                     309

                              DISSENTING OPINION OF JUDGE AD HOC GAJA

                        1. The Court’s Judgment accepts the view that the jurisdictional immu-
                     nity of a foreign State does not cover certain claims concerning repara-
                     tion for torts committed in the forum State. However, the Court

                           “considers that customary international law continues to require that
                           a State be accorded immunity in proceedings for torts allegedly com-
                           mitted on the territory of another State by its armed forces and other
                           organs of State in the course of conducting an armed conflict”
                           (para. 78).
                     This point is decisive for rejecting the applicability of the so‑called “tort
                     exception” in the case at hand. The Court consequently concludes that
                     the Italian courts breached an international obligation when they asserted
                     their jurisdiction over claims relating to wrongful acts committed by Ger-
                     many in Italy during the Second World War.

                       The Court’s argument is well built and includes a wide survey of rel
                     evant State practice. However, the scope of the “tort exception” deserves
                     further analysis, also because this is an area where the law, according to
                     several judicial decisions, is currently “developing”.

                       2. The “tort exception” has found expression in Article 12 of the
                     United Nations Convention on Jurisdictional Immunities of States and
                     Their Property, according to which :
                              “Unless otherwise agreed between the States concerned, a State
                           cannot invoke immunity from jurisdiction before a court of another
                           State which is otherwise competent in a proceeding which relates to
                           pecuniary compensation for death or injury to the person, or damage
                           to or loss of tangible property, caused by an act or omission which is
                           alleged to be attributable to the State, if the act or omission occurred
                           in whole or in part in the territory of that other State and if the
                           author of the act or omission was present in that territory at the time
                           of the act or omission.”

                        This codification Convention, which was adopted by the General
                     Assembly in 2004, has so far been ratified by 13 States and is not yet in
                     force. It would be in any event unwarranted to assume that all its sub-
                     stantive provisions correspond to rules of general international law. On

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                     310 	 jurisdictional immunities of the state (diss. op. gaja)

                     the other hand, many of its provisions cannot be regarded as fully inno-
                     vative. This certainly applies to Article 12, which finds precedents in sev-
                     eral provisions of municipal legislation which will be referred to later and,
                     before these statutes were enacted, in Article 11 of the 1972 European
                     Convention on State Immunity. The latter text reads as follows :

                             “A Contracting State cannot claim immunity from the jurisdiction
                           of a court of another Contracting State in proceedings which relate to
                           redress for injury to the person or damage to tangible property, if the
                           facts which occasioned the injury or damage occurred in the territory
                           of the State of the forum, and if the author of the injury or damage
                           was present in that territory at the time when those facts occurred.”
                       In the following paragraphs there will be only a few references to the
                     European Convention, because it is clearly of limited significance for the
                     purpose of ascertaining the existing rules of general international law on
                     State immunity. It received only eight ratifications, all by States from a
                     defined geographical area (Austria, Belgium, Cyprus, Germany, Luxem-
                     bourg, Netherlands, Switzerland and United Kingdom). Moreover, it
                     does not attempt to state general rules, but only considers the immunity
                     of a Contracting State from the jurisdiction of other Contracting States.

                        3. The “tort exception” has also been expressed in statutes concerning
                     the jurisdictional immunity of foreign States that nine States have enacted.
                     Only one State (Pakistan) has not included the “tort exception” in its
                     legislation on this subject.
                        Legislation is an important aspect of State practice. It is significant also
                     when the object of a rule of international law is the conduct of judicial
                     authorities, as with regard to the exercise of jurisdiction by courts. One
                     may assume that only in exceptional circumstances will judicial authori-
                     ties depart from what is required from them by the respective legislator.
                     To my knowledge, no court of any of the States which enacted legislation
                     incorporating the “tort exception” has raised any question of consistency
                     between the relevant legislation and general international law.

                        The number of States in question may at first sight seem insufficient to
                     represent the attitude of the generality of States, since most States have
                     not adopted statutes on jurisdictional immunity and directly rely on gen-
                     eral international law. However, it would be difficult to consider the leg-
                     islative practice of ten States, which spans a period of more than 30 years,
                     as insignificant for the purpose of ascertaining the current status of gen-
                     eral international law. The criterion adopted by these States was not
                     intended to codify a standard that all the States would be required to
                     follow. On certain issues, the legislation of some States was arguably

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                     311 	 jurisdictional immunities of the state (diss. op. gaja)

                     more favourable to immunity than general international law. This is cer-
                     tainly lawful, which would not be the case for a more restrictive approach.
                     When asserting a “tort exception”, the States concerned no doubt
                     assumed that they were entitled to exercise their jurisdiction lawfully in
                     applying the exception. Should their view be regarded as unfounded
                     under general international law, all these States would incur international
                     responsibility when applying the “tort exception”. One would have
                     expected some form of protest on the part of other States at the interna-
                     tional level, since the legislation in question was well known and many
                     States were likely to be affected. The silence kept by the majority of States
                     cannot be interpreted as an implicit criticism of the lawfulness of resort-
                     ing to the “tort exception”.

                       4. In the nine States that have enacted legislation on jurisdictional
                     immunity of foreign States including a “tort exception” this exception has
                     a similar content. It may be appropriate to quote the texts of the perti-
                     nent provisions. I shall follow a chronological order.
                       According to Section 1605 (a) of the United States Foreign Sovereign
                     Immunities Act 1976 :
                        “(a) A foreign State shall not be immune from the jurisdiction of courts
                               of the United States or of the States in any case
                         .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .
                               (5)		not otherwise encompassed in paragraph (2) above, in which
                                      money damages are sought against a foreign State for per-
                                      sonal injury or death, or damage to or loss of property, occur-
                                      ring in the United States and caused by the tortious act or
                                      omission of that foreign State or of any official or employee
                                      of that foreign State while acting within the scope of his office
                                      or employment ; except that this paragraph shall not apply to

                                      (A) any claim based upon the exercise or performance or the
                                             failure to exercise or perform a discretionary function
                                             regardless of whether the discretion be abused, or
                                      (B) any claim arising out of malicious prosecution, abuse of
                                             process, libel, slander, misrepresentation, deceit, or inter-
                                             ference with contract rights.”

                       Section 5 of the United Kingdom State Immunity Act 1978 runs as fol-
                     lows : “A foreign State is not immune from the jurisdiction of a court in
                     any proceedings that relate to (a) death or personal injury ; or (b) dam-
                     age to or loss of tangible property, caused by an act or omission in the
                     United Kingdom.”

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                     312 	 jurisdictional immunities of the state (diss. op. gaja)

                       Section 7 of Singapore’s State Immunity Act is identical to this text,
                     with only replacement of the words “the United Kingdom” with “Singa-
                     pore”.
                       Section 6 of South Africa’s Foreign States Immunities Act declares
                     that : “A foreign State shall not be immune from the jurisdiction of the
                     courts of the Republic in proceedings relating to (a) the death or injury
                     of any person ; or (b) damage to or loss of tangible property, caused by
                     an act or omission in the Republic.”

                        According to Section 13 of Australia’s Foreign States Immunities Act
                     1985 : “A foreign State is not immune in a proceeding in so far as the
                     proceeding concerns (a) the death of, or personal injury to, a person ; or
                     (b) loss of or damage to tangible property, caused by an act or omission
                     done or omitted to be done in Australia.”
                        Section 6 of Canada’s State Immunity Act reads as follows : “A foreign
                     State is not immune from the jurisdiction of a court in any proceedings
                     that relate to (a) any death or personal or bodily injury, or (b) any dam-
                     age to or loss of property, that occurs in Canada.”
                        In Argentina, Article 2 of Law No. 24,488 on jurisdictional immunity
                     of foreign States provides that : “Foreign States may not invoke jurisdic-
                     tional immunity in the following cases : . . . (e) where the foreign State is
                     subject to a claim for losses or damages derived from crimes or offences
                     committed in Argentina” [“(e) cuando fueren demandados por daños y
                     perjuicios derivados de delitos o cuasidelitos cometidos en el territorio”].

                        According to Section 5 of Israel’s Foreign States Immunity Law
                     No. 5769‑2008 : “A foreign State shall not have immunity from jurisdic-
                     tion in an action in tort where personal injury or damage to tangible
                     property has occurred, provided the tort was committed in Israel.”
                        Finally, Article 10 of the Act on the Civil Jurisdiction of Japan with
                     respect to a Foreign State, etc., provides that :
                               “In cases where the death of or injury to a person or the loss of or
                           damage to a tangible object resulted from an act for which it is
                           claimed a Foreign State, etc., should take responsibility, if all or part
                            of said act took place in Japan and the person who performed said
                            act was in Japan at the time it was committed, said Foreign State,
                            etc., shall not be immune from jurisdiction with respect to judicial
                            proceedings in which monetary compensation for the damage or
                            loss resulting from said act is being sought.”
                       Although the wording varies, all these texts contain a general statement
                     which appears to cover claims for all the acts or omissions attributable to
                     a foreign State that take place in the territory of the forum State and
                     cause death or personal injury or damage to tangible property.

                       5. None of the legislative acts quoted in the previous paragraph
                     restricts the applicability of the “tort exception” when the act or omission

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                     313 	 jurisdictional immunities of the state (diss. op. gaja)

                     of the foreign State is taken within an activity which may be described
                     jure imperii because it occurs in the exercise of a sovereign power by the
                     foreign State.
                        The commentary of the International Law Commission (ILC) on draft
                     Article 12, which later became without change Article 12 of the 2004 UN
                     Convention, noted that “[t]he areas of damage envisaged in Article 12 are
                     mainly concerned with accidental death or physical injuries to persons or
                     damage to tangible property involved in traffic accidents”, but that “the
                     scope of Article 12 is wide enough to cover also intentional physical harm
                     such as assault and battery, malicious damage to property, arson or even
                     homicide, including political assassination”. The ILC commentary also
                     noted that, while “the case law of some States” maintained the distinction
                     between acts jure imperii and acts jure gestionis, the “tort exception” in
                     Article 12 “makes no such distinction” (Yearbook of the International
                     Law Commission, 1991, Vol. II, Part Two, p. 45). According to the com-
                     mentary :

                              “The locus delicti commissi offers a substantial territorial connec-
                           tion regardless of the motivation of the act or omission, whether
                           intentional or even malicious, or whether accidental, negligent, inad-
                           vertent, reckless or careless, and indeed irrespective of the nature of
                           the activities involved, whether jure imperii or jure gestionis.”
                        There is nothing in the text of the UN Convention or in the prepara-
                     tory work that suggests that the “tort exception” should not apply when
                     the foreign State acts jure imperii.
                        On the basis of the ILC commentary, the Italian Corte di Cassazione
                     stressed in Ferrini that, according to Article 12 of the ILC draft Articles,

                           “the distinction between acts performed jure imperii and acts carried
                           out jure gestionis assumes no relevance in respect of damages claims
                           arising from ‘assaults on the physical integrity of a person’ or
                           from loss or damage of a ‘bodily’ nature” (judgment No. 5044 of
                           11 March 2004, English translation in International Law Reports
                           (ILR), Vol. 128, p. 672).
                        The Supreme Court of Canada in Schreiber v. Federal Republic of Ger‑
                     many and the Attorney General of Canada agreed that the “tort exception”
                     also covered acts jure imperii, adding the observation that if one restricted
                     the exception in this regard, one “would deprive the victims of the worst
                     breaches of basic rights of any possibility of redress in national courts”
                     ([2002] Supreme Court Reports, Vol. 3, p. 269, para. 37).

                      A different view was expressed by the Supreme Court of Ireland in
                     McElhinney v. Williams when Chief Justice Hamilton held that, even if

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                     314 	 jurisdictional immunities of the state (diss. op. gaja)

                     the tortious act of a British soldier had occurred in the forum State,
                     immunity had to be granted to the foreign State “when such act or omis-
                     sion is committed jure imperii” (ILR, Vol. 104, p. 703). Ireland has not
                     enacted legislation on jurisdictional immunity, nor is it a party to the
                     European Convention on State Immunity. An application to the Euro-
                     pean Court of Human Rights was later made by Mr. McElhinney against
                     Ireland. This court said that the “tort exception” corresponded to a
                     “trend in international and comparative law”, but that :

                           “the trend may primarily refer to ‘insurable’ personal injury, that is
                           incidents arising out of ordinary road traffic accidents, rather than
                           matters relating to the core area of State sovereignty such as the acts
                           of a soldier on foreign territory which, of their very nature, may
                           involve sensitive issues affecting diplomatic relations between States
                           and national security. Certainly, it cannot be said that Ireland is
                           alone in holding that immunity attaches to suits in respect of such
                           torts committed by acta jure imperii or that, in affording this immu-
                           nity, Ireland falls outside any currently accepted international stan-
                           dards.” (ILR, Vol. 123, p. 85, para. 38.)

                       It is to be noted that the question before the European court in McEl‑
                     hinney v. Ireland was not whether the respondent State had an obligation
                     to grant jurisdictional immunity to the United Kingdom, but whether Ire-
                     land was in breach of an obligation under Article 6 of the European Con-
                     vention on Human Rights by denying the applicant access to justice. The
                     majority of the court did not endorse the idea that States were required to
                     apply a “tort exception”. It found that, “given the present state of the
                     development of international law” on jurisdictional immunity, there was
                     no breach by Ireland of an obligation to exercise jurisdiction. However,
                     the court did not go as far as to say that, had the Irish courts hypotheti-
                     cally entertained the claim, Ireland would have been in breach of its obli-
                     gations under international law with regard to jurisdictional immunity.

                        6. The European Convention on State Immunity contains various
                     clauses which restrict the scope of the Convention. What is relevant for
                     our purposes is Article 31, which runs as follows :
                              “Nothing in this Convention shall affect any immunities or privile-
                           ges enjoyed by a Contracting State in respect of anything done or
                           omitted to be done by, or in relation to, its armed forces when on the
                           territory of another Contracting State.”
                        The ILC draft Articles do not contain a similar clause. However, the
                     ILC commentary on draft Article 12 observes that this provision does not
                     “apply to situations involving armed conflicts” (Yearbook of the Interna‑
                     tional Law Commission, 1991, Vol. II, Part Two, p. 46). No explanation is
                     given, nor is there an indication of the intended consequences of the fact

                     219

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                     315 	 jurisdictional immunities of the state (diss. op. gaja)

                     that draft Article 12 does not apply. It is not clear in particular whether
                     “situations involving armed conflicts” are considered to be outside the
                     scope of the UN Convention or whether another rule set forth in the
                     Convention becomes applicable.

                        The exclusion suggested in the ILC commentary has not found its way
                     either into the text of the UN Convention or into the understandings
                     which represent an annex to the Convention. Nor is there anything on
                     this matter in the report presented to the General Assembly by the Ad
                     Hoc Committee which recommended the adoption of the Convention
                     (A/59/22). However, when introducing this report to the Sixth Commit-
                     tee, the Chairman of the Ad Hoc Committee, Mr. Gerhard Hafner, made,
                     among others, the following statement : “[o]ne of the issues that had been
                     raised was whether military activities were covered by the Convention.
                     The general understanding had always prevailed that they were not”. He
                     then referred to the exclusion of “situations involving armed conflicts”
                     suggested by the ILC in its commentary (A/C.6/59/SR.13, para. 36),
                     which is a narrower subject than “military activities”. The Chairman of
                     the Ad Hoc Committee expressed the opinion that this matter was not
                     regulated by the UN Convention. The legal significance of this statement
                     is not altogether clear. GA resolution 59/38, which adopted the Conven-
                     tion, said in its last preambular paragraph : “Taking into account the
                     statement of the Chairman of the Ad Hoc Committee introducing the
                     report of the Ad Hoc Committee.” This paragraph also does not entirely
                     clarify matters.
                        Norway and Sweden, when ratifying the UN Convention, declared that
                     they understood the Convention not to apply to “military activities”.
                     These two States shared Mr. Hafner’s view that “military activities” are
                     not covered by the UN Convention. These interpretative declarations
                     support the idea that “military activities” are not regulated by the UN
                     Convention, but do not provide a solution binding all the contracting
                     States.
                        7. None of the legislative acts referred to above in paragraph 3 con-
                     tains a general exclusion concerning claims relating to “situations involv-
                     ing armed conflicts” or to “military activities”. There are, however, some
                     provisions concerning these matters.
                        Section 16 (2) of the United Kingdom State Immunity Act 1978 states :

                             “This Part of this Act does not apply to proceedings relating to
                           anything done by or in relation to the armed forces of a State while
                           present in the United Kingdom and, in particular, has effect subject
                           to the Visiting Forces Act 1952.”

                       Section 19 (2) (a) of Singapore’s State Immunity Act is similarly
                     worded. These provisions appear concerned with claims that may be

                     220

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                     316 	 jurisdictional immunities of the state (diss. op. gaja)

                     brought against a State whose forces are present on the territory of the
                     forum State with its consent. Special rules would apply to these claims.
                     Section 22 of the Israeli Foreign States Immunities Law is more explicit
                     on this point :
                             “Notwithstanding the provisions of this statute, legal actions
                           based on any act or omission committed by foreign military forces
                           whose rights and status in Israel were determined by agreement
                           between the State of Israel and the State to which the foreign mili-
                           tary forces belong shall be governed by that agreement.”
                        Also Section 6 of Australia’s Foreign States Immunities Act 1985,
                     which excludes immunities or privileges “by or under … the Defence (Vis-
                     iting Forces) Act 1963”, and Section 16 of Canada’s State Immunity Act,
                     which mentions “the Visiting Forces Act”, only refer to forces stationed
                     on the territory of the forum State with the consent of the latter.

                        None of these texts specifically considers the “tort exception”. They all
                     relate more generally to the legislation concerning immunities of foreign
                     States. In any event, the implication of these texts is that claims relating
                     to armed activities that are not covered by the exclusion clauses come
                     within the rules on immunity expressed in the statute, including the “tort
                     exception”.

                       8. The courts of several States considered the jurisdictional immunity
                     of Germany in relation to acts of its armed forces during World War II.

                        In Ferrini the Italian Corte di Cassazione based its main argument
                     against immunity on a different basis but also gave weight to the fact that
                     the wrongful act, consisting of the deportation of an Italian national to
                     Germany where he underwent forced labour, “was commenced in the
                     country in which the legal proceedings have since been brought” (judg-
                     ment No. 5044 of 11 March 2004, English translation in ILR, Vol. 128,
                     pp. 670‑671). In a group of later decisions the same court denied immu-
                     nity “also in view of the fact that the wrongful act had occurred also in
                     Italy” (thus, for example, order No. 14209 of 29 May 2008 ; Rivista di
                     diritto internazionale, Vol. 91 (2008), p. 900).

                        The French Cour de cassation recognized on the contrary Germany’s
                     immunity in Bucheron (16 December 2003, case 02‑45961) and later in
                     Grosz (3 January 2006, case 04‑47504). Both decisions concerned the
                     deportation and subjection of French citizens to forced labour in
                     Germany. The Cour de cassation based its argument on the jure imperii
                      character of the act, without considering the possibility of applying a
                      “tort exception”.

                     221

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                     317 	 jurisdictional immunities of the state (diss. op. gaja)

                        Greek courts were divided on the issue. The Greek Areios Pagos found
                     in the Distomo case (judgment of 4 May 2000 ; English translation in ILR,
                     Vol. 129, p. 519) that a rule of international customary law :
                           “requires, by way of exception from the principle of immunity, that
                           national courts may exercise international jurisdiction over claims
                           for damages in relation to torts committed against persons and
                           property on the territory of the forum State by organs of a foreign
                            State present on that territory at the time of the commission of these
                            torts even if they resulted from acts of sovereign power (acta jure
                            imperii)”.
                        The majority held that this would also apply to “damages arising [from
                     military action] in situations of armed conflict” when “the offences for
                     which compensation is sought (especially crimes against humanity) did
                     not target civilians generally, but specific individuals in a given place who
                     were neither directly nor indirectly connected with the military opera-
                     tions”.

                        Two years later in Margellos, the Greek Special Supreme Court,
                     Anotato Eidiko Dikastirio (judgment of 17 September 2002 ; English
                     translation in ILR, Vol. 129, p. 525) came (albeit by a 6 to 5 majority) to
                     the almost opposite conclusion that the “tort exception” does not apply
                     to activities of a foreign State’s military force :
                           “in the present state of development of international law, there is no
                           generally accepted rule which, as an exception to the rule of sov
                           ereign immunity, would allow proceedings to be brought against a
                           foreign State before the courts of another State, relating to a claim
                           for compensation for a tort committed in the forum State in which
                           the armed forces of the defendant State participated — in whatever
                           manner and whether in time of war or peace” (ibid., p. 532).

                        A similar approach was taken by the Polish Supreme Court in Nato‑
                     niewski (judgment of 29 October 2010 ; English translation in Polish Year‑
                     book of International Law, Vol. XXX (2010), p. 299). The court reached
                     the conclusion that :
                           “there are insufficient grounds for recognizing an exception to State
                           immunity in cases concerning redress for breaches of human rights
                           occasioned by unlawful acts committed in the territory of the forum
                           State which come within the category of armed activities”.

                       Some further decisions that recognized immunity of a foreign State for
                     military activity on the territory of the forum State will be referred to in
                     paragraph 11.
                       9. The analysis of State practice concerning the “tort exception” in
                     general and injuries caused by military activities more specifically shows

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                     318 	 jurisdictional immunities of the state (diss. op. gaja)

                     that State authorities have taken a variety of approaches. One can apply
                     to the issue of State immunity under consideration the introductory
                     remark made by the ILC in its commentary, that there is a “grey area in
                     which opinions and existing case law and, indeed, legislation still vary”
                     (Yearbook of the International Law Commission, 1991, Vol. II, Part Two,
                     p. 23). In this “grey area” States may take different positions
                     without necessarily departing from what is required by general interna-
                      tional law.

                        The rationale of the suggested restriction to the “tort exception” con-
                     cerning military activities is not clear. First of all, the conduct of all State
                     organs is equally attributed to the State, as expressed in Article 4 of the
                     ILC Articles on the responsibility of States for internationally wrongful
                     acts. Why should a distinction be made between military and other organs
                     of the same State ? Moreover, when the forum State gives its consent to
                     the presence on its territory of foreign troops, a specific, and more favour-
                     able, régime of immunities is understandable. This will normally be estab-
                     lished by an agreement between the States concerned. It is more difficult
                     to understand why there should be a favourable régime for a hostile State
                     that would prevail over the sovereign right of the territorial State to exer-
                     cise its jurisdiction concerning conduct taking place on its territory.

                        The fact that military activities may cause injuries on a large scale does
                     not seem a good reason for depriving the many potential claimants of
                     their judicial remedy. It may be that in practice this remedy will not be
                     effective, but this applies more generally to all claims brought against for-
                     eign States given the difficulty for a successful claimant of enforcing any
                     judgment that may be obtained.

                        10. One factor that could contribute to justifying a restrictive approach
                     to State immunity when applying the “tort exception” is the nature of the
                     obligation for the breach of which a claim to reparation is brought against
                     a foreign State. This may be an obligation only covered by municipal
                     law ; it may also be the breach of an obligation under international law
                     and, in the latter case, of an obligation under a peremptory norm,
                     which can reasonably be evoked at least with regard to the massacres of
                     civilians.

                       What is in fact in question is not the exercise of jurisdiction for pre-
                     venting the breach of an obligation under a peremptory norm or for
                     obtaining the cessation of the breach, but a judicial remedy for the repa-
                     ration of the injury caused by the alleged breach. It would be difficult to
                     maintain that the obligation to provide reparation of a breach of an obli-
                     gation under jus cogens is also set forth by a peremptory norm.

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                     319 	 jurisdictional immunities of the state (diss. op. gaja)

                        Thus, for example, while Article 91 of Additional Protocol I to the
                     Geneva Conventions of 1949 considers that “[a] Party to the conflict
                     which violates the provisions of the Conventions or of this Protocol shall,
                     if the case demands, be liable to pay compensation”, the commentary by
                     the International Committee of the Red Cross observes that “[o]n the
                     conclusion of a peace treaty, the Parties can in principle deal with the
                     problems relating to war damage in general and those relating to the
                     responsibility for starting the war, as they see fit” (C. Pilloud, J. de Preux,
                     Y. Sandoz, B. Zimmermann, P. Eberlin, H.‑P. Gasser and C. F. Wenger,
                     Commentary on the Additional Protocols of 8 June 1977 to the Geneva
                     Conventions of 12 August 1949, 1987, p. 1055).
                        While the obligation of reparation can hardly be viewed as an obliga-
                     tion under a peremptory norm, the fact that the alleged breach concerns
                     an obligation of jus cogens may have some relevant consequences. Arti-
                     cle 41 of the ILC Articles on Responsibility of States for Internationally
                     Wrongful Acts lists some consequences of a serious breach by a State of
                     an obligation under a peremptory norm of general international law that
                     are additional to those following from an ordinary wrongful act. Para-
                     graphs 1 and 2 enumerate some specific consequences and paragraph 3
                     refers to “further consequences that a breach to which this chapter applies
                     may entail under international law”. While the issue of jurisdictional
                     immunity has not been mentioned either in the text of the article or in the
                     related commentary, a restriction of immunity could well be regarded as
                     an appropriate consequence which would strengthen the effectiveness of
                     compliance with the obligation to make reparation. This would contrib-
                     ute to removing doubts about the lawfulness for a State of exercising its
                     jurisdiction in the “grey area” of injury caused by military activity of a
                     foreign State on the territory of the forum State. In other words, even if
                     immunity covered in general claims regarding damages caused by military
                     activities in the territory of the forum State, it would not extend to claims
                     relating to massacres of civilians or torture in the same territory.

                       11. It would be more difficult to infer from the nature of the breach a
                     restriction of the jurisdictional immunity of foreign States that would
                     cover injuries caused by a foreign State wherever they occur.

                       This conclusion was suggested by a minority opinion in the European
                     Court of Human Rights in Al‑Adsani v. United Kingdom and by the Ital-
                     ian Corte di Cassazione in a number of judgments, especially those in
                     Ferrini (judgment No. 5044 of 11 March 2004 ; English translation in
                     ILR, Vol. 128, pp. 668‑669) and in Milde (judgment No. 1072 of 13 Janu-
                     ary 2009). Also a decision by the French Cour de cassation in La Réunion

                     224

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                     320 	 jurisdictional immunities of the state (diss. op. gaja)

                     aérienne v. Libyan Arab Jamahiriya (case No. 09-14743 of 9 March 2011)
                     pointed to the existence of a restriction of immunity when a claim con-
                     cerns reparation of the breach of an obligation under jus cogens, provided
                     that the breach consists in a positive conduct of the foreign State.

                        The European Convention on State Immunity and the UN Convention
                     do not lend support to this view, because they do not establish any excep-
                     tion to immunity which is based on the nature of the obligation breached
                     by the foreign State.
                        In 1999 the denial of jurisdictional immunity with regard to claims “in
                     the case of death or personal injury resulting from acts of a State in viola-
                     tion of human rights norms having the character of jus cogens” was con-
                     sidered by an ILC working group chaired by Mr. Hafner as a “recent
                     development” which the working group took the initiative of highlight-
                     ing, suggesting to the General Assembly that it “should not be ignored”
                     (Yearbook of the International Law Commission, 1999, Vol. II, Part Two,
                     p. 172). The report of the Chairman of the GA Working Group (again
                     Mr. Hafner) found that it did not “seem advisable to include this matter
                     among the issues to be covered by the forthcoming considerations on the
                     topic” (A/C.6/54/L.12, p. 9, para. 67). This cannot be taken as a total
                     rejection of the suggested exception.

                        It is to be noted that the ILC working group had referred only to two
                     decisions restricting State immunity, both based on the United States
                     Anti-Terrorism and Effective Death Penalty Act of 1996. This had
                     amended the Foreign Sovereign Immunity Act in order to restrict immu-
                     nity of foreign States with regard to claims for damages caused by acts of
                     torture, extrajudicial killings and some other acts wherever committed,
                     but only if these acts had been committed by a foreign State designated
                     by the Secretary of State as a State sponsor of terrorism and if the claim-
                     ant or victim was a national of the United States. Given these conditions,
                     the United States Act is not indicative of the existence of a possible excep-
                     tion to immunity based on the nature of the obligation under interna-
                     tional law which is at the origin of the claim.

                        What appears more significant for that issue is that none of the legisla-
                     tive acts referred to above in paragraph 3 contains any reference to a
                     similar exception.
                        The matter was thoroughly debated in the European Court of Human
                     Rights in Al‑Adsani v. United Kingdom. By a majority of nine votes to
                     eight, the court stated that it did not

                           “find it established that there is yet acceptance in international law of
                           the proposition that States are not entitled to immunity in respect of

                     225

6 CIJ1031.indb 446                                                                                22/11/13 12:25

                     321 	 jurisdictional immunities of the state (diss. op. gaja)

                           civil claims for damages for alleged torture committed outside the
                           forum State”.
                        Also the Ontario Court of Appeal stressed in Bouzari and Others v.
                     Islamic Republic of Iran (judgment of 30 June 2004, ILR, Vol. 128, p. 605)
                     the distinction according to the place where the injury occurred. While
                     implicitly acknowledging the applicability of the “tort exception” pro-
                     vided by Canadian legislation, this court said that : “practice reflects the
                     customary international law principle that State immunity is provided for
                     acts of torture committed outside the forum state . . .”.

                      The Constitutional Court of Slovenia (judgment of 8 March 2001, case
                     Up‑13/99) found that there was a “trend”, but no
                           “rule of international customary law, which would in the case of vio-
                           lations of the cogent norms of international law in the area of human
                           rights protection as a consequence of state activities in the framework
                           of iure imperii . . . allow Slovenian courts to try foreign states in such
                           cases”.
                     The court was here considering an activity which had occurred on what
                     had become Slovenian territory.
                        A similar approach was taken by the German Bundesgerichtshof in a
                     judgment of 26 June 2003 when it was faced with the request to enforce
                     the Greek judgment on the merits in the Distomo case (English transla-
                     tion in International Legal Materials, Vol. 42 (2003), p. 1033).
                        A flat rejection of the existence of an exception to immunity covering
                     claims for breaches of obligations under peremptory norms was expressed
                     by the House of Lords in Jones v. Saudi Arabia ([2007] 1 AC 270). This
                     judgment concerned a claim relating to an act of torture that had taken
                     place outside the territory of the forum State.

                        If one takes into consideration all these elements of practice, one has to
                     reach the conclusion that the nature of the obligation under international
                     law which is at the origin of the claim does not per se provide sufficient
                     evidence that jurisdiction may be exercised over foreign States in case of
                     a claim for reparation for the breach of an obligation under a peremptory
                     norm wherever committed. On the other hand, one cannot infer from this
                     practice that the nature of the obligation breached negatively affects the
                     applicability of the “tort exception”. It would indeed be extraordinary if
                     a claim could be entertained on the basis of the “tort exception” when the
                     obligation breached is of a minor character while this exception would
                     not apply to claims relating to breaches of obligations under peremptory
                     norms.

                       12. The application of the criteria above would have required the
                     Court to examine in greater detail, in relation to the facts of each case,

                     226

6 CIJ1031.indb 448                                                                                22/11/13 12:25

                     322 	 jurisdictional immunities of the state (diss. op. gaja)

                     the various decisions of Italian courts to which the Application of Ger-
                     many refers. This should have led the Court to conclude that, at least for
                     certain decisions of Italian courts, the exercise of jurisdiction could not be
                     regarded as being in breach of an obligation under general international
                     law.

                                                                       (Signed) Giorgio Gaja.

                     227

6 CIJ1031.indb 450                                                                                22/11/13 12:25


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING THE
AERIAL INCIDENT OF
7 NOVEMBER 1954

(UNITED STATES OF AMERICA v.
UNION OF SOVIET SOCIALIST REPUBLICS)

ORDER OF 7 OCTOBER 1959

1959

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE A
L’INCIDENT AERIEN DU
7 NOVEMBRE 1954

(ÉTATS-UNIS D'AMÉRIQUE c.
UNION DES RÉPUBLIQUES SOCIALISTES SOVIÉTIQUES)

ORDONNANCE DU 7 OCTOBRE 1959
This Order should be cited as follows:

“Case concerning the Aerial Incident of 7 November 1954
(United States of America v.
Union of Soviet Socialist Republics},
Order of 7 October 1959: I.C.J. Reports 1959, p. 276.”

La présente ordonnance doit étre citée comme suit:

« Affaire relative à l'incident aérien du 7 novembre 1954
(Etats-Unis d'Amérique c.
Union des Républiques socialistes soviétiques),
Ovdonnance du 7 octobre 1959: C.I. J. Recueil 1959, p. 276.»

Sales number 91 8
N° de vente:

276

INTERNATIONAL COURT OF JUSTICE

1959
7 October

General List : YEAR 1 959

7 October 1959

CASE CONCERNING THE
AERIAL INCIDENT OF
7 NOVEMBER 1954

(UNITED STATES OF AMERICA v.
UNION OF SOVIET SOCIALIST REPUBLICS)

ORDER

Present: President KLAESTAD; Vice-President ZAFRULLA KHAN;
Judges BASDEVANT, HACKWORTH, WINIARSKI, BADAWI,
ARMAND-UGon, KoJEVNIKOv, Sir Hersch LAUTERPACHT,
MoRENO QUINTANA, WELLINGTON Koo, SPIROPOULOS,
Sir Percy SPENDER; Deputy-Registrar GARNIER-COIGNET.

The International Court of Justice,

composed as above,

after deliberation,

having regard to Articles 36 and 48 of the Statute of the Court,

Makes the following Order :

Whereas on 7 July 1959 the Ambassador of the United States of
America to the Netherlands filed in the Registry an Application
dated 8 June 1959 and signed by the Agent for the Government of

4
277 AERIAL INCIDENT (U.S.A. V. U.S.S.R.) (ORDER 7 X 59)

the United States of America instituting proceedings before the
Court against the Union of Soviet Socialist Republics “‘on account
of the destruction on November 7, 1954, of a United States Air
Force B-29 aircraft in the Japanese territorial air space over
Hokkaido, Japan”;

Whereas the Application was duly communicated by the Registry
on 7 July 1959 to the Ambassador of the Union of Soviet Socialist
Republics to the Netherlands;

Whereas the Application was also communicated by the Registry
to the Members of the United Nations, through the Secretary-
General of the United Nations, and to the other States entitled to
appear before the Court;

Whereas the Application contains the following paragraphs:

“The United States Government, filing this application with the
Court, has submitted to the Court’s jurisdiction for the purposes of
this case. The Soviet Government appears not to have filed any
declaration with the Court thus far. It was invited to do so by the
United States Government as to the present dispute in the note of
June 19, 1958. The Soviet Government has sent a negative reply
thereto. The Soviet Government is, however, qualified to submit to
the Court in this matter and may, upon notification of this appli-
cation by the Registrar, in accordance with the Rules of the Court,
take the necessary steps to enable the Court’s jurisdiction over
both Parties to the dispute to be confirmed.

The United States Government thus founds the jurisdiction of
this Court on the foregoing considerations and on Article 36 (1)
of the Statute.”’

Whereas in a letter in Russian, dated 31 August 1959, from the
Chargé d’affaires of the Union of Soviet Socialist Republics in the
Netherlands to the Registrar, accompanied by an unofficial English
translation, it was stated that:

“The Government of the USSR in its note of March 4 1959 to
the Government of the USA on this question as in its previous notes
of November 7 and December iz 1954 and of August 19, 1957,
pointed out that the violation of the Soviet State border by the
American plane which was the first to fire the Soviet fighter-planes
is an indisputable fact and that the responsibility for the incident
is completely on the American side.

In the same note of March 4, 1959, the Government of the USSR,
in response to the proposal of the Government of the USA to refer
this case to the International Court of Justice stated that they did
not see bases for it.

The Soviet Government draws your attention to the fact that
they repeatedly protested against violations by American planes
of the USSR state borders situated many thousand kilometres
278 AERIAL INCIDENT (U.S.A. ¥. U.S.S.R.) (ORDER 7 X 59)

away from the American territory and warned that all the responsi-
bility for such violations and their consequences would be com-
pletely on the American side. But the American side ignored this
kind of warnings and did not prohibit their military air-forces to
direct planes towards the state borders of the USSR and violate
these borders.

In connection with the heretofore stated the Government of the
USSR considers as before that in this case there are no questions
which are in need to be solved by the International Court of Justice
and do not see bases for the filing of this case with the Court.”

Whereas a true copy of the above-mentioned letter was com-
municated to the Agent for the Government of the United States
of America on 3 September 1959;

Whereas, in these circumstances, the Court finds that it has not
before it any acceptance by the Government of the Union of Soviet
Socialist Republics of the jurisdiction of the Court to deal with
the dispute which is the subject of the Application submitted to it
by the Government of the United States of America and that there-
fore it can take no further steps upon this Application;

THE CouRT

orders that the case be removed from the list.

Done in English and in French, the English text being author-
itative, at the Peace Palace, The Hague, this seventh day of Octo-
ber, one thousand nine hundred and fifty-nine, in three copies,
one of which will be placed in the archives of the Court and the
others transmitted to the Government of the United States of
America and to the Government of the Union of Soviet Socialist
Republics, respectively.

(Signed) Helge KLAESTAD,
President.

(Signed) GARNIER-COIGNET,
Deputy-Registrar.


362

DISSENTING OPINION OF VICE-PRESIDENT WEERAMANTRY

Article 36, paragraphs 2 and 4, and Article 38, paragraph I (c), of the Statute
— Need for communication of acceptance before consensual relationship is
formed — Duty imposed on Secretariat by Article 36, paragraph 4 — Use under
Article 38, paragraph I (c), of comparative law perspectives regarding forma-
tion of consensus — Need for time interval between deposit of declaration and
formation of consensual bond — Avoidance of surprise to party sought to be
bound — Strengthening of Court’s jurisdiction through due compliance with
Article 36, paragraph 4.

I have some reservations in regard to the Court’s conclusions on objec-
tion 1. Since the principles involved are of considerable importance to the
jurisprudence of the Court, I consider it necessary to set out these reser-
vations in some detail.

Briefly stated, my concerns centre on the proposition that the deposit
of a declaration under Article 36, paragraph 2, of the Statute is all that is
required to establish the necessary consensual bond under the Optional
Clause. It follows from this proposition that the moment a declaration is
lodged under Article 36, paragraph 2, the party lodging the declaration
has the right to bring another declarant to Court, irrespective of that
other party’s knowledge that such declaration has been lodged. It seems
to me that such a proposition cannot be in conformity with either the
express law or the essential philosophy governing the Optional Clause.

Such a view negates a specific provision of the applicable law which is
contained in Article 36, paragraph 4, of the Statute, and runs contrary to
the philosophy of consensus on which the structure of the Court’s juris-
diction, as well as of this particular provision, is based. It is also in dis-
harmony with the principles of equality, fairness, good faith, and reci-
procity. Moreover, it results in the rather incongruous situation that,
during the interim period between the filing of the declaration and the
communication of this fact, there is great inequality between the parties
in relation to their practical right of access to the Court. The right to take
one’s adversary to court is, in any circumstances, a valuable right. It is
rendered all the more valuable — and inequitably so — if one’s adversary
does not know that it has a corresponding right. If such a one-sided state
of affairs prevails for nearly a year — which could occur, as we have
seen, owing to delays in communication by the Secretariat — so much
the greater is the advantage to one party and the resulting lack of equal-
ity and reciprocity. The declarant can regulate its conduct and direct its

91
363 LAND AND MARITIME BOUNDARY (DISS. OP. WEERAMANTRY)

negotiations from the vantage point of its certain knowledge that the
matter is now justiciable before the Court, while its opponent negotiates
in ignorance of this vital item of information regarding its rights.

Ido not think such results were within the contemplation of those who
drafted the Statute of the Court, especially having regard to their par-
ticular concern with the question of communication, as reflected in the
wording of the Article itself.

The authority for the proposition underlying the Court’s ruling is the
often-invoked Right of Passage case!, but, with much respect, it seems to
me that that case, though followed in the Court’s subsequent jurispru-
dence, needs re-examination. It affects too fundamental an aspect of the
Court’s jurisdiction to remain as the leading authority on this question.
After 40 years of development of international law, in the spheres of such
concepts as fairness, reciprocity and good faith, so sweeping a hypothesis
as the immediate creation of a right to sue, regardless of the other party’s
knowledge thereof, is much in need of review.

*
* *

A word is necessary regarding the facts of this particular case. Nigeria
had filed its Declaration in 1965. Cameroon filed its Declaration on
3 March 1994, and made its Application to the Court three weeks later.
The Secretary-General did not communicate Cameroon’s Declaration for
nearly a year, and Nigeria states that it first received formal intimation of
Cameroon’s Application from the Registrar on 29 March 1994.

Cameroon relies on informal references to such a possibility in the
communications between the States, and on other sources from which
Nigeria might have gleaned this information. In dealings between States
on a matter of such importance and formality, one would require some-
thing more than a communication which is both informal and indefinite.
The question arises whether, in any event, the announcement of the Dec-
laration in the Journal of the United Nations would have been sufficient
notice to Nigeria of the Declaration of Cameroon. It is necessary to
observe in this connection that not every mission in the United States is
so well equipped with professional personnel that it can keep a tab on all
the treaties deposited and link up the declarations under Article 36, para-
graph 2, with their country’s immediate concerns. Such a view would
operate harshly on the less well-equipped missions at the United Nations.

| Right of Passage over Indian Territory, Preliminary Objections, Judgment, 1 CJ.
Reports 1957, p. 125.

92
364 LAND AND MARITIME BOUNDARY (DISS. OP. WEERAMANTRY)

I cite, in this connection, the following passage from Rosenne’s work on
The Law and Practice of the International Court of Justice, 1920-1996:

“An announcement of the deposit of a declaration is published
immediately in the Journal of the United Nations issued on each
weekday in New York. That announcement is made for information
purposes. It is accompanied by a footnote specifying that the date
indicated is the date of receipt of the relevant documents, meaning
that the documents will have to be reviewed for determination as to
the actual deposit. Given the Court’s interpretation of Article 36, para-
graph 4, this announcement is not a satisfactory method of bringing
the deposit of a declaration to the immediate notice of the parties to
the Statute, since the Journal of the United Nations is not a docu-
ment of general circulation but rather the day’s work programme in
United Nations Headquarters in New York. Permanent Missions in
New York are unlikely to appreciate the significance of announce-
ments of this character appearing in the Journal.”

1 shall now deal with the reasons why I consider the Right of Passage

decision to be in need of review, commencing with the strictly legal pro-
visions, and moving thereafter to the conceptual reasons underpinning
them.

in

That decision, which receives endorsement from the Court’s Judgment
the present case, holds that:

“A State accepting the jurisdiction of the Court must expect that
an Application may be filed against it before the Court by a new
declarant State on the same day on which that State deposits with
the Secretary-General its Declaration of Acceptance. For it is on
that very day that the consensual bond, which is the basis of
the Optional Clause, comes into being between the States con-
cerned.”?

My first point of disagreement with the Right of Passage case is based

on its unequal treatment of the two mandatory clauses contained in
Article 36, paragraph 4, of the Statute. The two requisites stipulated by

2 The Law and Practice of the International Court of Justice, 1920-1996, 1997, Vol. II,
p. 759.
31 C.J. Reports 1957, p. 146.

93
365 LAND AND MARITIME BOUNDARY (DISS. OP. WEERAMANTRY)

Article 36, paragraph 4, are deposit with the Secretary-General and trans-
mission by the Secretary-General of copies to the parties to the Statute
and to the Registrar of the Court. The Court, in Right of Passage, treats
the first request as essential and virtually discounts the other. I do not
think that two parallel statutory requirements can be treated so differ-
ently, especially when both alike are couched in imperative terms.

Secondly, it is an important rule of statutory interpretation that all
words in the instrument under interpretation should, as far as possible,
be given full efficacy. The Court must necessarily avoid any interpreta-
tion which would reduce important words or clauses in the Statute to
mere surplusage which has no legal effect whatever. Under the Right of
Passage interpretation, the words “who shall transmit copies thereof to
the parties to the Statute and to the Registrar of the Court” might as well
have been omitted from the Statute. Such an interpretation does not
seem to me to be in conformity with the recognized rules of legal inter-
pretation. The Court is under a duty to render effective ail the provisions
of its Statute, rather than to encourage the disregard of sections of it by
interpretations which denude them of significance or meaning.

The Court’s Judgment means that if the Secretariat ignored these
words completely, the legal result would still be the same. Such a view is
all the more questionable when the statutory requirement is not an arbi-
trary imposition, but is based, as will be shown, upon well-accepted uni-
versal norms and concepts pertinent to the creation of consensual
relationships.

It is true this Judgment has been followed in the Court’s later jurispru-
dence in Temple of Preah Vihear and Military and Paramilitary Activi-
ties in and against Nicaragua (Nicaragua v. United States of America).
However, no amount of contrary Jurisprudence can override the impera-
tive requirements of the Court’s Statute and, if indeed the Statute makes
such a communication compulsory, it must be treated as such.

Thirdly, one must look upon the deposit of the declaration and the
communication by the Secretary-General as together constituting the
composite package of conditions which needs to be satisfied to give legal
efficacy to the declaration. It is clear that the first requisite must be
satisfied, for, without it, there could be no question of the declaration
being operative. The article in question designedly does not place that
requisite alone, but couples it with another in terms which are equally
mandatory. |

One constituent element cannot be detached from this statutory pack-
age by a process of judicial interpretation. Nor can one element be
emphasized and the other neutralized when the Statute itself gives no
indications to that effect. If the juristic right fashioned by Article 36 is to

94
366 LAND AND MARITIME BOUNDARY (DISS. OP. WEERAMANTRY)

come into existence, the events attending its creation must fit the mould
cast for that purpose by the governing statutory provision.

A fourth reason why the Right of Passage decision needs review is that
it could well encourage the Secretariat to take a more relaxed view
regarding its obligations under Article 36, paragraph 4. Since the inter-
pretation placed by Right of Passage on the requirement of communica-
tion deprives that requirement of ali effective impact upon the matter it
was meant to regulate, it is not to be wondered at that the Secretariat,
acting presumably on that ruling, takes its time — up to one year — in
transmitting the required communication.

If, indeed, a practice of delay in communication has resulted in the
United Nations from the belief that one of these imperative conditions is
not imperative, despite the language of the Statute to the contrary, it is
important that the practice be rectified and the procedures brought into
regularity with the binding requirements of the Statute.

It is true the second of these requirements is not within the control of
the party depositing the declaration, but it is to be presumed that official
acts will be duly performed, the more especially where they relate to
matters of such fundamental importance to the rights of States, as the
voluntary surrender of some part of their sovereign autonomy — for dec-
larations by States under Article 36 amount to no less than this. Due
performance by the Secretariat of its responsibility of transmitting such
copies in a matter such as this can mean nothing short of transmission of
such declarations forthwith. This is yet another reason why I believe the
Court should take this opportunity to review that Judgment, and stress
the imperative nature of this statutory responsibility. The delay of nearly
one year that has occurred in communication in this instance is not, in
any event, a proper compliance with the Statute.

My fifth objection to the Right of Passage case is that it takes out of
context the expression “ipso facto and without special agreement”, and
treats it as an indication of the point of time at which the parties became
consensually bound. This provision was not intended to produce such a
result, nor can it bear such a construction. What Article 36, paragraph 2,
provides is that where a declaration is filed, no special agreement is
necessary, as the declaration has a compulsory force of its own. Nowhere
does this provision purport to indicate when that declaration becomes
operative. |

I would endorse what Vice-President Badawi observed of this con-
struction in his dissenting opinion in the Right of Passage case when he
criticized the isolation of the expression “ipso facto” from its context.

95
367 LAND AND MARITIME BOUNDARY (DISS. OP. WEERAMANTRY)

This led to the achievement of a result by which, in his words, “the com-
plete idea contained in the Statute has been dismembered and dis-
regarded” +.

As a sixth objection, I note the prejudice that the Right of Passage
interpretation may cause to a party. A ruling which in effect confirms
that the filing of a declaration becomes operative the very next moment
after it is filed could be an embarrassment to a State which is in the pro-
cess of negotiation with another. Unknown to itself, 1t could have the
ground surreptitiously cut from under its feet, perhaps after it has made
some vital concession, in the belief that the matter is still under negotia-
tion. This aspect is further developed later in this opinion.

A seventh reason is that the declaration which constitutes the act of
acceptance is not a declaration in a standard form. It is infinitely variable
in its terms, and the mere fact of deposit cannot be an intimation of the
terms in which the declaration is framed. The party sought to be bound is
entitled to know those terms. If it is held to be consensually bound, it
cannot reasonably be held to be bound to terms of which it is unaware.
This factor militates so strongly against the core content of the concept of
consensus that even had it stood alone, it would, in my view, have been
conclusive.

An eighth and final reason why, in my view, the Right of Passage deci-
sion needs re-examination is that it could have an adverse effect on the
development of the Court’s jurisdiction. The Court’s interpretation could
well result in a reluctance on the part of States to make such declarations
in the first instance. Indeed, the Court’s ruling in the Right of Passage
case was followed shortly thereafter by the introduction of a series of
reservations to declarations already filed under Article 36. For example,
the United Kingdom’s Declaration on 26 November 1958 excepted from
the scope of its Declaration disputes

“where the acceptance of the Court’s compulsory jurisdiction on
behalf of any other Party to the dispute was deposited or ratified less
than twelve months prior to the filing of the application bringing the
dispute before the Court”*.

So, also, India filed an amended declaration on 14 September 1959,
restricting the Court’s jurisdiction in respect of future applications to
cases where the acceptance of the Court’s compulsory jurisdiction was
deposited or ratified more than twelve months prior to the filing of an
application bringing the dispute to the Court®.

4 Right of Passage over Indian Territory, Preliminary Objections, Judgment, LC J.
Reports 1957, p. 157.

SECJI. Yearbook 1959-1960, p. 255.

6 Ibid., p. 242.

96
368 LAND AND MARITIME BOUNDARY (DISS. OP. WEERAMANTRY)

Other States may well be expected to take similar steps to protect
themselves against surprise applications if this view of the law is con-
firmed, while some others contemplating the filing of such a declaration
may well have second thoughts on the subject. All this is not conducive to
the extension of the compulsory jurisdiction of the Court.

Indeed, while the Court has been deliberating on its Judgment, Nigeria
itself has taken action, on 29 April 1998, to amend its Declaration, so as
to impose a time-limit of twelve months before acceptance of the Court’s
jurisdiction by a State becomes operative against Nigeria.

So much in regard to the interpretation of the governing statutory pro-
vision.

I pass now to an examination of some conceptual considerations which
underlie the statutory provision and reinforce the conclusions already
reached.

Since the so-called compulsory jurisdiction clause is consensual in its
architecture, one must satisfy oneself that the results of the Court’s Judg-
ment are in conformity with the legal concept of consensus.

A State lodging a declaration under Article 36, paragraph 2, performs
a twofold juristic act. On the one hand, it is making an offer to every
other State that has not already filed a declaration that it will be bound
by its terms to such State, upon that State making a declaration in
accordance with Article 36. On the other hand, a declaration made in
terms of Article 36 is an acceptance of the offers made by other States
which have already filed such a declaration. A declaration duly made
under Article 36 is thus both an offer to some States and an acceptance of
the offer already made by other States.

It is true we are considering a question of international law, but this
analysis shows us also that we are very much in the sphere of the law of
consensual obligations, from which we draw our general principles and
foundation requirements. We must not be diverted from the basic prin-
ciples of this body of law, as universally recognized, by the circumstance
that we are operating in the territory of international law. Where any
situation in international law depends on consensus, the generally
accepted principles relating to consensual obligations would apply to that
situation, unless expressly varied or abrogated.

How is a consensual obligation formed? The completed legal product
results from the classical process of the meeting of minds which follows
from a confluence of offer and acceptance. This is accepted by most legal

97
369 LAND AND MARITIME BOUNDARY (DISS. OP. WEERAMANTRY)

systems, with the rarest of exceptions’. This principle is accepted alike by
the Anglo-American law and the Romanistic legal systems®. There are
indeed substantial differences among different legal systems regarding
such matters as the status and revocability of the offer”, but the basic
principle that the minds of offeror and offeree must meet remains
unaffected by these considerations, and belongs to the common core of
legal systems.

Probably the most exhaustive study available on the core content of
consensus across a wide variety of legal systems is Schlesinger’s monu-
mental work on the Formation of Contracts'®. Schlesinger would indeed
appear to have anticipated cases such as the present where the Court
needs to satisfy itself on the universally agreed fundamentals of con-
sensus.

One of the purposes of this study, as expressly stated therein, was to
render assistance to judges of international tribunals having occasion,
under Article 38, paragraph 1 (c), of the Statute of the International
Court of Justice, to deal with issues relating to the formation of agree-
ments!!. Schlesinger was examining the “reservoir of legal concepts and
precepts traditionally utilized in, and shared by, a number of national
legal systems” !*, and expressed the hope that international judges “would
make ample use of the ‘general principles’ as prime materials for the
building of a systematic body of international law” 3.

The present case of interpretation of a statutory provision arising out
of the concept of consensus or agreement is an apt occasion for the use of
such scholarly research for the purposes of international law. In particu-
lar, it would be helpful in testing whether the interpretation adopted in

7 E.g., a rare exception, which studies of comparative law note as atypical, is the Léfte
doctrine of the Scandinavian countries, under which obligations stem not from the agree-
ment of parties but from the duty undertaken by each party in its contractual declaration.
See K. Zweigert and H. Kôtz, An Introduction to Comparative Law, 2nd ed., 1984, trans.
Tony Weir, p. 382. It has never been suggested that Article 36, paragraph 2, followed such
a conceptual model.

8 Ibid. pp. 381 et seq.

9 See P. de Cruz, Comparative Law in a Changing World, 1995, pp. 302 et seq., regard-
ing the general rule of revocability of offers in the common law, the general rule of irrevo-
cability in German law, and the somewhat intermediate position of French law. See, also,
S. A. Nussbaum, “Comparative Effects of the Anglo-American Offer and Acceptance
Doctrine”, (1936) Columbia Law Review, Vol. 36, p. 920.

10 Rudolf B. Schlesinger (ed.), Formation of Contracts: A Study of the Common Core
of Legal Systems, 2 vols., 1968.

11 Ibid. Vol. 1, pp. 7-8.

12 Jbid., p. 8.

13 Ibid.

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370 LAND AND MARITIME BOUNDARY (DISS. OP. WEERAMANTRY)

the Right of Passage case conforms to the “general principles” attending
agreement as universally understood.

Schlesinger notes preliminarily the following general propositions:

“I A. In all legal systems under consideration, the first require-
ment of a ‘contract’, in the core meaning of the word, is the existence
of an agreement, i.e., of manifestations of mutual assent on the part
of two or more persons. Whether or not they are promissory in
nature, these manifestations as a rule must be referable to each
other.” +

“TILL...

In all legal systems under consideration, contracts are normally
(although not necessarily . . .) formed by offer and acceptance occur-
ring in an ascertainable sequence.” !>

Once this norm of offer and acceptance is established, the next ques-
tion for examination is whether the acceptance needs to be communi-
cated. In this regard, Schlesinger observes as follows, in the section of the
General Report dealing with the question:

“Is Communication of Acceptance Necessary?

The problem to be treated in this Report is connected with the
offeror’s interest in obtaining knowledge concerning the conclusion
of the contract.

Normally, although not necessarily, such knowledge is obtained
through communication, i.e., an act of the offeree aimed at bringing
acceptance to the offeror’s knowledge.

With the possible exception of French law, all systems under con-
sideration agree, as a matter of principle, that communication of
acceptance is necessary to bring about a contract.” !$

He also observes that the differences between French law and the other
systems under consideration may be more apparent than real!7.

There are indeed exceptional circumstances in which legal systems do
not require a specific communication of acceptance, e.g., in standard

14 Op. cit., p. 71.

15 Jbid., p. 74. The exceptional circumstances, which are rare, are dealt with in
Part Two, Section C1, of Schlesinger’s work.

16 Jbid., p. 147.

17 Jbid., note 2.

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371 LAND AND MARITIME BOUNDARY (DISS. OP. WEERAMANTRY)

form contracts or contracts of adhesion!®. Vice-President Badawi, in the
Right of Passage case, distinguished this category of contracts from Dec-
larations under Article 36 in the following terms:

“Indeed, whereas the essential feature of the ‘adherence’ or ‘acces-
sion’ contract is uniformity, that of Declarations is variety and
diversity. Each Declaration expresses the conditions, the purposes
and the policy of the State which makes it. Furthermore, in ‘adher-
ence contracts’ one of the parties in fact is in a position in which it is
impossible to discuss the terms of the contract. It is obliged to con-
tract and gives its adherence to the all powerful will of the other. In
this category are included, inter alia, contracts of service, contracts
for transport and for insurance. What analogy can there be between
such contracts and Declarations. accepting jurisdiction?” !°

Another such exceptional category consists of postal offers, in regard
to which a variety of theories have been propounded”? to meet the diffi-
culties arising from time taken in transit, revocation pending transmis-
sion, and the like. All theories have been the subject of contention, but
they are all designed to meet the special difficulties arising from this par-
ticular mode of communication. There may also be cases where an un-
usual mode of acceptance is prescribed by the offeror, and compliance
with this method obviates the need for communication, which is there-
fore considered to be waived2!. It is in such cases, where good reasons
exist for departure from the norm, that the law of contract waives the

18 Where a standing offer is made on standard terms, e.g., by a public carrier, it
becomes a contract upon acceptance of the act of service, as when a passenger boards a
bus. There is no room for negotiation or for individual variations of terms in such a situa-
tion, and the meeting of minds is deemed to take place when the relevant act is performed.
There is no analogy between such situations and offers of acceptance of the Court’s juris-
diction, which are infinitely variable in their terms.

19 Right of Passage over Indian Territory, Preliminary Objections, Judgment, I CJ.
Reports 1957, dissenting opinion, pp. 157-158.

20 A variety of theories have evolved in relation to acceptance of postal offers — the
declaration theory (that the contract is complete as soon as the offeree has made a dec-
laration of his acceptance), the expedition theory (that the contract is formed when a let-
ter or telegram has been despatched accepting the offer), and the information theory (that
communication of the acceptance must be received by the offeror). See de Cruz, op. cit.,
p. 308. All of these are fashioned to meet the varied practical difficulties that arise in the
context of postal offers. See also the reference to these theories in the dissenting opinion
of Vice-President Badawi in Right of Passage over Indian Territory, Preliminary Objec-
tions, Judgment, I.C.J. Reports 1957, p. 156).

21 As in the classic common law case of Carlill v. Carbolic Smoke Ball Co., where an
act prescribed by the offeror was considered without more to constitute acceptance. Even
that case affirmed, however, that “One can not doubt that, as an ordinary rule of law, an
acceptance of an offer made ought to be notified to the person who makes the offer, in
order that the two minds may come together” ({1893] 1 QB 256; 62 LIQB 257). See the
reference to this case in Schlesinger, op. cit., Vol. IL p. 1309.

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372 LAND AND MARITIME BOUNDARY (DISS. OP. WEERAMANTRY)

requirement of communication of an acceptance. This is not such a case.
Indeed, the present situation is the very opposite of the case where actual
communication is waived by the law, for the Statute in fact expressly
requires communication by action of the Secretary-General.

Except in such exceptional circumstances, or where communication is
expressly dispensed with by the parties, there is very good reason for con-
cluding that there can be no consensus in the absence of communication
of the acceptance. Without it, the offeror would be in a state of ignorance
that it is bound by a contractual relationship. In the words of Nigeria,
the “consensual bond” between itself and Cameroon in regard to the
Court’s jurisdiction “cannot be said to exist with respect to another State
of whose participation in the system established by Article 36.2 of the
Statute Nigeria knew nothing”. This is contrary to the considerations
of fairness that should govern such relationships; and the exceptional cir-
cumstances in which a merely notional communication is deemed suffi-
cient are not replicated in the case of Article 36, paragraph 2, declara-
tions. Such a conclusion is strengthened further by the requirement of
communication built into Article 36, paragraph 2, itself.

The procedure of deposit of the declaration with the Secretariat is
clearly not tantamount to a notification to all the world, as would be the
case, for example, of the deposit and registration of a deed with a Land
Registry within a domestic legal system. Indeed, the Statute would not
specifically require communication if the mere fact of the deposit were to
be constructive notice to all the world.

An important principle involved in alt of the foregoing considerations
is the principle of the protection of the offeror.

I quote Schlesinger’s conclusions again, in relation to the recognition
by legal systems of the need for the protecting the offeror. He refers to
the fact that

“most of the legal systems under consideration will in some way pro-
tect the offeror’s interest in obtaining knowledge that the contract
has been concluded. Such protection is given by imposing a duty on
the acceptor to inform the offeror, promptly or at least within a
reasonable time, of the conclusion of the contract. However, these
systems differ as to the scope of the duty and the consequences
of non-compliance.” 73

IT can do no better than to conclude this discussion with a reference to
what Grotius himself has to say on the matter, not in his treatises on the

22 Preliminary Objections of Nigeria, Vol. I, p. 40, para. 1.23.
23 Schlesinger, op. cit., Vol. I, p. 148.

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373 LAND AND MARITIME BOUNDARY (DISS. OP. WEERAMANTRY)

Roman-Dutch law, but in De Jure Belli ac Pacis itself. His conclusions
are as follows:

“Whether an acceptance ought to be made known to the promisor;
explanation, with a distinction

This question is also commonly raised, whether it is sufficient that
the acceptance be signified, or whether, in fact, the acceptance ought
also to be made known to the promisor before the promise attains its
full effect. |

It is certain that a promise can be made in both ways, either thus:
‘I desire that this be valid, if it be accepted’; or thus: ‘I desire that
this shall be valid if I shall have understood that it has been accepted’.
In promises which deal with mutual obligations the latter meaning is
assumed, but in merely generous promises it is better that the former
meaning should be believed to be present, unless something else
should appear.” 4

Declarations under Article 36, paragraph 2, deal with mutual obliga-
tions, and there is no doubt that they fall into the category in which the
offeror must know that his offer has been accepted?>.

This discussion of the general principles of law relating to the forma-
tion of consensus through the process of offer and acceptance show their
applicability to the matter under consideration by the Court. It indicates
also how the Court’s decision departs from those principles, and thereby
weakens the foundation of true consensus on which the Court’s jurisdic-
tion must in all circumstances be based.

There are two ancillary matters which need some consideration to
complete an examination of the matter before the Court — the need for
a time interval between deposit of the declaration and the creation of the
consensual bond, and the question of prejudice to a party that can result
from the view of the law which the Court has endorsed.

*
* *

A time interval between deposit of the declaration and the creation of
the consensual bond provides a necessary safety cushion to ensure that
the party sought to be bound by the declaration is not taken by surprise.

Scholarly writings on Article 36, paragraph 4, reinforce this point.
I refer, in particular, to Shabtai Rosenne, who points out that Article 36,
paragraph 4, was added at a late stage of the San Francisco Conference,

24 Hugo Grotius, De Jure Belli ac Pacis, Kelsey (trans.), 1925, Vol. II, Bk. I, p. 338.
25 For this and other references reaching back to discussions by the mediaeval glos-

sators upon the subject of communication of acceptance, see Weeramantry, The Law of
Contracts, 1967, Vol. I, pp. 121-124.

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374 LAND AND MARITIME BOUNDARY (DISS. OP. WEERAMANTRY)

and immediately became subject to interpretation. Rosenne’s own view
is that, should the Statute ever be revised, there should be “a short inter-
val between the date of deposit and the date on which the deposit of the
instrument produces its effects”?’. The manifest reasons for such a pre-
caution have already been discussed. Such a view underlines the need for
knowledge of the declaration on the part of the States who are to be
bound. This result would follow inevitably if the terms of Article 36, para-
graph 4, are to be given their natural meaning rather than the truncated
meaning given to them by the decision in Right of Passage.

Indeed, Rosenne’s conviction of the need for such an interval was so
strong that he made submissions to the International Law Commission in
this regard when it was giving consideration to Article 78 of the Vienna
Convention — a consideration which was no doubt heavily influenced by
the prevailing Right of Passage jurisprudence #. Indeed, that eminent
jurist, in dealing with the “small time-lag before the other States become
aware that the treaty is in force between them and the State depositing
the instrument”, suggested that this period should be fixed at 90 days,
“thus allowing both for the observance of the normal administrative
practices of the depositary and for receipt of the notice by the home
authorities of the States concerned and the observance of their normal
administrative practices” ??.

This suggestion was meant to allow for different depositary practices,
the notices being sometimes transmitted “through a government’s own
diplomatic posts abroad, sometimes through diplomatic posts accredited
to the depositary; and sometimes by mail”. The essential thrust of the
recommendation was no doubt to ensure that the State sought to be
bound was informed of the existence of the instrument which locked it
into a consensual relationship.

I doubt very much that the interpretation of Article 36, paragraph 4,
according to its natural meaning, could unsettle the Court’s jurisdiction.
Rather, a clarification of that provision and of the reasons underpinning
it would regularize and strengthen that jurisdiction. It would also give to
States making such declarations the confidence that they will not be
taken by surprise, thereby reinforcing their willingness to accept the
Court’s optional jurisdiction.

No doubt modern methods of duplication and transmission of docu-
ments could considerably expedite this process, but it seems to me that
the “small time-lag” stipulated by Rosenne is essential.

26 The Law and Practice of the International Court of Justice, 1920-1996, op. cit.,
Vol. IL, p. 753.

27 Ibid., p. 755, footnote 56.

28 See Yearbook of the International Law Commission, 1965, Vol. II, p. 73, doc. A/CN.4/
L.108.

29 Ibid.

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375 LAND AND MARITIME BOUNDARY (DISS. OP. WEERAMANTRY)

It is also relevant to refer to the full recognition accorded by Article 78 (c)
of the Vienna Convention on the Law of Treaties to the necessity of
communication of notifications in regard to treaties, if the recipient is to
be bound. This is an application of the normal consensual rule. The
Court does indeed refer to this provision, but observes that, in so far as
declarations under Article 36 are concerned, the régime for depositing
and transmitting declarations of acceptance of compulsory jurisdiction is
prescribed by Article 36, paragraph 4, of the Statute of the Court (Judg-
ment, para. 30). I respectfully agree, but that very régime prescribes
a method of transmitting the communication, and must therefore be
followed.

x * x

I refer finally to the question of possible prejudice to parties, which can
result from the interpretation the Court lays upon Article 36.

I have already adverted to the first item of prejudice: that for the
period between the deposit of a declaration and the communication of
that declaration to the party who is to be impleaded, the party depositing
the declaration is at an advantage over the other, in that the former is
aware that the Court has jurisdiction, and the latter is not. The vesting of
jurisdiction in the Court is an important juristic act with major repercus-
sions on State sovereignty. If one party is aware of its rights under this
provision, and the other is not, a disparity is created between the parties,
which fundamentally breaches the basic principle of equality on which
the Court’s jurisdiction is premised.

This inequality can have practical repercussions on the course of the
informal negotiations between parties, that precede the formal institution
of an action. I believe it is in the interests of the peaceful resolution of
disputes and the general principles of our jurisprudence that such infor-
mal negotiation should be encouraged and promoted, and I can only see
the effect of such a ruling as inhibiting this process.

It is important that when parties are in bona fide negotiation with each
other there should not even theoretically be the possibility of one of those
parties filing a declaration and lodging an application before the Court
almost simultaneously. This could amount, in a hypothetical case, to an
abuse of the process of the Court. It is by no means implied that such is
the case here, but the decision of the Court opens the door to such a pos-
sibility in the future.

It is important to international peace and goodwill that the processes
of negotiation between parties be given full scope, without the fear of a
sudden and unexpected termination, followed by the dragging of a reluc-
tant respondent to the Court. The deleterious effect that could ensue in
regard to the willingness of States to file an Article 36, paragraph 2, dec-
laration at all could be damaging to the development of the Court’s juris-

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376 LAND AND MARITIME BOUNDARY (DISS. OP. WEERAMANTRY)

diction. This is an important reason why such a construction should be
avoided.

In the process of bona fide negotiations, concessions are made, facts
are accepted, compromises are worked out, admissions and apologies are
offered. Documents embodying such acts may well be exchanged. It is
important that all this should take place on a footing of openness and
equality.

x * x

For all these reasons, I am of the view that Nigeria has made out a
case of lack of consensus in regard to Cameroon’s declaration under
Article 36, paragraph 2, at the time Cameroon’s Application was filed.

An interpretation of Article 36, paragraph 4, according to its natural
meaning, would result in more confidence on the part of States in making
declarations under Article 36, paragraph 2. Any uncertainty as to whether
consensus had been established could be removed by the prompt dis-
charge by the Secretariat of its statutory duties under Article 36, para-
graph 4, which modern methods of reproduction and communication of
documents render much less labour intensive and time consuming than
they were when the Statute was framed. A proper attention to this statu-
tory obligation could result in communication within a matter of a few
days, thus removing all uncertainty.

Other advantages of this view are that it would bring the operation of
consensual jurisdiction within the consensual principles which lie at its
very foundation, ensure fairness and reciprocity between the parties, and
bring the operation of declarations under Article 36 within the express
terms of the article which fashioned them.

(Signed) Christopher G. WEERAMANTRY.

105


12

DISSENTING OPINION OF JUDGE EL-KHANI
[Translation]

On 20 January 1982 the Court adopted an Order setting up, for the first
time, a Chamber in accordance with Article 26, paragraph 2, of the Statute.
This Chamber will be dealing with a particular case concerning the course
of the single maritime boundary in the Gulf of Maine between the areas of
continental shelf and fishing zones appertaining to Canada and the United
States of America.

On 25 November 1981 the two Parties’ diplomatic representatives at
The Hague presented to the Registrar of the Court a document containing
a Special Agreement signed at Ottawa on 29 March 1979 between the
Government of Canada and the Government of the United States, a Treaty
concluded between the two countries on the same date and a Special
Agreement, in the same terms as the first, to submit the same question to a
court of arbitration in the event that the International Court of Justice did
not accede to the request to form the Chamber in question within the
specified time and in the desired manner. This document also comprised
the instruments of ratification of the Treaty and of the Special Agreements.
An accompanying letter, signed by the Ambassadors of the two countries,
emphasized that this Chamber had to be formed before the new members
of the Court elected in the triennial election entered upon their terms of
office, that is to say, before 6 February 1982.

The representatives of the Parties, after having fixed the number of
members of the Chamber as five following talks with the President of the
Court, further insisted upon the Chamber having a particular composition
and on the identity of any replacements elected in case of vacancy being
subject to their approval, failing which they would withdraw the case and
discontinue the proceedings before the Court, sending the case to arbitra-
tion instead.

I find that the imposition of an unduly close time-limit for the Cham-
ber’s formation and of a particular composition renders the Court no
longer master of its own acts, deprives it of its freedom of choice and is an
obstacle to the proper administration of justice. Furthermore it diminishes
the prestige of the Court and is harmful to its dignity as the principal
judicial organ of the United Nations. It results in its regionalization by
depriving it of its basic and essential characteristic of universality and
produces the indirect result of there being more than one judge of the same
nationality acting in the name of the Court, one in the Chamber and the
other in the Court, which does not correspond to the Statute. On these
grounds J find that this ought not to constitute a precedent, as it would be a
dangerous course to follow in the future.

13
GULF OF MAINE (DISS. OP. EL-KHANI) 13

Having voted in favour of the Chamber being constituted, I would have
preferred the composition of this Chamber to have been referred to the
Court in the new composition it will have two weeks from now. That would
have enabled us to avoid the disadvantages I have mentioned above.

For these reasons J have voted against this Order.

(Signed) Abdallah EL-KHANI.

14