                                DISSENTING OPINION OF JUDGE XUE

       1. Much to my regret, I am unable to concur with the decision of the Court that The Gambia
has standing in the present case, which leads me to vote against paragraph 115 (4) and (5). Pursuant
to Article 57 of the Statute, I will explain the reasons for my dissent.

        2. The Gambia’s institution of the proceedings against Myanmar before the Court for the
protection of the common interest of the States parties to the Convention on the Prevention and
Punishment of the Crime of Genocide (hereinafter the “Genocide Convention” or “the Convention”)
is, in essence, a collective lawsuit, which renders this case exceptional. Notwithstanding its purported
objective, The Gambia’s legal action raises some fundamental issues that bear on the statutory
framework of the judicial mechanism for dispute settlement under the Charter of the United Nations.
The way in which Article IX of the Genocide Convention is being interpreted in the Judgment, in
my opinion, deviates from the rules on treaty interpretation and the settled jurisprudence of the Court
with regard to the Genocide Convention.

                    I. ACCESS TO THE COURT AND THE NATURE OF THE CASE

       3. In its first preliminary objection, the Respondent claims that the Court lacks jurisdiction, or
alternatively that the Application is inadmissible, because the real applicant in these proceedings is
the Organisation of Islamic Cooperation (hereinafter the “OIC”), which cannot be a party to
proceedings before the Court pursuant to Article 34, paragraph 1, of the Statute. It argues that this
objection concerns both law and fact.

       4. Myanmar’s first preliminary objection raises a substantive issue, namely, whether the Court
is competent under the Statute to entertain a case which is in fact initiated by an international
organization and entrusted to one of its members to act on its behalf. The evidence and documents
adduced by the Respondent, in my view, sufficiently prove that The Gambia was tasked and
appointed by the OIC to institute the proceedings against Myanmar in the Court. This is not only
supported by the resolutions adopted by the OIC, but also publicly acknowledged by its Member
States, in particular The Gambia itself. As is recalled in the Judgment, The Gambia expressly
announced in the United Nations General Assembly that “it would champion an accountability
mechanism for the alleged crimes against the Rohingya” and “lead concerted efforts to take the
Rohingya issue to the International Court of Justice on behalf of the Organization of Islamic
Cooperation” (United Nations, Official Records of the General Assembly, UN doc. A/74/PV.8,
26 September 2019, p. 31, emphasis added (see paragraph 69 of the Judgment)). Being the chair of
the Ad hoc Ministerial Committee on Accountability for Human Rights Violations against the
Rohingyas established by Resolution No. 59/45-POL of the OIC Council of Foreign Ministers in
May 2018, The Gambia is specifically instructed and directed by the OIC to take legal action in the
International Court of Justice. Moreover, the decision to file a case in the Court was negotiated and
agreed upon among its members, particularly with regard to the representation and funding of the
envisaged legal action (OIC, Report of the Ad Hoc Ministerial Committee on Human Rights
Violations against the Rohingya, 25 September 2019; OIC, Resolution No. 59/47-POL on the Work
of the OIC Ad Hoc Ministerial Committee on Accountability for Human Rights Violations against
the Rohingyas, November 2020; OIC Secretary General Thanks the ISF for its Support in Financing
the Rohingya Case at the ICJ, OIC press release, 7 October 2020).

     5. The Gambia does not deny those facts but maintains that it instituted the proceedings in its
own name and has a dispute with Myanmar regarding “its own rights” as a State party to the Genocide
Convention. Notably, The Gambia does not claim any link with the alleged acts in Myanmar. In its

                                                  -2-

own words, it has no individual interest in the case but acts for the common interest of the States
parties. Given its character, The Gambia’s legal action, either for the common interest of the OIC
Member States, or for the common interest of the States parties to the Genocide Convention, is
arguably tantamount to a public-interest litigation.

       6. In rejecting the Respondent’s first preliminary objection, the Court simply dismisses as
irrelevant Myanmar’s evidence relating to the OIC’s decision and its financial support for
The Gambia’s legal action. In the Court’s view, those factors do not detract from The Gambia’s status
as the Applicant before the Court, and The Gambia’s motivation to commence the proceedings is
irrelevant for establishing the jurisdiction of the Court. This reasoning, in my view, is evasive of the
real hard issue before the Court.

       7. Article 34, paragraph 1, of the Statute provides that “[o]nly States may be parties in cases
before the Court”. By virtue of that provision, international organizations do not enjoy access to the
Court. The issue in the present case is not in whose name the proceedings are instituted, what motive
the Applicant may pursue, or who has arranged the litigation team; no one has ever challenged
The Gambia’s capacity to have access to the Court. The matter for the Court to determine is whether
The Gambia is acting on behalf of the OIC for the common interest of its member States, some of
which are parties to the Genocide Convention, while others are not. The evidence shows that the
issue of the Rohingyas was never considered as a bilateral dispute between The Gambia and
Myanmar in the OIC. It was the OIC, not The Gambia, which took the decision to submit the issue
of the Rohingyas to the International Court of Justice, and The Gambia was entrusted to find a proper
way to implement the OIC’s decision. Although The Gambia independently made its decision to
institute proceedings in the Court, the fact remains that The Gambia’s legal action is initiated by the
OIC and that The Gambia is acting under the mandate and with the financial support of the OIC.

       8. To establish the existence of a bilateral dispute between the Parties, there must be some
link — a territorial, national or other form of connection — between the applicant and the alleged
acts of the respondent. This linkage requirement has a substantive bearing on the merits phase.
Allegations of genocide or other genocidal acts require serious investigation and proof. When the
applicant has no link whatsoever with the alleged acts, it is apparently difficult, if not impossible, for
it to collect evidence and conduct investigation on its own. Relying entirely on the evidence and
material sources collected by third parties, for example United Nations organs, human rights bodies
or the State concerned, only reinforces the argument that the case is a public-interest action,
actio popularis. Such action, even in the form of a bilateral dispute, may in fact allow international
organizations to have access to the Court in the future.

      9. Although I agree with the Court’s finding that the conduct of The Gambia to institute the
proceedings before the Court does not amount to an abuse of process, I doubt very much the Court’s
conclusion that there are no other grounds of inadmissibility which would require it to decline the
exercise of its jurisdiction (paragraph 49 of the Judgment). Judicial propriety, in my view, is a
relevant issue under the circumstances of the present case. In the administration of justice, the Court
must ensure that the principles of international adjudication be observed, both in form and in
substance.

       10. Under the Statute, the Court’s function in contentious cases is confined to disputes between
two or more States. The bilateral and adversarial structure of the dispute settlement mechanism is
reflected in the procedural rules of the Court. Such rules are not suitable to entertain public-interest
actions. When the applicant is in fact acting on behalf of an international organization, albeit in its
own name, the respondent may be placed in a disadvantageous position before the Court. This is

                                                    -3-

particularly true if several judges on the bench are nationals of member States of the international
organization concerned. With the organization in the shadow, inequality of the Parties may be hidden
in the composition of the Court, thereby undermining the principle of equality of the parties, one of
the fundamental principles of the Court for dispute settlement. However desirable it is to provide
judicial protection to the victims of the alleged acts, the respondent is entitled to a fair legal process
in accordance with the provisions of the Statute and the Rules of Court. For a comparison, reference
may be made to the International Tribunal for the Law of the Sea (hereinafter “ITLOS”). Under
Articles 20 and 37 of its Statute, ITLOS and its Seabed Disputes Chamber shall be open to specific
entities, including certain international organizations. Article 22 of the Rules of the Tribunal provides
that an international organization which is a party to a dispute before the Tribunal has the right to
choose a judge ad hoc if there is a judge of the nationality of a State that is the other party to the
dispute and if there is no judge of the nationality of one of the member States of the international
organization (Rules of the Tribunal, 25 March 2021, ITLOS/8, Article 22 (1)-(2)). Equally, “[w]here
an international organization is a party to a case and there is upon the bench a judge of the nationality
of a member State of the organization, the other party may choose a judge ad hoc” (ibid.,
Article 22 (3)). It is further provided that “[w]here two or more judges on the bench are nationals of
member States of the international organization concerned . . . the President may . . . request one or
more such judges to withdraw” (ibid., Article 22 (4)). Clearly, proper identification of the character
of a legal action before the Court directly concerns the good administration of justice.

       11. Moreover, The Gambia’s legal action may challenge the principle of finality in the
adjudication of the dispute. Articles 59 and 60 of the Statute provide that the decision of the Court
has no binding force except between the parties and in respect of that particular case and that the
decision of the Court shall be final and without appeal. In the present case, if any State party has
standing to take legal action in the Court for the protection of the common interest of the States
parties in compliance with the obligations erga omnes partes of the Genocide Convention, one may
wonder whether the Court’s decision has binding force on all other States parties as well. According
to Article 59, the effect of res judicata of the judgment should be limited solely to the parties. It
follows that, at least in theory, those States parties will not be prevented from exercising their right
to institute separate proceedings for the same cause against the same State before the Court. This is
not a far-fetched concern. In considering The Gambia’s standing, the Court states that the situation
with Bangladesh does not affect the right of all other States parties to assert the common interest in
compliance with the obligations erga omnes partes under the Convention (paragraph 113 of the
Judgment). In other words, according to the Court, even if Bangladesh is regarded as a specially
affected State, whether it files a case or not does not affect the right of other States parties to institute
proceedings before the Court. This reasoning apparently is not in line with the rules of State
responsibility.

        12. These concerns give rise to the issue of judicial propriety for the Court to consider whether
it is appropriate to exercise jurisdiction in the present case. Ultimately, they boil down to the very
question whether the “dispute” over the alleged acts of Myanmar could be settled by the Court as
wished by The Gambia or the OIC.

                            II. ARTICLE IX AND THE ISSUE OF STANDING

       13. In the present case, largely due to the character of The Gambia’s legal action, the question
of jurisdiction ratione personae and the issue of standing are delicately interlinked. Whether
Article IX of the Convention provides jurisdiction ratione personae to a non-injured State party also
bears on the standing of the Applicant.

                                                 -4-

       14. In determining whether it has jurisdiction ratione personae in the case with regard to the
Respondent’s first preliminary objection, the Court only examines whether The Gambia meets the
conditions laid down in Articles 34 and 35 of the Statute, without examining the terms of the
compromissory clause of the Genocide Convention, which is considered only in relation to the
question of standing under Myanmar’s second preliminary objection. Articles 34 and 35, however,
basically concern the right or “the legal capacity” of a party to appear before the Court, which is a
question of statutory requirements for access to the Court, not a matter of consent for jurisdiction
(Legality of Use of Force (Serbia and Montenegro v. Belgium), Preliminary Objections, Judgment,
I.C.J. Reports 2004 (I), p. 295, para. 36). As is pointed out above, the issue before the Court is not
about The Gambia’s legal capacity to institute the proceedings, but whether the Court has jurisdiction
ratione personae to entertain the case instituted by a non-injured State. The matter relates, first and
foremost, to the interpretation of Article IX of the Genocide Convention, namely whether the States
parties have agreed to grant a general standing to all the States parties for the invocation of
responsibility of any other State party solely on the basis of their common interest in compliance
with the obligations under the Convention.

      15. Article IX of the Genocide Convention reads as follows:

             “Disputes between the Contracting Parties relating to the interpretation,
      application or fulfilment of the present Convention, including those relating to the
      responsibility of a State for genocide or for any of the other acts enumerated in
      article III, shall be submitted to the International Court of Justice at the request of any
      of the parties to the dispute.”

       16. The wording of Article IX, per se, does not indicate much about what exactly was intended
by the contracting parties. In response to Myanmar’s argument that The Gambia, as a non-injured
State, has no standing in the case, the Court states the following:

             “[T]he terms of Article IX providing that disputes are to be submitted to the Court
      ‘at the request of any of the parties to the dispute’, as opposed to any of the Contracting
      Parties, do not limit the category of Contracting Parties entitled to bring claims for
      alleged breaches of obligations erga omnes partes under the Convention. This phrase
      clarifies that only a party to the dispute may bring it before the Court, but it does not
      indicate that such a dispute may only arise between a State party allegedly violating the
      Convention and a State ‘specially affected’ by such an alleged violation.”
      (Paragraph 111 of the Judgment.)

This interpretation, in my opinion, has unduly expanded the scope of Article IX. Although the
international law on State responsibility has evolved significantly since the adoption of the Genocide
Convention, the terms of the Genocide Convention must be interpreted in accordance with the
applicable rules on treaty interpretation as reflected in Articles 31 and 32 of the Vienna Convention
on the Law of Treaties. As the Court stated in its Advisory Opinion on Reservations to the Convention
on the Prevention and Punishment of the Crime of Genocide (hereinafter the “Advisory Opinion”),
in interpreting the Genocide Convention, regard should be given to “[t]he origins and character of
th[e] Convention, the objects pursued by the General Assembly and the contracting parties, the
relations which exist between the provisions of the Convention, inter se, and between those
provisions and these objects” (I.C.J. Reports 1951, p. 23).

       17. The Genocide Convention provides several means and mechanisms for the implementation
of the obligations under the Convention; judicial settlement is just one of them. Most importantly,
the States parties must enact national legislation to prevent and punish acts of genocide and any other
acts enumerated in Article III (Article V of the Convention). Perpetrators may be tried in national

                                                   -5-

courts or by a competent international criminal court (Article VI). The States parties also undertake
to co-operate through extradition to bring the alleged offenders to justice (Article VII). In addition,
any State party, whether it is directly or indirectly affected by the alleged acts of genocide, may
engage the competent organs of the United Nations to take such action under the Charter as they
consider appropriate for the prevention and suppression of acts of genocide (Article VIII). Lastly, a
dispute between States parties with regard to the interpretation, application or fulfilment of the
Convention, including the responsibility of a State for acts of genocide, may be submitted to the
Court at the request of any of the parties to the dispute (Article IX). This set of mechanisms takes
into account the situation where a non-injured State party may raise the issue of genocide against
another State party, but the mechanisms to which such State party may resort apparently do not
include the International Court of Justice. This interpretation can be confirmed by the travaux
préparatoires of the Genocide Convention.

       18. The treaty was drafted at a time when the notions of obligations erga omnes partes or
erga omnes were not established in general international law. During the negotiation process of
Article IX, contracting parties did not have much discussion on the word “disputes”; its ordinary
meaning was presumed to refer to bilateral disputes. The debate among the contracting parties
primarily focused on the meaning and scope of the phrase “responsibility of a State for genocide”
and whether to include it in the clause. A number of contracting parties expressed doubt and raised
questions about the inclusion of State responsibility in so far as that would cover situations in which
a State commits genocide against its own nationals (see e.g. United Nations General Assembly, Sixth
Committee, Hundred and Third Meeting, 12 November 1948, UN doc. A/C.6/SR.103, pp. 432-433
(Greece), 434 (Peru) and 435 (Poland); ibid., Hundred and Fourth Meeting, 13 November 1948,
UN doc. A/C.6/SR.104, p. 443 (Iran)). Upon the understanding that the term “responsibility of a
State for genocide” in Article IX refers to reparation for damages inflicted on the nationals of one
State party by another State party, they agreed to retain that reference in Article IX. In clarifying the
scope of State responsibility, the United States stated that

      “[i]f the words ‘responsibility of a State’ were taken in their traditional meaning of
      responsibility towards another State for damages inflicted, in violation of the principles
      of international law, to the subjects of the plaintiff State; and if, similarly, the words
      ‘disputes . . . relating to the . . . fulfilment’ referred to disputes concerning the interests
      of subjects of the plaintiff State, then those words would give rise to no objection. But
      if, on the other hand, the expression ‘responsibility of a State’ were not used in the
      traditional meaning, and if it signified that a State could be sued for damages in respect
      of injury inflicted by it on its own subjects, then there would be serious objections to
      that provision; and the United States Government would have reservations to make
      about that interpretation of the phrase.” (Ibid., Hundred and Thirty-Third Meeting,
      2 December 1948, UN doc. A/C.6/SR.133, pp. 703-704 (United States of America).)

The United States’ position was generally shared and accepted by the contracting parties.

       19. The intention of the contracting parties to limit the scope of claims that can be brought to
the Court under Article IX is also manifested in the general debate relating to the Belgian/British
joint proposal on the compromissory clause of the Genocide Convention. This joint proposal stated
as follows:

            “Any dispute between the High Contracting Parties relating to the interpretation,
      application or fulfilment of the present Convention, including disputes relating to the
      responsibility of a State for any of the acts enumerated in articles II and IV, shall be
      submitted to the International Court of Justice at the request of any of the High
      Contracting Parties.” (Belgium and United Kingdom: Joint amendment to article X of

                                                 -6-

      the draft Convention (E/794), 10 November 1948, UN doc. A/C.6/258; emphasis
      added.)

        20. India introduced an amendment to the Belgian/British joint proposal to replace the phrase
“at the request of any of the High Contracting Parties” by the phrase “at the request of any of the
parties to the dispute” (UN doc. A/C.6/260, as reproduced in United Nations General Assembly,
Sixth Committee, Hundred and Third Meeting, 12 November 1948, UN doc. A/C.6/SR.103, p. 428,
fn. 1). In its consideration of the Belgian/British proposal, India stated that

      “the inclusion of all disputes relating to the responsibility of a State for any of the acts
      enumerated in articles II and IV would certainly give rise to serious difficulties. It would
      make it possible for an unfriendly State to charge, on vague and unsubstantial
      allegations, that another State was responsible for genocide within its territory.”
      (United Nations General Assembly, Sixth Committee, Hundred and Third Meeting,
      12 November 1948, UN doc. A/C.6/SR.103, pp. 437-438.)

Immediately after India expressed this concern, Luxembourg clarified who might claim rights to
reparations following the perpetration of the crime of genocide. It stated “that the principle that no
action could be instituted save by a party concerned in a case should be applied in that connexion.
[R]esponsibility would thus arise whenever genocide was committed by a State in the territory of
another State” (ibid., p. 438). The Indian amendment was approved in the general debate and the text
of Article IX was amended accordingly.

       21. During the subsequent negotiations, India continued to express its concern over the terms
of Article IX. After the adoption of Article IX, it warned that “the provisions of the joint amendment
of Belgium and the United Kingdom . . . were capable of being interpreted in a much wider sense
than the authors of the amendment had themselves intended” (United Nations General Assembly,
Sixth Committee, Hundred and Fifth Meeting, 13 November 1948, UN doc. A/C.6/SR.105, p. 459).
After the vote against reconsideration of the text of Article IX, India reiterated its position, stating
that “the text of article IX would help to strain relations between States and was therefore contrary
to the very purpose of the convention” (United Nations General Assembly, Sixth Committee,
Hundred and Thirty-First Meeting, 1 December 1948, UN doc. A/C.6/SR.131, p. 690). India, of
course, was not the only contracting parties who indicated its reservation over a possible expansive
interpretation of Article IX.

       22. The travaux préparatoires demonstrate that the contracting parties were fully conscious of
the potential problems of vague, insubstantial and even abusive actions relating to the fulfilment of
obligations and responsibility for genocide. Such situations would more likely arise if an unlimited
standing was granted to the States parties. There was no indication among the contracting parties
that, given the raison d’être of the Genocide Convention, the principle that no action could be
instituted save by a party concerned in a case would not apply to cases that are filed under Article IX.

       23. I agree with the Court that The Gambia is not exercising diplomatic protection in the
present case, but that does not mean there need not be a link between the applicant and the alleged
acts of the respondent. Although the word “[d]isputes” in Article IX is without any qualification,
opposition of views between the two parties must relate to a legal interest that the applicant may
claim for itself under international law. Unless otherwise expressly provided for in a treaty, general
standing of the States parties cannot be presumed. In this regard, a provision in contrast can be given.
Article 33 of the European Convention on Human Rights provides that “[a]ny High Contracting Party
may refer to the [European Court of Human Rights] any alleged breach of the provisions of the
Convention and the Protocols thereto by another High Contracting Party”. If the Genocide

                                                  -7-

Convention had contained a similar clause, the requirement of a link between the applicant and the
respondent’s alleged acts for jurisdictional purpose would be unnecessary.

       24. In cases concerning alleged violations of the Genocide Convention, the Court has affirmed
that Article IX includes all forms of State responsibility, including the responsibility of a State for an
act of genocide perpetrated by the State itself through the acts of its organs (see e.g. Application of
the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), p. 616,
para. 32; see also the divergent views in ibid., joint declaration of Judges Shi and Vereshchetin,
pp. 631-632, and declaration of Judge Oda, pp. 626-629, paras. 4-7), which reflects the development
of international law on State responsibility. In none of those cases, however, did the Court consider
or even imply that a State party may invoke international responsibility of another State party solely
on the basis of the raison d’être of the Genocide Convention; the applicant must have a territorial,
national or some other form of connection with the alleged acts.

       25. To recall what the Court said in the Advisory Opinion, “[i]t is well established that in its
treaty relations a State cannot be bound without its consent” (Reservations to the Convention on the
Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 21).
It is doubtful that, either at the time when they each became party to the Genocide Convention, the
Parties had ever envisaged such treaty relationship between them or more generally, that the States
parties ever intended to give such a broad standing to the States parties for addressing alleged
breaches of the obligations under the Genocide Convention. The Court’s innovative interpretation
has extended well beyond the reasonable expectations of the States parties, inconducive to the
security and stability of treaty relations.

          III. RAISON D’ÊTRE OF THE GENOCIDE CONVENTION AND ITS IMPLICATION

      26. By reference to the raison d’être of the Genocide Convention as enunciated in the Advisory
Opinion, the Court upholds The Gambia’s standing for the following reasons:

            “All the States parties to the Genocide Convention . . . have a common interest to
      ensure the prevention, suppression and punishment of genocide, by committing
      themselves to fulfilling the obligations contained in the Convention. As the Court has
      affirmed, such a common interest implies that the obligations in question are owed by
      any State party to all the other States parties to the relevant convention; they are
      obligations erga omnes partes, in the sense that each State party has an interest in
      compliance with them in any given case.” (Paragraph 107 of the Judgment.)

It goes on to say that

      “[t]he common interest in compliance with the relevant obligations under the Genocide
      Convention entails that any State party, without distinction, is entitled to invoke the
      responsibility of another State party for an alleged breach of obligations erga omnes
      partes . . . regardless of whether a special interest can be demonstrated”.

It explains that “[i]f a special interest were required for that purpose, in many situations no State
would be in a position to make a claim” (paragraph 108 of the Judgment). This reasoning, based on
a particular reading of the Advisory Opinion, does not seem consistent with the established practice
of the States parties.

                                                 -8-

       27. In the Advisory Opinion, the Court was requested by the General Assembly to address
exclusively the question of reservations to the Genocide Convention. For that purpose, it considered
the characteristics of the Genocide Convention in international law and identified the common
interest of the States parties in the accomplishment of the high purposes of the Convention. In the oft
cited statement in the Advisory Opinion on which the Court largely relies for its decision in the
present case, the Court stated that

      “[t]he Convention was manifestly adopted for a purely humanitarian and civilizing
      purpose. It is indeed difficult to imagine a convention that might have this dual character
      to a greater degree . . . In such a convention the contracting States do not have any
      interests of their own; they merely have, one and all, a common interest, namely, the
      accomplishment of those high purposes which are the raison d’être of the convention.
      Consequently, in a convention of this type one cannot speak of individual advantages
      or disadvantages to States, or of the maintenance of a perfect contractual balance
      between rights and duties. The high ideals which inspired the Convention provide, by
      virtue of the common will of the parties, the foundation and measure of all its
      provisions.” (Reservations to the Convention on the Prevention and Punishment of the
      Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 23.)

Notwithstanding the common interest thus identified, the Court did not consider that reservations to
the Genocide Convention should be categorically prohibited. Instead, it took the view that the
compatibility of a reservation with the object and purpose of the Convention should furnish a
criterion for assessing a particular reservation made by a State on accession and appraising an
objection lodged by another State to the reservation, thus limiting both the freedom of making
reservations and that of objecting to them. The Court observed that, as the intention of the General
Assembly and the States parties was to have as many States as possible participate in the Convention
so as to ensure the widest possible scope of application, the complete exclusion of States from the
Convention for minor reservations would not be deemed desirable for the fulfilment of the object
and purpose of the Convention. In the Advisory Opinion, the Court did not specify which reservations
to the provisions of the Convention would be deemed as minor reservations and therefore
permissible, and which are incompatible with the object and purpose of the Convention. Pursuant to
that criterion, in the subsequent treaty practice, a reservation to Article IX of the Genocide
Convention has generally been accepted as permissible by the States parties. To date, 16 States
parties maintain reservations to Article IX.

       28. This position has also been confirmed by the jurisprudence of the Court. According to the
Court, a reservation to Article IX of the Genocide Convention bears on the jurisdiction of the Court,
which is meant to exclude a particular method of settling a dispute relating to the interpretation,
application or fulfilment of the Convention, and does not affect substantive obligations relating to
acts of genocide themselves under that Convention. Therefore, a reservation to Article IX of the
Genocide Convention is not incompatible with the object and purpose of the Convention (Armed
Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the
Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006, p. 32, para. 67;
see also Legality of Use of Force (Yugoslavia v. Spain), Provisional Measures, Order of 2 June 1999,
I.C.J. Reports 1999 (II), p. 772, paras. 32-33; Legality of Use of Force (Yugoslavia v. United States
of America), Provisional Measures, Order of 2 June 1999, I.C.J. Reports 1999 (II), p. 924,
paras. 24-25).

       29. Reservation to a compromissory clause and standing of a non-injured State, although
distinct and separate issues, both concern whether the Court can exercise its jurisdiction. A
reservation to Article IX has the effect of blocking other States parties from instituting proceedings
against the reserving State for its alleged breaches of obligations erga omnes partes under the
Convention. This means that reservations to Article IX of the Genocide Convention could also lead

                                                  -9-

to many situations where no State party would be in a position to make a claim before the Court
against another State party who has made a reservation to the jurisdiction of the Court, as was the
case, for instance, with Rwanda in the Armed Activities case, and Spain and the United States in the
Legality of Use of Force cases. No State party has ever asserted that the Court’s decisions upholding
the effect of the relevant reservations in those cases prejudiced the common interest of the States
parties to the Convention. Logically, the reason given by the Court in the present case for discarding
the requirement of a special interest cannot be established; just as, in the situation of a reservation to
the jurisdiction of the Court, dismissal of an application for lack of standing of a non-injured State
is, in the Court’s own words, also just to exclude a particular method of settling a dispute relating to
the interpretation, application or fulfilment of the Convention, and does not affect substantive
obligations relating to acts of genocide themselves under that Convention.

          IV. OBLIGATIONS ERGA OMNES PARTES AND THE BELGIUM V. SENEGAL CASE

       30. Introduction of the notion of obligations erga omnes and erga omnes partes is a positive
development of international law. In the second phase of the South West Africa cases, the Court
rejected the applications submitted by Ethiopia and Liberia, former members of the League of
Nations, on the ground that they had no standing in the cases as they each did not have any legal
right or interest in the subject-matter of their claim (South West Africa (Ethiopia v. South Africa;
Liberia v. South Africa), Second Phase, Judgment, I.C.J. Reports 1966, p. 51, para. 99). The Court’s
decision was severely criticized by the Member States of the United Nations and prompted the
General Assembly to adopt the decision placing South West Africa under the direct responsibility of
the United Nations.

       31. The South West Africa cases stand as a constant reminder that in cases where the common
interest of the international community is purportedly at stake, the issue of standing of the applicant
must be handled with great care. For the purpose of the present case, it is worthwhile to put the South
West Africa cases into perspective. After the dissolution of the League of Nations, the mandate for
South West Africa entrusted to the Union of South Africa by the League continued to exist. By virtue
of the Court’s Advisory Opinion relating to the international status of South-West Africa, the Union
of South Africa as the mandatory remained obliged to submit petitions from the inhabitants of the
mandated territory as well as annual reports concerning its administration of the territory to the
United Nations for the latter’s exercise of its supervisory functions (International Status of South
West Africa, Advisory Opinion, I.C.J. Reports 1950, p. 143). The Union of South Africa, however,
adopted apartheid in the territory and refused to fulfil its obligations under the mandate. In 1960,
Ethiopia and Liberia instituted proceedings against the Union of South Africa in the Court.

      32. In his dissenting opinion appended to the Court’s Judgment in the second phase,
Judge Wellington Koo, then Vice-President, described the character of the mandate for South West
Africa as follows:

            “The mandates system has a complex character all of its own, with a set of general
      and particular obligations for the mandatory to observe or carry out, and with a scheme
      of multiple control and supervision by the League of Nations with its Council,
      Assembly, member States and the Permanent Mandates Commission and with judicial
      protection in the last resort by the Permanent Court. It is a novel international institution.
      Nothing of the kind had existed before. It is sui generis.” (South West Africa
      (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase, Judgment, I.C.J.
      Reports 1966, dissenting opinion of Vice-President Wellington Koo, p. 217.)

                                                 - 10 -

This sui generis system, in Judge Koo’s words, constituted an international joint enterprise. Among
the guarantees provided therefore to ensure its success, an adjudication clause was inserted into
Article 7, paragraph 2, of the Mandate for South West Africa, which reads as follows:

             “The Mandatory agrees that, if any dispute whatever should arise between the
      Mandatory and another Member of the League of Nations relating to the interpretation
      or the application of the provisions of the Mandate, such dispute, if it cannot be settled
      by negotiation, shall be submitted to the Permanent Court of International Justice
      provided for by Article 14 of the Covenant of the League of Nations.” (Ibid., p. 218.)

With regard to the Court’s view that the applicants as individual member States had no legal right or
interest in the case, Judge Koo referred to Article 22 of the Covenant and the mandate agreement, by
virtue of which, in his view, member States of the League had the legal right and interest in the
observation by the mandatory of its obligations both toward the inhabitants of the mandated territory,
and toward the League and its members. The adjudication clause was intended as the last resort to
enable the member States to seek judicial protection of such right and interest. Obviously, standing
of the member States before the Court was based on the statutory provisions of the mandate rather
than merely on a common interest; it was granted in advance to the individual member States of the
League, and subsequently the member States of the United Nations, on the basis of the consent of
the member States (South West Africa (Ethiopia v. South Africa; Liberia v. South Africa),
Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 343). This unique system cannot be
generalized to all other conventions, where a common interest of the States parties may exist.

       33. Largely as a rectification of its position taken in the South West Africa cases, the Court in
the Barcelona Traction case made its first pronouncement on the concept of obligation erga omnes,
recognizing the common interest of the international community as a whole in the protection of
certain important rights. It stated that

      “an essential distinction should be drawn between the obligations of a State towards the
      international community as a whole, and those arising vis-à-vis another State in the field
      of diplomatic protection. By their very nature the former are the concern of all States.
      In view of the importance of the rights involved, all States can be held to have a legal
      interest in their protection; they are obligations erga omnes.” (Barcelona Traction, Light
      and Power Company, Limited (New Application: 1962) (Belgium v. Spain), Second
      Phase, Judgment, I.C.J. Reports 1970, p. 32, para. 33.)

The Court, however, stopped short of indicating whether such obligations, either on the basis of treaty
provisions or customary international law, would by themselves provide standing for any State to
institute proceedings against any other State before the Court for the protection of the common
interest.

       34. Since Barcelona Traction, the Court has referred to obligations erga omnes in a number
of other cases, in none of which, however, it dealt with the relationship between such obligations and
the question of standing (see East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995,
p. 102, para. 29; Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J.
Reports 1996 (II), pp. 615-616, para. 31; Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 199, paras. 155-157;
Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of
the Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006, pp. 31-32,
para. 64; Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), p. 104,
para. 147). In the Bosnia and Herzegovina v. Serbia and Montenegro case, with regard to the

                                                 - 11 -

applicant’s request that the Court make rulings about acts of genocide and other unlawful acts
allegedly committed against “non-Serbs” outside its own territory by the respondent, the Court
recognized that this request could concern questions about the legal interest or standing of the
applicant in respect of such matters and the significance of the jus cogens character of the relevant
norms. Before turning to those questions, however, the Court found that the evidence offered by the
applicant did not in any way support its allegations and, therefore, it did not see the need to address
those questions of law (Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I),
p. 120, para. 185).

       35. The only case in which the Court explicitly affirms the entitlement of a State party to make
a claim against another State party on the basis of the common interest in compliance with the
obligations erga omnes partes is the Questions relating to the Obligation to Prosecute or Extradite
(Belgium v. Senegal) case. On the issue of standing, I will not repeat my dissenting opinion appended
to that Judgment but highlight three points.

        36. First, the issue raised by the applicant in Belgium v. Senegal essentially concerns the
interpretation and application of the principle of extradition or prosecution, aut dedere aut judicare,
under Article 7, paragraph 1, of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (hereinafter the “Convention against Torture”), with Article 5
establishing universal jurisdiction over criminal offences of torture as defined in that convention. As
its national courts were seised of cases against Mr. Hissène Habré, the former President of Chad, for
alleged torture offences, Belgium was a specially affected State in the case. By virtue of its national
law and Article 8 of the Convention against Torture, Belgium had the right to make a request to
Senegal for the extradition of the alleged offender. According to Article 7, paragraph 1, if a State
party in whose territory the alleged offender is found decides not to extradite the person concerned,
it is obliged to submit the case to its competent authorities for the purpose of prosecution. Belgium
claimed that the respondent, having failed to prosecute Mr. Habré and refused to extradite him to
Belgium, had breached its obligation under Article 7, paragraph 1, of that convention. Logically,
whether Senegal had fulfilled its obligation under Article 6, paragraph 2, to conduct preliminary
inquiry into the facts of the alleged offences constituted part of the legal issues relating to the
principle of extradition or prosecution.

       37. In any event, the Court’s pronouncement on the obligations erga omnes partes cannot be
taken as a legal basis for Belgium’s standing in the case before the Court. The issue that involves
Belgium’s standing relates to the question whether Belgium remained competent to request the
extradition of the alleged offender as a result of the amendments to its national laws. In 1993,
Belgium enacted a national law establishing universal jurisdiction for its national courts in respect of
war crimes (Law on the repression of grave breaches of the Geneva Conventions of 12 August 1949
and Protocols I and II of 8 June 1977 (Loi relative à la répression des infractions graves aux
Conventions internationales de Genève du 12 août 1949 et aux Protocoles I et II du 8 juin 1977),
16 June 1993, Art. 7). In 1999, the scope of punishable offences subject to universal jurisdiction
under the 1993 act was expanded to include genocide and crimes against humanity, including torture
(Act concerning the punishment of grave breaches of international humanitarian law (Loi relative à
la répression des violations graves de droit international humanitaire), 10 February 1999,
Art. 1 (1)-(2)). In April 2003, a further amendment was made to the law, requiring a request from the
Federal Prosecutor for the criminal investigation of a complaint on the basis of universal jurisdiction
(Law amending the law of 16 June 1993 concerning the prohibition of grave breaches of international
humanitarian law and article 144ter of the judicial code (Loi modifiant la loi du 16 juin 1993 relative
à la répression des violations graves du droit international humanitaire et l’article 144ter du Code
judiciaire), 23 April 2003, Art. 5). The 1993 act as thus amended was repealed by an act of 5 August
2003, which also amended the Code of Criminal Procedure. Among the changes introduced therein,

                                                  - 12 -

the new act provides that there must exist some requisite link with Belgium for prosecution of the
alleged offences previously proscribed by the 1993 act (Law on grave breaches of international
humanitarian law (Loi relative aux violations graves du droit international humanitaire), 5 August
2003, Art. 16 (1)-(2)). All of the above changes to Belgium’s criminal law and procedure preceded
Belgium’s application instituting proceedings before the Court in the Obligation to Prosecute or
Extradite case. Although Belgium’s criminal investigations against Mr. Hissène Habré could be
traced back to 2000 and were being conducted pursuant to the 1993 act as amended in 1999, it was
only in 2005 that a Belgian investigating judge issued an international warrant in absentia for
Mr. Habré’s arrest and that Belgium subsequently requested his extradition. During the proceedings
before the Court, Belgium claimed that the act of 5 August 2003 “imposes no bar to such universal
jurisdiction, because the 2003 Law provides that investigations [that] begun before its entry into force
may be pursued if they follow from complaints filed by Belgians” (Questions relating to the
Obligation to Prosecute or Extradite (Belgium v. Senegal), Memorial of the Kingdom of Belgium,
1 July 2010, Vol. I, p. 20). Apparently, the issue for the Court to decide was whether Belgium was
competent in accordance with Article 5 of the Convention against Torture to maintain its request for
extradition of Mr. Habré in light of the changes to its national law. The matter concerns the conditions
for extradition rather than the obligation to prosecute. The Court’s reasoning that “[i]f a special
interest were required for that purpose, in many cases no State would be in the position to make such
a claim”, a purported ground for Belgium’s standing in the case, does not, in my view, fit into the
situation where the principle of extradition or prosecution is applicable.

       38. Secondly, the Court has consistently maintained a clear distinction between substantive
norms and procedural rules. It has firmly held that “the erga omnes character of a norm and the rule
of consent to jurisdiction are two different things” (East Timor (Portugal v. Australia), Judgment,
I.C.J. Reports 1995, p. 102, para. 29). This position is reiterated in Application of the Convention on
the Prevention and Punishment of the Crime of Genocide ((Bosnia and Herzegovina v. Serbia and
Montenegro), Judgment, I.C.J. Reports 2007 (I), p. 104, para. 147) (see also Jurisdictional
Immunities of the State (Germany v. Italy: Greece intervening), Judgment, I.C.J. Reports 2012 (I),
p. 140, para. 93). The inference drawn from the common interest in the Belgium v. Senegal case and
the present case confuses the legal interest of the States parties in the compliance with the substantive
obligations of the Genocide Convention and the procedure for dispute settlement.

       39. Thirdly, the common interest enunciated by the Court in the Advisory Opinion exists not
solely in the Genocide Convention. As the Court found in the Belgium v. Senegal case, the States
parties to the Convention against Torture also have a common interest in compliance with the
relevant obligations under that convention, which are characterized as obligations erga omnes partes.
By analogy, such common interest could equally be identified in many other conventions relating to,
for example, human rights, disarmament and environment. If obligations under those conventions
are therefore regarded as obligations erga omnes partes, by virtue of the Court’s reasoning in the
present case, it means that any of the States parties, specially affected or not by an alleged breach of
the relevant obligations, would have standing to institute proceedings in the Court against the alleged
State party, provided no reservation to the jurisdiction of the Court is entered by either of the parties.
This approach has two potential consequences: one is that more States would make reservations to
the jurisdiction of the Court and the second is that India’s concern expressed during the negotiation
process on Article IX of the Genocide Convention over vague and insubstantial allegations may be
raised again.

       40. The situation of the Rohingyas in Myanmar deserves serious responses from the
international community. If there is evidence suggesting that there may be commission of genocidal
acts in Myanmar, various organs of the United Nations possess powers which can be exercised for
the prevention and suppression of acts of genocide pursuant to the initiative of one or more
United Nations Member States, even without the exercise of the right under Article VIII of the

                                              - 13 -

Genocide Convention. The fact is that the situation of Myanmar and the Rohingya refugees has been
on the agenda of various United Nations organs for years. The human rights situation of the
Rohingyas has also been under the investigation of a UN Fact-Finding Mission and the Special
Rapporteur for Myanmar. Above all, Myanmar remains bound by its obligations under the Genocide
Convention.

        41. The situation in Myanmar, as is found in the 2017 Final Report of the Advisory
Commission on Rakhine State, represents a development crisis, a human rights crisis and a security
crisis; while all communities have suffered from violence and abuse, protracted statelessness and
profound discrimination have made the Muslim community particularly vulnerable to human rights
violations. As Kofi Annan, chairman of the Advisory Commission, pointed out, “the challenges
facing Rakhine State and its peoples are complex and the search for lasting solutions will require
determination, perseverance and trust” (Statement by Kofi Annan, Chair of the Advisory Commission
on Rakhine State (Interim Report), 16 March 2017).

                                                             (Signed) XUE Hanqin.

                                          ___________


BARCELONA TRACTION (ARRÊT) 47

Par ces motifs,

La Cour,

par douze voix contre quatre,
rejette la première exception préliminaire ;

par dix voix contre six,
rejette la deuxième exception préliminaire ;

par neuf voix contre sept,
joint au fond la troisième exception préliminaire ;

par dix voix contre six,
joint au fond la quatrième exception préliminaire.

Fait en anglais et en français, le texte anglais faisant foi, au Palais
de la Paix, à La Haye, lé vingt-quatre juillet mil neuf cent soixante-
quatre, en trois exemplaires, dont l'un restera déposé aux archives de la
Cour et dont les autres seront transmis respectivement au Gouvernement
du Royaume de Belgique et au Gouvernement de l'Etat espagnol.

Le Président,
(Signé) Percy C. SPENDER.

Le Greffier,
(Signé) GARNIER-COIGNET.

Sir Percy SPENDER, Président, fait la déclaration suivante :

Je m’associe à l’arrêt de la Cour. Je voudrais cependant dire quelques
mots de la deuxième exception préliminaire présentée par le Gouverne-
ment espagnol.

Si le texte de l’article 37 du Statut de la Cour est fort différent de celui
de l’article 36, paragraphe 5, qui était à l'examen dans l'affaire Zsraël
c. Bulgarie — et les termes de l’article 37 sont à mon avis si clairs
qu'aucun doute n’est permis sur leur sens —, une distinction décisive,
en principe, n’en est pas moins difficile à faire entre l’article 36, para-
graphe 5, et l’article 37 pour ce qui est des questions essentielles soulevées
par la deuxième exception préliminaire.

En ce qui me concerne, les motifs indiqués dans l’opinion dissidente
collective en l'affaire Israél c. Bulgarie, motifs qui me paraissent toujours
valables, m'obligeraient, indépendamment des autres considérations
énoncées dans l'arrêt de la Cour, à rejeter cette exception préliminaire.

45


                     208

                                       DECLARATION OF JUDGE ROBINSON

                        As set out in joint dissent, Colombia’s third preliminary objection should be
                     upheld — Declaration elaborates on a particular point of concern — The majority’s
                     interpretation results in the application of law in a way that overrides an elementary
                     principle of the Law of Treaties — Rights and obligations under a treaty apply
                     only in relation to other States parties unless also part of customary international
                     law — Application of a treaty between a State party and a non‑State party
                     compromises the principles of sovereignty and equality — 2012 Judgment clear
                     that customary international law applied between the Parties — Article 76 (8) of
                     UNCLOS sets up a régime that is special, contractual and confined to States
                     parties to UNCLOS — Majority invents a “condition” which results in application
                     of treaty obligations between a State party and a non‑State party — Incompatible
                     with régime envisaged by Law of Treaties.

                       1. I have signed the joint dissent because, for the reasons set out
                     therein, I am of the opinion that Colombia’s third preliminary objection
                     should be upheld. The Court “has already adjudicated” Nicaragua’s
                     request in Territorial and Maritime Dispute (Nicaragua v. Colombia)
                     (Judgment, I.C.J. Reports 2012 (II), p. 624, hereinafter referred to as the
                     “2012 Judgment”) (see paragraph 47 of the Judgment) and Nicaragua’s
                     request is thus res judicata.

                       2. I write this declaration to elaborate further upon a particular con‑
                     cern that arises from today’s Judgment, in which the majority embraces
                     and applies dicta contained within the 2012 Judgment in such a way as to
                     override an elementary principle of the Law of Treaties.
                       3. It is a foundational principle of the Law of Treaties that the rights
                     and obligations under a treaty arise and apply only in relation to other
                     States parties 1. The obligations and rights do not apply to non‑States
                     parties unless either, the States parties intend this to be the case and the

                        1 Sir Gerald Fitzmaurice in his Draft Report on Article 3 (pacta tertiis nec nocent nec

                     prosunt) of the proposed Convention on the Law of Treaties said as follows: “1. By virtue
                     of the principles pacta tertiis nec nocent nec prosunt and res inter alios acta, and also of
                     the principle of the legal equality of all sovereign independent States . . . a State cannot in
                     respect of a treaty to which it is not a party: (a) [i]ncur obligations or enjoy rights under
                     the treaty . . .”, Part II of the proposed second chapter (effects of treaties) on the effects of
                     treaties in relation to third States with commentaries. Fifth Report of the Special Rappor‑
                     teur, Sir Gerald Fitzmaurice, (12th session of the ILC, 1960), A/CN.4/130, Yearbook of the
                     International Law Commission, 1960, Vol. II, pp. 75‑76.

                     112

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                     209 	 delimitation of the continental shelf (decl. robinson)

                     non‑States parties consent 2, or the relevant rights and obligations also
                     form part of customary international law 3.
                        4. Treaties are binding on States because they have so consented. This
                     consent is an expression of the principles of sovereignty and equality of
                     States 4. In giving their consent, States agree to respect the obligations,
                     and benefit from the corollary rights, vis‑à‑vis other States parties to the
                     treaty. The Permanent Court of International Justice emphasized that:
                     “[a] treaty only creates law as between the States which are parties to it ;
                     in case of doubt, no rights can be deduced from it in favour of third
                     States” 5. Therefore to apply a treaty between a State party and a non‑State
                     party compromises the principles of sovereignty and equality of States.
                     The State party has not agreed to be bound by the treaty in its relation‑
                     ship with a non‑State party.
                        5. This principle seems to have been overlooked in today’s Judgment,
                     where the majority reads the 2012 Judgment as imposing a “prerequisite”
                     or a “condition”, pursuant to Article 76 (8) of UNCLOS, for the delimi‑
                     tation of extended continental shelf entitlements between Nicaragua and
                     Colombia.
                        6. In its analysis of the 2012 Judgment, paragraph 82 of today’s Judg‑
                     ment reads :
                               “[Paragraph 129 of the 2012 Judgment] must be read in the light of
                          those preceding it in the reasoning of the 2012 Judgment
                           �����������������������������������������������������������������������������������������������������������������
                               Thirdly, what the Court did emphasize was the obligation on

                        2 See, e.g., Articles 34-36 of the Vienna Convention on the Law of Treaties (VCLT).

                     Article 34 emphasizes that “[a] treaty does not create either obligations or rights for a third
                     State [a State not party to the treaty] without its consent”. Article 35 states: “An obliga‑
                     tion arises for a third State from a provision of a treaty if the parties to the treaty intend
                     the provision to be the means of establishing the obligation and the third State expressly
                     accepts that obligation in writing.” Article 36 states :
                               “(1) A right arises for a third State from a provision of a treaty if the parties to the
                            treaty intend the provision to accord that right either to the third State, or to a group
                            of States to which it belongs, or to all States, and the third State assents thereto. Its
                            assent shall be presumed so long as the contrary is not indicated, unless the treaty
                            otherwise provides.
                               (2) A State exercising a right in accordance with paragraph 1 shall comply with
                            the conditions for its exercise provided for in the treaty or established in conformity
                            with the treaty.”
                        3 Article 38 of the VCLT states: “Nothing in Articles 34 to 37 precludes a rule set forth

                     in a treaty from becoming binding upon a third State as a customary rule of international
                     law, recognized as such.”
                         4 S.S. “Wimbledon”, Judgments, 1923, P.C.I.J., Series A, No. 1, p. 25: “the right of

                     entering into international engagements is an attribute of State sovereignty”.
                         5 Certain German Interests in Polish Upper Silesia, Merits, Judgment No. 7, 1926,

                     P.C.I.J., Series A, No. 7, p. 29. The French version reads: “Un traité ne fait droit qu’entre
                     les Etats qui y sont parties ; dans le doute, des droits n’en découlent pas en faveur d’autres
                     Etats.” (Emphasis added.)

                     113

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                     210 	 delimitation of the continental shelf (decl. robinson)

                            icaragua, as a party to UNCLOS, to submit information on the
                           N
                           limits of the continental shelf it claims beyond 200 nautical miles, in
                           accordance with Article 76, paragraph 8, of UNCLOS, to the CLCS.
                           It is because, at the time of the 2012 Judgment, Nicaragua had not
                           yet submitted such information that the Court concluded, in para‑
                           graph 129 that ‘Nicaragua, in the present proceedings has not estab‑
                           lished that it has a continental margin that extends far enough to
                           overlap with Colombia’s 200‑nautical‑mile entitlement to the conti‑
                           nental shelf, measured from Colombia’s mainland coast’.”

                     Paragraph 84 of today’s Judgment continues :
                              “It therefore follows that while the Court decided, in subpara‑
                           graph 3 of the operative clause of the 2012 Judgment, that Nicara‑
                           gua’s claim could not be upheld, it did so because the latter had yet
                           to discharge its obligation, under paragraph 8 of Article 76 of
                           UNCLOS, to deposit with the CLCS the information on the limits of
                           its continental shelf beyond 200 nautical miles required by that pro‑
                           vision and by Article 4 of Annex II of UNCLOS.”
                     And at paragraph 105 :
                        “Nicaragua was under an obligation, pursuant to paragraph 8 of Arti‑
                        cle 76 of UNCLOS, to submit information on the limits of the conti‑
                        nental shelf it claims beyond 200 nautical miles to the CLCS. The
                        Court held, in its 2012 Judgment, that Nicaragua had to submit such
                        information as a prerequisite for the delimitation of the continental
                        shelf beyond 200 nautical miles by the Court.”

                        7. As set out in the joint dissent, I believe that this conclusion miscon‑
                     strues the relevant paragraphs of the 2012 Judgment. The majority inter‑
                     prets the Court’s findings in paragraphs 126 and 127 of the 2012 Judgment
                     in such a way as to result in the application of law that is, in fact, inap‑
                     plicable between the two Parties.

                        8. The Court stated quite directly in paragraph 118 of the 2012 Judg‑
                     ment that the applicable law in the case was customary international law,
                     as Colombia was not a State party to UNCLOS. The Court then noted
                     that it considered that the definition of the continental shelf set out in
                     UNCLOS Article 76 (1) formed part of customary international law, and
                     that, it “d[id] not need to decide whether other provisions of Article 76 of
                     UNCLOS form[ed] part of customary international law”.

                        9. Yet, in paragraph 126 of the 2012 Judgment, the Court seemed to
                     forget its earlier determination that only customary international law
                     applied in the case, when it discussed its dictum in Territorial and Mari-
                     time Dispute between Nicaragua and Honduras in the Caribbean Sea
                     (Nicaragua v. Honduras) that, “any claim of continental shelf rights

                     114

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                     211 	 delimitation of the continental shelf (decl. robinson)

                     beyond 200 miles [by a State party to UNCLOS] must be in accordance
                     with Article 76 of UNCLOS and reviewed by the Commission on the
                     Limits of the Continental Shelf established thereunder” (I.C.J. Reports
                     2007 (II), p. 759, para. 319).

                       Judge Donoghue, in her separate opinion to the 2012 Judgment, noted
                     that she was “troubled that the Court . . . extend[ed] the reasoning of the
                     2007 Nicaragua v. Honduras Judgment to the present case, despite the
                     fact that Colombia is not an UNCLOS State party and customary inter‑
                     national law thus governs” 6.

                        10. In paragraph 126 of the 2012 Judgment, the Court went on to
                     “recall” that “UNCLOS, according to its Preamble, is intended to estab‑
                     lish ‘a legal order for the seas and oceans which will facilitate interna‑
                     tional communication, and will promote the peaceful uses of the seas and
                     oceans, the equitable and efficient utilization of their resources’”. In the
                     same paragraph, the Court went on to state that “[g]iven the object and
                     purpose of UNCLOS, as stipulated in its Preamble, the fact that Colom‑
                     bia is not a party thereto does not relieve Nicaragua of its obligations
                     under Article 76 of that Convention”.
                        11. There is a flaw in this reasoning : Article 76 (8) of UNCLOS and
                     the Commission’s procedure in Annex 2 are obviously special, contrac‑
                     tual and confined to States parties to UNCLOS. As noted by
                     Judge ad hoc Cot in his declaration to the 2012 Judgment, Article 76 (8)
                     institutes a specific procedure that is not accessible by non‑States parties
                     to UNCLOS and it is thus “difficult” to view Article 76 (8) as an expres‑
                     sion of customary international law 7. Many other treaties reflect a similar
                     approach, whereby provisions contained in the treaty may mirror norms
                     of customary international law, but particular procedural mechanisms
                     established in respect of those provisions are peculiar to the treaty and
                     States parties to that treaty ; for example, generally, the rights set out in
                     the International Covenant on Civil and Political Rights to which persons
                     are entitled and the procedure by which persons may petition the Human
                     Rights Committee alleging a breach of those rights 8. Mark Villiger makes
                     an interesting argument in this regard. He contends that customary inter‑
                     national law rules must be “of an abstract nature, that is potentially regu‑
                     latory of an abstract number of situations rather than concerning a

                       6   I.C.J. Reports 2012 (II), separate opinion of Judge Donoghue, p. 758, para. 26.
                       7  Ibid., declaration of Judge ad hoc Cot, p. 771, para. 19.
                       8  For the procedure see the Optional Protocol to the International Covenant on
                     Civil and Political Rights. See also the petition procedures established under other
                     human rights treaties, for example, Article 44 of the American Convention on Human
                     Rights, Article 34 of the European Convention on Human Rights (“The Court may
                     receive applications from any person, non‑governmental organization or group of
                     individuals claiming to be the victim of a violation by one of the High Contracting
                     Parties of the rights set forth in the Convention or the Protocols thereto. The High

                     115

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                     212 	 delimitation of the continental shelf (decl. robinson)

                     concrete situation” 9. Villiger argues that norms of an organization
                     directed at the workings of a specific body could not therefore become
                     rules of customary international law. Such procedural rules are too “con‑
                     crete”. Though one may question whether Villiger’s analysis is fully reflec‑
                     tive of the range of potential characteristics of a rule of customary
                     international law, there can be no doubt that the provision in Arti‑
                     cle 76 (8) of UNCLOS establishes a procedure that is only open to States
                     parties to UNCLOS.

                        12. Further, the importance attached by the Court in paragraph 126 of
                     the 2012 Judgment to the phrase it cites from the Preamble of UNCLOS
                     is problematic. While it is true that the Preamble to a treaty forms part of
                     the context for the purpose of the interpretation of that treaty, the Pre‑
                     amble of UNCLOS cannot, by itself, serve to override the principle that
                     the provisions of a treaty are res inter alios acta for a non‑State party
                     unless they constitute customary international law. In other words, the
                     rights and obligations under UNCLOS cannot be applied so as to benefit
                     or adversely affect a non‑State party. Therefore, obligations under
                     UNCLOS are not opposable to Nicaragua in its relationship with Colom‑
                     bia, a non‑State party, unless they form part of customary international
                     law. Judge ad hoc Mensah also made this point in his declaration to the
                     2012 Judgment 10:

                              “I do not believe or agree that the special character of UNCLOS,
                           as set out in its Preamble, makes the rights and obligations of States
                           parties to UNCLOS fundamentally different from the rights and obli‑
                           gations of States parties under other treaties. Specifically, I do not
                           subscribe to the view that the ‘object and purpose of UNCLOS, as
                           stipulated in its Preamble’, in and by themselves, impose on parties
                           to the Convention obligations vis‑à‑vis other States which have taken
                           a conscious decision not to agree to be bound by that Convention.”

                       13. It is noteworthy that the aim set out in the Preamble of UNCLOS —
                     to create a world legal order for the seas and oceans — is expressly to be
                     achieved with “due regard for the sovereignty of all States”, a phrase
                     omitted from paragraph 126 of the 2012 Judgment. The noble and laud‑

                     Contracting Parties undertake not to hinder in any way the effective exercise of this
                     right.”).
                        9 Mark E. Villiger, Customary International Law and Treaties, Kluwer Law Interna‑

                     tional, 2nd ed., 1997, p. 179.
                        10 I.C.J. Reports 2012 (II), declaration of Judge ad hoc Mensah, p. 765, para. 8.

                     116

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                     213 	 delimitation of the continental shelf (decl. robinson)

                     able aim set out in the Preamble cannot be accomplished by disregarding
                     or compromising the principle of State sovereignty. The principle of sov‑
                     ereignty is like a thread woven throughout the fabric of the legal order
                     established by UNCLOS. The failure of the Court to take into account in
                     its analysis the intended balance between the legal order and sovereignty
                     results in the Court exaggerating the importance of the Preamble.

                        14. Delimitation of the continental shelf of a State party to UNCLOS
                     and a non‑State party to UNCLOS should be carried out on the basis of:
                     (i) customary international law, which principally means, by virtue of
                     Article 83 of UNCLOS, an obligation to effect the delimitation “in order
                     to achieve an equitable solution”, and also, that the definition contained
                     in Article 76 (1) of UNCLOS is observed ; and (ii) such other rules as the
                     parties may agree to apply, for example, significantly, they could agree to
                     apply the provisions of Articles 76 (2)‑(7) (in relation to which there is no
                     general agreement that they form part of customary international law).
                     Delimitation of the continental shelf between States that are not parties
                     to UNCLOS should be carried out on the basis of: (i) customary interna‑
                     tional law ; and (ii) such other rules as the Parties may agree to apply.

                       15. The majority’s decision today has interpreted the 2012 Judgment
                     as deciding that the Court could not “uphold” Nicaragua’s claim in 2012
                     because Article 76 (8) of UNCLOS created a “condition” that Nicaragua
                     had to satisfy before the Court could proceed to delimit the continental
                     shelf beyond 200 nautical miles. In paragraphs 86 and 87 of today’s Judg‑
                     ment, the majority finds that as “Nicaragua states that on 24 June 2013 it
                     provided the CLCS with ‘final’ information”, the majority “accordingly
                     considers that the condition imposed by it in its 2012 Judgment in order
                     for it to be able to examine the claim of Nicaragua contained in the final
                     submission I (3) has been fulfilled in the present case”.

                        16. The disjointed logic of this interpretation is fully discussed in the
                     joint dissent (see Section V of the joint dissent). Further, as discussed
                     therein, why would the Court, in the 2012 Judgment, have explicitly
                     determined that the law applicable between the parties was customary
                     international law, and then, within the same section of reasoning, over‑
                     ride this principle by applying as between the parties obligations under a
                     treaty which do not form part of customary international law ? This is
                     inherently contradictory. The majority, by its invention of a procedural
                     condition, applies treaty obligations in such a way as to create an asym‑
                     metrical relationship between Nicaragua and Colombia ; a relationship to
                     which neither State has consented. In so doing, the majority fails to
                     accord due respect to the principles of sovereignty and equality between
                     States.

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                     214 	 delimitation of the continental shelf (decl. robinson)

                        17. It may be argued that the task before the Court today is simply to
                     determine what the Court said in the 2012 Judgment in order to decide
                     whether the question before it is res judicata, and not to consider the cor‑
                     rectness of findings made in the 2012 Judgment. If a mistake was made in
                     the 2012 Judgment, it is not for the Court to correct it at this juncture.
                     Yet, in the circumstances of this case, the majority chooses the wrong
                     interpretation, and it is not in a position to shrug off its responsibility for
                     a conclusion that contravenes a fundamental principle of the law of trea‑
                     ties by saying that it is merely reciting what the 2012 Judgment actually
                     said.

                        18. The result of this strange application of Article 76 (8) of UNCLOS
                     is that Colombia, a non‑State party, is accorded something that, in my
                     view, is akin to a benefit under UNCLOS, since the provision, which does
                     not mirror a rule of customary international law, has been enforced
                     against Nicaragua in its relations with Colombia. This raises questions
                     about the compatibility of the Court’s approach with the régime envis‑
                     aged by Articles 34‑36 of the Vienna Convention on the Law of Treaties
                     (Treaties and Third States) 11.

                        19. The joint dissent discusses concerning precedents that could
                     be drawn from the majority’s position. I submit this declaration to high‑
                     light one more : that the majority’s interpretation today adopts a conclu‑
                     sion that runs roughshod over a fundamental principle of the Law of
                     Treaties.

                                                                   (Signed) Patrick Robinson.

                       11   See footnote 2 above.

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