and harbour construction, exploitation of mineral
deposits and innumerable other projects in undeveloped countries.
At the same time the institution of the joint-stock company with
limited liability (which was of recent growth) made it possible for

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small capitalists to invest their money in remote countries for a
better yield than was obtainable at home. There is little doubt that,
at first, those countries welcomed foreign capital, which was badly
needed, and were not strict as to conditions of investment. It was but
rarely, during these early days, that any necessity arose for diplo-
matic intervention by foreign powers on behalf of their nationals.
With the turn of the nineteenth century, however, nationalist move-
ments became directed against ‘economic exploitation’ by the
foreigner. These movements emphasized economic, as well as
political, sovereignty, and, as time went on, began to interfere more
and more with the projects of foreign capital. The decay of liberal
capitalism and /aisser-faire, accompanied by the spread of socialist
doctrine throughout the world, caused governments everywhere to
assume greater control of the economic assets and resources of the
nation: in certain countries foreign capital came to be regarded as
an emblem of subordination, and not merely as a means of devel-
oping the country. Much, of course, had happened to justify such
an attitude; the extent to which foreign capital held a grip on the
economic life of many countries was considerable. Against this
background the revolutions of 1911-20 in Mexico transformed the
political and social outlook of the nation, as did the later revolutions
in central Europe after the First World War, and those in eastern
Europe after the Second. These revolutions were accompanied by
measures of expropriation, which inevitably raised the question of
the position under international law of individuals who had invested
in companies carrying on business in the countries concerned.”
(British Year Book of International Law, 1949, p. 225.)

The history of the responsibility of States in respect to the treatment
of foreign nationals is the history of abuses, illegal interference in the
domestic jurisdiction of weaker States, unjust claims, threats and even
military aggression under the flag of exercising rights of protection, and
the imposing of sanctions in order to oblige a government to make the
reparations demanded.

Special agreements to establish arbitral tribunals were on many oc-
casions concluded under pressure, by political, economic or military
threats.

The protecting States, in many instances, are more concerned with
obtaining financial settlements than with preserving principles. Against
the pressure of diplomatic protection, weaker States could do no more
than to preserve and defend a principle of international law, while giving
way under the guise of accepting friendly settlements, either giving the
compensation demanded or by establishing claims commissions which

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had as a point of departure the acceptance of responsibility for acts or
omissions, where the government was, neither in fact nor in law, really
responsible.

In the written and in the oral pleadings the Applicant has made re-
ference, in support of his thesis, to arbitral decisions of claims commis-
sions—among others those between Mexico and the United States, 1923.

“These decisions do not necessarily give expression to rules of
customary international law; as... the Commissions were autho-
rized to decide these claims ‘in accordance with principles of inter-
national law, justice and equity’ and, therefore, may have been
influenced by other than strictly legal considerations.’ (Schwarzen-
berger, International Law, Vol. I, p. 201.)

In the Special Claims Commission: Mexico-United States, established
by the convention of 10 September 1923, Article II states:
“,..each member of the Commission... shall make and subscribe
a solemn declaration stating that he will...examine and decide,
according to the best of his judgment and in accordance with the
principles of justice and equity, all claims presented for decision . . .”.
(Italics are mine.)

The second paragraph of the same Article II reads as follows:

“The Mexican Government desires that the claims shall be so
decided because Mexico wishes that her responsibility shall not be
fixed according to the generally accepted rules and principles of
international law, but ex gratia feels morally bound to make full
indemnification and agrees, therefore...” (U.N.R.I.A.A., Vol. IV,
p. 780.)

Article VI of the same convention makes another exception to the
accepted general rules, when it states:
“...the Mexican Government agrees that the Commission shall
not disallow or reject any claim by the application of the general
principle of international law that the legal remedies must be ex-
hausted as a condition precedent to the validity or allowance of any
claim”. (Zbid., p. 781.)

Some of the decisions of claims commissions invoked during the
pleadings are not, in my view, relevant precedents in respect to this case.

Now the evolution of international law has other horizons and its
progressive development is more promising, as Rosenne wrote:

“There is prevalent in the world today a widespread questioning
of the contemporary international law. This feeling is based on the

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view that for the greater part international law is the product of
European imperialism and colonialism and does not take suf-
ficient account of the completely changed pattern of international
relations which now exists... .

Careful scrutiny of the record of the Court may lead to the con-
clusion that it has been remarkably perceptive of the changing cur-
rents of internationalist thought. In this respect it has performed a
major service to the international community as a whole, because
the need to bring international law into line with present-day re-
quirements and conditions is real and urgent.” (Rosenne, The Law
and Practice of the International Court, 1965, Vol. I, pp. 17-18.)

The law, in all its aspects, the jurisprudence and the practice of States
change, as the world and the everyday requirements of international life
change, but those responsible for its progressive evolution should take
care that their decisions do, in the long run, contribute to the maintenance
of peace and security and to the betterment of the majority of mankind.

In considering the needs and the good of the international community
in our changing world, one must realize that there are more important
aspects than those concerned with economic interests and profit making;
other legitimate interests of a political and moral nature are at stake and
should be considered in judging the behaviour and operation of the com-
plex international scope of modern commercial enterprises.

It is not the shareholders in those huge corporations who are in need of
diplomatic protection; it is rather the poorer or weaker States, where the
investments take place, who need to be protected against encroachment
by powerful financial groups, or against unwarranted diplomatic pressure
from governments who appear to be always ready to back at any rate
their national shareholders, even when they are legally obliged to share
the risk of their corporation and follow its fate, or even in case of share-
holders who are not or have never been under the limited jurisdiction of
the State of residence accused of having violated in respect of them certain
fundamental rights concerning the treatment of foreigners. It can be said
that, by the mere fact of the existence of certain rules concerning the
treatment of foreigners, these have certain fundamental rights that the
State of residence cannot violate without incurring international responsi-
bility; but this is not the case of foreign shareholders as such, who may be
scattered all over the world and have never been or need not be residents
of the respondent State or under its jurisdiction.

In the case of the Rosa Gelbtrunk claim between Salvador and the
United States, the President of the arbitration commission expressed a

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BARCELONA TRACTION (SEP. OP. PADILLA NERVO)

view which may summarize the position of foreigners in a country where

they

are resident. This view was expressed as follows:

“A citizen or subject of one nation who, in the pursuit of commercial
enterprise, carries on trade within the territory and under the pro-
tection of the sovereignty of a nation other than his own, is to be
considered as having cast in his lot with the subjects or citizens of
the State in which he resides and carried on business.” (Italics
added.)

“Tn this case”, Schwarzenberger remarks, “the rule was applied to
the loss of foreign property in the course of a civil war. The decision
touches, however, one aspect of a much wider problem: the ex-
istence of international minimum standards, by which, regarding
foreigners, territorial jurisdiction is limited.”

As the Permanent Court of International Justice said in the Lotus case
in 1927 (P.C.I.J., Series A, No. 10, p. 19)—

“all that can be required of a State is that it should not overstep the
limits which international law places upon its jurisdiction; within
these limits, its title to exercise jurisdiction rests in its sovereignty”.

The rules concerning the treatment of foreigners are a limitation of a
State’s jurisdiction ratione personae. Schwarzenberger says in this respect:

250

“States generally exercise exclusive jurisdiction over their nation-
als within their territory, concurrent jurisdiction over their nationals
abroad, and limited jurisdiction over, for example, individuals and
groups within their territory who are protected by international
customary or treaty law.” (Italics added.)

“While, in principle, territorial sovereignty applies to nationals
and foreigners alike, the home State retains a concurrent jurisdiction
over its nationals abroad.... Furthermore, the unrestricted ex-
ercise of territorial jurisdiction over foreigners on the part of the
State of residence may be limited by rules of international customary
law or treaties. If such exercise of territorial jurisdiction happens to
come into conflict with international law, the question turns into
an issue between the subjects of international law concerned. The
home State is entitled to demand respect for international limita-
tions of territorial jurisdiction, and the State of residence may have
to answer for its interference ‘with the rights which each State may
claim for its national in foreign territory’. As the World Court laid
down in the case of the Mavrommatis Palestine Concessions (1924),
‘it is an elementary principle of international law that a State is
entitled to protect its subjects, when injured by acts contrary to
250 BARCELONA TRACTION (SEP. OP. PADILLA NERVO)

international law committed by another State, from whom they have

been unable to obtain satisfaction through the ordinary channels’.
(Schwarzenberger, International Law, Vol. I, pp. 189-190.)

Much has been said about the justification for not leaving the share-
holders in those enterprises without protection.

Perhaps modern international business practice has a tendency to be
soft and partial towards the powerful and the rich, but no rule of law
could be built on such flimsy bases.

Investors who go abroad in search of profits take a risk and go there
for better or for worse, not only for better. They should respect the
institutions and abide by the national laws of the country where they
chose to go.

* * *

The main preliminary question on the merits in the present proceedings
is that of the international diplomatic and legal protection of natural and
artificial persons who, having invested funds in foreign trading companies,
have suffered losses in their capacity as shareholders of those companies,
as a result of acts contrary to international law of which a State has been
guilty towards those companies.

This problem is of capital importance in the modern world, and pre-
occupies the governments, economists and businessmen of numerous
countries which are anxious to ensure the security of investments made
abroad. Jurists, for their part, are actively concerned with it and are
constantly examining it.

A necessary foundation of a valid international claim is that the national
of the plaintiff State would have been directly injured in his rights by an
act contrary to international law done by the State to whom the claim is
addressed.

It is indispensable that the protected person be himself the possessor
of a right which would entitle him to formulate a claim for damages in
the internal judicial order.

If a debtor of a foreign creditor is affected in his rights by an act which
violates international law, the national State of the foreign creditor is not
authorized, by that fact, to the diplomatic protection of such creditor.
This question has been submitted and decided in various instances by
arbitral tribunals in the sense that “‘creditors do not have legal bases to
plead for damages inflicted on their debtors”’.

In U.S.A. (W. C. Greenstreet, Receiver) v. United Mexican States,
General Claims Commission, it was held that the nationality of the
creditors of an insolvent.corporation need not be shown, “the nationality

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of the creditors being just as immaterial as is that of the stockholders of
an insolvent company”.

The case of Société civile des porteurs d’ obligations du Crédit foncier
mexicain, before the French-Mexican Commission involved a claim on
behalf of the shareholders of a bank. The bank held mortgages on rural
property and damages were claimed because the security had been dam-
aged by depredations of revolutionary forces. The Commission held that
only the owners of the property might claim. (Feller, The Mexican Claims
Commission, p. 122.) Arbitral jurisprudence confirms the thesis that
international law does not authorize the protection of affected economic
interests, but only of rights really violated.

The following arguments were made by counsel for the applicant State:

“The problem of the diplomatic protection of the shareholders
practically only arises when the shareholders are of a different
nationality from that of the company. Indeed, an infringement of the
interests and rights of the company and of its shareholders might
then in this case affect the rights possessed by two or even several
States, and might consequently give rise to two or more rights to
claim, in so far as the rules relating to the treatment of foreigners
have not been respected... ..

Indeed, if one disregards the fact that the shareholders are for-
eigners, if one admits that these foreign shareholders have no rights
or interests distinct and independent from those of the company,
that they are totally inseparable from the latter vis-à-vis the outside
world, that they are entirely covered by the veil of the juristic person-
ality, one must then conclude that, in this event too, the case is
entirely outside the scope of international law.”

That line of argument leads up to saying that therefore:

“The national State of the shareholders cannot exercise any right
conferred on it in favour of its nationals by the rules of international
law concerning the treatment of foreigners.” (Hearing of 9 May 1969.)

J disagree with the above statements; of course, any State can exercise
such rights in favour of its nationals abroad, but not because they happen
to be in possession of bearer shares, but because and only if they have
been injured in their own specific rights by the State of residence which
has a duty to respect the rights of foreigners under its jurisdiction, ac-
cording to the relevant rules of international law concerning the treat-
ment of foreigners.

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It is claimed by the Belgian side that the Spanish Government ad-
mitted ‘‘that there were certain cases in which diplomatic protection of
the shareholders in the event of damage done to the company was
allowed under international law’, and quotes the Spanish admission as
saying that such protection is allowed “solely in cases where the company
possesses the nationality of the State against which the claim is made, so
that diplomatic protection of the company as such is excluded”’.

The Spanish Government, in its Rejoinder, contends that in all the
cases in which the protection of the shareholders was admitted, the com-
plaints raised concerned damage done exclusively to the shareholders’
“own rights”, that is to say not affecting the company itself.

In the present case, for Belgium to be able to intervene, it would thus
be necessary that there had been a violation of the rights of the Belgian
shareholders.

Such a violation is excluded, if what is complained of is steps which
were ostensibly directed against the company. It was admitted by the
Applicant, during the oral proceedings, that the Belgian claim did not
include damage resulting from an infringement of any of the recognized
direct rights of a shareholder as such.

International law goes no further than imposing on States certain
obligations towards other States, including the obligation to afford aliens
certain treatment, for example, to give them access to their courts and
to enable them to have their lawsuits impartially judged within reasonable
time limits and without discrimination.

A careful distinction should be drawn, contends the Spanish Govern-
ment, between two hypotheses which are mutually exclusive. Either there
is a wrongful injury to the rights of the shareholders, in which case
diplomatic protection of the latter is permissible and indeed is the only
protection permissible, or else there is a wrongful injury to the rights of
the company and only the company may be the subject of such protection.
The contention is that it is utterly impossible to escape from this option.

To this contention the Belgian answer was:

“The Spanish Government really wishes to demonstrate by this
argument that in cases of multiple claims, no one may bring action
by relying on the right of another party. But is it necessary to take
this extraordinary detour to reach a conclusion which nobody
contests? Belgium is not concerned with the injury suffered by
Barcelona Traction itself—that would be Canada’s business; it is
concerned with the damage suffered by its own nationals who held
shares in the company.”

*
* *

If the owner of the right or rights which have suffered injury is the
company and not the shareholder, it is beyond all doubt that the case is

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one which falls entirely outside the sphere in which the diplomatic
protection of shareholders by their national State can be admissible, or
even conceivable.

The Respondent in its Rejoinder states:

“The international society of today is certainly not asking for a
further reinforcement of the protection of certain capitalist groups
already too powerful and only too capable of securing support for
themselves, a reinforcement which would take the shape of the
possibility of increased pressure on the weaker nations.” (Rejoinder,
Part III, Chapter II, Section II, para. 43.)

It adds:

“Contemporary international law tends to concern itself more
with the need to protect countries with a weak economy than to
favour, as the Belgian Government would wish, ‘the financial needs
of great modern undertakings’.” (/bid.)

“Very many States insist, for very good reasons, that foreign
capital must be invested in national companies. This is the case, in
particular, in many countries in the course of development, but a
certain number of highly industrialized countries impose similar con-
ditions either de facto or de jure. What is more, foreign investors
themselves frequently and spontaneously chose this legal formula
which may in their view offer certain advantages.”

*
* *

There is a case to which the Belgian side ascribe importance. This is
the case of the American national, McPherson, who laid a claim before
the U.S.-Mexican Commission in 1923 against the Mexican Government,
which had refused to honour the postal money-orders which McPherson
had bought through an agent from illegal authorities and which the latter
had issued in the name of the agent. The decision in that case was deliv-
ered on the basis of a convention which, in several essential aspects
and by its very spirit, manifestly derogated from general international law.

Which are the applicable principles of international law and what are
the consequences of their application to the present case?

What follows expresses my views on the matter:

International law lays upon every State in whose territory foreign
natural or juristic persons reside, remain, operate or even simply possess
property, an obligation towards the State of which such persons are
nationals: the obligation to afford them certain treatment. That treat-
ment, which is defined most usually and in greater detail by the rules of
treaty law, nevertheless has its minimum requirements laid down by cus-

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tomary international law. Those minimum requirements consist essen-
tially in the respect, within given limits and conditions, of certain rights
of a personal or corporate nature, and in the granting, at the same time,
of the possibility of making use, if necessary, of appropriate judicial or
administrative remedies.

Correlative with that obligation, the State of which such persons are
nationals has, at the international level, a right to require the State which
is bound by the obligation to act in conformity therewith, and it has a
right, if occasion arises, to submit a claim in proper form and through
accepted channels, should that obligation fail to be discharged. That is
precisely what is known as the exercising of diplomatic protection. It also
includes protection by means of recourse to international jurisdiction.

The rights attributed to a State by international legal rules concerning
the treatment of foreigners, on the one hand, and, on the other hand, the
rights granted to individuals by the rules of municipal law, are situated at
different legal levels.

The existence of the individual’s right at the municipal level is the con-
dition whereby a State is authorized, at the international level, to require
that that right be not infringed. All that a State can require of another
State for its own nationals is the respect of those rights which are accorded
to them under the national legal system, as they are defined by that legal
system.

When the foreigner in question is a juristic person, the case is no dif-
ferent, theoretically, from a case in which a natural person is involved.
All legal systems agree in considering joint-stock companies (sociétés de
capitaux) as independent legal entities. The latter represent autonomous
beings to which rights and obligations may be ascribed; they are, in
short, of themselves subjects in law.

International law, both customary and treaty law, recognizes precisely
in respect of the treatment of foreigners, the existence of companies as
entities which are separate from their members.

For juridical persons as for natural persons, ‘‘nationality”’ expresses a
link of legally belonging to a specific State. The requirement for juridical
persons as for natural persons, is that the existence of the link of legally
belonging to a specific country must, if it is to serve as a plea at the inter-
national level, be accompanied by that of a “real” link with the same
country. In general international law, a State is not entitled to require a
specific treatment for a person who has not its nationality and it can thus
not complain that such treatment has not been accorded to that person.

A State may present a claim on behalf of its national if it becomes
apparent that there has been a breach of a right belonging to the latter;
but no State may present a claim on behalf of a person of its nationality

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on the ground that there was failure to respect a right belonging to
another person, possessing another nationality.

The national State of the company can present a claim for the breach
of a right of the company as such; the national State of the shareholder
can present a claim for the breach of a right “stricto sensu’’ of the share-
holder as such. The fact that there are relationships and links between
different persons does not imply that they merge into a single person.

A claim by a State under the head of diplomatic protection of a
national who is a shareholder of a commercial company is only admis-
sible subject to a two-fold condition: the applicant State must be able to
claim violation of a right of the shareholder as such; and it must be
established that the State which was the author of the alleged violation
was under an international obligation to the applicant State to ensure
respect for the right in question. The receivability of a claim under that
head is ruled out if it appears, firstly, that the right which is said to have
been violated is a right of the company and not of the shareholder, and,
secondly, that the international obligation to ensure respect for the said
right was incumbent on the respondent State in respect of the national
State of the company and not in respect of the national State of the share-
holder.

It follows from the principles of international law that in order for a
State to be able to submit a claim in behalf of a national, it must be able
to claim that its national has suffered an infringement of his own rights by
a foreign State, and that rights have been infringed for which the latter
State was bound to ensure respect by virtue of an international obligation
binding on it in respect of the claimant State.

There is nothing to prevent a State’s submitting a claim in behalf of a
national which relates to that national’s position in his capacity as a
shareholder in a company; but, in such a case, it must prove that the
person in question has been injured in the rights conferred upon him
himself precisely on account of his capacity of being a shareholder: that he
has been injured in rights which are inherent in that capacity.

It is by no means sufficient that the claimant State rely upon an injury
to the rights of the company as such, for no State may submit a claim in
behalf of a person on the ground that there has been a failure to respect
a right which belongs to another person, whether such latter person be a
natural or a juristic person.

International law only authorizes a State to intervene by way of diplo-
matic protection if such State relies upon a complaint which is its own
complaint: that is to say, if it complains of the infringement of a right of
one of its nationals, committed in violation of an international obligation
which binds to it the State which has committed the infringement.

If there has not been in the case at issue any infringement of any right
of a shareholder, that fact cannot be altered simply by referring to
interests as well as rights.

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The situation of the shareholder as defined by the various legal systems,
covers the rights which are defined in the decision on the Brincart case.
No system of positive law confers on a shareholder in a limited company
other subjective legal situations and, in particular, no system attributes to
him any legal interest in the property of the company, as has been ex-
pressly acknowledged by both sides.

One cannot accept the transformation of a shareholder’s hope for the
prosperity of the company into a right or a legal interest, nor any possi-
bility for a shareholder to claim that an infringement of the rights of the
company constitutes an infringement of his own legal situation.

The rules of international law concerning the responsibility of the
State regarding the treatment of foreigners would not make it possible to
impute to a State an internationally unlawful act even in a case where the
said State had only harmed an interest which was not protected by the
municipal legal system of that State.

There has not been established, in respect of the alleged Belgian share-
holders of Barcelona Traction, the existence of any juridical situation
whatsoever attaching to their status as shareholders which suffered any
internationally unlawful attack on the part of the Spanish administrative
or judicial authorities.

*
* *

Barcelona Traction is said to have been a “practically defunct’? com-
pany.

Shareholders are not entitled to take the place of the company in
defending the latter’s own rights when it is these rights which have been
affected, for so long at least as the company has not yet been dissolved
and liquidated and the shareholders therefore have ho right to its property
and assets.

It is only when a company has been dissolved and consequently ceases
to exist as a separate legal entity that the shareholders take its place and
are entitled to receive the balance of its property, after the corporate
debt has been deducted. Thus it is only the “legal death”? of the corporate
person that may give rise to new rights appertaining to the shareholders
as successors to the company.

In 1925 the United States claimed the right, as against the Government
of the United Kingdom, to intervene on behalf of American interests in
a non-American corporation (the Romano-Americana).

In the United Kingdom answer to the American contention, it was
said: “...it is not until a Company has ceased to have an active exis-
tence or has gone into liquidation that the interest of its shareholders
ceases to be merely the right to share in the Company's profits and becomes

257
257 BARCELONA TRACTION (SEP. OP. PADILLA NERVO)

a right to share in its actual surplus assets” (Hackworth, Digest of Inter-
national Law, Vol. V (1943), p. 843).

In the case of the Mexican Eagle, a company incorporated in Mexico,
in which the shareholdings were 70 per cent. British and Dutch, 25 per cent.
French and the remainder Swiss, Danish and other interests (as the shares
were in bearer form it was impossible to state the exact proportion of
each national interest), a dispute arose between the Mexican Government
and the United Kingdom Government regarding claims by British share-
holders arising from the expropriation of the properties of the Mexican
Eagle Company.

The Mexican Government in a Note of 26 April 1938, maintained the
view that a shareholder was not a co-owner of the property of the under-
taking but “merely the possessor of a right in equity to represent a part of
the liquid assets at the moment of the dissolution or liquidation of the
company”.

It was not until the moment of dissolution that it was possible to
establish the damage and injuries sustained by shareholders as distinct
from the company (Mervyn Jones, British Year Book of International Law,
1949, p. 241).

On that occasion the Mexican Government stated: “Mexico cannot
admit that any State, on the pretext of protecting the interests of the
shareholders of a Mexican company, may deny the existence of the legal
entity of companies organised in Mexico in accordance with our laws.”

I do not concur with the view that the national State of the shareholders
may exercise diplomatic protection when the act complained of was done
by the national State of the company, for this would be equivalent to
admitting that any State, on the pretext of protecting the interests of the
shareholders in a foreign company, may deny the existence of the legal
entity of companies organized in accordance with the laws of the national
State of such companies.

I have reservations about paragraph 92. of the Judgment. For the rea-
sons stated above I am of the opinion that the so-called theory to which
the paragraph refers does not have any validity. The fact that the Judg-
ment ends the paragraph with the sentence: “Whatever the validity of this
theory may be, it is certainly not applicable to the present case, since Spain
is not the national State of Barcelona Traction” should not be interpreted
as an admission that such “theory” might be applicable in other cases
where the State whose responsibility is invoked is the national State of the
company.

This is a fundamental point in the field of intervention on behalf of
nationals who are shareholders in foreign companies of limited liability.

Regardless of the numerous cases of protection which took place in the
past—outside international law or contrary to it—by the use of economic,
political or military pressure, it is worth recalling that—also in the past—

258
258 BARCELONA TRACTION (SEP. OP. PADILLA NERVO)

in other cases when a stand was taken within a legal point of view and
respect for the sovereignty of other States, there has been a historical
recognition of the separate entity of corporations of limited liability, and
the opinions given in such instances did stress the independent existence
of a company as juridical person.

For example, when the Government of the United States was approach-
ed in 1875 with a request that it should intervene on behalf of American
stockholders in Chilean corporations, it refused to do so. It adhered to
the view that a corporation formed under local law should have recourse
to the loca] courts and that although the good offices of the Government
might with propriety be exercised on behalf of American interests, there
could be no official intervention 1 (Moore, Digest of International Law
(1906), Vol. VI, p. 644). The practice of the United Kingdom followed
similar lines. Thus Sir Robert Phillimore advised that the British Minister
to Mexico should be instructed to limit himself to “good offices” on
behalf of a British shareholder in a Mexican railway siezed by the Mexican
Government and that the British subject should be told that he must rely
principally on local remedies. Years later both Governments found reason
to depart from this practice.

I therefore cannot accept that this situation—which is not the one
before the Court—should be considered as a limitation or exception to
the strict application of the rule of international law, according to which
the shareholders cannot be protected by their national State except in
two instances: (a) when the company has been liquidated, and (b) when
a right of the shareholder as such (right stricto sensu) has been violated
by an illicit act entailing international responsibility.

The scope and increasing activities of powerful international corpora-
tions have had as their field of operation the exploitation of the natural

! The Secretary of State of the United States in a dispatch to the (American)
Minister to Colombia, dated 27 April 1866, wrote as follows:
“It may well be that subjects of Great Britain, France and Russia are stock-
holders in our national banks. Such persons may own all the shares except a
few necessary for the directors whom they select.

Is it to be thought that each of those Governments shall intervene when their
subjects consider the bank aggrieved by the operations of this Government?
If it were tolerated, suppose England were to agree to one mode of adjustment,
or one measure of damages, while France should insist upon another, what end
is conceivable to the complications that might ensue?

It is argued that there is no policy which requires us to encourage the em-
ployment of American capital abroad by extending to it any protection beyond
what is due the strictest obligation. There is no wise policy in enlarging the
capacity of our citizens domiciled abroad for purposes of mere pleasure, ease or
profit to. involve this Government in controversy with foreign powers.” (Loc.
cit., pp. 645-646.)

259
259 BARCELONA TRACTION (SEP. OP. PADILLA NERVO)

resources of many countries in the process of development and have con-
trolled the functioning of many of their public services over which the
territorial States have come to be, notwithstanding their sovereignty, in
a subordinated position, and their right to demand compliance with the
prescription of their municipal law on the matter has in many cases been
challenged and put in jeopardy. Faced with the structure and practice of
capitalist society in regard to foreign investment, many countries have
imposed the requirement on foreign capital of taking the legal form
prescribed by local legislation. The exercise of the sovereignty of States
in this matter cannot be legally construed as a device to deprive the even-
tual shareholders in corporations of limited liability (sociétés anonymes)
of the diplomatic action of their national State. Nationalization and
expropriation, in accordance with the law on the matter, have been the
result of the essential need not to have public utilities and national
resources subordinated to the private interests of foreign corporations.

I am also of the opinion that neither is a limitation to the rule—
according to which it is the national State of the company who has the
right of protection—the fact that the protecting State does not exercise
its right or ceases to do it. The right of protection is a discretionary
one and the national State of the company is not under a duty to pro-
tect.

In respect to paragraph 93 I must make the following observations.

The paragraph begins with the consideration that “in the field of
diplomatic protection of shareholders as in all other fields . . . it is neces-
sary that the law be applied reasonably”.

The phrase immediately following refers to a suggestion which might
be interpreted as an example of reasonableness on the matter. The sug-
gestion, or hypothesis, is to the effect that, “if in a given case it is not
possible to apply the general rule”... then, “considerations of equity
might call for the possibility of protection of the shareholders in question
by their own national State”. The last sentence in this paragraph states:
“This hypothesis does not correspond to the circumstances of the present
case.”

I am of the opinion that there is no need for the Judgment to include
reference to an irrelevant hypothesis. It is difficult to imagine a case in
which it would be impossible to apply the general rule that the right of
diplomatic protection of a company belongs to its national State.

It might be argued that in case the company is liquidated and therefore
ceases legally to exist its national State loses the subject of its right and
the general rule cannot be applied. In such eventuality the shareholders
can undertake the defence of their interest before the courts of the State
whose responsibility is invoked and exhaust the local legal remedies open
to them. If a denial of justice is claimed, then the national State of the
person whose rights are violated may intervene according to the rules
concerning the protection of foreigners, but in such hypothesis the State
of the shareholders exercises a right of its own (whether or not such right

260
260 BARCELONA TRACTION (SEP. OP. PADILLA NERVO)

is qualified as ‘‘secondary’’) and if so its action is not based on “‘con-
siderations of equity”’.

The whole Judgment is based on the ground that according to inter-
national law the national State of the company, and only and exclusively
it, has the right of diplomatic and judicial protection of such company.
Therefore it is a contradiction of a legal nature to state even as an ir-
relevant hypothesis that there might be a circumstance when that State
which, by definition, has the legal capacity to act could be legally or
juridically incapacitated—the State concerned is free to exercise its right
or not but its abstention to pursue an action does not affect its right to
take it. It cannot lose its legal capacity and a hypothesis based on the
impossibility to apply the general rule is a juridical contradiction and has
no reasonable explanation even as a whimsical hypothesis. It is also in-
conceivable that if Canada does not exercise its discretionary right of
protection then this fact gives birth to the right of the shareholders’ State.

* * *

Therefore on those hypothetical limitations it is not possible to build
a Belgian ius standi.

In respect of the attitude in this case of the national State of Barcelona
Traction, the Respondent describes as follows the three successive phases
of the Canadian Government’s action, resulting from the examination of
the diplomatic correspondence and relevant documents:

“The first, going up to the time of the Tripartite Statement, was
the phase in which, misinformed by the interested parties, it accused
Spain of having violated obligations in general international law
with regard to the treatment of foreigners and, on that ground,
requested the Spanish Government to intervene with a view to the
annulment of the acts of the judicial authorities.

The second phase, which followed upon the Tripartite Statement
and did not last long, was characterized by the definite abandonment
of that request and of any allegation of a breach by Spain of obliga-
tions under general international law. The Canadian Government, on
the other hand, raised the particular complaint that certain clauses of
the treaties in force between the two countries had been broken.
It proposed the settlement of the differences on that point by arbi-
tration.

In the third phase, after expressing regret that the Spanish Govern-
ment had not accepted the proposal to submit the specific point
about the treaties to arbitration, the Canadian Government, which
had meanwhile become better acquainted with the facts, definitely

261
261 BARCELONA TRACTION (SEP. OP. PADILLA NERVO)

opted for endeavouring to get the dispute settled on an amicable
basis through direct negotiations between the private parties con-
cerned.

It is thus once again clearly confirmed that the famous exceptional
circumstances of ‘the absence of protection by the national govern-
ment of the company’, which the Belgian Government has relied on
so often and in so many forms in order to justify its claim to have
jus standi in the case to act under the head of the protection of the
Belgian ‘shareholders’ in Barcelona Traction, quite apart from the
fact that even theoretically it cannot constitute any valid justifica-
tion, is not in fact by any means present in the case.”

*
* *

In my view the right of diplomatic protection of shareholders in a
company of a nationality other than that of the protecting State, is not
in accordance with the principles of international law in force, i.e., the
rule of the diplomatic protection of companies by the State of which they
are nationals.

Nor is such protection recognized by any special customary rule in
international practice. The arbitral decisions rendered on the basis of
special bilateral conventions are not norm-creating, nor have constituted
the foundation of, or generated a rule of customary international law
which is now accepted as such by the opinio juris.

There are not, in the present case, exceptional circumstances justifying
any departure from the strict application of the general rule of inter-
national law on the matter.

The right of diplomatic protection, like any other right, has to be
understood as a right which a particular State has against another
particular State. To which State does that right pertain in the present
case? Does it pertain to the Applicant? Is Spain under an international
obligation towards Belgium?

Has the respondent State committed a breach of an international
obligation owed to the applicant State by the measures taken in respect
to Barcelona Traction? Is the person affected by the measures of which
Spain is accused linked to the applicant State by a bond of nationality?

In my opinion all those questions ought to be answered in the negative
and, if so, the international liability alleged by the Applicant does not
exist.

Towards the eventual and sporadic possessor of a bearer share there
is not a direct and immediate obligation from the State accused of having
violated the rights of a private foreign national (natural or juristic person)
by an unlawful act damaging the corporation (société anonyme) which
has issued the bearer shares.

The fact that theoretically there is not (or there need not be) continuity

262
262 BARCELONA TRACTION (SEP. OP. PADILLA NERVO)

of ownership of a bearer share, the nationality of the eventual possessor
does not give to his State a right towards the Respondent, who is not
under an international obligation owed to every State which might have,
or has, at a given date, some nationals in the possession of bearer shares
in the corporation alleged to be injured by an illicit international act,
unless specific rights of the shareholders as such were violated.

It is not justifiable to create an ad hoc rule in disregard of existing
and generally accepted ones to fit a particular case which could and
should be decided by the application of the rules of general international
law governing the matter.

The claim in the present case and its characteristics are in the nature
of a request to go around or avoid the strict application of the relevant
rules of international law which “does not recognize, in respect of injury
caused by a State to a foriegn company, any diplomatic protection of
shareholders exercised by a State other than the national State of the
company”.

The shareholders in commercial limited liability companies (sociétés
anonymes) do not have a separate and independent right in respect to
damage done to the company by a foreign government.

The rules of international law concerning the treatment of foreigners
are not rightly invoked in respect of shareholders as such.

This question ought to be considered in relation to the protection of
citizens abroad and taking into account the jurisdiction of the State
where the foreigner resides.

The following concepts contained in Borchard’s Diplomatic Protection
of Citizens Abroad are relevant in this respect:

“The bond of citizenship implies that the State watches over its
citizens abroad, and reserves the right to interpose actively in their
behalf in an appropriate case. Too severe an assertion of territorial
control over them by the State of residence will be met by the
emergence of the protective right of the national State, and the
potential force of this phenomenon has largely shaped the rights
assumed by States over resident aliens.”

“The principles of territorial jurisdiction and personal sovereignty
are mutually corrective forces. An excessive application of the
territorial principle is limited by the custom which grants foreign
States certain rights over their citizens abroad, sometimes merely
the application of foreign law by the local courts, sometimes, in
acknowledgment of the principle of protection, a certain amount of
jurisdiction.”

263
263 BARCELONA TRACTION (SEP. OP. PADILLA NERVO)

“Each State in the international community is presumed to extend
complete protection to the life, liberty and property of all individuals
within its jurisdiction.”

‘Not every injury warrants immediate interposition by the State.
In the first place, reparation is demanded only for such injuries as
the State in its discretion deems a justification for diplomatic
protection. Factors which enter into consideration in determining
the State’s interposition are the seriousness of the offence, the
indignity to the nation, and the political expediency of regarding
the private injury as a public wrong to be repaired by national
action—in short, the interests of the people as a whole, as against
those of the citizen, receive first consideration before State action is
initiated.”

“The individual has in fact sustained no injury in international
law, until the State of residence or its authorities have in some way
connected themselves with the original act or have declined to
afford him legal means of redress.”

*
* *

In the present case, it is not Belgium but Canada who is the one
entitled to protect its national, Barcelona Traction, in accordance with
the existing recognized rule of protection of a company only by its
national State.

Regarding the question: . whether international law recognizes
the right of a State to protect its nationals, riatural or juristic persons,
as shareholders in a foreign company, for the damage they might have
suffered as a consequence of an internationally illicit act done to the
company by a third State”, the answer, as a matter of law, should be in
the negative.

As regards the facts and circumstances of the particular case, they
do not constitute a juridically valid ground to justify an exception to the
existing rule.

66

*
* *

The shareholders of bearer shares in a société anonyme do not have
responsibility and they are unknown. If the alleged right of diplomatic
and judicial protection of shareholders in a société anonyme were recog-
nized, any State investor of capital abroad could buy, in the stock
market, the capacity to present claims in the name of its nationals to the
territorial State who admitted in its territory a foreign company whose
nationality it Knew, and who was also aware that, according to the

264
264 BARCELONA TRACTION (SEP. OP. PADILLA NERVO)

existing and accepted rules on the matter, the national States of the
numerous and unknown shareholders did not have, in international law,
a right of diplomatic protection independent from that of the national
State of the company.

Such recognition would be a derogation of the relevant principles
of international law and would entail unexpected complications and
unnecessary conflicts in modern commercial and financial international
relations.

If the different States, whose nationals were shareholders in the same
corporation, were empowered to undertake, each one in his own right,
acts of diplomatic protection on behalf of their respective nationals,
the admission and operations of foreign commercial corporations of
limited liability (sociétés anonymes) would constitute a great risk to the
territorial States in need of investments who admit them.

Such recognition will create distrust, insecurity and unforeseen
potential danger of pressures from unforeseen quarters. It will, besides,
hinder the activities of modern commercial enterprises eager to invest
capital abroad.

Mervyn Jones, in regard to the law on the subject, states:

“If a State of which the corporation is not a national could
normally take up a claim in respect of an injury to the corporation
merely because there are shareholders who are nationals of that
State, and who have suffered loss, the results would be just as chaotic
on the international plane as they would be under municipal law
if any group of shareholders were allowed to sue in any case where
the company has sustained damage.

If a State could intervene without restriction on behalf of its
individual nationals who were shareholders in a foreign corporation,
the position of Governments whose national the corporation was
and that of the State against whom the claims were brought, would
be rendered intolerable. It might well be, in such circumstances,
that the number of possible State claimants in respect of an injury
to one large company could comprise half the world. Again, share-
holders are not infrequently corporations themselves, and the
process of identifying individual shareholders might be prolonged
ad infinitum; such a process is in any case difficult in practice.”
(“Claims on behalf of Nationals who are Shareholders in Foreign
Companies”, British Year Book of International Law, 1949, pp.
234-235.)

*
* *

The Court did not examine the merits regarding the fourth preliminary
objection. Nevertheless the written and oral pleadings did show that

265
265 BARCELONA TRACTION (SEP. OP, PADILLA NERVO)

the local remedies in respect to the alleged wrongs and damages were
not exhausted.

There are no grounds to say that a miscarriage of justice took place or
that the bankruptcy was fictitious. There is no question that the bank-
ruptcy declaration was made in accordance with Spanish law on the
subject.

There are no legal bases to state that Spain is responsible internation-
ally for the standard of its laws and for the quality of the justice ad-
ministered by its courts.

By which criterium is the Court to measure the standard of Spanish
laws in order to decide if it is high or low, good or bad? And by which
test could the Court make a finding regarding the quality of the justice
administered?

Which principles of international law, recognized by all nations, give
the Court authority to pass judgment on those matters?

*
* *

After careful consideration of the arguments from both sides contained
in their pleadings, I conclude that there is not convincing evidence of
a predominant Belgian interest in natural or juristic Belgian persons,
having the character of shareholders of Barcelona Traction at the critical
dates, even if it is admitted that those critical dates are 1948 and 1962.
Namely the date of the bankruptcy declaration and the date of the filing
of the present Application.

It has not been proved that the majority of shareholders in Barcelona
Traction had the Belgian nationality at the critical dates, nor that the
capital in the Belgian corporations alleged to be shareholders of Bar-
celona Traction, was a capital invested or belonging to Belgian nationals
or necessarily linked to the national wealth of the Applicant.

The unfavourable impact on the wealth of a nation cannot be the
legal foundation of a claim when a State considers that its nationals
have lost money abroad, due to an act of the territorial State which is
alleged to be a breach of an international responsibility.

If the defence of the national wealth could be the legal foundation
of the State’s own right to diplomatic or judicial intervention, the rules
concerning the treatment of foreigners would be, in fact, substituted by
vague and undefined concepts regarding non-existing duties of the
territorial State to guarantee against loss, the investment, by a person,
of money which the national State could, arbitrarily, claim was originally
part of its national wealth when the investor sent his money abroad.

The national wealth is affected, maybe, when any resident takes or

266
266 BARCELONA TRACTION (SEP. OP. PADILLA NERVO)

sends his money abroad, rather than the moment he loses such money,
or his interests, dividends, or hopes of pecuniary gains from his invest-
ment.

If the defence of the national wealth would entail the right to intervene,
the violation of a duty towards a foreigner would not be the foundation
of the claim, but the so-called harm to the wealth of a State as an auto-
matic consequence of the pecuniary losses eventually suffered by its
nationals abroad. Such losses could be traced to events in the territorial
State regardless of its international responsibility, or the existence of any
legal duty towards the success of business enterprises, or speculative
ventures of foreign nationals.

*
* *

I agree with the Judgment of the Court that the Belgian claim be
dismissed.

(Signed) Luis PADILLA NERVO.

267


               110

                              INTERNATIONAL COURT OF JUSTICE

   2006                                       YEAR 2006
 30 June
General List
 No. 132                                      30 June 2006

                                CASE CONCERNING
                              MARITIME DELIMITATION
                                IN THE BLACK SEA
                                      (ROMANIA v. UKRAINE)

                                                ORDER

               Present : President HIGGINS ; Vice-President AL-KHASAWNEH ; Judges SHI,
                         PARRA-ARANGUREN, BUERGENTHAL, OWADA, TOMKA, ABRAHAM,
                         SKOTNIKOV ; Registrar COUVREUR.

                   The International Court of Justice,
                  Composed as above,
                  Having regard to Article 48 of the Statute of the Court and to
               Articles 31, 44, 45, paragraph 2, 48 and 49 of the Rules of Court,
                  Having regard to the Order of 19 November 2004, by which the Court
               fixed 19 August 2005 and 19 May 2006 as the time-limits for the filing,
               respectively, of the Memorial of Romania and the Counter-Memorial of
               Ukraine,
                  Having regard to the Memorial and the Counter-Memorial duly filed
               by the Parties within those time-limits ;
                  Whereas, at a meeting held by the President of the Court with the rep-
               resentatives of the Parties on 28 June 2006, the Parties agreed to request
               the Court to authorize the filing of a Reply by the Applicant and a
               Rejoinder by the Respondent ; and whereas Romania proposed that each
               of the Parties should be allowed a maximum period of five months for

               4

111             MARITIME DELIMITATION (ORDER 30 VI 06)

the preparation of its pleading, and Ukraine requested that the Parties
each be given a minimum period of six months for that purpose ;

  Taking into account the views of the Parties and the circumstances of
the case,
 Authorizes the submission of a Reply by Romania and a Rejoinder by
Ukraine ;
 Fixes the following time-limits for the filing of those pleadings :

    22 December 2006 for the Reply of Romania ;
    15 June 2007 for the Rejoinder of Ukraine ; 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 thirtieth day of June, two thousand
and six, in three copies, one of which will be placed in the archives of the
Court and the others transmitted to the Government of Romania and the
Government of Ukraine, respectively.

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

5


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING
LEGALITY OF USE OF FORCE

(YUGOSLAVIA v. GERMANY)

ORDER OF 30 JUNE 1999

1999

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE A LA LICEITE
DE L'EMPLOI DE LA FORCE

(YOUGOSLAVIE c. ALLEMAGNE)

ORDONNANCE DU 30 JUIN 1999
Official citation:

Legality of Use of Force (Yugoslavia v. Germany),
Order of 30 June 1999, L C.J. Reports 1999, p. 997

Mode officiel de citation:

Licéité de Pemploi de la force (Yougoslavie c. Allemagne),
ordonnance du 30 juin 1999, C.LJ. Recueil 1999, p. 997

Sales number
ISSN 0074-4441 N° de vente: 144

ISBN 92-1-070816-4

30 JUNE 1999

ORDER

LEGALITY OF USE OF FORCE
(YUGOSLAVIA v. GERMANY)

LICEITE DE L’EMPLOI DE LA FORCE
(YOUGOSLAVIE c. ALLEMAGNE)

30 JUIN 1999

ORDONNANCE
997

INTERNATIONAL COURT OF JUSTICE

YEAR 1999

30 June 1999

CASE CONCERNING
LEGALITY OF USE OF FORCE

(YUGOSLAVIA v. GERMANY)

ORDER

Present: Vice-President WEERAMANTRY, Acting President; President
SCHWEBEL; Judges ODA, BEDJAOUI, GUILLAUME, RANJEVA,
HERCZEGH, SHI, FLEISCHHAUER, KOROMA, VERESHCHETIN,
HIGGINS, PARRA-ARANGUREN, KOOIUMANS, REZEK; Judge ad
hoc Kreta; Deputy- Registrar ARNALDEZ.

The International Court of Justice,

Composed as above,
After deliberation,

Having regard to Article 48 of the Statute of the Court and to
Articles 31, 44, 45, 48, 49 and 79 of the Rules of Court,

Having regard to the Application by the Federal Republic of Yugo-
slavia filed in the Registry of the Court on 29 April 1999, instituting
proceedings against the Federal Republic of Germany “for violation
of the obligation not to use force”,

Having regard to the request for the indication of provisional measures
submitted by Yugoslavia on 29 April 1999 and to the Order made by the
Court on 2 June 1999, whereby it rejected the request and reserved the
subsequent procedure for further decision;

Whereas, in order to ascertain the views of the Parties on the subse-
998 LEGALITY OF USE OF FORCE (ORDER 30 VI 99)

quent procedure, the Vice-President of the Court, Acting President, met
their representatives on 28 June 1999; whereas at that meeting Germany,
referring to the findings reached by the Court in its above-mentioned
Order of 2 June 1999, requested that the question of the jurisdiction of
the Court in this case should be separately determined before any pro-
ceedings on the merits; whereas at that same meeting Yugoslavia opposed
this request and stated that it wished to be permitted to submit a Memo-
rial on the merits, as provided by the Rules of Court, it being understood
that Germany would be entitled, pursuant to Article 79, paragraph 1, of
the Rules, to raise preliminary objections within the time-limit fixed for
the filing of its Counter-Memorial; and whereas the Applicant envisaged
a time-limit of approximately six months for the filing of the pleading
which it wished to submit;

Taking into consideration the views of the Parties and the relevant pro-
visions of the Rules of Court,

Fixes the following time-limits for the filing of the written pleadings
envisaged by Article 45 of the Rules:

5 January 2000 for the Memorial of the Federal Republic of Yugo-
slavia;

5 July 2000 for the Counter-Memorial of the Federal Republic of
Germany; 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 thirtieth day of June, one thousand
nine hundred and ninety-nine, in three copies, one of which will be placed
in the archives of the Court and the others transmitted to the Govern-
ment of the Federal Republic of Yugoslavia and the Government of the
Federal Republic of Germany, respectively.

(Signed) Christopher G. WEERAMANTRY,
Vice-President.

(Signed) Jean-Jacques ARNALDEZ,
Deputy-Registrar.


139

DÉCLARATION COMMUNE
DE MM. GUILLAUME ET FLEISCHHAUER

[Texte original français]

Paragraphe 7 de l'article 79 du Règlement de la Cour — Exception de non-
lieu ayant un caractère exclusivement préliminaire.

Actions menées par les Etats-Unis en vue d'obtenir la livraison des suspects
— Dernières conclusions au fond de la Libye dirigées contre ces actions —
Compétence de la Cour pour en connaître dans la seule mesure où les actions
critiquées seraient contraires à la convention de Montréal.

Nous pensons devoir faire la déclaration commune suivante concer-
nant l'arrêt rendu aujourd’hui même sur les exceptions préliminaires sou-
levées par les Etats-Unis dans l’affaire concernant les questions d’inter-
prétation et d’application de la convention de Montréal de 1971 résultant
de l’incident aérien de Lockerbie.

I

Nous avons voté contre la décision figurant au point 3 du dispositif
d’après laquelle

«l'exception des Etats-Unis, selon laquelle il n’y aurait plus lieu a
statuer sur les demandes de la Libye car les résolutions 748 (1992) et
883 (1993) du Conseil de sécurité les auraient privées de tout objet,
n’a pas, dans les circonstances de l’espèce, un caractère exclusive-
ment préliminaire».

Nous estimons que cette décision est erronée et qu’elle crée un précédent
qui pourrait être dangereux, comme contraire à l’objet et au but de Par-
ticle 79 du Règlement de la Cour.

Cette décision est erronée pour les motifs développés ci-après.

La présente affaire porte sur la convention de Montréal. Le différend
entre les Parties est relatif à l’applicabilité de cette convention à l'incident
de Lockerbie et au respect des obligations résultant des dispositions de la
convention à la suite de l’incident. L’affaire ne porte pas sur les résolu-
tions du Conseil de sécurité 748 (1992) et 883 (1993) qui ont été adoptées
par le Conseil les 31 mars 1992 et 11 novembre 1993, respectivement,
c’est-à-dire après que la Libye eut présenté sa requête le 3 mars 1992. Les
conclusions au fond de la Libye, telles qu’elles figurent dans sa requête
et dans son mémoire, concernent l’applicabilité de la convention de
Montréal et le respect par les Parties de dispositions spécifiques de cet ins-
trument dans le traitement de l’incident de Lockerbie. S’il en était autre-
ment, la Cour n’aurait d’ailleurs pas compétence; en effet la seule base de

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140 CONVENTION DE MONTRÉAL DE 1971 (DÉCL. COMMUNE)

compétence en la matière est le paragraphe 1 de l’article 14 de la conven-
tion de Montréal qui confère à la Cour compétence sur «tout différend
entre des Etats contractants concernant l’interprétation ou Papplication»
de la convention.

Les Etats-Unis, en tant que défendeur, soutiennent, à titre d'exception
préliminaire, «qu’il n’y aurait plus lieu à statuer sur les demandes de la
Libye car les résolutions 748 (1992) et 883 (1993) du Conseil de sécurité
les auraient privées de tout objet» (arrêt, par. 45). Le but de cette excep-
tion est d’obtenir de la Cour le prononcé d’un non-lieu. Une telle excep-
tion a un caractère exclusivement préliminaire. La Cour aurait pu — et
aurait dû — en décider ainsi; ce faisant, elle ne se serait pas prononcée,
même en partie, sur le fond des demandes de la Libye.

En effet, si la Cour avait, en tout ou en partie, rejeté cette exception
préliminaire, elle aurait été amenée par la suite à se pencher au fond sur
les conclusions de la Libye dans la mesure où elle aurait écarté l’excep-
tion; elle les aurait examinées une à une dans les limites de sa compé-
tence. Le résultat de cet examen n’aurait en aucune manière été prédéter-
miné par l'examen préalable de l'exception des Etats-Unis et par la
décision prise sur cet exception.

Si la Cour avait à l'inverse retenu l’exception soulevée par les Etats-
Unis, elle en aurait effectivement fini avec l’affaire. Elle l’aurait fait
cependant sans se prononcer au fond sur les conclusions présentées par
la Libye et sans en préjuger. La Cour aurait laissé la convention de
Montréal complètement de côté. Elle aurait fondé sa décision exclusive-
ment sur un nouvel élément, étranger à la convention de Montréal et sans
rapport avec cette convention, à savoir les résolutions du Conseil de sécu-
rité. En adoptant les résolutions 748 (1992) et 883 (1993) qui contiennent
des décisions prises en application du chapitre VII de la Charte, obliga-
toires en vertu de l’article 25, le Conseil de sécurité n’a pas pris position en
ce qui concerne la convention de Montréal; il ne s’est nullement prononcé
sur l’applicabilité de cette convention à l’incident de Lockerbie; il n’a pas
davantage décidé ou pris partie sur la question de savoir si les dispo-
sitions de la convention ont été respectées par les Parties. En réalité, le
Conseil, dans l’exercice de sa responsabilité principale du maintien de la
paix et de la sécurité internationales, a estimé nécessaire d’imposer cer-
taines obligations à la Libye. Conformément à l’article 103 de la Charte,
ces obligations ’emportent sur toutes autres obligations des Parties, que
ces dernières obligations aient ou non été contestées entre les Parties
et qu’elles aient ou non été respectées. L'absence de relation entre les réso-
lutions du Conseil de sécurité et la position des Parties sous l’empire de
la convention de Montréal interdit de regarder l'exception des Etats-
Unis comme une défense au fond; elle interdit aussi d'affirmer, comme le
fait la Cour, que l'exception «fait bien plus qu’«effleurer des sujets appar-
tenant au fond de l’affaire» (arrêt, par. 49) ou qu’elle est «inextricable-
ment liée» à celui-ci» (ibid. ).

Pour ces motifs également, la décision prise au point 3 du dispositif de
l’arrêt semble contraire à la jurisprudence de la Cour relative à l’applica-

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141 CONVENTION DE MONTRÉAL DE 1971 (DÉCL. COMMUNE)

tion de l’article 79 du Règlement de la Cour dans sa version résultant de
la revision de 1972. Depuis lors et sauf dans un cas (affaire des Activités
militaires et paramilitaires au Nicaragua et contre celui-ci (Nicaragua
c. Etats-Unis d'Amérique), compétence et recevabilité, arrêt, CLJ.
Recueil 1984, p. 392), la Cour a toujours statué sur les exceptions préli-
minaires dans la première phase de la procédure; elle a en effet penché
pour une interprétation restrictive de la notion d’exception «non exclu-
sivement préliminaire» en vue de parvenir, selon une procédure simple, à
une décision rapide sur les exceptions (ibid, fond, arrêt, C.IJ. Recueil
1986, p. 29 et suiv.).

L'arrêt cherche à justifier la décision prise sous le point 3 en décla-
rant qu’accueillir l'exception préliminaire des Etats-Unis aurait signifié
prendre «une décision établissant que les droits revendiqués par la Libye
aux termes de la convention de Montréal sont incompatibles avec les
obligations découlant pour elle des résolutions du Conseil de sécurité»
(par. 49). It ajoute qu’accueillir l’exception soulevée par le défendeur
aurait constitué une «décision faisant prévaloir ces obligations sur ces
droits par le jeu des articles 25 et 103 de la Charte» (ibid.). Cela pourrait
être exact, mais est sans intérêt en ce qui concerne la décision à prendre
actuellement sur l’exception préliminaire des Etats-Unis. En effet, définir le
sens et les effets des résolutions du Conseil de sécurité et comparer ces
résolutions avec les demandes de la Libye présentées au titre de la conven-
tion de Montréal n’implique en aucune manière prendre partie sur les
droits et obligations de la Libye en vertu de la convention.

La circonstance qu’accueillir l’exception préliminaire des Etats-Unis
aurait mis un terme à l'affaire n’est pas davantage un argument à len-
contre du caractère exclusivement préliminaire de exception; mettre un
terme à une affaire est le but de toute exception préliminaire. Il en est ainsi
pour ce qui est des exceptions du type de celle traitée au point 3 du dis-
positif. La Cour a dans le passé eu l’occasion de se pencher sur de telles
exceptions et les a examinées indépendamment du fond; elle a même
statué sur ces exceptions avant de s’interroger sur la compétence et la rece-
vabilité (affaires des Essais nucléaires (Australie c. France), arrêt, C.LJ.
Recueil 1974, p. 259-272, et des Essais nucléaires (Nouvelle-Zélande
c. France), arrêt, C.IJ. Recueil 1974, p. 457-478). A cet égard on doit
aussi noter que si le Conseil de sécurité abrogeait pour lavenir les mesures
prescrites par les résolutions 748 (1992) et 883 (1993) la position des
Parties sous l’empire de la convention resterait ce qu’elle est, inchangée.

La décision prise au point 3 du dispositif va enfin à l'encontre de l’objet
et du but de l’article 79 du Règlement de la Cour et crée un précédent
dangereux pour l’application future de cette disposition, pour les motifs
exposés ci-après.

Lorsque la Cour a adopté en 1972 le texte qui devait devenir par la
suite l’article 79, elle l’a fait pour des raisons de simplification procédu-
rale et de bonne administration de la justice. La Cour et les parties étaient
invitées à éliminer les questions préliminaires de compétence et de rece-
vabilité de même que les autres exceptions préliminaires avant d’entamer

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142 CONVENTION DE MONTRÉAL DE 1971 (DÉCL. COMMUNE)

des procédures longues et coûteuses sur le fond de l’affaire. Naturelle-
ment, une disposition a dû être prévue pour les exceptions qui ne pos-
sèdent pas, «dans les circonstances de l'affaire, un caractère exclusive-
ment préliminaire» (art. 79, par. 7). En vue de permettre à la Cour de se
prononcer à cet égard, elle «peut, le cas échéant, inviter les parties à
débattre tous points de fait et de droit, et à produire tous moyens de
preuve qui ont trait à la question» (art. 79, par. 6). Mais l'interprétation
donnée par la Cour à la notion d'exception «non exclusivement prélimi-
naire» dans la présente affaire est si large et si vague que la possibilité de
retenir une exception préliminaire en est singulièrement réduite. De ce
fait l’arrêt va à l’encontre des objectifs poursuivis par l’article 79, à savoir
la simplification des procédures et la bonne administration de la justice.

II

Nous aimerions également déclarer que, bien qu’ayant voté en faveur
de la décision prise sous le point 1 du dispositif en ce qui concerne la
compétence de la Cour dans la présente affaire pour connaître des der-
nières conclusions présentées au fond par la Libye dans sa requête et dans
son mémoire, nous l’avons fait dans les conditions précisées ci-après.

Dans la version soumise à la Cour dans le mémoire de la Libye, ces
conclusions concernent une obligation juridique incombant, selon la
Libye, aux Etats-Unis

«de respecter le droit de la Libye à ce que [la convention de Mont-
réal} ne soit pas écartée par des moyens qui seraient au demeurant en
contradiction avec les principes de la Charte des Nations Unies et du
droit international général de caractère impératif qui prohibent l’uti-
lisation de la force et la violation de la souveraineté, de l'intégrité
territoriale, de l’égalité souveraine des Etats et de leur indépendance
politique» (arrêt, par. 33). |

Nous reconnaissons qu’il existe un différend juridique entre les Parties
sur ce point. Toutefois, ce différend n’entre dans les prévisions du para-
graphe 1 de l’article 14 de la convention de Montréal et ne relève par suite
de la compétence de la Cour que si et dans la mesure où il est relatif à
l'interprétation et à l'application d’une ou de plusieurs dispositions de la
convention. Le différend n’entre pas dans les prévisions du paragraphe 1
de l’article 14 et dans la compétence de la Cour s’il est relatif à l’interpré-
tation et à l’application du paragraphe 4 de l’article 2 de la Charte des
Nations Unies. Cela est précisé au paragraphe 35 de l'arrêt, mais ne l’est
pas de manière aussi explicite dans le dispositif; c’est pourquoi nous sou-
haitons rendre notre position en la matière parfaitement claire.

(Signé) Gilbert GUILLAUME.
(Signé). Carl-August FLEISCHHAUER.

31