                                                                                471

                             SEPARATE OPINION OF JUDGE ABRAHAM

                 [Translation]
                    Jurisdiction of the Court to entertain that part of Belgium’s claim relating to
                 obligations arising from customary international law — Existence of a dispute in
                 that connection on the day of delivery of the Judgment — Lack of any rule of
                 customary international law requiring Senegal to prosecute Mr. Hissène Habré
                 before its courts for war crimes, crimes against humanity and the crime of
                 genocide — Belgium’s claim in that regard unfounded.

                    1. In this Judgment, the Court rules on the merits of only one part of
                 Belgium’s submissions, namely that relating to Senegal’s breach of its
                 obligations under Article 6, paragraph 2, and Article 7, paragraph 1, of
                 the United Nations Convention against Torture and Other Cruel, Inhu-
                 man or Degrading Treatment or Punishment of 10 December 1984 (here-
                 inafter “the Convention”). After upholding its jurisdiction over that part
                 of the Application (point 1 of the operative clause) and declaring the
                 Application admissible in that regard (point 3 of the operative clause), the
                 Court finds that Senegal has breached its conventional obligations
                 (points 4 and 5 of the operative clause) and draws the appropriate conclu-
                 sions, namely that Senegal must, without further delay, submit the case
                 of Mr. Hissène Habré to its competent authorities for the purpose of
                 prosecution, if it does not extradite him (point 6 of the operative clause).
                    2. I have voted in favour of all of those points of the operative clause.
                 I approve not only of the conclusions reached by the Court on those vari
                 ous issues but also of the essence of the reasoning followed to reach
                 them, even though I think that the Judgment’s reasoning, in respect of a
                 number of the points considered, would have benefited from being less
                 succinct.
                    3. However, Belgium did not confine itself to reproaching Senegal with
                 having breached its conventional obligations. The Applicant also con-
                 tended that Senegal was required to prosecute Mr. Hissène Habré before
                 its courts — unless it extradited him — for acts which could be character-
                 ized as war crimes, crimes against humanity and genocide and which do
                 not come within the scope ratione materiae of the Convention against
                 Torture. In support of that claim, Belgium invoked customary interna-
                 tional law, which, it argued, required Senegal to “prosecute or extradite”
                 any person suspected of having committed acts coming within the catego-
                 ries thus defined.
                    4. The Court has declared that it lacks jurisdiction to hear that part of
                 Belgium’s Application, despite the fact that the Applicant, in order to
                 found the jurisdiction of the Court, invoked not only Article 30 of the
                 Convention — which could clearly only constitute a valid basis for the

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                       obligation to prosecute or extradite (sep. op. abraham)             472

                 Court’s jurisdiction in respect of those submissions relating to the alleged
                 breach of conventional obligations — but also the optional declarations
                 made by the two Parties under Article 36, paragraph 2, of the Statute of
                 the Court, which are general in scope. Hence the Judgment makes no
                 substantive ruling on Belgium’s claims relating to Senegal’s alleged breach
                 of its obligations under customary international law.

                   5. It is on this point that I have regretfully been obliged to dissociate
                 myself from the majority of my colleagues.
                   In my view, the Court should have ruled that it has jurisdiction to
                 entertain the Applicant’s submissions relating to customary international
                 law (I). However, I do not think that the Court should have upheld those
                 submissions on the merits ; in my opinion, it should have dismissed them
                 as unfounded (II).

                     I. The Court Should Have Ruled that It Has Jurisdiction
                           to Entertain the Applicant’s Submissions Based
                                 on Customary International Law

                 6. In point 2 of the operative clause, the Court
                        “Finds that it has no jurisdiction to entertain the claims of the King-
                     dom of Belgium relating to alleged breaches, by the Republic of
                     Senegal, of obligations under customary international law.”

                    I cannot support that finding, for the reasons which I set out below.
                    7. The reason why the Court thus declined jurisdiction is set forth in
                 paragraph 55 of the Judgment : “[A]t the time of the filing of the Applica-
                 tion, the dispute between the Parties did not relate to breaches of obliga-
                 tions under customary international law.” The conclusion the Court
                 draws is that it has no jurisdiction to decide on the claim set out by Bel-
                 gium in point 1 (b) of its final submissions (cited in paragraph 14 of the
                 Judgment), because that claim refers to Senegal’s alleged obligations
                 under customary international law concerning the criminal proceedings
                 which the latter should bring against Mr. Hissène Habré, if it does not
                 extradite him. Since the obligations which Senegal is accused of having
                 breached do not derive from the Convention but from customary inter
                 national law, the Court can only have jurisdiction over that issue on
                 the basis of the Optional Clause declarations made by the Parties under
                 Article 36, paragraph 2, of the Statute of the Court. However, this pro
                 vision confers jurisdiction upon the Court over “legal disputes” between
                 States that have recognized its jurisdiction as compulsory. Accordingly,
                  the absence of a dispute on a specific issue leaves the Court without juris
                  diction over that issue, and, from the Court’s point of view, that is the
                  case here.

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                        obligation to prosecute or extradite (sep. op. abraham)             473

                     8. I do not dispute the validity of several of the elements of this reason-
                 ing.
                     Firstly, it is clear that “the existence of a dispute is a condition of its
                 jurisdiction under both bases of jurisdiction invoked by Belgium”, as
                 indicated in paragraph 45. Only one of those two bases of jurisdiction
                 is relevant to the question which concerns us here (the other being
                 Article 30 of the Convention against Torture, which is clearly inappli
                  cable — and Belgium has not suggested otherwise — to that part of the
                  Applicant’s submissions which relates to Senegal’s alleged breach of cus
                  tomary international law).
                     9. Secondly, if there is no dispute between the parties before the Court
                  (in respect of all or some of the issues which form the subject‑matter of
                  the Application), the Court has no jurisdiction to hear the case — or that
                  part of the case over which no dispute exists. In actual fact, it might also
                  be argued that an application concerning a question over which there is
                  no dispute, and over which there was no dispute on the date when the
                  Application was filed, would stand to fail on the ground of inadmissibility
                  rather than lack of jurisdiction. However, in its decisions the Court has,
                  for a very long time, clearly and consistently ruled lack of jurisdiction —
                  though this makes little difference in practice — and it would not have
                  been appropriate for it to depart from its case law.
                     10. Finally, I can also concur with the finding that, on the date when
                  the Application was filed by Belgium, that is to say, 19 February 2009,
                  there was no dispute between the Parties over Senegal’s alleged failure to
                  comply with the rules of customary international law supposedly requir-
                  ing it to initiate proceedings against Mr. Habré, if it does not extradite
                  him. Paragraph 54 of the Judgment describes at some length the diplo-
                  matic exchanges which preceded the filing of the Application. It emerges
                  that at no time during those preliminary exchanges did Belgium reproach
                  Senegal with violating customary international law. Belgium confined
                  itself to emphasizing the obligation under the Convention against Tor-
                  ture, and in particular Article 7, paragraph 1, thereof, to prosecute any
                  person who is suspected of having committed acts of torture, or of com-
                  plicity in torture, before the courts of the State in whose territory he is
                  present, if he is not extradited to another State having jurisdiction to try
                  him for the same acts.

                     11. My disagreement with the Judgment centres on the fact that the
                 Court confines itself to the situation that prevailed “at the time of the
                 filing of the Application” and refuses to take account of the present

                 situation, as it emerges from the exchanges between the Parties during the
                  judicial proceedings.
                     12. However, it is quite certain that, on the date of the present Judg-
                  ment, a dispute does indeed exist between the Parties regarding the appli-
                  cation of customary international law in the present case. Belgium has
                  argued that Senegal has breached its obligation under customary interna-
                  tional law to prosecute Mr. Habré before its courts, not only for acts of

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                       obligation to prosecute or extradite (sep. op. abraham)              474

                 torture, but also for “war crimes, crimes against humanity and the crime
                 of genocide alleged against him” (final submissions, 1 (b)). Senegal, for
                 its part, without formally denying the existence of such an obligation, has
                 argued that its conduct to date entails no breach by it of that obligation,
                 for essentially the same reasons as those advanced by it to assert that it
                 was not in breach of its conventional obligations : it has already taken
                 several measures with a view to the trial, and has not hitherto had the
                 means at its disposal that it would have needed to do more.

                    There is therefore no doubt that there does exist today a dispute
                 between the Parties relating to the implementation of customary interna-
                 tional law, just as there exists, and for the same reasons, a dispute between
                 them concerning Senegal’s compliance with its conventional obligations.
                 The difference between these two aspects of the case is that the dispute
                 relating to conventional law was revealed by the exchanges between the
                 Parties even before the Application was introduced, whereas the dispute
                 relating to customary law only became apparent during their exchanges
                 before the Court.
                    13. It follows from the above that the crucial question is which date is
                 to be taken in order to determine the existence of a dispute between the
                 Parties.
                    14. As a general rule, the conditions governing the jurisdiction of the
                 Court must be fulfilled on the date when the Application is filed. How-
                 ever, the Court has, for a very long time, shown reasonable flexibility by
                 accepting that a condition that was initially lacking could be met in the
                 course of the proceedings, and that if not all the conditions for its juris-
                 diction were fulfilled at the start of the proceedings, the Court should
                 therefore ascertain whether they had been fulfilled on the date of its Judg-
                 ment. This line of case law, which began with the celebrated Mavromma-
                 tis Palestine Concessions case, was confirmed and even extended by the
                 obligation to state reasons, which was adopted as a matter of principle in
                 the Judgment on the Preliminary Objections in the Croatia v. Serbia case,
                 in which the Court stated :
                        “What matters is that, at the latest by the date when the Court
                     decides on its jurisdiction, the applicant must be entitled, if it so
                     wishes, to bring fresh proceedings in which the initially unmet condi-
                     tion would be fulfilled. In such a situation, it is not in the interests of
                     the sound administration of justice to compel the applicant to begin
                     the proceedings anew — or to initiate fresh proceedings — and it is
                     preferable, except in special circumstances, to conclude that the con-
                     dition has, from that point on, been fulfilled.” (Application of the
                     Convention on the Prevention and Punishment of the Crime of Genocide
                     (Croatia v. Serbia), Preliminary Objections, Judgment, I.C.J. Reports
                     2008, p. 441, para. 85.)
                    15. It is true that, more recently, in its Judgment in the Georgia v. Rus-
                 sian Federation case, the Court referred to the date when the Application

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                        obligation to prosecute or extradite (sep. op. abraham)             475

                 was filed in order to determine whether the condition relating to the exis-
                 tence of a dispute had been met. However, in that case it found that the
                 condition had indeed been met on the date in question (Application of the
                 International Convention on the Elimination of All Forms of Racial Dis-
                 crimination (Georgia v. Russian Federation), Preliminary Objections,
                 Judgment, I.C.J. Reports 2011 (I), p. 120, para. 113).
                    16. The Court therefore had no need, in that case, to settle the ques-
                 tion of which solution it should have adopted if the dispute, which had
                 not existed on the date when the Application was filed, had been clearly
                 constituted on the date of the Judgment. In my opinion, the Georgia v.
                 Russian Federation precedent does not therefore represent a departure
                 from the former jurisprudence of the Court.
                    Moreover, the Court, very prudently, indicated in its statement of rea-
                 sons, before moving on to consider specifically the exchanges between
                 Georgia and the Russian Federation, that “[t]he dispute must in principle
                 exist at the time the Application is submitted to the Court” (ibid., p. 85,
                 para. 30 ; emphasis added).
                    17. It is also true that in the same case, in order to assess whether the
                 requirement for the Parties to attempt a negotiated settlement of the dis-
                 pute had been met, the Court referred to the date of its seisin (ibid.,
                 p. 128, para. 141). However, this in fact had no bearing on the solution,
                 since in the opinion of the Court’s majority — which I did not share —
                 Georgia had never attempted to engage in negotiations with Russia with
                 a view to resolving their dispute concerning the application of the Inter-
                 national Convention on the Elimination of All Forms of Racial Discrim-
                 ination, and that assessment would undoubtedly have been the same for
                 the periods before and after the seisin of the Court.
                    18. In the present Judgment, the Court goes a particularly clear step
                 further in the formalistic approach to the condition relating to the exis-
                 tence of a dispute : this is the first time in the Court’s entire jurisprudence
                 that it has declined to hear one part of a case on the basis of the lack of
                 a dispute between the Parties, even though the dispute clearly exists on
                 the date of the Court’s Judgment and was apparent in the proceedings
                 before the Court. One may wonder what the extent now is of the position
                 of principle set out by the Court in the Judgment on Preliminary Objec-
                 tions in the Croatia v. Serbia case. I regret to note that the series of recent
                 Judgments does not convey a great impression of consistency.

                   19. Let me mention one additional factor which distinguishes the pres-
                 ent case from the Georgia v. Russian Federation precedent and which
                 makes the extremely formalistic solution adopted here by the Court even
                 more surprising. Whereas the Russian Federation had explicitly invoked,
                 as grounds of inadmissibility, the lack of a dispute between the Parties
                 crystallized on the date when the Application was filed, Senegal has done
                 nothing of the kind in the present case. It did indeed assert that there was
                 no justiciable dispute before the Court, but not at all for the reasons
                 adopted by the Court in support of point 2 of the operative clause.

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                  enegal’s argument was, in substance, that there was no dispute between
                 S
                 it and Belgium in respect of any aspect of the Applicant’s submissions —
                 whether that part relating to conventional obligations or that part based
                 on customary law — for the reason (which applies to the case as a whole)
                 that the Parties did not disagree on the existence and scope of the obliga-
                 tions that were invoked and that the Respondent was making every pos-
                 sible effort to perform those obligations. This argument has no weight, as
                 the Court has found in respect of that part of the submissions relating to
                 conventional law ; it should also have been rejected in respect of that part
                 relating to customary law. Thus, the Court has raised ex officio the
                 ground that the dispute relating to compliance with customary obliga-
                 tions did not exist on the date when the Application was filed, since Bel-
                 gium had failed to address this issue in its previous diplomatic exchanges
                 with Senegal.
                    20. I do not think that I need address here the procedural question of
                 whether the Court could raise such a ground ex officio — without even
                 notifying Belgium beforehand. For the reasons discussed above, I believe
                 that the Court should simply have noted that a dispute between the Par-
                 ties as regards compliance with customary international law existed on
                 the date of its Judgment.

                                                          *
                                                      *       *

                        II. The Court Should Have Dismissed as Ill-Founded
                     the Applicant’s Submissions relating to the Alleged Breach
                         of Obligations under Customary International Law

                      21. Although I disagree with the Judgment in respect of the issue of
                 jurisdiction, as I have just described, I do not believe that the Court
                 should have upheld Belgium’s claims based on customary law. Indeed, in
                 my opinion, there is no rule of customary international law requiring
                 Senegal to prosecute Mr. Habré before its courts, either for the acts of
                  torture, or complicity in torture, that are alleged against him — in that
                   connection, there is indeed an obligation, but it is purely conventional —
                   or for war crimes, crimes against humanity and the crime of genocide,
                   which do not come within the scope ratione materiae of the Convention
                   against Torture — in that regard there is, at present, no obligation under
                   international law.
                      22. It is true that neither in the written proceedings nor in its oral argu-
                 ment did Senegal dispute the existence of an obligation which, under cus-
                 tomary international law, would require it to prosecute Mr. Habré for
                 criminal acts in the above‑mentioned categories.
                      But it is clear that if the Court had also accepted jurisdiction over this
                 part of the case — as I believe it should have done — it would have been
                 obliged to rule ex officio on the existence of the rules of customary law

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                        obligation to prosecute or extradite (sep. op. abraham)             477

                 which Belgium claimed had been breached. As these are rules which, if
                 they existed, would have universal scope, it stands to reason that it is not
                 sufficient for the two parties before the Court to agree on the existence of
                 those rules, and, where appropriate, their scope, for the Court to register
                 that agreement and to apply the alleged rules in question. It is for the
                 Court alone to say what the law is and to do so, if necessary, ex officio —
                 even if it is, in fact, somewhat unusual for it to find itself in such a situa-
                 tion.
                    23. In the present case, the Court found itself in a situation where it
                 could have performed that function, as a result of one of the very many
                 questions put by judges to the Parties at the end of the first round of oral
                 argument.
                    24. The question was put by my esteemed colleague Judge Greenwood,
                 who, in essence, asked Belgium to demonstrate : (i) that there is State
                 practice in respect of the jurisdiction of domestic courts over war crimes
                 and crimes against humanity when the alleged offence occurred outside
                 the territory of the State in question and when neither the alleged offender
                 nor the victims were nationals of that State ; and (ii) that States consider
                 that they are required, in such cases, to prosecute the alleged perpetrator
                 of the offence before their own courts, or to extradite him.

                    25. The responses given by Belgium, initially during the second round
                 of oral argument and later in a written document, do not come close to
                 establishing the existence of a general practice and an opinio juris which
                 might give rise to a customary obligation upon a country such as Senegal
                 to prosecute a former foreign leader before its courts for crimes such as
                 those of which Mr. Hissène Habré stands accused, unless it extradites
                 him.
                    26. Let me begin by clarifying the subject‑matter of the question that
                 was before the Court in the present case, by distinguishing it from those
                 which the Court, in any event, was not called upon to decide.
                    27. The Court was not called upon to determine whether the prohibi-
                 tion on acts of torture and other “international crimes” (a phrase I use
                 for convenience, although I doubt its legal relevance), as laid down in the
                 Convention against Torture and in various other multilateral treaties, is
                 of a customary nature and accordingly applies even outside any conven-
                 tional obligations. The answer is certainly in the affirmative, but that is
                 not the question directly posed by Belgium’s claim in the present case :
                 Senegal has never been reproached with having committed, encouraged
                 or facilitated such crimes. With regard to the prohibition on torture, the
                 Judgment states (para. 99) that it is part of customary law and that it has
                 even become a peremptory norm (jus cogens), but that is clearly a mere
                 obiter dictum, which the Court could have omitted without depriving its
                 reasoning of any vital element.
                    28. Nor did the Court have to decide whether customary law requires a
                 State to prosecute individuals suspected of having committed crimes of the
                 kind that are alleged here when those persons have the nationality of the

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                        obligation to prosecute or extradite (sep. op. abraham)             478

                 State concerned, or when those crimes have been committed in that State’s
                 territory. Mr. Hissène Habré is not Senegalese, and the crimes of which he
                 is suspected were not committed in Senegal. Thus the question of whether
                 there exists in customary law an obligation upon States to exercise “terri-
                 torial” jurisdiction or “active personal” jurisdiction for the purposes of
                 punishing “international crimes” did not arise in the present case.
                    29. Nor did the Court have to determine whether there exists a cus-
                 tomary obligation for a State to give its courts “passive personal jurisdic-
                 tion”, that is to say, a title of jurisdiction enabling them to try the alleged
                 perpetrators of “international crimes” when the victim has the nationality
                 of the State concerned. The reply is very probably negative : even the
                 Convention against Torture does not require States parties to give them-
                 selves such “passive personal jurisdiction”, since Article 5 (1) (c) only
                 provides for such jurisdiction where the State party “considers it appro-
                 priate”. But in any event, the question did not arise in the present case.
                    30. Finally, and this point deserves particular mention, the present case
                 did not require the Court to determine — in any event not directly —
                 whether customary international law enables States to provide their courts
                 with universal jurisdiction over war crimes, crimes against humanity and
                 the crime of genocide. In that regard, it may be contrasted with the DRC v.
                 Belgium precedent, in which that issue was raised by the Applicant before
                 subsequently being dropped (case concerning the Arrest Warrant of
                 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment,
                 I.C.J. Reports 2002, p. 3). In fact, Belgium does not reproach Senegal with
                 exercising universal criminal jurisdiction, but on the contrary with failing to
                 exercise it, whereas, according to the Applicant, international law requires
                 it do so. Consequently, the controversial issue of the legality of universal
                 jurisdiction in international law (see on this point, in particular, the sepa-
                 rate opinion of President Guillaume appended to the Judgment in the case
                 concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the
                 Congo v. Belgium), Judgment, I.C.J. Reports 2002, p. 35) did not arise
                 directly in the present case. Only if the Court had found that international
                 law required States to establish universal criminal jurisdiction over the cat-
                 egories of offences in question would it have ruled, a fortiori, in respect of
                 the legality of such jurisdiction. If, however, while examining the merits of
                 the case, the Court had found that there is no rule of customary law requir-
                 ing States to give themselves universal criminal jurisdiction, such a finding
                 would have left entirely open the (separate) question of the legality of uni-
                 versal jurisdiction.
                    31. The question which the Court could not have avoided answering
                 directly, had it accepted jurisdiction as I believe it should have done, is
                 therefore the following : is there sufficient evidence, based on State prac-
                 tice and opinio juris, of a customary obligation for States to prosecute
                 before their domestic courts individuals suspected of war crimes or crimes
                 against humanity (which presupposes that they have provided their courts
                 with the necessary jurisdiction), when there is no connecting link between
                 the alleged offence and the forum State, that is to say, when the offence

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                       obligation to prosecute or extradite (sep. op. abraham)             479

                 was committed outside the territory of that State and neither the offender
                 nor the victim were nationals of that State ?

                    32. In my opinion, the answer to that question is very clearly and
                 indisputably no, regardless of whether or not the suspect is present in the
                 territory of the State in question.
                    33. Belgium, in response to the question put by the Court, did indeed
                 endeavour to demonstrate that such an obligation exists. However, it fell
                 far short of doing so.
                    34. In a written document produced in reply to the above-mentioned
                 question, Belgium supplied a list of States having incorporated into their
                 domestic law provisions giving their courts “universal jurisdiction” to try
                 war crimes committed in the course of a non‑international conflict, which
                 is the case of the crimes of which Mr. Habré is accused, and crimes against
                 humanity (or certain of those crimes). It found a total of 51. Among
                 those States, some of them make the exercise of such jurisdiction subject
                 to the presence of the suspect in their territory, while others do not, but
                 the list draws no distinction between the two cases.
                    35. Nevertheless, the information thus provided is quite insufficient to
                 establish the existence of a customary obligation to prosecute the perpe-
                 trators of such crimes on the basis of universal jurisdiction, even when
                 limited to the case where the suspect is present in the territory of the State
                 concerned.
                    And this is for three reasons.
                    36. In the first place, the States in question represent only a minority
                 within the international community, which is in any event insufficient to
                 establish the existence of a universal customary rule.
                    37. Secondly, some of those States may have adopted such legislation
                 on the basis of a particular interpretation of their conventional obliga-
                 tions, for example those under conventions of international humanitarian
                 law regarding war crimes. Apart from the fact that such an interpretation
                 is not universally shared, since other States parties to the same conven-
                 tions have not taken similar action, such an approach does not demon-
                 strate the existence of an opinio juris, that is to say, a belief that there
                 exists an obligation to establish “universal jurisdiction” outside of any
                 conventional obligations.
                    38. Thirdly and finally, certain States among the 51 — and probably
                 many of them — may have decided to extend the jurisdiction of their
                 courts over the crimes in question on the basis of a purely unilateral
                 choice and sovereign decision, without in any sense believing that they
                 were required to do so by some international obligation, whether conven-
                 tional or customary — but solely in the belief that international law
                 entitled them to do so. Here again, the “opinio juris” is lacking.
                    39. Let me take France, for example, which is included in the “List of
                  51”, and with which I am well acquainted. In the area which interests us
                  here, France has only given its courts “universal” jurisdiction, that is to
                  say, without any link to where the crime was committed or to the nation-

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                        obligation to prosecute or extradite (sep. op. abraham)             480

                 ality of the perpetrator or the victim, in three instances : (1) for acts of
                 torture ; (2) for crimes covered by the jurisdiction of the International
                 Criminal Tribunal for the former Yugoslavia (ICTY) and the Interna-
                 tional Criminal Tribunal for Rwanda (ICTR) ; and (3) for crimes within
                 the jurisdiction of the International Criminal Court (ICC) if the alleged
                 offender usually resides in France. In the first case, France acted in accor-
                 dance with its conventional obligations deriving from its status as party
                 to the Convention against Torture. In the other two cases it adopted
                 those provisions of its own free and sovereign choice, without considering
                 as far as it was itself concerned — or asserting in relation to others —
                 that States were required to do so.
                     The presence of France on the list prepared by Belgium, while not
                 erroneous, is thus not an argument for the recognition of a customary
                  international obligation, and doubtless the same could be said for many
                  of the other States on the list.
                     40. Belgium itself at present no longer claims that it exercises universal
                  jurisdiction, as a general rule, over “international crimes”. Since the pro-
                  visions of its Code of Criminal Procedure relating to the jurisdiction of its
                  courts were radically modified by the Law of 5 August 2003, Belgium no
                  longer provides those courts with jurisdiction over war crimes and crimes
                  against humanity, except in those cases where it is required to do so under
                  an international legal obligation ; in principle, it requires a territorial or
                  personal connection between the alleged crime and itself, a link which
                  must normally exist on the date of the crime or, at the very least, that the
                  suspect should have his principal residence in the territory of the King-
                  dom. The reason why the Belgian courts continue to investigate the com-
                  plaints against Mr. Hissène Habré regarding acts other than those which
                  could be characterized as acts of torture is that those complaints were
                  made at a time when Belgian legislation did provide for universal jurisdic-
                  tion, and because of the transitional provisions of the Law of
                  5 August 2003 ; while withdrawing universal jurisdiction almost com-
                  pletely for the future, the latter provided that certain pending proceedings
                  which had been instituted on the basis of the previous legislation would
                  not be affected by that withdrawal.

                                                         *
                                                     *       *

                   41. In conclusion, I am sure that the claims submitted to the Court by
                 Belgium on the basis of customary international law were, in any event,
                 bound to fail.
                   The Court’s refusal to find that it has jurisdiction in that regard has
                 therefore not deprived Belgium of a success which, in any case, it could
                 not have obtained.

                                                                 (Signed) Ronny Abraham.

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278

                  DECLARATION OF JUDGE KEITH

   1. While I agree fully with the decision reached by the Court in this
case, I disagree with aspects of its reasoning relating to France’s refusal
to comply with Djibouti’s letter rogatory. I will take this opportunity to
explain why.
   2. The Court concludes that France’s refusal to comply with Djibou-
ti’s letter rogatory was not in breach of France’s obligations under the
1986 Convention because the refusal was for reasons which fell within the
scope of Article 2 (c) of the Convention (Judgment, para. 148). The only
statement of reasons for that refusal on which the Court relies and, as it
explains (ibid., para. 146), may rely is that formulated by Judge Clément
in her soit-transmis of 8 February 2005.
   3. Article 2 of the Convention provides as follows :
        “Assistance may be refused :
      (a) if the request concerns an offence which the requested State
          considers a political offence, an offence connected with a politi-
          cal offence, or a fiscal, customs or foreign exchange offence ;

      (b) if the request concerns an offence which is not punishable
          under the law of both the requesting State and the requested
          State ;
      (c) if the requested State considers that execution of the request is
          likely to prejudice its sovereignty, its security, its ordre public or
          others of its essential interests.”
   4. The power of the requested State to refuse assistance under Arti-
cle 2 (c) is particularly broad, when all the features of its wording are
considered both in their own terms and by comparison with the wording
of subparagraphs (a) and (b) of the provision. Notwithstanding that, I
agree with the Court that it has power to examine the reasons even
though that power of examination is very limited. In support of its
power, the Court refers to the proposition codified in Article 26 of the
Vienna Convention on the Law of Treaties and to two judgments of the
Permanent Court of International Justice as affirming that the concept of
good faith applies to the exercise of such broad powers, and to two judg-
ments of its own as affirming the competence of the Court when faced
with treaty provisions giving wide discretion (Judgment, para. 145). The
limited extent of that power, as understood by the Court, appears clearly
from its consideration of the reasons given by the judge for her conclu-
sion that transmitting the file would be “‘contrary to the essential inter-
ests of France’” : in the Court’s words, “the file contained declassified

105

279          QUESTIONS OF MUTUAL ASSISTANCE (DECL. KEITH)

‘defence secret’ documents, together with information and witness state-
ments in respect of another case in progress”. To support that conclu-
sion, the Court does no more than quote six sentences from the judge’s
reasons which appear to relate only to the declassified documents and not
at all to the other “case in progress” (Judgment, para. 147). The Court
also mentions the question whether part of the file could have been
handed over, but that, as it indicates, is not a matter which the judge
addresses in her reasons (ibid., para. 148). Before I consider her reasons,
I supplement the Court’s discussion of the law relevant to the exercise of
such broadly worded powers.

   5. The two decisions of the Permanent Court of International Justice
to which the Court refers support not only absence of good faith but also
abuse of rights as a restraint on the exercise by a State of a power con-
ferred on it by a treaty. This Court in the Admissions opinion in 1948
similarly said that, while Article 4 of the Charter of the United Nations
exhaustively prescribes the conditions for the admission of new Mem-
bers, that provision did not “forbid the taking into account of any factor
which it is possible reasonably and in good faith to connect with [those]
conditions” ; further, Article 4 allowed for “a wide liberty of apprecia-
tion” (Conditions of Admission of a State to Membership in the United
Nations (Article 4 of the Charter), Advisory Opinion, 1948, I.C.J. Reports
1947-1948, pp. 63-64 ; see also the joint dissenting opinion, pp. 91-92,
para. 20). And counsel for France accepted that the principles of abuse of
rights and misuse of power (abus de droit and détournement de pouvoir)
may be relevant to the exercise of the power in issue in this case. The
Agent added that, while the requested State retains for itself a wide dis-
cretion, this in no way means that States indiscriminately invoke these
derogation clauses ; it is moreover obvious, she said, that the notion of
essential interests remains very narrow, as the words themselves indicate.

   6. I now consider the reasons given by the judge in her soit-transmis
against the principles of good faith, abuse of rights and détournement de
pouvoir. Those principles require the State agency in question to exercise
the power for the purposes for which it was conferred and without regard
to improper purposes or irrelevant factors. In the words of the Court in
Gabčikovo-Nagymaros Project (Hungary/Slovakia) the good faith obli-
gation reflected in Article 26 of the Vienna Convention “obliges the
Parties [to a treaty] to apply it in a reasonable way and in such a manner
that its purpose can be realized” (Judgment, I.C.J. Reports 1997, p. 79,
para. 142). (The International Law Commission similarly states in its
commentary to what became Article 26 of the Vienna Convention that it
is implicit in the requirement of the good faith application of treaty obli-
gations that a party must abstain from acts calculated to frustrate the
object and purpose of the treaty (Yearbook of the International Law

106

280           QUESTIONS OF MUTUAL ASSISTANCE (DECL. KEITH)

Commission, 1966, Vol. II, p. 211, para. 4 ; see also the other authorities
cited in paragraph 2). The general purpose of the 1986 Convention is
indicated by its Article 1 : the Parties are to afford each other, in accord-
ance with the provisions of the Convention, the widest measure of judi-
cial assistance in criminal matters. Among the relevant provisions of the
Convention are Articles 2 and 3, the latter of which regulates in part the
obligation to respond to letters rogatory. In relation to Article 3, the
Court, as it says, cannot question the decision of the competent French
court that under French law it is the investigating judge who has the
determinative role (Judgment, para. 146). That brings the matter back to
Article 2 (c), for the investigating judge cites no other provision to justify
her refusal, and to the reasons which she gives in her soit-transmis for
that refusal.

   7. Did the judge in her soit-transmis have regard to matters not within
the scope of Article 2 (c) in breach of the principles of law mentioned
above ? In two respects, she appears to have done that. First, the judge
says that the October 2004 opening of the investigation by Djibouti
“appears to be an abuse of process” ; this may well have been a reason for
her saying in 2005, as she had said in 2004, that the request did not con-
form with the Convention in terms of its statement of the object of and
reason for the request, a requirement specifically laid down in Article 13
of the Convention ; but the ground on which she is depending for refusing
the request is rather that she has reason under Article 2 (c) to take that
action. In my view this appears to be an abuse of power or a détournement
de pouvoir — an exercise of the power for wrong reasons and a thwarting
of the purpose of the Convention. Second, the judge refers to the refusal
of one of the Djibouti officials to respond to a witness summons. That is
again a matter that has nothing to do with Article 2 (c), and again is an
apparent abuse of power.
   8. I say that in those two respects the judge “appears” to have refused
to exercise the power for the wrong reasons, outside the scope of Arti-
cle 2 (c), since it may be that she sets out those two matters simply as
part of the narrative. It is definitely the case however that in the final part
of the soit-transmis the judge not only returns to the requirement of Arti-
cle 13 but links it to the power of the requested State under Article 2 (c) :

        “Moreover, while Article 13 (b) of the Convention . . . states that
      requests for assistance must indicate the object of and the reason for
      the request, which was not done in the present case, Article 2 (c) of
      the Convention also provides that the requested State may refuse a
      request for mutual assistance if it considers that execution of the
      request is likely to prejudice its sovereignty, its security, its ordre
      public or others of its essential interests.

107

281           QUESTIONS OF MUTUAL ASSISTANCE (DECL. KEITH)

        That is the case with regard to transmission of the record of our
      proceedings.” (Emphasis added.)
The judge, having recalled in the next three sentences that certain docu-
ments which had earlier been classified as “defence secrets” had been
declassified and had been transmitted to her, concludes as follows :
         “To accede to the Djiboutian judge’s request would amount to an
      abuse of French law by permitting the handing over of documents
      that are accessible only to the French judge.
         Handing over our record would entail indirectly delivering French
      intelligence service documents to a foreign political authority.

         Without contributing in any way to the discovery of the truth,
      such transmission would seriously compromise the fundamental
      interests of the country and the security of its agents.”
It is striking that in that passage the judge makes no assessment at all, in
terms of Article 2 (c), of the likely prejudice that the release of the par-
ticular declassified documents would present to national security.
Although she knows those documents and it is she who, under French
law, is to make the definitive determination, she makes that determina-
tion only in the most general terms, without drawing in any express way
on her particular knowledge. The documents had been declassified, and,
in terms of the judge’s reference to the threat to “security of . . . agents”
resulting from the transmission of the file, the identity of the authors of
certain documents was, as appropriate, to be protected in terms of the
declassification ruling of the advisory committee (see its Avis 2004-12 of
2 December 2004 relating to 13 of the documents).

   9. Moreover, to return to a point which the Court raises (Judgment,
para. 148 and see para. 4 above), the judge gives no indication of why it
would not be enough to withhold just the 25 declassified documents (con-
sisting of about 50 pages) which she identifies and why the totality of the
35 volumes of the record must be withheld. It is significant in that respect
that in a letter of 6 January 2005, the Minister of Defence had indicated
that he was not opposed to the partial handing over of the file (see para-
graphs 26 and 37 of the Judgment). The judge does not say, as counsel
for France does, consistently with France’s Counter-Memorial, that the
entire file in those volumes is rife (irrigué) with the sensitive information ;
but that counsel frankly informed the Court that he had not seen the
notes in question. On what basis then could he argue that the record was
permeated by the declassified documents ? Nor does the judge call atten-
tion to the fact, as counsel for France informed the Court, that Djibouti’s
request of seeking the whole file was particularly rare. Given that usual
practice, the presence of only 25 sensitive documents from the bulky file,
and given the purpose of the Convention, this appears to be a plain case

108

282          QUESTIONS OF MUTUAL ASSISTANCE (DECL. KEITH)

for the judge to suggest to the Djiboutian authorities that they reconsider
the scope of their request. In failing to address expressly those two alter-
native methods of affording Djibouti the widest measure of judicial
assistance in terms of Article 1 of the Convention, while protecting the
interests stated in Article 2 (c), the judge has not, in my view, had proper
regard to the purpose of the Convention. This conclusion is supported by
the ruling of the Court, with which I agree, that the Convention is to be
interpreted and applied in a manner which takes into account the friend-
ship and co-operation which the two States posited as the basis of their
mutual relations in the Treaty of 1977 (Judgment, para. 113 ; see also
para. 114).

   10. It may be countered that the examination of the soit-transmis
which I have undertaken in paragraphs 7 to 9 above is not appropriate,
given the extent of the power conferred by Article 2 (c), the nature of a
State’s assessment under that provision of its national interests and the
need to defer in the usual case to that assessment. Two responses may be
given. The first is that the examination does not in any way question the
substantive assessment by the requested State of likely prejudice to its
national interests. The examination is much more confined and directed
to a distinct matter — the purpose of the Convention under which the
power is to be exercised. It does not involve any attempt to assess and
weigh the matters covered by Article 2 (c). The second response relates
to the obligation, set out in Article 17, of a State refusing a request to
give reasons to the requesting State. Such an obligation has several pur-
poses : it places a discipline on the decision maker refusing a request
under Article 2 or any other relevant provision of the Convention includ-
ing Articles 1 (2), 10 or 13 ; the reasons inform the requesting State
whether the power has been properly exercised in accordance with the
law ; and the statement may enable the requesting State to take follow-up
steps to repair any flaw in its request, as the Court says in its Judgment
(paragraph 152 ; see also paragraph 9 above). I should add that, while the
two Parties did not approach the case exactly in the way I have, both
accepted that the power conferred by Article 2 on the requested State was
subject to some limits and addressed the elements discussed above.

   11. It does not follow that, because France, in my view, has not com-
plied with the Convention in making its decision under Article 2 (c), it is
obliged to transmit the file either in whole or within the terms and con-
ditions determined by the Court, as requested by Djibouti in its final sub-
missions. On the contrary, as I see the matter, France has yet to make a
decision, in accordance with the law, in response to the letter rogatory,
on the substance of the issues presented by the request and in particular
by Article 2 (c) of the Convention. For me, one fact is very significant in

109

283          QUESTIONS OF MUTUAL ASSISTANCE (DECL. KEITH)

determining what remedy, if any, would have been appropriate in respect
of that failure. That fact is the failure of Djibouti, following the receipt
by its Foreign Minister of the letter of 6 June 2005 from the French
ambassador communicating France’s refusal to comply with the request,
to take any action at all to seek the reversal or the elucidation of that
refusal. That was so, as the Court recalls (Judgment, paras. 30 and 144),
although the Minister, only 20 days earlier, had complained to the
Ambassador that France had not yet honoured “its commitments”, as he
put it, given in the letter of 27 January 2005, to hand over the file. That
failure, taken with the passage of time, would in my view have led to the
denial of any positive remedies such as those claimed by Djibouti in its
final submissions in respect of the French refusal.

                                              (Signed) Kenneth KEITH.

110


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

NORTH SEA CONTINENTAL SHELF CASE
(DENMARK/FEDERAL REPUBLIC OF GERMANY)

ORDER OF 8 MARCH 1967

1967

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DU PLATEAU CONTINENTAL
DE LA MER DU NORD

(DANEMARK/REPUBLIQUE FEDERALE D’ALLEMAGNE)

ORDONNANCE DU 8 MARS 1967
Official citation:

North Sea Continental Shelf (Denmark/Federal Republic of Germany),
Order of 8 March 1967, I.C.J. Reports 1967, p. 3

Mode officiel de citation:

Plateau continental de la mer du Nord (Danemark/République fédérale
d’ Allemagne), ordonnance du 8 mars 1967, C.I.J. Recueil 1967, p. 3.

Ne de vente: 309

1967
8 March
General List:
No. 51

INTERNATIONAL COURT OF JUSTICE

YEAR 1967

8 March 1967

NORTH SEA CONTINENTAL SHELF CASE

(DENMARK/FEDERAL REPUBLIC OF GERMANY)

ORDER

The Judge discharging the duties of President of the International
Court of Justice under Article 12 of the Rules of Court,

Having regard to Articles 40 and 48 of the Statute of the Court and
to Articles 32 and 37 of the Rules of Court,

Whereas, by a letter of 16 February 1967, received in the Registry on
20 February 1967, the Minister of Foreign Affairs of the Kingdom of the
Netherlands transmitted to the Registrar an original copy, signed at
Bonn on 2 February 1967 for the Government of the Kingdom of Den-
mark and the Government of the Federal Republic of Germany, of a
Special Agreement for the submission to the International Court of
Justice of a difference between Denmark and the Federal Republic of
Germany concerning the delimitation, as between Denmark and the
Federal Republic of Germany, of the continental shelf in the North Sea;

Whereas the Netherlands Minister of Foreign Affairs also attached to
his letter an original copy, signed at Bonn on 2 February 1967 for the
Governments of Denmark, the Federal Republic of Germany and the
Netherlands, of a Protocol in which provision is made for the notification
by the Netherlands Government of the said Special Agreement to the
International Court of Justice;

Whereas Article 3 of the Special Agreement provides for its entry into
force on the day of signature thereof;

4
4 NORTH SEA CONTINENTAL SHELF (ORDER OF 8 IIT 67)

Whereas, by letters dated 20 February 1967, the Governments of
Denmark and the Federal Republic of Germany were duly informed of
the notification of the Special Agreement;

Whereas, by a letter of 22 February 1967, the Danish Ambassador to
the Netherlands informed the Registrar of the appointment of Mr. Bent
Jacobsen, barrister at the Supreme Court of Denmark, as Agent of
Denmark;

Whereas, by a letter of 1 March 1967, the Ambassador of the Federal
Republic of Germany to the Netherlands informed the Registrar of the
appointment of Professor Dr. Giinther Jaenicke, of the Johann Wolfgang
Goethe University, as Agent of the Federal Republic of Germany;

Whereas Article 2 of the Special Agreement recites the agreement of
the Parties that, without prejudice to any question of burden of proof
which might arise, written pleadings should be presented to the Court in
the order stated below:

(1) a Memorial of the Federal Republic of Germany to be submitted
within six months from the notification of the Special Agreement;

(2) a Counter-Memorial of Denmark to be submitted within six months
from the delivery of the German Memorial;

(3) a German Reply followed by a Danish Rejoinder to be delivered
within such time-limits as the Court may order;

Taking this agreement into account, as provided for by paragraph 3
of Article 37 of the Rules of Court,

Fixes 21 August 1967 as the time-limit for the filing of the Memorial
of the Federal Republic of Germany and 20 February 1968 as the time-
limit for the filing of the Counter-Memorial of Denmark:

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 eighth day of March, one thousand
nine hundred and sixty-seven, 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 Kingdom of Denmark and to the Government of the Federal
Republic of Germany respectively.

(Signed) Gerald FITZMAURICE,
Discharging the duties of President.

| (Signed) S. AQUARONE,
Registrar.


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING
ELETTRONICA SICULA S.p.A. (ELSI)

(UNITED STATES OF AMERICA v. ITALY)

ORDER OF 20 DECEMBER 1988
COMPOSITION OF CHAMBER

1988

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE
DE L’ELETTRONICA SICULA S.p.A. (ELSI)

(ÉTATS-UNIS D’AMERIQUE c. ITALIE)

ORDONNANCE DU 20 DÉCEMBRE 1988

COMPOSITION DE LA CHAMBRE
Official citation :

Elettronica Sicula S.p.4. (ELSI),
Composition of Chamber, Order of 20 December 1988,
C.J. Reports 1988, p. 158.

Mode officiel de citation :

Elettronica Sicula S.p.A. (ELST),
composition de la Chambre, ordonnance du 20 décembre 1988,
C.LJ. Recueil 1988, p. 158.

Sales number 5 48
N° de vente : d

158

COUR INTERNATIONALE DE JUSTICE

ANNEE 1988 1988
‘ 20 décembre
Rôle général
20 décembre 1988 n° 76
AFFAIRE

DE L’ELETTRONICA SICULA S.p.A. (ELSI)

(ETATS-UNIS D’AMERIQUE c. ITALIE)

ORDONNANCE

COMPOSITION DE LA CHAMBRE

Présents: M. Rupa, Président; M. MBAYE, Vice-Président; MM. Lacus,
Opa, AGO, SCHWEBEL, sir Robert JENNINGS, MM. BEDJAOUI, Ni,
EVENSEN, TARASSOV, GUILLAUME, SHAHABUDDEEN, juges;
M. VALENCIA-OSPINA, Greffier.

La Cour internationale de Justice,

Ainsi composée,
Après délibéré en chambre du conseil,

Vu Particle 26, paragraphe 2, de son Statut et les articles 17, 18 et 31 de
son Règlement,

Vu l’ordonnance de la Cour en date du 2 mars 1987, par laquelle elle a
notamment déclaré dûment constituée pour connaître de Paffaire de
l’Elettronica Sicula S.p.A. (ELSI la Chambre composée comme ci-après :
M. Nagendra Singh, président de la Chambre; MM. Oda, ; Ago, Schwebel
et sir Robert Jennings, juges;

Considérant que M. Nagendra Singh, président de la Chambre, est
décédé le 11 décembre 1988;

Considérant que les Parties ont été de nouveau consultées au sujet de la

4
ELETTRONICA SICULA (ORDONNANCE 20 XII 88) 159

composition de la Chambre, conformément à l’article 17, paragraphe 2,
du Règlement de la Cour;

Déclare:

1) que lors d’une élection tenue le 20 décembre 1988 M. Ruda a été élu
membre de la Chambre pour occuper le siège devenu vacant à la suite
du décès de M. Nagendra Singh;

2) qu’à la suite de cette élection la Chambre se trouve ainsi composée:

M. Ruda, président de la Chambre,
MM. Oda,
Ago,
Schwebel,
sir Robert Jennings, juges.

Fait en anglais et en français, le texte anglais faisant foi, au palais de la
Paix, à La Haye, le vingt décembre mil neuf cent quatre-vingt-huit, en trois
exemplaires, dont l’un restera déposé aux archives de la Cour et les autres
seront transmis respectivement au Gouvernement des Etats-Unis d’Amé-
rique et au Gouvernement italien.

Le Président,
(Signé) José Maria RuDA.

Le Greffier,
(Signé) Eduardo VALENCIA-OSPINA.


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

APPLICABILITY OF ARTICLE VI, SECTION 22,
OF THE CONVENTION ON THE PRIVILEGES
AND IMMUNITIES OF THE
UNITED NATIONS

(REQUEST FOR ADVISORY OPINION)

ORDER OF 14 JUNE 1989

1989

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

APPLICABILITE
DE LA SECTION 22 DE L’ARTICLE VI
DE LA CONVENTION SUR LES PRIVILEGES
ET IMMUNITES DES NATIONS UNIES

(REQUETE POUR AVIS CONSULTATIF)

ORDONNANCE DU 14 JUIN 1989
Official citation :

Applicability of Article VI, Section 22, of the Convention
on the Privileges and Immunities of the United Nations,
Order of 14 June 1989, I.C.J. Reports 1989, p. 9.

Mode officiel de citation :

Applicabilité de la section 22 de l'article VI de la convention
sur les priviléges et immunités des Nations Unies,
ordonnance du 14 juin 1989, C.I.J. Recueil 1989, p. 9.

Sales number 5 5 2
N° de vente :

INTERNATIONAL COURT OF JUSTICE

1989 YEAR 1989
14 June
General List
No. 81 14 June 1989

APPLICABILITY OF ARTICLE VI, SECTION 22,
OF THE CONVENTION ON THE PRIVILEGES
AND IMMUNITIES OF THE
UNITED NATIONS

(REQUEST FOR ADVISORY OPINION)

ORDER

The President of the International Court of Justice,

Having regard to Article 66, paragraph 2, of the Statute of the Court,

Whereas on 24 May 1989 the United Nations Economic and Social
Council adopted the folowing resolution (resolution 1989/75):

“The Economic and Social Council,

Having considered resolution 1988/37 of 1 September 1988 of the
Sub-Commission on Prevention of Discrimination and Protection of
Minorities and Commission on Human Rights resolution 1989/37 of
6 March 1989,

1. Concludes that a difference has arisen between the United Na-
tions and the Government of Romania as to the applicability of the
Convention on the Privileges and Immunities of the United Nations
[General Assembly resolution 22 A (I)] to Mr. Dumitru Mazilu as
Special Rapporteur of the Sub-Commission on Prevention of Dis-
crimination and Protection of Minorities;

2. Requests, on a priority basis, pursuant to Article 96, para-
graph 2, of the Charter of the United Nations and in accordance with
10 PRIVILEGES AND IMMUNITIES (ORDER 14 VI 89)

General Assembly resolution 89 (I) of 11 December 1946, an advisory
opinion from the International Court of Justice on the legal question
of the applicability of Article VI, Section 22, of the Convention on the
Privileges and Immunities of the United Nations in the case of
Mr. Dumitru Mazilu as Special Rapporteur of the Sub-Commis-
sion”;

Whereas certified true copies of the English and French texts of that
resolution were transmitted to the Court by a letter from the Secretary-
General of the United Nations dated 1 June 1989, and received in the
Registry on 13 June 1989;

Whereas in fixing time-limits for the proceedings, it is necessary to
bear in mind that the request for opinion was expressed to be made “ona
priority basis”,

Decides that the United Nations and the States which are parties to the
Convention on the Privileges and Immunities of the United Nations are
likely to be able to furnish information on the question submitted to the
Court for advisory opinion;

Fixes 31 July 1989 as the time-limit within which written statements
may be submitted to the Court in accordance with Article 66, paragraph 2,
of the Statute of the Court;

Fixes 31 August 1989 as the time-limit within which States and orga-
nizations having presented written statements may submit written
comments on other written statements, in accordance with Article 66,
paragraph 4, of the Statute of the Court;

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 fourteenth day of June, one thousand
nine hundred and eighty-nine.

(Signed) José Maria RUDA,
President.

(Signed) Eduardo VALENCIA-OSPINA,
Registrar.