                                                                           153

                DECLARATION OF JUDGE ABRAHAM

[Translation]
  I have some reservations about how the Advisory Opinion deals with
the principle of “territorial integrity” in the context of the decolonization
process. This question is addressed in paragraphs 153 to 160 of the Advi-
sory Opinion. The Court’s discussion of it is, in my view, somewhat
ambiguous. For this reason, I wish to set out below my opinion on this
subject.

   I agree, in principle, with the idea that respect for the territorial integ-
rity of a non-self-governing territory is “a corollary of the right to self-
determination”, as asserted in paragraph 160 of the Opinion. However,
this is only the case — at least indisputably and by reference to the rele-
vant time, i.e. 1965-1968 — if the colonial Power’s obligation to respect
the “territorial integrity” of the territory concerned is given the following
scope. What this obligation seeks to prevent is amputation of part of the
territory under colonial administration by a unilateral decision of the
administering Power, at the time of or in the period immediately preced-
ing that territory’s accession to independence, for the sake of convenience,
for strategic or military interests, or, more generally, because of the polit-
ical or economic interests of the colonial Power itself.

   The Court should have stopped there, venturing no further than the
above deﬁnition, which provides suﬃcient legal basis for it to respond to
the questions before it in the present case, once it found that the detach-
ment of the Chagos Archipelago “was not based on the free and genuine
expression of the will” of the Mauritian people, as noted in paragraph 172.
Indeed, it having been established that the people of Mauritius as a whole
did not give their consent (since that consent was not given in due and
proper form) and since the British authorities at no point sought to ascer-
tain the will of the population of the Chagos Islands itself, the fact
remains that the detachment of the Chagos Archipelago arose from a uni-
lateral decision of the administering Power, motivated by the pursuit of
political, strategic or military advantage.
   The Advisory Opinion appears to go beyond that, however, by employ-
ing, in paragraph 160, general and abstract formulations which could be
understood as giving the principle of “territorial integrity” a near abso-
lute scope, which, in my view, at least under customary international law
as it existed at the relevant time, would be highly questionable.

   The issue is the following. We know that the boundaries of colonial
territories (administrative boundaries separating entities subject to the

                                                                            62

               separation of the chagos (decl. abraham)                   154

same sovereign) were deﬁned, by the colonial Powers, somewhat arbi-
trarily in certain cases, sometimes for the sake of administrative con-
venience, sometimes for strategic or other such reasons. There was thus
no guarantee that the population of a colonial entity was suﬃciently homo-
genous to be animated by a clear common will when it came to deciding
its future.

   In the case of Mauritius, for example, while it is true that the Chagos
Archipelago always formed part of the colony of Mauritius from the lat-
ter’s cession to the United Kingdom in 1814 until 1965, the geographical
boundaries of the colonial entity composed of “the island of Mauritius
and its dependencies” varied over time, by decision of the British Govern-
ment. The Seychelles Islands were detached from Mauritius to form a
separate colony in 1903 and, in the years that followed, other islands were
detached from the colony of Mauritius to be included in the new colony
of Seychelles. Many other examples could be drawn from colonial his-
tory, and not only that of the United Kingdom, to illustrate the rather
ﬂuid character of colonial boundaries.

   It could therefore happen — and in fact did happen in several cases —
that the populations of various geographical subunits within a single
colonial entity (according to the boundaries ﬁxed by the administering
Power) might express diﬀerent preferences in the course of the decoloni-
zation process. I doubt that in such a circumstance the colonial Power
had an obligation to accede to diﬀering requests originating from the
various geographical subunits concerned. But I also doubt, and even
more so, that by acceding to them — by agreeing, for example, to parti-
tion a territory because the population of a subunit of that territory had
clearly and freely expressed its will not to take the same path as the rest
of the territory — the colonial Power could be regarded as having
breached its obligations under customary international law, on the
grounds that it had violated the principle of the “territorial integrity”
of the territories under colonial administration. I believe this would
be to give too broad a scope to that principle. As I said earlier, it undoubt-
edly aims to prevent the arbitrary break-up of a territory (i.e. dictated
solely by the interests of the colonial Power). It cannot, in my view,
preclude taking into account, when the particular circumstances so
warrant, the freely expressed will of the diﬀerent components of the pop-
ulation of that territory, even if that leads to partition as a solution.
It would, moreover, be paradoxical for the principle of the right of
peoples to self-determination enshrined in the Charter — the very
foundation of the entire legal ediﬁce relating to decolonization that has
been constructed over decades — ultimately to be used as an argument
against taking account of the genuine and freely expressed will of the
populations concerned. This would be to regard territory as being
sacred in some way, its indivisibility taking precedence over the will of the
people.

                                                                           63

               separation of the chagos (decl. abraham)                   155

   An examination of State practice and the opinio juris at the relevant
time conﬁrms the foregoing conclusion under customary international
law (the only law on which the Court may base its Advisory Opinion in
these proceedings). In several cases, it has happened that various subunits
of a single colonial entity — as delimited by the administering Power dur-
ing the period preceding accession to independence — have taken diﬀer-
ent paths during the decolonization process without this being contested,
sometimes (as in the case of the British colony of the Gilbert and Ellice
Islands in 1974) even with the co-operation of the competent organs of
the General Assembly. Moreover, following the adoption of resolu-
tion 1514 (XV) of 14 December 1960, which, as the Court rightly notes,
represented a “deﬁning moment” in the evolution of the customary inter-
national law on decolonization (para. 150), the General Assembly, in the
series of resolutions it adopted on this question between 1966 and 1974,
consistently referred to the “territorial integrity” of colonial entities. But
it generally did so by tying “territorial integrity” to “national unity” and,
frequently, to the condemnation of the establishment by administering
Powers of military bases on the territories concerned (see, for example,
resolution 2232 (XXI) of 20 December 1966, cited in paragraph 35 of the
Advisory Opinion). The adoption of these resolutions does not, in my
view, indicate that States espoused an absolutist conception of the prin-
ciple of territorial integrity, which would preclude the partition of a colo-
nial territory during the independence process when such a partition
allows the freely expressed will of the populations concerned to be taken
into account. This is the case even if the partition is not approved by the
majority of the population of the colonial territory taken as a whole.
We know that the British authorities at no point consulted or even, it
would appear, contemplated consulting the inhabitants of the Chagos
Archipelago. If such a consultation had taken place, and the Chagossian
people had expressed their free and informed will not to be integrated
into the new independent State of Mauritius, the parameters of the ques-
tion submitted to the Court would, in my view, have been substantially
diﬀerent.

                                             (Signed) Ronny Abraham.

                                                                           64


533

SEPARATE OPINION OF JUDGE SIR ROBERT JENNINGS

Whilst agreeing with the Court’s decision that it has jurisdiction under
the 1956 Treaty of Friendship, Commerce and Navigation, in respect of
any breaches of the provisions of that Treaty, and that such claims are also
admissible, I regret that I am unable to concur with the Court’s decision
that it has jurisdiction under Article 36, paragraph 2, of the Court’s Statute.
I shall explain my reasons, as briefly as may be.

First I shall consider whether the Nicaraguan Declaration of 24 Sep-
tember 1929 is, by operation of Article 36, paragraph 5, of the Statute of
this Court, to be deemed to be an acceptance of the compulsory jurisdic-
tion of this Court ; second, I shall consider the effect of the United States
letter to the Court (the “Shultz letter” of 6 April 1984 ; third, the effect of
the United States multilateral treaty reservation ; and lastly, the position
under the Friendship, Commerce and Navigation Treaty.

ek

I. THE NICARAGUAN DECLARATION OF 24 SEPTEMBER 1929

The question here is whether the Nicaraguan Declaration of 24 Sep-
tember 1929, accepting “unconditionally” the compulsory jurisdiction of
the Permanent Court of International Justice is to be counted as one
coming within Article 36, paragraph 5, of the present Court’s Statute.

In order to be a party to the Statute of the Permanent Court of Inter-
national Justice it was necessary both to sign and to ratify the Protocol of
Signature of the Statute (see P.C.L.J., Series D, No. 6, p. 19). Nicaragua has
formally admitted in its Memorial (para. 47) that, although it was a
signatory of the Protocol, it “never completed ratification of the old
Protocol of Signature .. .”. The finding of the Court in its Judgment is to
the same effect. So Nicaragua, it must be assumed, was never a party to the
Statute of the Permanent Court.

To appreciate the full significance of this failure to ratify the Protocol of
Signature of the Statute of the Permanent Court of International Justice, it
is necessary to examine the form and content of the instrument by which
that Court was established (the most convenient reference for consulting
the essential portions of them is probably P.C1J., Series D, No. 5,
pp. 58-62).

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534 MILITARY AND PARAMILITARY ACTIVITIES (SEP. OP. JENNINGS)

A resolution, of 13 December 1920, of the First Assembly of the League
of Nations, approved the Statute of the Court, prepared by the Council in
accordance with Article 14 of the League of Nations Covenant, and
recorded that the Statute would be submitted to Members of the League
“for adoption in the form of a Protocol duly ratified and declaring their
recognition of this Statute”. The Statute would enter into force as soon as it
had been ratified by a majority of the Members of the League. The Statute
of the Court was thus integral with the Protocol, the purpose of which was
precisely to be the vehicle of adoption of the Statute by Members of the
League. The Protocol of Signature is dated 16 December 1920. By it, the
signatories recognized the Statute of the Court. The Protocol refers to the
resolution of 13 December, and provides :

“The present Protocol, which has been drawn up in accordance
with the decision taken by the Assembly of the League of Nations on
the 13 December, 1920, is subject to ratification. Each Power shall
send its ratification to the Secretary-General of the League of
Nations ; the latter shall take the necessary steps to notify such
ratification to the other signatory Powers. The ratification shall be
deposited in the archives of the Secretariat of the League of
Nations.”

Next it is important to realize that Article 36 of the Statute, which then
as now was the jurisdictional article, contained, beginning with its second
(but then unnumbered) paragraph the following clause concerning “Op-
tional Clause” jurisdiction, which is obviously the progenitor of the pres-
ent Article 36, but also somewhat differently worded, not least in its
reference to joinder to the Protocol.

“The Members of the League of Nations and the States mentioned
in the Annex to the Covenant may, either when signing or ratifying the
Protocol to which the present Statute is adjoined, or at a later
moment, declare that they recognize as compulsory ipso facto and
without special agreement, in relation to any other Member or State
accepting the same obligation, the jurisdiction of the Court in all or
any of the classes of legal disputes concerning :

(a) The interpretation of the treaty.
(b) Any question of international law.
(c) The existence of any fact which, if established, would constitute a
breach of an international obligation.
(d) The nature or extent of the reparation to be made for the breach of
an international obligation.
The declaration referred to above may be made unconditionally or
on condition of reciprocity on the part of several or certain Members

or States, or for a certain time.
In the event of a dispute as to whether the Court has jurisdiction,

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535 MILITARY AND PARAMILITARY ACTIVITIES (SEP. OP. JENNINGS)

the matter shall be settled by the decision of the Court.” (Collection of
Texts Governing the Jurisdiction of the Court, P.C.I.J., Series D, No. 5,

p. 61.)

But in addition to the second paragraph of Article 36 there was, as part
of this same instrument containing the Protocol and the Statute, and set
out as a separate item, a “disposition facultative”. In other words, there
was an actual “Optional Clause”, which parties could sign if they so
desired. This of course is why one still speaks of the “Optional Clause” as a
loose way of referring to jurisdiction under the present Article 36, para-
graph 2, even though the actual Optional Clause is now in the past.

The disposition facultative, or Optional Clause, provided :

“The undersigned, being duly authorized thereto, further declare,
on behalf of their Government, that, from this date, they accept as
compulsory ipso facto and without special convention, the jurisdiction
of the Court in conformity with Article 36, paragraph 2, of the Statute
of the Court, under the following conditions : [Here follow the decla-
rations made by the signatories].”

There were thus two things normally done by a State subscribing to
compulsory jurisdiction : the signing of the declaration set out in standard
form in the Optional Clause, and the adding of any needed declaration
saying whether the undertaking was unconditional or subject to stated
reservations. In a few cases the signing of the Optional Clause itself was
made by the State concerned, subject to a ratification. But this was not
required !. It sufficed to sign the Clause and of course to ratify signature of
the Protocol, to which both Statute and Optional Clause were joined to
form the one instrument. But a State which signed and ratified the Pro-
tocol, though it became thus a party to the Statute, did not subject itself to
compulsory jurisdiction unless at some time it signed the Optional Clause.
Nicaragua signed the Protocol on 14 September 1929 (together with the
Revision Protocol), and the signing of the Optional Clause was of course 24
September. She never, however, ratified the Protocol.

The signing of the “Optional Clause” of the Protocol and Statute of the
Permanent Court was something rather different, as has been seen, from
the making of a declaration under Article 36 of the Statute of the Inter-
national Court of Justice. The latter declaration is a quite separate instru-
ment which is to be deposited with the Secretary-General of the United

1 See Table on page 55 of the P.C.LJ., Series D, No. 6: note 2 to the column for
ratification of a declaration, states, “La ratification n’est en effet pas exigée par le texte
de la Disposition facultative”.

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536 MILITARY AND PARAMILITARY ACTIVITIES (SEP. OP. JENNINGS)

Nations, “who shall transmit copies thereof to the parties to the Statute
and to the Registrar of the Court”.

*  %

The question, therefore, is whether Article 36, paragraph 5, of the
present Court’s Statute had the effect of transferring to the new Court,
Nicaragua’s subscription to the Optional Clause of the Protocol of Sig-
nature and the Statute of the Permanent Court, which entire instrument
required ratification ; but which was never ratified, with the admitted
consequence that Nicaragua never became obligated by the compulsory
jurisdiction of the Permanent Court ?

The answer would seem to be placed beyond doubt according to the
English text of Article 36, paragraph 5, which is :

“Declarations made under Article 36 of the Statute of the Perma-
nent Court of International Justice and which are still in force shall be
deemed, as between the parties to the present Statute, to be accep-
tances of the compulsory jurisdiction of the International Court of
Justice for the period which they still have to run and in accordance
with their terms.”

Thus the declarations which are by that provision to be deemed to be
acceptances of the compulsory jurisdiction of the new Court are those
“which are still in force”. And since the Nicaraguan Declaration was never
“in force” in respect of the old Court, it would seem to follow that it cannot
be held to be “still in force” for the purposes of Article 36, paragraph 5.

Furthermore, this result is in conformity with what the preparatory work
shows to have been the purpose and intention of the provision. The
provision, as is well known, was the result of a British proposal made in,
and accepted by, a subcommittee of the Committee of Jurists which met in
Washington in 1945. The very expert subcommittee (Fahy, Fitzmaurice,
Krylov, Novikov, Spiropoulos) reported as follows :

“The subcommittee calls attention to the fact that many nations
have heretofore accepted compulsory jurisdiction under the ‘Optional
Clause’. The subcommittee believes that provision should be made at
the San Francisco Conference for a special agreement for continuing
these acceptances in force for the purpose of this Statute.” (UNCIO,
Vol. XIV, p. 289.)

The proposal, therefore, was to achieve the transfer, that is to say the
continuity, of already existing obligations. It could hardly be expected to
have been otherwise ; certainly not to create a new obligation where none
existed before.

This purpose was faithfully pursued at San Francisco, where the present
text of Article 36, paragraph 5, reproduced above, eventually emerged as a
part of the Statute of the Court.

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537 MILITARY AND PARAMILITARY ACTIVITIES (SEP. OP. JENNINGS)

The Language Question

Article 36, paragraph 5, necessarily appears in the five equally authentic
languages of the United Nations Charter, Chinese, English, French, Rus-
sian and Spanish (Art. 111). The Chinese, Russian and Spanish versions
apparently translate the English formulation of the criterion of transfer,
viz. “and which are still in force ...”. The French text was, of course,
drafted alongside the English text at San Francisco. Nevertheless, the final
version of Article 36, paragraph 5, both French and English, was proposed
by the French delegation at the 19th meeting of the committee on 7 June,
when the committee adopted what are now the French and English texts of
the Article (UNCIO, Vol. XIII, pp. 485 and 486). In this final French
proposal, the English “which are still in force” remained, but there was an
alteration of the French version of that phrase. Since the Court’s Judgment
apparently finds this change in the language of the French version, sig-
nificant, itis necessary briefly to examine this final variation of the French
text. The change proposed by the French delegation, to the French text,
was this: where the original French text used the phrase “encore en
vigueur” to correspond to the English “still in force”, the proposal was to
substitute “pour une durée qui n’est pas encore expirée” for “encore en
vigueur”. According to the official report of the meeting :

“The French Representative stated that the changes suggested by
him in paragraph 4 [as Art. 36, par. 5, then was] were not substantive
ones, but were intended to improve the phraseology.” (bid,
p. 284.) 7

The text, both in English and French, of Article 36, paragraph 5, was then
unanimously adopted.

The statement of the French representative that the change was con-
cerned with phraseology and was not substantive must of course be
accepted. Moreover, the French proposal was introduced by the French
delegation coupled with and alongside the English version using “still in
force”. If it were possible that the two texts were capable of different
meanings, the rule in Article 33, paragraph 4, of the Vienna Convention on
the Law of Treaties requires that : “the meaning which best reconciles the
texts, having regard to the object and purpose of the treaty, shall be
adopted”. It is not possible to reconcile this requirement with any solution
which seeks to give a special meaning to the French text, which meaning
cannot be collected from the Chinese, the English, the Russian and the
Spanish.

It is interesting nevertheless to speculate on the question why the French
delegation at San Francisco, in seeking the French equivalent of “still in
force”, eventually preferred “pour une durée qui n’est pas encore expirée”
to the simple “en vigueur” which is used in the immediately following
Article 37 of the Statute as equivalent to the English “in force” (in this case

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538 MILITARY AND PARAMILITARY ACTIVITIES (SEP. OP. JENNINGS)

of course referring not to declarations but to treaties) ; and, indeed, is also
used in the first paragraph of Article 36.

The comparison of Article 36, paragraph 5, with Article 36, paragraph 1,
and with Article 37, suggests a possible answer to the question. In Article
36, paragraph 1, which deals with treaties or conventions conferring juris-
diction on the International Court of Justice ; and in Article 37, concerning
treaties and conventions providing for reference to any tribunal to have
been instituted by the League of Nations, or to the Permanent Court of
International Justice, the only requirement of the treaty or convention is
that it shall be “in force”, “en vigueur”, at the moment the question of
jurisdiction arises. But Article 36, paragraph 5, is different. Whereas the
key phrase of Article 36, paragraph 1, and Article 37, is “in force”, the key
phrase in Article 36, paragraph 5 (in the English version), is “still in force”.
To have used the phrase “still in force” in either Article 36, paragraph 1, or
Article 37 would have been otiose. In Article 36, paragraph 5, on the other
hand, the word “still” conveys, to my mind, the idea of something which
was in force for the old Court, and is therefore to be deemed “still in force”
for the new Court. There is thus an important difference between “in
force” and “still in force”.

The French delegation at San Francisco must have had some good
reason for introducing their change to the French text. That reason, con-
sidering that they said the change was one of phraseology only, and
considering that they proposed no change to the English text, could only
have been that they considered the new French version to convey, more
clearly than the original French text did, the meaning and purpose of the
English “still in force”. The new French version, therefore, seizes upon the
notion of continuity as the essential criterion. What matters is not only that
a declaration is “in force” in its terms, but that it has been in force for the
old Court and was expressed for a period that continues and is still not
expired. For the French version retains that important qualifying word,
“encore”.

One can do no more than speculate on the purpose of the change in the
French text, for the records are sparse. So one is left with the rule that if
there be, which I doubt, material difference between the meaning of the
texts, the one which best reconciles the different language versions, all five
of them that is to say, is to be preferred. For the present case at least there is
no great difficulty in doing that. A declaration of acceptance of compul-
sory jurisdiction, which declaration never came into operation under the
old Statute, certainly cannot be said, under the new Statute, to be “still in
force”, which is the language used in four of the versions of the Statute ;
and is the meaning consonant with what was said to be the purpose of the
provision, namely the carry over to the new Court of obligations created in
respect of the old Court.

There is no difficulty in collecting the same meaning in the French
formula : pour une durée qui n’est pas encore expirée. What is referred to by
that formula is surely a declaration by which the compulsory jurisdiction
of the Permanent Court was actually established. A declaration to which,

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539 MILITARY AND PARAMILITARY ACTIVITIES (SEP. OP. JENNINGS)

owing to failure to ratify the Protocol, no date of commencement of the
obligation in respect of the Permanent Court could be assigned, cannot be
said to be pour une durée qui n’est pas encore expirée. That which never
began cannot be said to have had a duration at all.

The Aerial Incident Case

The meaning of Article 36, paragraph 5, is clarified by the Judgment of
this Court in the Aerial Incident case (I.C.J. Reports 1959, p. 127). In that
case Israel, the Applicant State, relied upon the alleged operation of Article
36, paragraph 5, in respect of Bulgaria’s Declaration of 29 July 1921, which
has been made unconditionally, and which had certainly come into effect
in respect of the Permanent Court of International Justice because Bul-
garia had indeed ratified the Protocol of Signature of the Statute of that
Court. The International Court of Justice found, nevertheless, that it did
not have compulsory jurisdiction under Article 36, paragraph 5, of its
Statute because, by the time Bulgaria, which was not present at San
Francisco, had become a member of the United Nations in 1955, the
Permanent Court of International Justice had ceased to exist. Accordingly,
Bulgaria’s Declaration, even though stated in its terms to be unconditional
and therefore without a time-limit, had, it was held, lapsed with the demise
of the Court. Thus, the question asked by the Court was whether the
declaration could properly be said to be “still in force” in respect to the old
Court at the time when Bulgaria became subject to the Statute of the new
Court, and in particular to Article 36, paragraph 5 ? Any notion that, for
the effect of Article 36, paragraph 5, one was entitled to look merely to the
terms of the declaration itself, abstracted from its status with respect to the
Permanent Court, was rejected. If a declaration which had come into effect
for the Permanent Court, and in its own terms was still running, was not
caught by Article 36, paragraph 5, because the obligation to the old Court
must have ceased when the Court itself ceased to exist, then one would
suppose that, a fortiori, a declaration which never at any time actually
created an obligation in respect of the old Court, cannot be carried over to
the new Court by Article 36, paragraph 5.

There is one passage of the Judgment that is most apposite to the present
case. The Court is considering the case of those States, like Bulgaria, which
did not become parties to the Charter and to the Statute of the new Court,
until after the dissolution of the Permanent Court.

“Accordingly, the question of the transformation of an existing
obligation could no longer arise so far as they were concerned : all that
could be envisaged in their case was the creation of a new obligation

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540 MILITARY AND PARAMILITARY ACTIVITIES (SEP. OP. JENNINGS)

binding upon them. To extend Article 36, paragraph 5, to those States
would be to allow that provision to do in their case something quite
different from what it did in the case of signatory States.” (CJ.
Reports 1959, p. 138.)

In this passage the Court denied that there could be any possibility of
Article 36, paragraph 5, creating a new obligation, not existing under the
old Court — which is precisely what the present Judgment does in respect
of Nicaragua.

For all these reasons it seems to me that to say that the effect of Article
36, paragraph 5, was to create for Nicaragua an obligation in respect of the
new Court, which never in fact existed in respect of the Permanent Court, is
straining the language of that Article beyond what it can bear.

The Yearbooks of the Court

Considerable weight has been attached by Nicaragua to the fact that in
all the Yearbooks of the present Court it has been listed among the States
bound by Optional-Clause jurisdiction. The Judgment of the Court also
regards the Yearbooks and other publications as a factor confirming its
interpretation of the effect of Article 36, paragraph 5 ; if not an indepen-
dent source of jurisdiction for the Court. In my view, thus to allow con-
siderable, and even decisive, effect, to statements in the Court’s Yearbook
is mistaken in general principle; and is in any event not sufficiently
supported by the facts in the present case.

It is to my mind wrong in principle because the Court should always
distinguish between its administrative functions — including the compila-
tion of the Yearbook by the Registrar on the Court’s instructions — and its
judicial functions. When there is a dispute between States as to the Court’s
jurisdiction, that dispute may be, as in the present case, submitted to the
Court for determination in its judicial capacity. To hold, after the exchange
of voluminous written pleadings and after two rounds of oral proceedings,
that the matter was, before all this, virtually settled as a result of the action
of the Registrar acting on behalf of the Court in its administrative capacity,
and without benefit of judicial argument and procedure, is not free from an
element of absurdity. For the Court’s administrative organization to make
some necessary assessment of a legal question for purposes of an annually
published reference book ; and for the full Court in its judicial capacity,
after its full judicial procedure, including hearing arguments of both par-
ties, to make a decision on the same matter ; are two entirely different
things which should never be confused.

It is of course to prevent any such confusion that every Yearbook is

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541 MILITARY AND PARAMILITARY ACTIVITIES (SEP. OP. JENNINGS)

prefaced by the following warning and disclaimer in the general “Preface”
to the volume. In the first Yearbook (1946-1947) it read :

“It is to be understood that the Yearbook of the International Court
of Justice is prepared and published by the Registrar and in no way
involves the responsibility of the Court.”

Later Yearbooks somewhat expanded the disclaimer typically as fol-
lows :

“The Yearbook is prepared by the Registry and in no way involves
the responsibility of the Court ; in particular, the summaries of judg-
ments, advisory opinions and orders contained in Chapter VI cannot
be quoted against the actual texts of those judgments, advisory opin-
ions and orders and do not constitute an interpretation of them.”

For the Court, nevertheless, to attach important legal consequences to
entries in the Yearbook is to destroy the clear effect of the disclaimer ; as
well as, in my view, being wrong in principle.

But even apart from the objections of principle, the Yearbooks do not at
all yield any certain message on the status of the Nicaraguan declaration ;
on the contrary they consistently — each one of them — alert the attentive
reader to the existence of doubts.

The first Yearbook is that for 1946-1947. There are two entries concern-
ing Nicaragua. First, there is a part giving the actual text of “communi-
cations and declarations of States which are still bound by their adherence
to the Optional Clause of the Statute of the Permanent Court of Interna-
tional Justice” (p. 207) !. In this section, on page 210 (p. 206 of the French
edition) the actual text of the Nicaraguan Declaration of 24 September
1929 is set out verbatim, and with a reference to a footnote which
reads :

“According to a telegram dated November 29th, 1939, addressed to
the League of Nations, Nicaragua had ratified the Protocol of Sig-
nature of the Statute of the Permanent Court of International Justice
(December 16th, 1920), and the instrument of ratification was to
follow. Notification concerning the deposit of the said instrument has
not, however, been received by the Registry.”

This then was the Yearbook in which the actual text of the Nicaraguan
! The use in this heading of the phrase “still bound” (“encore liés” in the French

version), far from lending support to Nicaragua’s reliance on the Yearbooks, shows why
successive Registrars had doubts whether Nicaragua should have been listed or not.

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Declaration was to be found, the practice of the following Yearbooks being
to give a reference back for those who wished to consult the text.

The second entry for Nicaragua in this same Yearbook 1946-1947 is in
the complete list (which also features in subsequent Yearbooks), of Op-
tional-Clause States. In this list the date and conditions of the State’s
acceptance are set out, but not the actual text of the communication. In the
Yearbook 1946-1947 list, Nicaragua appears, in its alphabetical order, on
page 226, as having made an “unconditional” declaration on “24 IX 29”.
There is, however, a footnote giving a reference back to page 210 for the
actual text of the declaration. The whole of this list appears under the
bold-letter heading :

“List of States which have recognized the compulsory jurisdiction
of the International Court of Justice or which are still bound by the
acceptance of the Optional Clause of the Statute of the Permanent
Court of International Justice (Article 36 of the Statute of the Inter-
national Court of Justice).”

Thus, one certain message that can be collected from these Yearbooks (for
the same heading continues through several subsequent volumes) is that
the Registrars at least understood the “still in force” of Article 36, para-
graph 5, as being equivalent to “still bound”.

The Yearbooks from 1947-1948 to 1954-1955, in accord with the normal
Yearbook practice, simply reproduced this Nicaraguan entry in the list in
exactly the same form as in the Yearbook 1946-1947. Nicaragua seemed to
attach some importance to the absence in these subsequent volumes of the
footnote about the non-receipt in Geneva of any Nicaraguan instrument of
ratification of the Protocol of Signature of the Statute of the Permanent
Court of International Justice. But as mentioned above that note did not
appear either, in the Yearbook 1946-1947 in its list and summary of
declarations ; it appeared where the actual text of the Nicaraguan decla-
ration was reproduced. Furthermore there is also in all these Yearbooks
between 1947-1948 and 1954-1955, at the beginning of the “instruments”
section, a list of States having made declarations. Nicaragua is included in
that list, always with a reference back to page 210 (p. 206 of the French
version) of the Yearbook 1946-1947 for the text of the declaration where of
course the warning footnote is to be found. So it is not the position that in
this series of seven Yearbooks there is nothing to suggest any doubt about
the Nicaraguan declaration : on the contrary, the careful reader is always
guided back to the text of the declaration in the Yearbook 1947-1948, and
there he finds the cautionary footnote.

From the Yearbook of 1955-1956 onwards there is a change. There is
again the same list of States which refers the reader back to page 210 of the

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Yearbook 1946-1947 and its footnote. The change is in the summary list of
States “which are still bound by their declarations accepting the compul-
sory jurisdiction of the Permanent Court of International Justice”. There
Nicaragua now appears with a new footnote, which however reproduces
the 1946-1947 footnote with a change in the second sentence making it
rather stronger. The whole. note reads :

“According toa telegram dated November 29th, 1939, addressed to
the League of Nations, Nicaragua had ratified the Protocol of Sig-
nature of the Statute of the Permanent Court of International Justice
(December 16th, 1920), and the instrument of ratification was to
follow. It does not appear, however, that the instrument of ratification
was ever received by the League of Nations.”

Thus from 1955-1956 onwards, the reader was warned in two places about
the doubts : first by the usual reference back, in the introductory list of
Optional-Clause States, to the text of the declaration in the 1946-1947
volume, with its cautionary footnote, and second by a new note for the
Nicaraguan entry in the summary of declarations of States “which are still
bound by their declarations accepting the compulsory jurisdiction of the
Permanent Court of International Justice”, which note reinforces the
original note.

There is also another caution to the careful reader. Thus, for example, on
page 207 of Yearbook 1956-1957 we find the following very important
note :

“The texts of declarations set out in this Chapter are reproduced for
convenience of reference only. The inclusion of a declaration made by
any State should not be regarded as an indication of the view enter-
tained by the Registry or, a fortiori, by the Court, regarding the nature,
scope or validity of the instrument in question.”

This twofold reference to cautionary notes could have been prompted by
the Registrar, as we know from the Pleadings of the Parties, having had
letters of inquiry from Professor Manley Hudson, who was then advising
Honduras about the issue which later came before this Court in the Arbitral
Award Made by the King of Spain case U.C.J. Reports 1960, p. 192;
Professor Hudson, who died in 1960, did not survive to take part as counsel
in the case, however). But the new note might also have been in anticipa-
tion of the new format of the Yearbook entries from 1956-1957 onwards, by
which there were no longer two lists of these States, one for Article 36,
paragraph 2, declarations and one for Article 36, paragraph 5 ; but only
one general section in which the texts of the instruments are reproduced.
There is thus, after 1956-1957 up to and including the latest Yearbook, no
need for a list referring back to the Yearbook in which the text of a
declaration is reproduced, because in the new format the text is to be found

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set out each year in this section ; it was, therefore, essential that the note
warning of the doubts about the status of Nicaragua’s declaration should
appear against its entry in this, now, single list ; as, indeed, it invariably
does.

The point needs to be made with emphasis that the successive Registrars
who compiled the Yearbook, which as the Preface says in every Yearbook,
“in no way involves the responsibility of the Court” ', acted in the only
correct way in simply stating the facts and making no attempt to purport to
decide Nicaragua’s status one way or the other ; this would have been for
the Registrar to act u/tra vires. Thus in every. Yearbook the more than casual
reader is led to the fact that a Nicaraguan ratification of the Protocol of
Signature of the Statute of the Permanent Court appeared not to have been
received at the League of Nations. The Registrar could not have done more
or less without exceeding his authority. He had simply to inform the reader
that there was indeed a Nicaraguan declaration of acceptance of compul-
sory jurisdiction and to add notice of the fact that the necessary ratification
of the Protocol had not been received. The disclaimer note cited above
warns that the Yearbook entry is not to be regarded as involving even the
Registrar’s own views. For the Court now to give such weight to these
entries is indeed startling. It is contrary to principle. It is at odds with the
notices of disclaimer in each Yearbook, usually in more than one place. It is
in any event not supported by any more than a superficial reading of the
Yearbook entries.

Other publications, mainly governmental collections of treaties, were
mentioned by Nicaragua ; but these almost certainly use the Yearbook as
their source and usually say so. The ancillary notion that the Court is in
some way bound by the inclusion of Nicaragua in the list of States
accepting compulsory jurisdiction in the Court’s Annual Reports to the
General Assembly, can be dealt with shortly. It is an astonishing propo-
sition that the result of a full adjudication of a difficult legal question, can
be in some way foreclosed by a list in routine reports made by the Court in
its administrative capacity. The purpose of that part of the Reports is to
give the General Assembly a more or less accurate idea of the state of the
Optional-Clause jurisdiction from time to time; it is certainly not to
prejudice, much less to decide, a dispute between Nicaragua and the

! These introductory remarks signed personally by the Registrar ceased to have the
heading “Preface” with the 1961-1962 volume. They are always, however, printed on a
separate page immediately following the title-page.

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United States. The whole list is in two short paragraphs, pointing out that a
number of States have made reservations, but with no indication which, or
the nature of any reservations. For those who wish to know more, it gives a
reference to the Yearbook. Nobody should be able to fall into the error of
supposing the list definitive. Nobody concerned with the law involved in
the present case would regard it as other than difficult ; it would be
extraordinary to allow its decision to be prejudiced by a side-wind from a
routine, administrative report.

II. THE LETTER OF 6 APRIL 1984 FROM SECRETARY OF STATE SHULTZ

Since in my opinion Article 36, paragraph 5, of the Court’s Statute is not
applicable to Nicaragua’s 1929 Declaration, and since, accordingly, Nica-
ragua does not in my view have standing to prosecute this case before the
Court without the special agreement of the United States, there is strictly
no need to consider any of the other matters in contention between the
Parties. As, however, the Court has decided that it has jurisdiction under
Article 36, paragraph 2, it may be convenient briefly to indicate my own
view upon the effect of the Shultz letter, as well as of the effect of the
United States multilateral treaties reservation. The text of the letter of
6 April 1984 from Secretary of State Shultz is as follows :

“T have the honor on behalf of the Government of the United States
of America to refer to the Declaration of my Government of August
26, 1946, concerning the acceptance by the United States of America
of the compulsory jurisdiction of the International Court of Justice,
and to state that the aforesaid declaration shall not apply to disputes
with any Central American state or arising out of or related to events
in Central America, any of which disputes shall be settled in such
manner as the parties to them may agree.

Notwithstanding the terms of the aforesaid declaration, this pro-
viso shall take effect immediately and shall remain in force for two
years, so as to foster the continuing regional dispute settlement pro-
cess which seeks a negotiated solution to the interrelated political,
economic and security problems of Central America.”

This raises many questions, but perhaps the most important one —
certainly from the point of view of the general law governing Optional-

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Clause acceptances — is the effect in law of the manifest contradiction
between the 1946 United States Declaration of acceptance of compulsory
jurisdiction for “five years and thereafter subject to six months’ notice”,
and the Shultz letter, which is expressed to take effect immediately and to
remain in force for two years, notwithstanding the terms of the 1946
Declaration. 7

Before attempting to answer this question, it may be useful to make two
preliminary observations. First, the discussion in the oral proceedings of
whether or not the legal position of declarations under the Optional Clause
is, or is not, governed by the law of treaties, I found not entirely helpful and
in any event inconclusive. The fact of the matter must surely be that the
Optional-Clause régime is sui generis. Doubtless some parts of the law of
treaties may be applied by useful analogy ; but so may the law governing
unilateral declarations ; and so, most certainly, may the law deriving from
the practice of States in respect of such declarations.

The second preliminary observation is that I do not think one need
spend much time on the somewhat theoretical question whether the Shultz
letter amounts to a modification or a substitution of the 1946 Declaration.
The major problems of principle would apply to either. (See also Right of
Passage over Indian Territory, Preliminary Objections, I.C.J. Reports 1957,
pp. 143-144.) It looks on the face of it like a modification since the original
declaration is untouched for most States and disputes and there seems to
be neither reason nor profit in attempting to go behind the United States
own assertion that it was not intended as a withdrawal, but as a temporary
modification or partial suspension.

Coming now to the question of the contradiction between the terms
ratione temporis of the 1946 Declaration, and the terms of the Shultz letter,
it is of course established law — the so-called rule in the Nottebohm case
(C.J. Reports 1953, p. 123) — that the critical moment for the determi-
nation whether or not there is jurisdiction in respect of a particular case, is
the moment when the Court becomes seised of that case, which is the
moment of seisin. In consequence of this rule it is not possible in law for a
government effectively to change its declaration, after seisin, in any way
that might purport to deprive the Court of jurisdiction. Thus, in the Right
of Passage over Indian Territory case (I.C.J. Reports 1957, p. 142) the Court
said :

“Tt is a rule of law generally accepted, as well as one acted upon in
the past by the Court, that, once the Court has been validly seised of a
dispute, unilateral action by the respondent State in terminating its
Declaration, in whole or in part, cannot divest the Court of jurisdic-
tion.”

But the problem in the present case is quite different : it is whether a

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government can lawfully and effectively change the terms of its declaration
before seisin ; in the present case, indeed, only hours before seisin and in
direct contemplation of the particular case of which the Court is seised.
This question seems to be, for the Court, a matter prima impressionis ;
though it is naturally one that has attracted the attention of commen-
tators.

Obviously, the making of a declaration under the Optional Clause
establishes some sort of relationship with other States that have made
declarations ; although it is not easy to say what kind of legal relationship
it is. Itis a relationship created by a great variety of unilateral declarations,
all having, however, the common element of being made within the
framework of Article 36, paragraph 2, of the Court’s Statute. The decla-
rations are statements of intention ; and statements of intention made ina
quite formal way. Obviously, however, they do not amount to treaties or
contracts ; or, at least, if one says they are treaties, or contracts, one im-
mediately has to go on to say they are a special kind of treaty, or contract,
partaking only of some of the rules normally applicable to such matters.
Thus, however one starts, one ends by treating them as more or less sui
generis. In short, it seems to me that, interesting as it might be to speculate
about the juridical taxonomy of Optional-Clause declarations, it is better
to begin the inquiry not from a label but from the actual practice and
expectation of States today.

Law develops by precedent, and it is that which gives it consistency and
predictability. But legal precedents like any other must be seen in the light
of history and of changing times. In the period of the Permanent Court and
even in 1946 when the United States Declaration was made, an important
proportion of States had subscribed to the Optional-Clause system. Today
that is no longer the case. The Optional-Clause States are distinctly in the
minority and very many of the most important and powerful States have
not accepted compulsory jurisdiction and show little indication of any
ambition to do so. Any assessment of the position in contemporary prac-
tice must take into account the position of this majority of States which do
not subscribe to the Optional-Clause system. It is well described by Wal-
dock in his well-known article :

“A State which is a party to the Statute of the Court but does not
make a declaration under the Optional Clause is in a highly favoured
position. Acceptance of the Statute by itself carries no liability to
appear in front of the Court in a contentious case at the suit of another
State. Before it can come under any liability to appear as defendant in
acase, a State must specifically have accepted the Court’s contentious
jurisdiction either by treaty or by unilateral declaration under the
Optional Clause. On the other hand, the mere fact that a State is a
party to the Statute gives it the power, under the Optional Clause, at
any moment to put itself into the position of being able instantly to

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bring before the Court any States which have already subscribed to
the Optional Clause in any case covered by the terms of their decla-
rations. Being a party to the Statute, it has the right under the
Optional Clause at any time and without reference to any other
State to make a declaration recognizing the compulsory jurisdiction
of the Court in relation to States which also subscribe to the Optional
Clause...

There is, in consequence, a glaring inequality in the position of a
State which does and a State which does not make a declaration under
the Optional Clause. The former State, for practical purposes, is
continuously liable to be brought before the Court compulsorily at the
suit of the latter, whereas the latter is not liable to be brought before
the Court at the suit of the former unless and until it chooses to initiate
proceedings before the Court as plaintiff and makes a declaration
under the Optional Clause ad hoc expressly for that purpose.”
(BYBIL, 1955-1956, pp. 244 ff., at p. 280.)

Itis, therefore, at least in part in the light of what Waldock goes on to call
“this fundamental lack of reciprocity between the positions of States which
do and States which do not make declarations”, that the answer to the
question of the legal effect of declarations should be given. It is this
position of inequality and lack of reciprocity that has inevitably produced
reservations by which the declarant State can withdraw or alter a decla-
ration with immediate effect. Even so there remains inequality with those
States which have chosen not to make any declaration at all. In this climate
it would in my view be as impracticable as it would be inequitable to hold
that a State whose declaration, like that of the United States, is expressed
as subject to six months’ notice, is bound by that statement of intention in
respect of all comers, including those very many States which have
. declined to risk even a potential liability to jurisdiction ; though it is of
course bound once an application has been made.

A solution which has the attraction of compromise is a novel application
to relations even before seisin of the principle of reciprocity. This is the
solution which was espoused by the United States in its argument before
the Court. It has the merit of involving a principle — the idea of States
“accepting the same obligation” — which is written into the express terms
of Article 36, paragraph 2, itself, and which all previous practice and
doctrine has regarded as the very basis and justification of the Optional-
Clause system.

This reciprocity test applied before seisin would presumably mean that
if one took, for example, the relationship of a State A with a declaration
subject to 12 months’ notice of cesser, and a State B with a declaration
subject to 6 months’ notice of cesser, State A would be entitled to give 6
months’ notice of cesser as against State B ; though it is not easy to imagine

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circumstances in which State A would be much benefited by indulging this
right. There would, however, be obvious practical benefits where State B
has reserved the right to withdraw or alter at any time ; for then State A
would be able to justify, in relation to State B, a withdrawal with imme-
diate effect, presumably even when made in face of an anticipated appli-
cation by State B. This is the way in which the United States thought it
should be applied in the present case ; though their argument needs the
further proposition that Nicaragua’s “unconditional” declaration is one
which could itself be withdrawn or altered at any time with immediate
effect.

Leaving on one side for the moment whether or not it would in the
present case have the particular result for which the United States con-
tends, it may be accepted that some such application of a doctrine of
pre-seisin reciprocity is a possible and practicable solution of the problem,
that has considerable attraction. _

The idea of applying reciprocity before Seisin rather than after — or
rather af seizin — is, however, not free from difficulty and would be
something of an innovation. At seisin there are three factors, not two,
which enter into the calculation whether or not the Court has jurisdiction ;
there are the terms of the declarations of the two States concerned, but
there is also the terms of the application in the case. It is the latter which
makes practicable the search for a coincidence between the two declara-
tions ; and makes it practicable because the necessary coincidence is
limited to coincidence in respect of the subject-matter of the application.
As the Court said in the Right of Passage over Indian Territory case :

“When a case is submitted to the Court, it is always possible to
ascertain what are, at the moment, the reciprocal obligations of the
Parties in accordance with their respective Declaration.” (CJ.
Reports 1957, p. 143.)

It is almost an implication of this dictum that it is not possible to make that
ascertainment other than at the moment when a case is submitted to the
Court ; at any rate not in quite the same way. Moreover, in that case, the
Court apparently saw no objection to the existence of a degree of uncer-
tainty in the reciprocal rights and obligations before an application has
been made (ibid, p. 143).

Nevertheless, what is sought to be “ascertained” at seisin — namely
jurisdiction in respect of the subject-matter of the application — is quite
different from what is in issue here : namely whether, or to what extent, a
State can withdraw or alter its declaration, contrary to the terms of the
declaration, before seisin. The situation is materially different in respect of
the very question at issue, for whereas after seisin even the most flexible
declaration may not be altered in its impact on the case, there are, even on

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the strictest view, at least some possibilities of changing a declaration
before seisin ; for example, in accordance with the declaration’s own
terms.

The conclusion I have come to, however, is that, attractive as the device
of reciprocity might be for solving this problem, the fact is that the practice
of States — certainly the recent practice of States — has already gone
beyond it. I believe there is ample evidence that States belonging to the
Optional-Clause system have now generally the expectation that they can
lawfully withdraw or alter their declarations of acceptance at will, pro-
vided only that this is done before seisin. Certainly there is no lack of
precedents where this has been done without effective protest, and, in
recent cases, without any protest whatsoever. It is necessary, however,
briefly to mention certain aspects of this modern practice.

The instances of changes to declarations made by certain States before
the Second World War (Colombia, 1936 ; Paraguay, 1938 ; and Australia,
Canada, France, India, New Zealand, South Africa; and the United
Kingdom in 1939) are only remotely relevant to the issue before the Court.
At that time the international community of States was relatively very
small, and a very important majority of those States were parties to the
Optional-Clause system so that there was not the present inequality and
lack of reciprocity with a large body of States who are not parties. Perhaps
the only important point to notice about these early instances is that such
relatively few protests as were made were entirely ineffectual and the
altered declarations were left intact.

Of the very considerable body of practice in more recent times, in many
ways the most significant aspect is the number (in relation, that is, to the
number of States with Optional-Clause declarations) of States that now
have declarations which expressly reserve a right to withdraw or modify
with immediate effect. The existence of this right was recognized by the
Court in the Right of Passage over Indian Territory case, when it speaks
of

“the right claimed by many Signatories of the Optional Clause,
including India, to terminate their Declarations of Acceptance by
simple notification without any obligatory period of notice” (1. CJ.
Reports 1957, p. 143).

It appears that no less than 15 declarations now reserve the right to modify
with immediate effect : Australia, Botswana, Canada, El Salvador, Kenya,
Malawi, Malta, Mauritius, New Zealand, Norway, Portugal, Somalia,
Swaziland, Togo and the United Kingdom. This is almost a third of the
declarations now existing. It might perhaps be argued that this only shows
that a right of immediate change may be expressly reserved ; for, ob-

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viously, since a State need not accept compulsory jurisdiction at all, it may
accept compulsory jurisdiction subject to conditions, including even a
power of instant denunciation. But it is equally arguable that, given now so
many express reservations of a right of immediate denunciation or modi-
fication, the express stipulation made in a unilateral and voluntary decla-
ration is inserted to make the position clear, or in order to recite modalities
of withdrawal or alteration ; and that this body of practice supports the
proposition that the right is now, whatever may have been the position at
an earlier period, one generally available.

In many ways the most striking of the examples of States claiming such a
right are the withdrawals or modifications by those States, which, often
without having expressly reserved such a right, have made the change with
immediate effect and with the obvious intention — as in the present case —
or frustrating an anticipated case, or a class of cases. There are no less than
11 instances of modifications made in the absence of any expressly
reserved right to do so ; three examples have been provided by the United
Kingdom (2 June 1955 ; 31 October 1955 ; 18 April 1957) ; France has
produced two examples (10 July 1959 ; 20 May 1966) ; other States that
have resorted to this device, once, are Australia, on 6 February 1954 ;
South Africa, 13 September 1955 ; Canada, 7 April 1970 ; Philippines, 18
January 1972 ; India, 18 April 1974. Six of these were certainly in order to
avoid applications on subjects which the State concerned wished to avoid
litigating. The Australian modification of 1954, for example, was made to
frustrate a possible Japanese application regarding pearl fisheries in the
seas between Australia and Japan. The United Kingdom twice narrowed
the scope of its declaration ; once specifically to avoid an application over
its dispute with Saudi Arabia over the Buraimi Oasis (after the breakdown
of the attempted arbitration). Canada’s new reservation to its declaration
in 1970 was specifically to avoid any application questioning the lawful-
ness of Canada’s 1970 legislation establishing an anti-pollution zone of
claimed Canadian jurisdiction extending 100 miles off its northern coast
into Arctic waters. The Prime Minister of Canada stated to the press
that,

“it was important to make the reservation the moment we introduced
the law for fear that at any moment there may be some litigation
begun which we would be too late to withdraw from” (/LM, 9-
600).

In none of these cases was there a formal protest which questioned the right
of an exclusory modification with immediate effect and in the absence of
an expressly reserved right to modify. In the Canadian case, the United
States vigorously protested the lawfulness of the Canadian legislation. Yet
far from denying Canada’s right to modify its Optional-Clause acceptance,
the United States accepted its effect. A Press Release of 15 April 1970 (No.

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552 MILITARY AND PARAMILITARY ACTIVITIES (SEP. OP. JENNINGS)

121), setting out a “Department of State Statement on Government of
Canada’s Bills on Limits of the Territorial Sea”, contains the following
passage:

“If, however, the Canadian Government is unwilling to await
international agreement, we have urged that in the interest of avoiding
a continuing dispute and undermining our efforts to achieve inter-
national agreement, that we submit our differences regarding pollu-
tion and exclusive fisheries jurisdiction beyond 12 miles to the Inter-
national Court of Justice, the forum where disputes of this nature
should rightfully be settled. Canada’s action last week excluded such
disputes from its acceptance of the International Court’s compulsory
jurisdiction. However, such action only prevents Canada from being
forced into the Court. It does not preclude Canada voluntarily joining
with us in submitting these disputes to the Court or an appropriate
chamber of the Court.” (LM, 9-606 ; emphasis supplied.)

There are other well-known instances of modifications such as El Sal-
vador’s 1973 change in its 1921 Declaration, which was protested by
Honduras but by no other State ; and Israel’s 1984 modification of its
declaration, which declaration provided for denunciation but not for
modification. This is an impressive body of practice, considering the
present total “constituency” of the Optional Clause is but 47.

Another relevant consideration is certainly the labours of the Interna-
tional Law Commission in its work on the law of treaties, and its view
reached, after careful investigation, that treaties of arbitration, concilia-
tion or judicial settlement are amongst those which, even in the absence of
a denunciation clause, are by reason of the nature of the treaty, terminable
by notice. Such treaties are of course quite different in their legal nature
from the Optional-Clause system. But the significant point is that Sir
Humphrey Waldock, the distinguished Special Rapporteur on the law of
treaties, in examining the position of such treaties, argued from the analogy
of the Optional-Clause system. He said :

“Taken as a whole, State practice under the Optional Clause, and
especially the modern trend toward declarations terminable upon
notice, seem only to reinforce the clear conclusion to be drawn from
treaties of arbitration, conciliation and judicial settlement, that these
treaties are regarded as essentially of a terminable character.” (ILC
Yearbook, 1963, Vol. 2, p..68.)

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553 MILITARY. AND PARAMILITARY ACTIVITIES (SEP. OP. JENNINGS)

In face of the unmistakable trend of recent developments, I feel bound to
conclude that States now — though the position was probably different
during the earlier, more promising period of the Optional Clause jurisdic-
tion — have the right, before seisin of the Court, to withdraw or alter their
declarations of acceptance, with immediate effect, and, moreover, even in
anticipation of a particular case or class of cases. If this is so, then it follows
that the Shultz letter was effective to deprive the Court of jurisdiction
under Article 36, paragraph 2, of the Court’s Statute.

It remains to add that, if the above view of State practice and expectation
is correct, it must also follow that Nicaragua’s “unconditional” declaration
could also be withdrawn or altered at any time before seisin. Indeed I
should be constrained to this view even applying the terms of the Nica-
raguan declaration itself : for it is impossible to believe that an uncondi-
tional declaration is made in perpetuity. A declaration that is made for an
indefinite period, without other condition, is surely one that can at any
time be made definite. And although a need to give notice of withdrawal or
alteration is implied, it is impossible in the light of modern practice in these
matters to deny that the notice may be expressed to have immediate effect.
The practice of the States that have accepted Optional-Clause jurisdiction
suggests strongly that notice with immediate effect is reasonable notice.
Accordingly if, contrary to my own inclination, some sort of rule of
reciprocity, in the matter of notice of change or withdrawal, were to be
applied to relations between Optional-Clause States before seisin, my
answer to the case of Nicaragua would be the same.

It is necessary to add one further and final point about the effect of the
letter of 6 April 1984. Any doubt in a case of this kind should in principle
be resolved in favour of a respondent State denying jurisdiction. As this
Court has pronounced on a former occasion :

“Finally, if any doubt remained, the Court, in order to interpret
Article 36, paragraph 5, should consider it in its context and bearing in
mind the general scheme of the Charter and the Statute which founds
the jurisdiction of the Court on the consent of States. It should, as it
said in the case of the Monetary Gold Removed from Rome in 1943, be
careful not to ‘run counter to a well-established principle of interna-
tional law embodied in the Court’s Statute, namely, that the Court can
only exercise jurisdiction over a State with its consent’ (Z.C.J. Reports
1954, p. 32).” (Aerial Incident of 27 July 1955 (Israel v. Bulgaria),
Judgment, 1.C.J. Reports 1959, p. 142.)

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554 MILITARY AND PARAMILITARY ACTIVITIES (SEP. OP. JENNINGS)
III. THE UNITED STATES MULTILATERAL TREATIES RESERVATION

The United States has pleaded the third of the reservations made to its
Declaration of 26 August 1946, sometimes called the multilateral treaties
reservation and sometimes the Vandenberg Reservation. It reserves from
jurisdiction :

“disputes arising under a multilateral treaty, unless (1) all parties to
the treaty affected by the decision are also parties to the case before
the Court, or (2) the United States of America specially agrees to
jurisdiction”.

The reservation is important in more than the context of the present case,
for it served as the paradigm for reservations later made by other coun-
tries ; some of them, however, simpler in that they are less qualified, but by
the same token wider in their effect.

Tam unable to accept the argument, nor indeed does the Court appear to
accept, that this reservation is “mere surplusage”, and that it does no more
than protect the interests of absent States already protected by Article 59
of the Statute. No doubt both that Article and the reservation are con-
cerned with States not parties to the case ; but I am unable to see how an
instrument which protects those States from being bound by the decision
can be said to cover the same ground as one which reserves jurisdiction
unless those States are parties.

The meaning of the words, “unless all parties to the treaty ... are also
parties to the case before the Court”, could hardly be plainer. The prospect
of perhaps some scores of parties to a case may be bizarre ; but a State is
clearly entitled to make such a reservation, and the practical result is, no
jurisdiction in the absence of special agreement. There can be no doubt, for
example, that a State may, if it so desires, reserve against any case what-
soever involving a treaty to which it is party.

The principal, though certainly not the only, difficulty with the United
States multilateral treaty reservation, is the qualifying words, “affected by
the decision”. But the difficulty is one of interpretation ; and it is one not
very different from the one faced in applications to intervene under Article
62 of the Statute. In any event, if the reservation may be made without such
a qualification, it may surely be made subject to a qualification which on
any view of its meaning must be a considerable qualification. As to the
possible suggestion that the difficulty of establishing the right meaning of
those words makes the whole reservation so vague that it can be discarded :
this immediately runs into the difficulty that it would then have to be
considered whether, since the reservation might not be severable, it might
render the entire United States acceptance void ; in which case there would
clearly be no jurisdiction under Article 36, paragraph 2, and the other
aspects of this question need hardly have been considered at all (see the

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555 MILITARY AND PARAMILITARY ACTIVITIES (SEP. OP. JENNINGS)

individual opinion of Judge Sir Hersch Lauterpacht in Certain Norwegian
Loans, Judgment, I.C.J. Reports 1957, pp. 9 ff., at p. 34, and especially,
pp. 55 ff.).

It is, however, possible to exaggerate the difficulties of the phrase,
“affected by the decision”. The United States has indicated which States it
believes are affected ; and, having regard to the United States argument
based upon the proposition of collective self-defence, it cannot be said that
this interpretation of the reservation is manifestly an impossible one.

But Nicaragua has in turn made the very important, and very interest-
ing, counter-argument that its case as stated in the Application is based
upon customary law as well as, perhaps as much as, upon multilateral
treaty law. This raises some fundamental questions about the nature of
international law, and its sources ; which ts to say that it is a matter of
substance. I fail to see how this question could be fully considered at the
present stage of proceedings. I am, therefore, in agreement with the Court
that the argument based on the multilateral treaties reservation is one
which at this stage should, in the words of Article 79, paragraph 7, of the
Court’s Rules, be neither upheld nor rejected, but declared to be an
objection which “does not possess, in the circumstances of the case, an
exclusively preliminary character” ; and should be dealt with accordingly
in. the “further proceedings” for which the Court will presumably now
proceed to “fix time-limits” in accordance with that paragraph of
Rule 79.

IV. THE FRIENDSHIP, COMMERCE AND NAVIGATION TREATY
OF 21 JANUARY 1956

Nicaragua, in its Memorial, has alleged breach by the United States of
several articles of this treaty, which is in force : Articles 1; XIV (2) ; XVII
(3) ; XX ; XIX (1) and (3) ; and XXI (2). Nicaragua adds that : “The proof
of these violations must await the proceedings on the merits.” There is a
jurisdiction clause in Article XXIV (2):

“Any dispute between the Parties as to the interpretation or
application of the present Treaty, not satisfactorily adjusted by diplo-
macy, shall be submitted to the International Court of Justice, unless
the Parties agree to settlement by some other pacific means.”

This jurisdiction clause is, as a matter of fact, the same, word for word, as
Article XXI (2) of the Treaty of Amity, Economic Relations, and Consular

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Rights of 1955 between the United States and Iran, on which this Court
relied in the United States Diplomatic and Consular Staff in Tehran case
(LCJ. Reports 1980, p. 26, para. 50). There the Iranian Government had
refused “to enter into any discussion of the matter”. In consequence, said
the Court, there existed

“not only a dispute but, beyond any doubt, a ‘dispute... not satis-
factorily adjusted by diplomacy’ within the meaning of Article XXI
(2) of the 1955 Treaty ; and this dispute comprised, inter alia, the
matters that are the subject of the United States claims under that
Treaty” (ibid, p. 27, para. 51).

In the present case, the United States claims that Nicaragua has made no
attempt to settle the matters, the subject of the application, by diplomacy.
But the qualifying clause in question merely requires that the dispute be
one “not satisfactorily adjusted by diplomacy”. Expressed thus, in a purely
negative form, it is not an exigent requirement. It seems indeed to be
cogently arguable that all that is required is, as the clause precisely states,
that the claims have not in fact already been “adjusted” by diplomacy. In
short it appears to be intended to do no more than to ensure that disputes
that have already been adequately dealt with by diplomacy, should not be
reopened before the Court. However that may be, the facts in the present
case disclose that Nicaragua brought the subject of the application before
the Security Council, where they were met with the United States exer-
cising its veto. The United Nations Organization, not least the Security
Council, must now surely be an orthodox forum for diplomacy. It would
seem, therefore, that the requirements of Article XXIV are most fully met
in this matter.

A crucial aspect for present purposes of the Judgment in the United
States Diplomatic and Consular Staff in Tehran case, however, is the deci-
sion that, whilst the jurisdictional article did not provide in express terms
that either party might bring a case to the Court by unilateral application,
“it is evident, as the United States contended in its Memorial, that this is
what the parties intended” (ibid. ). Since the jurisdictional clauses in the two
treaties, the one with Iran and the one with Nicaragua, are identical, the
same conclusion must apply in the present case.

As to making good these allegations, and demonstrating that they cover
some, certainly not all, of the content of the Application : this, as Nica-
ragua itself has said, “must await the proceedings on the merits”.

Accordingly, although I must dissent on the question of jurisdiction
under Article 36, paragraph 2 and paragraph 5, of the Court’s Statute, lam
in agreement with the Court that it does have jurisdiction over the Appli-
cation in so far as it may involve the question of alleged breaches of the

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Treaty of Friendship, Commerce and Navigation of 1956. Moreover, since
the Treaty is bilateral, this jurisdiction would not involve any effect of the
United States multilateral treaties reservation. It may be a question how
far Nicaragua would be able to bring the series of allegations which form
the gravamen of its Application within the framework of what is essentially
the normal form of commercial treaty ; more particularly because of the
possible effect of the “preclusion” provisions of Article XXI, which, inter
alia, provides that the Treaty “shall not preclude” the application of
measures :

“(d) ... necessary to fulfill the obligations of a Party for the main-
tenance or restoration of international peace and security, or neces-
sary to protect its essential security interests”.

On the other hand, Nicaragua has itself made clear that it believes that
important aspects of the Application can be brought within the scope of
the Treaty ; so jurisdiction under Article XXIV of the Treaty is not
unimportant.

For the exercise of jurisdiction over allegations of breaches of specific
provisions of the Treaty, no questions of admissibility appear to arise. And
since in my view the Court does not have jurisdiction in any respect other
than under the Treaty, there is no need to consider the difficult questions of
admissibility further, at this stage.

(Signed) Robert Y. JENNINGS.

169


                              DÉCLARATION DE M. LE JUGE TOMKA

       La Cour et les conflits armés  Mission de la Cour dans la présente phase de
l’affaire  Montant accordé à titre d’indemnisation ne reflétant pas l’ampleur des dommages subis
par la RDC du fait des graves violations du droit international commises par l’Ouganda.

     Article 56 du Statut de la Cour  Défaut de motivation en ce qui concerne les montants des
indemnités accordées par la Cour.

      Paiement de l’indemnité par versements annuels sur une période de cinq ans  Intérêts
moratoires  Date à partir de laquelle les intérêts moratoires courent  Valeur de l’indemnité
accordée réduite à une peau de chagrin.

       Frais de procédure  Article 64 du Statut de la Cour  Violation par l’Ouganda
d’importantes obligations de droit international  Non-respect par l’Ouganda de l’ordonnance en
indication de mesures conservatoires du 1er juillet 2000  Nécessité pour la RDC de faire valoir ses
droits devant la Cour  Longue période de litige actif  Point de savoir si la Cour aurait dû user
de son pouvoir discrétionnaire pour ordonner à l’Ouganda de supporter les frais raisonnablement
encourus par la RDC pour assurer sa représentation devant la Cour.

       1. Dans l’une de mes opinions, j’ai exprimé l’avis que «[l]a justice est généralement
impuissante à mettre un terme aux guerres» et que les organes judiciaires «ne peuvent en général que
remédier [ex post] aux conséquences juridiques des guerres, à condition toutefois qu’ils aient
compétence pour connaître de l’affaire en question» (Application de la convention pour la prévention
et la répression du crime de génocide (Bosnie-Herzégovine c. Serbie-et-Monténégro), arrêt,
C.I.J. Recueil 2007 (I), opinion individuelle du juge Tomka, p. 312, par. 3).

        2. La Cour n’a pas été en mesure d’empêcher l’immixtion de l’Ouganda dans le conflit armé
sur le territoire de la RDC malgré son ordonnance du 1er juillet 2000 indiquant à l’unanimité certaines
mesures conservatoires. En particulier, la Cour avait ordonné que

      «[l]es deux Parties d[evai]ent, immédiatement, prévenir et s’abstenir de tout acte, et en
      particulier de toute action armée, qui risquerait de porter atteinte aux droits de l’autre
      Partie au regard de tout arrêt que la Cour pourrait rendre en l’affaire, ou qui risquerait
      d’aggraver ou d’étendre le différend porté devant elle ou d’en rendre la solution plus
      difficile» (Activités armées sur le territoire du Congo (République démocratique du
      Congo c. Ouganda), mesures conservatoires, ordonnance du 1er juillet 2000,
      C.I.J. Recueil 2000, p. 129, par. 47, point 1) du dispositif).

La Cour avait par ailleurs ordonné que

      «[l]es deux Parties d[evai]ent, immédiatement, prendre toutes mesures nécessaires pour
      assurer, dans la zone de conflit, le plein respect des droits fondamentaux de l’homme,
      ainsi que des règles applicables du droit humanitaire» (ibid., p. 129, par. 47, point 3) du
      dispositif).

      3. Avant même qu’elle ne détermine sans équivoque que ses «ordonnances indiquant des
mesures conservatoires au titre de l’article 41 [du Statut] ont un caractère obligatoire» (LaGrand
(Allemagne c. Etats-Unis d’Amérique), arrêt, C.I.J. Recueil 2001, p. 506, par. 109), la Cour a dit que

                                                 -2-

      «[l]orsqu[’elle] conclut que la situation exige l’adoption de mesures de ce genre, il
      incombe à chaque partie de prendre sérieusement en considération les indications ainsi
      données et de ne pas fonder sa conduite uniquement sur ce qu’elle croit être ses droits».
      (Activités militaires et paramilitaires au Nicaragua et contre celui-ci
      (Nicaragua c. Etats-Unis d’Amérique), fond, arrêt, C.I.J. Recueil 1986, p. 144,
      par. 289).

Et de souligner :

             «Il en va particulièrement ainsi dans une situation de conflit armé où aucune
      réparation ne peut effacer les conséquences d’un comportement que la Cour jugerait
      avoir été contraire au droit international.» (Ibid.)

      4. Dans son arrêt sur le fond, rendu le 19 décembre 2005, la Cour a conclu que l’Ouganda

      «1) ... en se livrant à des actions militaires à l’encontre de la République démocratique
      du Congo sur le territoire de celle-ci, en occupant l’Ituri et en soutenant activement, sur
      les plans militaire, logistique, économique et financier, des forces irrégulières qui
      opéraient sur le territoire congolais, a[vait] violé le principe du non-recours à la force
      dans les relations internationales et le principe de non-intervention ;

             ................................................................

      3) ... par le comportement de ses forces armées, qui [avaient] commis des meurtres et
      des actes de torture et autres formes de traitement inhumain à l’encontre de la population
      civile congolaise, [avaient] détruit des villages et des bâtiments civils, [avaient] manqué
      d’établir une distinction entre cibles civiles et cibles militaires et de protéger la
      population civile lors d’affrontements avec d’autres combattants, [avaient] entraîné des
      enfants-soldats, [avaient] incité au conflit ethnique et [avaient] manqué de prendre des
      mesures visant à y mettre un terme, et pour n’avoir pas, en tant que puissance occupante,
      pris de mesures visant à respecter et à faire respecter les droits de l’homme et le droit
      international humanitaire dans le district de l’Ituri, la République de l’Ouganda a[vait]
      violé les obligations lui incombant en vertu du droit international relatif aux droits de
      l’homme et du droit international humanitaire ;

      4) ... par les actes de pillage et d’exploitation des ressources naturelles congolaises
      commis par des membres des forces armées ougandaises sur le territoire de la
      République démocratique du Congo, et par son manquement aux obligations lui
      incombant, en tant que puissance occupante dans le district de l’Ituri, d’empêcher les
      actes de pillage et d’exploitation des ressources naturelles congolaises, la République
      de l’Ouganda a[vait] violé les obligations qui [étaient] les siennes, en vertu du droit
      international, envers la République démocratique du Congo» (Activités armées sur le
      territoire du Congo (République démocratique du Congo c. Ouganda), arrêt,
      C.I.J. Recueil 2005, p. 280-281, par. 345, points 1), 3) et 4) du dispositif).

      5. La Cour a également dit que «l’Ouganda ne s’[était] pas conformé[] à l’ordonnance en
indication de mesures conservatoires rendue par la Cour le 1 er juillet 2000» (ibid., p. 281, par. 345,
point 7) du dispositif).

                                                  -3-

       6. Le non-respect par l’Ouganda de l’ordonnance en indication de mesures conservatoires a
entraîné de lourdes pertes en vies humaines, de graves préjudices corporels, des déplacements de
populations, d’importants dommages matériels ainsi que le pillage et l’exploitation illégale des
ressources naturelles de la RDC.

       7. Il incombait à la Cour, dans la présente phase de l’affaire, de «remédier [ex post] aux
conséquences juridiques» du recours illicite à la force par l’Ouganda et de son intervention illicite en
RDC, ainsi qu’à celles découlant d’autres violations graves des obligations lui incombant en vertu
du droit international mentionnées plus haut. Je doute que la Cour ait complètement réussi à remplir
sa mission. Le montant accordé à titre d’indemnisation, notamment pour les dommages causés aux
personnes et les dommages matériels, ne reflète pas, à mon avis, l’ampleur des dommages subis par
la RDC et sa population pendant près de cinq années d’activités militaires illégales menées par
l’Ouganda. Le montant accordé à titre d’indemnisation ne correspond guère à l’ampleur des
souffrances et des pertes engendrées du fait de la violation, par l’Ouganda, de la règle fondamentale
du droit international interdisant le recours à la force dans les relations internationales et des graves
violations des obligations lui incombant en vertu du droit international humanitaire et du droit
international des droits de l’homme.

       8. En tant que membre de la Cour, je me suis trouvé devant un dilemme. N’étant pas convaincu
que les montants d’indemnité fixés par la Cour effacent, autant que possible, toutes les conséquences
des actes illicites de l’Ouganda, devais-je voter contre le point 1) du dispositif ? Ces montants faisant
en définitive partie du montant global, bien plus important, de l’indemnité que la RDC est
certainement en droit d’attendre pour retrouver la totalité de ce qu’elle a perdu, je n’ai pas cru devoir
voter contre ce point.

       9. Le paragraphe 1 de l’article 56 du Statut oblige la Cour à motiver son arrêt. Les motifs
exposés dans celui-ci devraient permettre au lecteur de saisir le raisonnement par lequel la Cour est
parvenue à ses conclusions. Je doute qu’un lecteur puisse saisir, sur la base des présents motifs,
comment la Cour est parvenue aux indemnités fixées pour chacun des chefs de dommages. Bien
qu’elle n’hésite pas à critiquer les rapports du Secrétaire général de l’Organisation des Nations Unies
sur la mission de l’ONU en République démocratique du Congo ainsi que le rapport présenté par les
experts qu’elle a désignés, notamment en ce qui concerne leurs méthodes, au final la Cour elle-même
n’explicite aucune méthode précise par laquelle elle est parvenue au montant accordé à titre
d’indemnisation, se contentant de répéter qu’

      «elle peut, dans les circonstances très particulières de la présente affaire, adjuger une
      indemnisation sous la forme d’une somme globale, dans la limite des possibilités
      offertes par les éléments de preuve et compte tenu de considérations d’équité» (arrêt,
      paragraphes 166, 181, 193, 206, 225, 258 et 365).

Ces mots récités comme une incantation ne satisfont guère à l’exigence que l’arrêt de la Cour soit
motivé.

        10. J’ai voté contre la décision de la Cour d’ordonner que l’indemnité due par l’Ouganda soit
acquittée en cinq versements sur une période de cinq ans. La Cour a fixé le montant de l’indemnité
au moment de rendre son arrêt en disant que «pour déterminer la somme due au titre de chaque chef
de dommages, elle a tenu compte du passage du temps» (arrêt, paragraphe 401). Pour cette raison,
elle a considéré qu’il n’était pas nécessaire d’accorder des intérêts compensatoires. Lorsqu’elle a fixé
les intérêts moratoires à un taux de 6 %, elle a décidé que ces intérêts courraient à compter du jour
suivant celui où la somme aurait dû être acquittée (arrêt, paragraphe 406). Cette décision, cependant,
ne tient pas compte du fait qu’avec le passage du temps, la valeur réelle de l’indemnité accordée, et

                                                   -4-

de celle restant à acquitter par versements annuels, diminuera sous l’effet de l’inflation et de la baisse
du pouvoir d’achat du dollar des Etats-Unis. En supposant que l’inflation au cours de cette période
de cinq ans sera d’environ 6 % (soit le taux d’intérêt déterminé par la Cour), la valeur réelle de
l’indemnité accordée diminuera considérablement (la perte pouvant s’élever jusqu’à
39 000 000 dollars des Etats-Unis). Bien qu’il eût été loisible à la RDC et à l’Ouganda de convenir
des modalités d’un éventuel paiement échelonné de l’indemnité, la décision de la Cour  qui réduit
la valeur de l’indemnité accordée à une peau de chagrin  n’est pas, à mon avis, équitable envers la
requérante.

       11. A mon grand regret, je ne peux souscrire à la décision de la majorité de rejeter la demande
de la RDC tendant à ce que l’Ouganda rembourse les frais qu’elle a encourus dans le cadre de la
présente affaire. Il est vrai que l’article 64 du Statut de la Cour dispose que «[s]’il n’en est autrement
décidé par la Cour, chaque partie supporte ses frais de procédure». Le Statut donne donc à la Cour le
pouvoir d’ordonner le remboursement des dépens «lorsqu’elle est appelée à le faire, à charge de
procéder à un examen minutieux des circonstances propres à l’espèce» (Certaines activités menées
par le Nicaragua dans la région frontalière (Costa Rica c. Nicaragua) et Construction d’une route
au Costa Rica le long du fleuve San Juan (Nicaragua c. Costa Rica), arrêt, C.I.J. Recueil 2015 (II),
déclaration commune de MM. les juges Tomka et Greenwood, Mme la juge Sebutinde et M. le juge
ad hoc Dugard, p. 754, par. 2). La RDC, victime d’un usage illicite de la force, dont une partie du
territoire a été occupée pendant une longue période et dont la population a souffert, a dû demander
la protection de la Cour et faire valoir ses droits devant elle. Le défendeur a été jugé être en violation
d’importantes obligations de droit international. En outre, la Cour a dit dans son arrêt de 2005 que
l’Ouganda ne s’était pas conformé à l’ordonnance en indication de mesures conservatoires qu’elle
avait rendue le 1er juillet 2000. Lors des négociations sur les réparations, l’Ouganda a d’abord
proposé de verser la somme de 25 500 000 dollars des Etats-Unis, avant de porter son offre à
37 028 368 dollars des Etats-Unis. La RDC n’a eu d’autre choix que de se tourner à nouveau vers la
Cour. La longue période de litige actif de l’affaire devant la Cour entre 1999 et 2005, puis entre 2015
et 2021, a certainement entraîné des frais considérables pour la RDC. Ceux-ci dépassent assurément
de loin le montant réclamé par l’Ouganda dans sa demande reconventionnelle, soit moins d’un
million de dollars des Etats-Unis, la renonciation par lui étant invoquée par la Cour afin de justifier
son refus «de déroger ... à la règle générale» (arrêt, paragraphe 396), et ce, alors même que la RDC
ne contestait pas cette demande dans son contre-mémoire sur les réparations (p. 8, par. 2.03). Tous
ces éléments justifiaient que la Cour fasse droit à la demande. Pourtant, à mon grand regret, la Cour
n’a même pas souhaité recevoir la liste définitive des frais de la RDC après la clôture des débats.

        12. La présente affaire n’a rien d’une affaire ordinaire portant sur un différend en matière de
délimitation maritime ou sur l’interprétation d’un traité, où la Cour fournit un service aux deux
parties. En l’espèce, comme il est dit au point 1) du dispositif de l’arrêt de 2005, l’Ouganda s’est
livré illégalement à des activités militaires à l’encontre de la RDC sur le territoire de celle-ci, a occupé
l’un de ses districts et a soutenu activement, sur les plans militaire, logistique, économique et
financier, des forces irrégulières qui opéraient sur le territoire congolais. La RDC et sa population
ont subi d’importants dommages. S’il y a bien une affaire qui commandait le remboursement des
frais raisonnablement engagés par la requérante pour assurer sa représentation devant la Cour, il
s’agit de l’espèce. Malheureusement, le membre de phrase «[s]’il n’en est autrement décidé par la
Cour» de l’article 64 du Statut reste ici lettre morte.

                                                                  (Signé)      Peter TOMKA.

                                              ___________