67

DISSENTING OPINION OF JUDGE MORENO QUINTANA
[Translation ]

To my sincere regret I am unable to agree with the majority of
my colleagues in the decision of this case. It is my firm conviction
that sovereignty over the portion of territory of the Temple of
Preah Vihear belongs to Thailand. The dissenting opinion which I
express hereunder gives the reasons on which it is based. In Ameri-
can international law questions of territorial sovereignty have, for
historical reasons, a place of cardinal importance. That is why I
could not, as a representative of a legal system, depart from it.

*
* *

The present case is concerned with sovereignty over a portion of
territory on which are situated the ruins of a temple known as
Preah Vihear.

Both Cambodia and Thailand claim, by virtue of the initial
stipulation of a treaty, to be the domina terrarum of the portion in
question. This stipulation is that contained in Article 1 of the Treaty
concluded on 13 February 1904 between France, which at that
time represented Cambodia under a protectorate régime, and Thai-
land, then the Kingdom of Siam. It provides that the frontier bet-
ween the two countries at the point at issue “follows the watershed
between the basins of the Nam Sen and the Mekong, on the one
hand, and the Nam Moun, on the other hand, and joins the Pnom
Padang chain, the crest of which it follows eastwards as far as the
Mekong’. No reference is made to the temple of Preah Vihear.

It is this provision of the treaty which constitutes the legal title
of the Parties to sovereignty over the temple area. It is consequently
the intertemporal law applicable to this case. The frontier delimi-
tation work prescribed by Article 3 of the treaty and the line shown
on maps are no more than its physical implementation and may
in consequence be vitiated by error. To take a decision in this case
on the basis of assumptions or hypotheses in order to resolve the
question at issue would not seem very consistent with the rules of
judicial settlement. There has been no conclusive evidence showing
any tacit recognition by Thailand of the alleged Cambodian sover-
eignty over the area in question. It is the facts, clear facts, which
must be taken into account.

Cambodia, the applicant in this case, alleges that sovereignty
over the Preah Vihear area belongs to it, that it has never abandoned
that sovereignty and that Thailand has never performed there .

65
JUDGM. I5 VI 62 (DISS. OP. JUDGE MORENO QUINTANA) 68

any acts of sovereignty capable of displacing that of Cambodia.
Cambodia also asks the Court to provide for the withdrawal of the
armed forces stationed by Thailand in the temple ruins since 1954.
The respondent, Thailand, in the submissions of its Counter-
Memorial, makes a counter-claim asking the Court to declare that
sovereignty over the Preah Vihear area belongs to Thailand. It is
thus for each Party to furnish proof of its allegation.

*
* *

Consequently, the case amounts to interpreting the said Article I
of the 1904 Treaty according to its natural and ordinary meaning.
There is no legal problem basically involved; the rule Pacia sunt
servanda, which is at the root of international law, is not contested
by the Parties. The ensuing situation is a frontier hitherto
undetermined at the place in issue. It is governed by a single ques-
tion of fact: is the temple of Preah Vihear situated south of the
line stipulated by the treaty—that is to say, in Cambodian terri-
tory—or north of it, which would put the temple in Thai terri-
tory? The decisive geographical factor in this case is the line of the
watershed or divortium aquarum between two river basins. A water-
shed is not an intellectual abstraction; it is the result of the charac-
teristics of the terrain, and it is always a topographical feature—
the crest of a mountain, the ridge of an escarpment or the height
of a piece of land—which will form a natural watershed.

The task of the Court in this case is fully compatible with the
essential function of declaring the law conferred upon it by Article 38
of the Statute. Under Article 36, paragraph 2 (a), the interpre-
tation of an international treaty is one of the Court’s specific func-
tions. This certainly does not mean that, by stating what is the
watershed referred to in the said Article 1, the Court takes the
place of a delimitation commission, still less that it marks a new
frontier line on the ground.

Acting in this way, the Court responds precisely to what the
Parties are asking of it. Its decision falls within the limits of its
jurisdiction and not outside it. Both Thailand and Cambodia ask
it to declare that sovereignty over the Preah Vihear area belongs
to them. The Court cannot refuse to discharge its judicial task. It
recalled in its Judgment in the Asylum case “‘the principle that it
is the duty of the Court not only to reply to the questions as stated
in the final submissions of the parties, but also to abstain from
deciding points not included in those submissions” (I.C.J. Reports
1950, p. 402). This sound rule is and always has been the basis of
the Court’s work.

66
JUDGM. 15 VI 62 (DISS. OP. JUDGE MORENO QUINTANA) 69

Once the Court has indicated what it considers to be the correct
line of the watershed, it will be for the Parties to determine how
that line is to be given expression on the ground. The latter task
is of a technical nature, and not within the judicial field which
belongs to the Court.

*
* *

An instrument of later date than the 1904 Treaty—the protocol
annexed to the new treaty concluded on 23 March 1907 between
France and Siam—approved the frontier line adopted by a Delimi-
tation Commission on 18 January of that year. This line however
is not indicated in detail in the minutes of the Commission. It
appears only upon a map which Cambodia submits as Annex I to
its Memorial and on which, pursuant to some unknown decision,
the temple of Preah Vihear is shown on the Cambodian side. This
map bears no date and is not signed by any authorized experts, still
less by the contracting parties to the new treaty. It was published
by Barrére, a Paris geographical publisher, acting apparently on
behalf of only one of the two Commissions—the French and the
Siamese—which were to survey the frontier line. In the top left-
hand corner of the map it is stated that the work on the ground was
carried out by two captains of the French colonial army, Captains
Kerler and Oum, two technicians, therefore, who represented in
principle only one of the Parties concerned and who should at
least have had recorded on the map itself the capacity in which they
were acting.

Further, the expert investigations carried out by both Parties
(see in particular the D.A.I. Report of 23 October 1961 submitted
by Cambodia) agree to the effect that the Annex I frontier line
departs considerably from the watershed line. Geography is not
however a subject which is open to divergent interpretations. It
reflects one and the same reality. Moreover the closest possible
scrutiny of the minutes of the meetings of the Mixed Franco-
Siamese Delimitation Commissions held between 1905 and 1907
does not yield any result as regards which side of the frontier Preah
Vihear is situated on.

Now, territorial sovereignty is not a matter to be treated lightly,
especially when the legitimacy of its exercise is sought to be proved
by means of.an unauthenticated map. As was said by Max Huber
in his Arbitral Award in the Island of Palmas case: “.. only with
the greatest caution can account be taken of maps in deciding a
question of sovereignty... If the Arbitrator is satisfied as to the
existence of legally relevant facts which contradict the statements
of cartographers whose sources of information are not known, he
can attach no weight to the maps, however numerous and generally
appreciated they may be ... a map affords only an indication—and

67
JUDGM. 15 VI 62 (DISS. OP. JUDGE MORENO QUINTANA) 70

that a very indirect one—and, except when annexed to a legal
instrument, has not the value of such an instrument, involving
recognition or abandonment of rights” (see U. N., Reports of Inter-
national Arbitral Awards, vol. II, pp. 852, 853, 854).

In the present case, Annex I to the Memorial is not the valid
annex to the protocol which approved the Cambodian-Siamese
frontier line in the Dangrek region. Above all, its being signed was an
indispensable condition of its validity, since, as appears from its
minutes, the Mixed Delimitation Commission stipulated at its
second meeting on 7 February 1905: “According to the procedure
proposed by Commandant Bernard at the first meeting, the Com-
mission should first carry out a general reconnoitring, gather in-
formation of various kinds which would make it possible to fix
on the spot the points through which the frontier passed, then mark
that frontier on the map and finally, if necessary, discuss whether
it was correct and make any essential modifications. As soon as
agreement was reached, the frontier line would have been finally
determined by the members of the two Commissions signing the
map on which the frontier had been marked” (see Annex 12 (a),
Thai Counter-Memorial, p. 58).

ae
* *

It has been contended that Thailand’s silence with regard to the
publication of the Annex I map implied recognition of the line
fixed by that map. But silence has consequences in law only if the
party concerned is under an obligation to make its voice heard in
response to a given fact or situation. It would thus have been
necessary to show that Thailand was under such an obligation in
respect of an act devoid in itself of legal significance. A well-estab-
lished rule was moreover embodied in Article 29 of the Treaty of
Versailles of 28 June 1919. This rule states that, when there is a
discrepancy concerning a frontier delimitation between the text
of a treaty and maps, it is the text and not the maps which is final.
This being so, and until conclusive evidence establishes where
Preah Vihear is situated, Article 1 of the 1904 Treaty, which stipu-
lates the watershed as the territorial boundary of the two countries,
supports the interpretation of-Thailand equally as well as that of
Cambodia. The same can be said of clause I of the protocol annexed
to the 1907 Treaty, which likewise makes no reference to Preah
Vihear, but mentions the watershed.

Other considerations adduced by the Parties must be evaluated
by an international tribunal at their correct significance. These
considerations relate to the maps belonging to one or other of the
Parties and the sketches, photographs, accounts of journeys,

68
JUDGM. I5 VI 62 (DISS. OP. JUDGE MORENO QUINTANA)  7I

record-cards and other material. As evidence they have only a
complementary value which is in itself without legal effect. This
applies especially to the maps put in by Cambodia and which had
been drawn up by official Thai services, on which Preah Vihear is
shown in Cambodian jurisdiction. These maps do not appear at all
conclusive, being based upon the Annex I map which is not authori-
tative and does not show the true watershed line. It is possible to
recognize expressly or tacitly a given de jure or de facto situation,
but not a situation vitiated by a technical error. An error remains an
error and cannot by repetition make good acts of later date that are
based upon that error. That is the only significance that should be
attached to the question of error in the present case, where it does
not have the significance of vitiation of consent, the existence of
which is possible in a legal instrument but not in a map.

*
* *

Nor is it necessary to consider international instruments of later
date than 1904 and 1097, since they make no special reference to
Preah Vihear and Thailand has not questioned them. These include
the Franco-Siamese Treaties of 14 February 1925 and 7 December
1937 and the Settlement Agreement of 17 November 1946 which
restored the frontier status guo prior to the Tokyo Convention of
9 May 1941 adjusting the frontier between Thailand and Cambodia.
On the other hand, any acts that may have been carried out either
by Cambodia or by Thailand in the exercise of their sovereignty
over the portion of territory in question could be important having
regard to the doubt created by this case. Their legal value is indi-
cated by sufficiently well-established precedents.

An analysis of these acts need not go back to the historical origins
of the building of the temple of Preah Vihear nor need it take
account of the religious role which the temple is said to have played
for both the Siamese and the Cambodian peoples. The question
to be decided does not arise before 1904, the date of the treaty
which fixed the disputed frontier. Thailand says that the elevated
situation of the temple, built upon a plateau, makes it difficult of
access from the plain situated to the south and on the Cambodian
side of the chain, while it is far more easily accessible from the
north, where Thailand is situated. This contention seems to be
correct. It is based on a geographical fact which is clearly in favour
of the exercise of territorial sovereignty by the country having easy
access and not by the country which has not such access. Having
regard to the topography of the frontier area, the very suggestion
that the Preah Vihear area lies within Cambodian jurisdiction is
really contrary to sense. It is in conflict with the principle of natural
frontiers which was apparently adopted by the Mixed Delimitation
Commission. Apart from this presumption, however, there is not

69
JUDGM. 15 VI 62 (DISS. OP. JUDGE MORENO QUINTANA) 72

adequate evidence in support of the acts of sovereignty allegedly
performed at Preah Vihear by either Party.

Cambodia relies on the exercise of territorial powers by France
in regard to the Preah Vihear area. It refers to official visits,
administrative tours, archaeological expeditions, elephant hunting,
the taking of photographs, the despatch of letters, the upkeep of
the temple, etc. But these sporadic displays of activity at a spot
which was unguarded and consisted of ruins, even it they took place
as described by the applicant, would have only a very relative
significance so far as territorial sovereignty is concerned. In its
turn, Thailand alleges the collection of taxes—which would indeed
be a manifestation of sovereignty—but furnishes evidence consisting
only of affidavits by officials. The respondent offers evidence of the
same kind in regard to other activities carried out by the Thai
authorities. Assuming that these manifestations by the two Parties
were as described, they would only serve to show the Court that
there was a performance of concurrent and reciprocally unnoticed
administrative activities. Even if known, these activities would
have been the subject of objection or of different interpretations.
All this gives the impression that both Cambodia and Thailand
lived for more than half a century without being particularly
certain of their sovereign rights over the temple area. For this
reason the correct application of the 1904 Treaty is the main goal
which the Court must seek in this case, by locating on the basis
of an adequate expert opinion the watershed between the basins
of the Nam Sen and the Mekong, on the one hand, and the Nam
Moun-on the other hand.

*
* *

This expert evidence was furnished more particularly by Thai-
land, which, although in principle the respondent State, took the
initiative in the matter. Cambodia also played a part in connection
with the expert opinion by cross-examining the experts and wit-
nesses of the other Party. From the point of view of the settlement
of the case this lends appreciable weight to the results of the in-
vestigations of the experts. There are four written reports relating
thereto—two by Professor W. Schermerhorn, acting for the Inter-
national Training Center for Aerial Survey (1.T.C.) of Delft, dated
8 september 1961 and 11 January 1962, and two other reports by
Messrs. Doeringsfeld, Amuedo and Ivey (D.A.I.), a private firm
established at Denver (Colorado), United States of America, these
being dated 23 October 1961 and 21 February 1962. In the course
of the hearings the witnesses or experts were closely examined by
both Parties. They were M. Suon Bonn, former governor of the

70
JUDGM. I5 VI 62 (DISS. OP. JUDGE MORENO QUINTANA) 73

Cambodian province of Kompong Thom; Professor Schermerhorn,
well-known in Holland and elsewhere for his work on aerial
surveying; Mr. Ackermann, who has a high reputation as a topo-
grapher, also attached to the Delft Center, and lastly Mr. Verstappen,
a well-known geologist and likewise a member of the Center. It
was Mr. Ackermann’s special merit that he carried out the work of
frontier reconnaissance, a task which is described in the Dictionnaire
de la Terminologie du droit international published in 1960 by emi-
nent jurists as ‘‘checking on the spot that the boundary marks of
a frontier are in fact at the points indicated in the boundary
treaties or conventions and shown on the maps annexed to those
treaties or conventions” (see p. 514). This Court has also, in its
Judgment in the Corfu Channel case, stressed the value of an expert
investigation carried out by a procedure similar to that followed in
the present case. The Judgment said: “The Court cannot fail to
give great weight to the opinion of the Experts who examined the
locality in a manner giving every guarantee of correct and impar-
tial information” U.C.J. Reports 1949, p. 21).

A layman in the matters with which the opinion of the experts
was concerned as a judge generally is, he has to draw a legal con-
clusion from a piece of technical work which seems to carry con-
viction. In general, the opinions of the experts and witnesses for
Thailand impressed by their technical precision and the logical
nature of their reasoning. Moreover, the official character of the
Center, which is connected with the Netherlands Government,
confers upon its opinion an objectivity and an authority perhaps
greater than could attach to the work of a private firm. However
a question is raised by the possibility that, in a critical area which
was described, there might be an alternative watershed line to that
indicated by Professor Schermerhorn’s report. That question is
answered by the topographical work carried out on the spot by
Mr. Ackermann. The true line of the watershed was indeed the
one indicated in the report. Even if the alternative line had been
the true line it would still not have left the temple area in Cambodian
territory. And it is the question of the sovereignty over the temple
that is put to the Court, and no other. The waters of a river basin
may run down from a promontory like one on which the temple is
situated, but they can never rup up it. That is obvious.

+
* ok

What has been said above leads to the following conclusions:

(I) the essential question to be settled by the Court—since neither
Party has conclusively proved its exercise of sovereignty over the
temple area—is the interpretation ‘of Article 1 of the Treaty of
13 February 1904 between France and Thailand;

71
JUDGM. I5 VI 62 (DISS. OP. JUDGE MORENO QUINTANA) 74

(2) this interpretation follows from the determination of the
watershed between the two river basins which is specified to be the
frontier between Cambodia and Thailand in the Dangrek region;

(3) the technical evidence supplied by Thailand, largely contri-
buted to by Cambodia’s cross-examination, is by its precision and
abundance conclusive in establishing that the watershed follows
the edge of the cliff of the promontory on which the temple is
situated ;

(4) this result decides the case in the sense that the portion of
territory on which the temple stands is situated in Thai territory.

(Signed) Lucio M. MORENO QUINTANA.

72


544

OPINION INDIVIDUELLE DE M. PARRA-ARANGUREN
[Traduction]

L'article premier du protocole de signature facultative — Existence d'un dif-
Jérend en tant que question essentiellement préliminaire — Définition d'un dif-
férend — Inexistence d'un différend entre les Parties relatif à la violation, par
les Etats-Unis, du paragraphe 1 b) de l’article 36 de la convention de Vienne
— Absence de compétence de la Cour sur ce point — La demande que I’ Alle-
magne formule dans sa troisième conclusion se rapporte non pas à l'interpréta-
tion de la convention de Vienne, mais à celle de l'article 41 du Statut de la Cour
— Absence de compétence de la Cour pour trancher cette question en vertu de
l'article premier du protocole de signature facultative.

1. Fai voté contre les points 1, 2 4), 2 c) et 5 du dispositif énoncé au
paragraphe 128 de l'arrêt de la Cour pour les motifs suivants:

I

2. La Cour fonde sa compétence sur l’article premier du protocole de
signature facultative concernant le règlement obligatoire des différends
joint à la convention de Vienne sur les relations consulaires du 24 avril
1963 (ci-après «le protocole de signature facultative»).

3. L'article premier de ce protocole de signature facultative dispose
que:

«Les différends relatifs à l'interprétation ou à l'application de la
Convention relèvent de la compétence obligatoire de la Cour inter-
nationale de Justice, qui, à ce titre, pourra être saisie par une requête
de toute partie au différend qui sera elle-même Partie au présent Pro-
tocole.»

II

4. Aux termes de cet article premier du protocole de signature facul-
tative, existence d’un différend est une condition sine qua non pour qu’il
y ait compétence obligatoire de la Cour. Le Statut de la Cour énonce la
méme condition, puisque le paragraphe | de son article 38 précise que, en
matiére contentieuse, la mission de la Cour est «de régler conformément
au droit international les différends qui lui sont soumis». Le para-
graphe 2 de l’article 36 et le paragraphe | de l’article 40 du Statut se
réfèrent également au différend entre les Parties. C’est pourquoi la Cour a
affirmé que lexistence d’un différend était une question «essentiellement

82
LAGRAND (OP. IND. PARRA-ARANGUREN) 545

préliminaire» et «la condition première de l'exercice de sa fonction judi-
claire» (Essais nucléaires (Australie c. France), arrêt, C.LJ. Recueil 1974,
p. 260, par. 24, et p. 270-271, par. 55).

5. Dans sa première conclusion, la République fédérale d’ Allemagne
(ci-après «l’Allemagne») prie la Cour de dire et juger notamment

«1) que. en n'informant pas sans retard Karl et Walter LaGrand,
apres leur arrestation, des droits qui étaient les leurs en vertu du
paragraphe 1 4) de l'article 36 de la convention de Vienne sur
les relations consulaires ..., les Etats-Unis ont violé les obliga-
tions juridiques internationales découlant de l’article 5 et du
paragraphe | de l’article 36 de ladite convention...».

6. Dans la première phrase de leur première conclusion, les Etats-Unis
d'Amérique (ci-après «les Etats-Unis») prient la Cour de dire et juger

«1) qu'ils ont violé l'obligation dont ils étaient tenus envers l’Alle-
magne en vertu de l’alinéa 5) du paragraphe | de l'article 36 de
la convention de Vienne sur les relations consulaires en ce que
les autorités compétentes des Etats-Unis n’ont pas informé sans
retard de leurs droits Karl et Walter LaGrand ainsi que l’exi-
geait cet article...».

7. Comme la Cour le reconnait dans de nombreux paragraphes de
lParrêt, par exemple dans la première phrase du paragraphe 39, les
Parties admettent toutes deux que les Etats-Unis n’ont pas informé
sans retard les frères LaGrand après leur arrestation des droits qu'ils
tenaient de l’alinéa 6) du paragraphe 1 de l’article 36 de la convention
de Vienne et ont par conséquent violé ladite disposition. Au para-
graphe 39 de l’arrét, la Cour note également que les Etats-Unis ne con-
testent pas que cette violation «a donné naissance à un différend entre
les deux Etats».

8. Néanmoins, la Cour a expliqué dans l’arrét qu'elle a rendu le
11 juin 1998 que

«au sens admis dans sa jurisprudence et celle de sa devancière, un
différend est un désaccord sur un point de droit ou de fait, un
conflit, une opposition de thèses juridiques ou d'intérêts entre
des parties ...» (Timor oriental (Portugal c. Australie), arrêt,
C.J. Recueil 1995, p. 99-100, par. 22), et que, «[plour établir l’exis-
tence d’un différend: «Il faut démontrer que la réclamation de l’une
des parties se heurte à l’opposition manifeste de l’autre» (Sud-Ouest
africain, exceptions préliminaires, arrêt, CI.J. Recueil 1962, p. 328);
par ailleurs, «l'existence d’un différend international demande à être
établie objectivement» ({nterprétation des traités de paix conclus
avec la Bulgarie, la Hongrie et la Roumanie, première phase, avis
consultatif, CEJ. Recueil 1950, p. 74)» (CLF. Recueil 1995, p. 100)»

83
LAGRAND (OP. IND. PARRA-ARANGUREN) 546

(Frontière terrestre et maritime entre le Cameroun et le Nigéria,
exceptions préliminaires, arrêt, C.LJ. Recueil 1998, p. 314-315,
par. 87).

9. La Cour a dit en outre que

«il ne suffit pas que l’une des parties à une affaire contentieuse
affirme l'existence d’un différend avec l’autre partie. La simple affir-
mation ne suffit pas pour prouver l'existence d’un différend, tout
comme le simple fait que l’existence d’un différend est contestée ne
prouve pas que ce différend n'existe pas. Il n’est pas suffisant non
plus de démontrer que les intérêts des deux parties à une telle affaire
sont en conflit.» (Sud-Ouest africain, exceptions préliminaires, arrêt,
CLS. Recueil 1998, p. 328.)

10. Quand il est fait application de ces critères, et même s'il est admis
que les Etats-Unis n’ont pas contesté l'existence d’un différend, il n’a pas
été démontré objectivement à la Cour que les Parties s'opposent réelle-
ment à cet égard. Au contraire, comme il ressort des conclusions ci-
dessus, elles s'accordent à dire que les Etats-Unis ont violé les obligations
leur incombant en vertu du paragraphe | b} de l’article 36 de la conven-
tion de Vienne. C’est pourquoi j'estime que la Cour n’est pas compétente au
titre de l'article premier du protocole de signature facultative pour
trancher la question de savoir si les Etats-Unis ont violé le paragraphe | 6)
de l’article 36 de la convention quand ils ont arrêté les frères LaGrand.
La Cour ne peut pas non plus exercer les fonctions qui lui sont dévolues
par le paragraphe 1 de l’article 38 de son Statut. C’est pourquoi j'ai voté
contre les points | et 2 a) du dispositif énoncé au paragraphe 128 de
larrêt.

11. Tl en va autrement pour les conséquences de la violation par les
Etats-Unis du paragraphe 1 6) de l’article 36 de la convention de Vienne.
Les Parties s'opposent sur ce point. La Cour est donc compétente pour
trancher ce différend en vertu de l’article premier du protocole de signa-
ture facultative.

HI

12. Dans sa troisième conclusion, Allemagne prie la Cour de dire et
juger que:

«3) en ne prenant pas toutes les mesures dont ils disposaient pour
que Walter LaGrand ne soit pas exécuté tant que la Cour inter-
nationale de Justice n’aurait pas rendu sa décision définitive en
Vaffaire, les Etats-Unis ont violé leur obligation juridique inter-
nationale de se conformer à l’ordonnance en indication de
mesures conservatoires rendue par la Cour le 3 mars 1999 et de
s'abstenir de tout acte pouvant interférer avec l’objet d’un dif-
férend tant que l'instance est en cours».

84
LAGRAND (OP. IND. PARRA-ARANGUREN) 547

13. Au moyen de l’argumentation résumée dans l'arrêt (par. 93), l’Alle-
magne soutient que les mesures conservatoires indiquées par la Cour en
vertu de l'article 41 de son Statut sont obligatoires. Les Etats-Unis le
contestent (arrêt, par. 91).

14. A la majorité de ses membres, la Cour dit:

«Le différend existant à cet égard entre les Parties concerne essen-
tiellement l'interprétation de l’article 41, qui est libellé en termes
identiques dans le Statut des deux Cours (sous réserve de la référence
faite respectivement au Conseil de la Société des Nations et au
Conseil de sécurité). Cette interprétation a fait l’objet d’abondantes
controverses doctrinales. La Cour passera donc maintenant à l’inter-
prétation de l’article 41 du Statut.» (Arrêt, par. 99.)

15. Comme il est reconnu dans l’arrêt, le différend entre l'Allemagne et
les Etats-Unis sur ce point se rapporte à l'interprétation de l’article 41 du
Statut de la Cour. Ce n’est donc pas un différend relatif à l'interprétation
de la convention de Vienne comme l'exige le protocole de signature facul-
tative, qui est la base de compétence de la Cour en l’espèce. En consé-
quence, la Cour n’est pas compétente, à mon avis, pour se prononcer sur
la troisième conclusion de l'Allemagne. C’est pourquoi j'ai voté contre les
points 1, 2 c) et 5 du dispositif énoncé au paragraphe 128 de l'arrêt.

(Signé) Gonzalo PARRA-ARANGUREN.

85


180

+

AFFAIRE AGRAIRE (ALLEMAGNE ET POLOGNE)

ORDONNANCE REJETANT LES MESURES CONSERVATOIRES
DEMANDEES PAR LE GOUVERNEMENT ALLEMAND.

OPINION DE M. LE BARON ROLIN-JAEQUEMYNS

EN OPPOSITION A L’ORDONNANCE
REJETANT LESDITES MESURES

Le juge soussigné est et reste favorable à l'indication de
« mesures conservatoires » sur la base de l’article 41 du Statut
et de l'article 57 du Règlement de la Cour, concernant les
droits des propriétaires appartenant aux minorités allemandes
dans certaines parties de la Pologne, en attendant que la
question fondamentale y relative soit tranchée par la Cour.

Il estime que, grâce à de semblables « mesures conserva-
toires », la réparaiton de ces droits pour autant que de besoin,
sous la forme de leur conservation de préférence à la simple
indemnisation, serait singulièrement favorisée.

Comme il ne s'agit toutefois que d'une question d’oppor-
tunité et non de principe,, il demande simplement que sa
manière de voir, favorable aux mesures conservatoires en
question, soit expressément constatée en regard de la décision
contraire de la Cour en sa majorité,

(Signé) RoLIN-JAEQUEMYNS.


579

SEPARATE OPINION OF JUDGE HIGGINS

Limitations ratione temporis to declarations made under Article 36, para-
graph 2, of the Statute — “Disputes” — “Situations or Facts” — Reciprocity
— “Continuing” events or violations of law — Prima facie jurisdiction for pur-
poses of Article 41 of the Statute — Matters to be decided at provisional meas-
ures phase and matters to be reserved for more thorough later consideration —
Two alternative consequences of an absence of prima facie jurisdiction — Judi-
cial authority and creativity dependent on jurisdiction.

1. Where one State has accepted the jurisdiction of the Court under
Article 36, paragraph 2, of the Statute with a limitation ratione temporis
and the other State has accepted the jurisdiction without such a limita-
tion,

“nevertheless, as a consequence of the condition of reciprocity stipu-
lated in paragraph 2 of Article 36 of the Statute of the Court, it is
recognized that this limitation holds good as between the Parties”
(Phosphates in Morocco, Judgment, 1938, P.CIJ, Series A/B,
No. 74, p. 22).

2. The declaration accepting the Court’s compulsory jurisdiction made
by the Federal Republic of Yugoslavia on 25 April 1999 states in part
that:

“T hereby declare that the Government of the Federal Republic of
Yugoslavia recognizes, in accordance with Article 36, paragraph 2,
of the Statute of the International Court of Justice, as compulsory
ipso facto and without special agreement, in relation to any other
State accepting the same obligation, that is on condition of recipro-
city, the jurisdiction of the said Court in all disputes arising or which
may arise after the signature of the present Declaration, with regard
to the situations or facts subsequent to this signature, except in cases
where the parties have agreed or shall agree to have recourse to
another procedure or to another method of pacific settlement . . .”

This follows, with a small variation, the well-known so-called “Belgian
declaration” of 1925 by which any retrospective jurisdiction of the Court
ratione temporis was precluded both as to disputes and as to situations
and facts.

3. The declaration made by the Netherlands contains no such limita-
tion, but it applies inter se to identify the scope ratione temporis of the

41
580 LEGALITY OF USE OF FORCE (SEP. OP. HIGGINS)

Court’s jurisdiction, for the reason set out in paragraph 1 of this
opinion.

4, It may, of course, be the case that, while the dispute has clearly
arisen subsequent to the critical date for jurisdiction, the situations or
facts giving rise to the dispute appear to have occurred before that date.
That was exactly the situation in the Phosphates in Morocco case, where
the Permanent Court addressed the possibility that acts “accomplished
after the crucial date”, when “taken in conjunction with earlier acts to
which they are closely linked, constitute as a whole a single, continuing
and progressive illegal act which was not fully accomplished until after
the crucial date” (Phosphates in Morocco, Judgment, 1938, P.C.LJ.,
Series A/B, No. 74, p. 23). Equally, there exists the possibility that acts
carried out prior to the crucial date “nevertheless gave rise to a perma-
nent situation inconsistent with international law which has continued to
exist after the said date” (ibid. ). This latter eventuality is indeed reflected
in the International Law Commission’s Draft Article 25 on State Respon-
sibility (Yearbook of the International Law Commission, Vol. IT, Part IT,
p. 80).

5. It is not the Court alone which has had to formulate jurisprudence
on the concept of “continuing events”: so has the European Court of
Human Rights (see Yagci and Sargin v. Turkey, European Human Rights
Reports, 1995, p. 505); and so also has the Human Rights Committee
(see Guye et al. v. France, No. 196/1985, 3 April 1989, 35th Session); and
Siminek v. The Czech Republic (No. 516/1992, 31 July 1995, 54th Session).

6. The Court gave its own answers to this issue in Phosphates in
Morocco. It explained that the problem of whether there were “continu-
ing events” that gave rise to a cause of action after the crucial date must
be examined in the particular context of each case. But two factors
always have to be borne in mind: the first is that

“it is necessary always to bear in mind the will of the State which
only accepted the compulsory jurisdiction within specified limits,
and consequently only intended to submit to that jurisdiction dis-
putes having actually arisen from situations or facts subsequent to
its acceptance” (Phosphates in Morocco, Judgment, 1938, P.C.LJ.,
Series AlB, No. 74, p. 24).

And second, it was necessary to see if the facts were merely a necessary
and logical consequence of earlier ones which were barred from scrutiny
by the temporal reservation. On the particular facts of the Phosphates
case, the Court found that the cited facts and situations could not be
viewed as “a final step and crowning point” of the earlier events (ibid.,
p. 26) nor did they “alter the situation which had already been estab-

42
581 LEGALITY OF USE OF FORCE (SEP. OP. HIGGINS)

lished” (P.C.I.J., Series A/B, No. 74, p. 27). Nor could they be separated
from those that had arisen before the crucial date.

7. That this particular jurisdictional problem, as any other, requires
close attention to be given to the intention of the State issuing its declara-
tion with limitations or reservations was stated by the Permanent Court
in the Phosphates in Morocco case and recently affirmed by this Court in
the case of Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the
Court, Judgment (I. C.J. Reports 1998, p. 454, para. 49). It is striking that
the Federal Republic of Yugoslavia did not advance arguments before
the Court suggesting either continuing events or a continuing dispute (the
latter not having been an issue in Phosphates in Morocco). It squarely
based itself on a dispute it perceived as arising, and situations and facts
that it perceived as occurring, after the crucial date of 25 April. It did not
wish any dispute there may have been between itself and the Netherlands
prior to 25 April to be subject to the Court’s jurisdiction, nor any situa-
tions and facts relating to such dispute. That was the intention of the
Federal Republic of Yugoslavia and it was clear. But within that intent
there was also a hope — the hope that there could be identified a dispute
that arose only after 25 April. Certainiy there were events, occurring
after 25 April, that were the subject of the Federal Republic of Yugosla-
via’s complaint (though these were not specified by date or in any detail).
But the Court has not been able to see a dispute arising only after
25 April. The claim that aerial bombing by NATO, and NATO States,
was illegal, was made in the Security Council on 24 March and 26 March,
and rebutted there. The conditions specified in the Mavrommatis case
(Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.LJ.,
Series A, No. 2) for the existence of a dispute were thus met at that time.

8. No doubt the continuation of the bombing and the targets hit after
25 April has aggravated and intensified the dispute. But every aerial bom-
bardment subsequent to 25 April does not constitute a new dispute. In
short, there are situations and facts occurring subsequent to the crucial
date, but there is not at the present time a dispute arising subsequent to
that date. In effectively realizing the intention (which the Court must
respect) of its declaration, the Federal Republic of Yugoslavia was not
able also to realize its hope. Its declaration accordingly fails to invest the
Court with jurisdiction.

43
582 LEGALITY OF USE OF FORCE (SEP. OP. HIGGINS)

9. Of course, in the Phosphates in Morocco case the Court was address-
ing temporal limits at the phase of preliminary objections. But because
the Court must be satisfied that it has jurisdiction, at least prima facie,
before considering whether the conditions of Article 41 of the Statute are
met for the indication of interim measures of protection, the question
must be dealt with here at this stage, albeit on a provisional basis.

10. Complex issues arise for the Court in satisfying itself that it has a
jurisdiction at least sufficient to consider indicating provisional measures
under Article 41 of the Statute.

11. Minimal guidance is provided in the Statute and in the Rules of
Court as to legal requirements relating to the indication of provisional
measures. Article 41 of the Statute merely provides that the Court “shall
have the power to indicate, if it considers that circumstances so require,
any provisional measures which ought to be taken to preserve the respec-
tive rights of either party”. This shows both the function of interim meas-
ures and the fact that the Court has a discretion as to their indication —
but nothing else. The Rules of Procedure in their successive versions have
provided little guidance on the application of Article 41 of the Statute,
with those of 1936 and 1978 reflecting the most significant developments
in the practice (for details, see Guyomar, Commentaire du Réglement de
la Cour Internationale de Justice, 2nd ed.). It has been through the case
law of the Court that the many different legal elements relating to pro-
visional measures have evolved (no interim judgment to be given: case
concerning the Factory at Chorzôw, P.C.LJ., Series A, No. 12; nexus
between rights to be protected and the measures sought: Legal Status of
the South-Eastern Territory of Greenland, P.C.I.J., Series AIB, No. 48;
Polish Agrarian Reform and German Minority, P.C.I.J., Series AIB,
No, 58; meaning of the protection of the rights of the parties; the ques-
tion of extension and aggravation of the dispute: Electricity Company of
Sofia and Bulgaria, P.C.1.J., Series AlB, No. 79.

12. It is equally through its case law that the Court has had to address
the jurisdictional problems that arise when a request for the indication of
provisional measures is made before the Court has definitively estab-
lished its jurisdiction in a case.

13. In the Anglo-Iranian Oil Co. case, the Court stated that, because
“it cannot be accepted a priori” that the claim “falls completely outside
the scope of international jurisdiction” the Court could entertain the
request for interim measures of protection ({nterim Protection, Order of
5 July 1951, L CJ. Reports 1951, p. 93). At the same time, the Court
noted that the indication of such measures “in no way prejudges the
question of the jurisdiction of the Court to deal with the merits of the
case and leaves unaffected the right of the Respondent to submit argu-
ments against such jurisdiction” (ibid. }.

14. This latter statement of the consequences for subsequent phases of

44
583 LEGALITY OF USE OF FORCE (SEP. OP. HIGGINS)

an Order for interim measures has remained essentially unchanged over
the years. However, the jurisdictional prerequisites for the issuance of
interim measures of protection have undergone important developments
in the jurisprudence. Indeed, the debate had already been heavily engaged
within the Anglo-lranian Oil Co. case itself. In their dissenting opinions,
Judges Winiarski and Badawi Pasha viewed the Court as finding that it
was competent to indicate interim measures of protection “if prima facie
the total lack of jurisdiction of the Court is not patent, that is . . . there
is a possibility, however remote, that the Court may be competent” (ibid.
p. 97). But observing that interim measures of protection were in inter-
national law even more exceptional than in municipal law, as they were
“a scarcely tolerable interference in the affairs of a sovereign State”, they
ought not to be indicated unless the Court’s jurisdiction was “reasonably
probable”.

15. In Fisheries Jurisdiction (United Kingdom v. Iceland), the Court
refined the formula, stating that when considering a request for the indi-
cation of provisional measures, it had no need “finally to satisfy itself
that it has jurisdiction on the merits of the case, yet it ought not to act
under Article 41 of the Statute if the absence of jurisdiction on the merits
is manifest” (Interim Protection, Order of 17 August 1972, I. C.J. Reports
1972, p. 15).

16. In the Nuclear Tests case (1973), France insisted that the Court
was “manifestly not competent in the case”. The Court, departing in part
from the formula it had used the year before in the Fisheries Jurisdiction
case, stated that it “need not . .. finally satisfy itself that it has jurisdic-
tion on the merits of the case”, but that it ought not to indicate provi-
sional measures “unless the provisions invoked by the Applicant appear,
prima facie, to afford a basis on which the jurisdiction of the Court might
be founded” (Nuclear Tests (Australia v. France), Interim Protection,
Order of 22 June 1973, I.C.J. Reports 1973, p. 101). In none of the next
three provisional measures cases (Trial of Pakistani Prisoners of War,
Order of 13 July 1973, LC. J. Reports 1993, p. 328; Aegean Sea Conti-
nental Shelf, Order of 11 September 1976, I.C.J. Reports 1976, p. 3;
United States Diplomatic and Consular Staff in Tehran, Order of
17 December 1979, I.C.J. Reports 1979, p. 7) was the question of juris-
diction the main basis for the order.

17. In Military and Paramilitary Activities in and against Nicaragua,
Provisional Measures (Order of 10 May 1984, LC.J. Reports 1984,
p. 179) the Court came back to the issue, repeating the exact formula of
the Nuclear Tests case. That formula is now firmly established (Arbitral
Award of 31 July 1989, Provisional Measures, Order of 2 March 1990,
LC.J. Reports 1990, pp. 68-69; Passage through the Great Belt (Finland
v. Denmark), Provisional Measures, Order of 29 July 1991, L C.J. Reports

45
584 LEGALITY OF USE OF FORCE (SEP. OP. HIGGINS)

1991, p. 17; Application of the Convention on the Prevention and Punish-
ment of the Crime of Genocide, Provisional Measures, Order of 8 April
1993, C.J. Reports 1993, p. 11, and Order of 13 September 1993, ibid.
pp. 16-17; Land and Maritime Boundary between Cameroon and Nigeria,
Provisional Measures, Order of 15 March 1996, I. C.J. Reports 1996(1),
p. 12; Vienna Convention on Consular Relations (Paraguay v. United
States of America), Provisional Measures, Order of 9 April 1998, 1 C.J.
Reports 1998, p. 255, para. 23; and LaGrand, Provisional Measures,
Order of 3 March 1999, LC.J. Reports 1999, p. 13, para. 13).

18. Thus a party seeking the indication of provisional measures must
show a prima facie basis upon which the Court’s jurisdiction in the case
might be founded. That being said, several questions (which have a par-
ticular relevance in the present case) remain. What is sufficient to show
the required “prima facie” basis for jurisdiction? And what jurisdictional
matters will the Court look at, as necessary for this purpose, at the pro-
visional measures stage, and what will it reserve for any further hearings
on jurisdiction?

19. It is the practice of the Court that weighty and complex arguments
relating to its jurisdiction will not usually be addressed at the provisional
measures phase but rather will be regarded as appropriate for resolution
only at the preliminary objections phase. The Co-Agent of the Swiss
Government in the /nterhandel case suggested that the Court would not
wish, at the interim measures phase, to adjudicate “upon so complex and
delicate a question as the validity of the American reservation” (/nter-
handel, Interim Protection, Order of 24 October 1957, I.C.J. Reports
1957, p. 111). The Court, there being able to base its refusal to indicate
provisional measures on other grounds, gave no answer to this question.
In the Nuclear Tests case of 1973, Australia advanced detailed arguments
alleging the continued validity and applicability of the General Act of
1928 as a separate basis for jurisdiction. Without distinguishing the Gen-
eral Act from Article 36 of the Statute, the Court satisfied itself with say-
ing that “the provisions invoked by the Applicant appear, prima facie, to
afford a basis on which the jurisdiction of the Court might be founded”
(Nuclear Tests (Australia v. France), Interim Protection, Order of
22 June 1973, 1 C.J. Reports 1973, p. 102).

20. In the Military and Paramilitary Activities in and against Nica-
ragua case (1984), the Court was faced, at the provisional measures
stage, with very complicated arguments relating both to the legal effect
of the United States declaration of 6 April 1984 and to the apparent
failure of Nicaragua to have deposited an instrument of ratification of
the protocol to bring its adherence to the Statute of the Permanent
Court of International Justice into effect. The Court briefly recounted

46
585 LEGALITY OF USE OF FORCE (SEP. OP. HIGGINS)

the legal problems associated with each of these provisions and stated
that it:

“will not now make any final determination of the question of the
present validity or invalidity of the declaration of 24 September
1929, and the question whether or not Nicaragua accordingly was or
was not, for the purpose of Article 36, paragraph 2, of the Statute of
the Court a ‘State accepting the same obligation’ as the United
States of America at the date of filing of the Application, so as to be
able to rely on the United States declaration of 26 August 1946, nor
of the question whether, as a result of the declaration of 6 April
1984, the present Application is excluded from the scope of the
acceptance by the United States of the compulsory jurisdiction of
the Court...” (Order of 10 May 1984, I. C.J. Reports 1984, p. 180).

The Court satisfied itself with saying that “the two declarations do
nevertheless appear to afford a basis on which the jurisdiction of the
Court might be founded” (ibid. ).

21. In the present case the Court has also not made any final determi-
nation upon the question of the Federal Republic of Yugoslavia’s status
or otherwise as a Member of the United Nations and thus as a party to
the Statute having the right to make a declaration under Article 36, para-
graph 2, thereof. This is clearly a matter of the greatest complexity and
importance and was, understandably, not the subject of comprehensive
and systematic submissions in the recent oral hearings on provisional
measures.

22. Of course, just as with the question of Nicaragua’s ratification of
its adherence to the Statute of the Permanent Court in the Military and
Paramilitary Activities in and against Nicaragua case, it might be thought
that the status of the Federal Republic of Yugoslavia was a necessary
“préalable” to everything else. But when dealing with provisional meas-
ures the Court is faced with unavoidable tensions between the demands
of logic and the inability to determine with finality when operating under
urgency in response to a request for provisional measures. The opera-
tional principle is that matters of deep complexity will if possible be left
to one side in determining the prima facie jurisdiction of the Court for
purposes of Article 41.

23. In the Nuclear Tests cases and in the Military and Paramilitary
Activities case, the Court equally held over certain arguments relating to
declarations under the Statute. By contrast, the Court in this case has
addressed, for purposes of provisional measures, both the terms of the
declarations of the Federal Republic of Yugoslavia and the Netherlands
and the interaction of the declarations of the Federal Republic of Yugo-
slavia and the Netherlands.

47
586 LEGALITY OF USE OF FORCE (SEP. OP. HIGGINS)

24. The prima facie test of jurisdiction does not make it sufficient
merely to note the very existence of two declarations at this stage. This is
not to be deduced from the statement of the Court in the Cameroon
v. Nigeria provisional measures case that “the declarations made by the
Parties in accordance with Article 36, paragraph 2, of the Statute consti-
tute a prima facie basis upon which its jurisdiction in the present case
might be founded” (C.J. Reports 1996 (I), p. 21, para. 31). The
Nigerian request for a reconsideration of the rule in the Rights of
Passage case, as it bore on the interpretation of its own declaration,
clearly fell into that category of complex and weighty objections to juris-
diction that had to be deferred for proper consideration until the pre-
liminary objections phase. In that particular light (and because the
Rights of Passage principle was well established in the Court’s case law),
the declarations would in the meantime be treated as establishing prima
facie jurisdiction.

25. The same guiding principles apply to treaties said to provide a
basis for the Court’s jurisdiction. Thus the several complicated argu-
ments that had been advanced in connection with Article IX of the Geno-
cide Convention were not addressed in the provisional measures phase of
the Genocide case of 1993; and it was against that background that the
Court said that Article IX of the Convention appeared to “afford a basis
on which the jurisdiction of the Court might be founded” (Application of
the Convention on the Prevention and Punishment of the Crime of Geno-
cide, Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993,
p. 16; and Order of 13 September 1993, .C.J. Reports 1993, p. 342).

26. But it should not be thought that mere invocation of a jurisdic-
tional clause, with nothing more, suffices to establish a prima facie basis
of the Court’s jurisdiction. It cannot be otherwise, because the jurisdic-
tion of the Court — even if one might regret this state of affairs as we
approach the twenty-first century — is based on consent. And consent to
jurisdiction cannot be established, even prima facie, when it is clear from
the terms of the declarations themselves that the necessary consent is not
prima facie present, or simply is not present, simpliciter. As Sir Hersch
Lauterpacht put it in his separate opinion in the /nterhandel case, the test
of jurisdiction of the Court prima facie is met if, in the relevant instru-
ments, there are “no reservations obviously excluding its jurisdiction”
(LC.J. Reports 1957, pp. 118-119). Reservations relevant for this purpose
are both those in a State’s own declaration and those that it may rely on
reciprocally.

27. Yugoslavia made no submission at all to the Court on either the
optional clause declaration of the Netherlands or on its interplay with its
own reservation. It did not tell the Court the implications of the recipro-

48
587 LEGALITY OF USE OF FORCE (SEP. OP. HIGGINS)

city requirements in the Netherlands’ declaration, when read together
with the clear terms of the Federal Republic’s own reservation. Nor did
the Netherlands rely reciprocally on Yugoslavia’s declaration, no doubt
deeming that to be inconsistent with the position it took alleging the dec-
laration to be invalid. But the Court cannot fail to consider these matters,
and none of them is so obscure and complicated that it could not be dealt
with at this stage; and nor was that suggested by Yugoslavia.

28. As the Court stated in the Norwegian Loans case: “since two uni-
lateral declarations are involved [reciprocal] jurisdiction is conferred
upon the Court only to the extent to which the Declarations coincide in
conferring it” (Judgment, .C.J. Reports 1957, p. 23). And the Court
clearly stated in Fisheries Jurisdiction (Spain v. Canada) that:

“Conditions or reservations thus do not by their terms derogate
from a wider acceptance already given. Rather, they operate to
define the parameters of the State’s acceptance of the compulsory
jurisdiction of the Court.” (C.J. Reports 1998, p. 453, para. 44.)

Each of these dicta appears in the judgments on jurisdiction, these not
having been provisional measures cases. But a State seeking the introduc-
tion of provisional measures must show that jurisdiction prima facie
exists, notwithstanding conditions, reservations and the operation of reci-
procity between declarations.

29. The restraint upon the liberty of action of a State that necessarily
foliows from the indication of provisional measures will not be counte-
nanced unless, prima facie, there is jurisdiction. But an absence of prima
facie jurisdiction at this stage and for this purpose does not necessarily
mean that jurisdiction may not, in the event, later be established. How-
ever, if in considering whether there is jurisdiction prima facie for pur-
poses of Article 41 of the Statute, it is clear beyond doubt that no juris-
diction exists in a particular case, good administration of justice requires
that the case be immediately struck off the List in limine.

+ * x

30. Finally, it should not be thought that the Court, because it has had
to address the question of its prima facie jurisdiction in the case brought
by the Federal Republic of Yugoslavia, is indifferent to the great suffer-
ing in Kosovo and Yugoslavia. Indeed, the preambular paragraphs to its

49
588 LEGALITY OF USE OF FORCE (SEP. OP. HIGGINS)

Order show otherwise. Nor does it seek to avoid making its contribution
to an elucidation of the heavily contested issues of law. But the Court can
take on its responsibilities within the United Nations system and use its
judicial authority and creativity only when it has jurisdiction. In this case,
the Court’s jurisdiction has yet to be established even prima facie.

(Signed) Rosalyn HiGGins.

50


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING THE TERRITORIAL
AND MARITIME DISPUTE

(NICARAGUA v. COLOMBIA)

ORDER OF 24 SEPTEMBER 2003

2003

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DU DIFFEREND
TERRITORIAL ET MARITIME

(NICARAGUA c, COLOMBIE)

ORDONNANCE DU 24 SEPTEMBRE 2003

Official citation:

Territorial and Maritime Dispute (Nicaragua v. Colombia),
Order of 24 September 2003, 1. C.J. Reports 2003, p. 158

Mode officiel de citation:

Différend territorial et maritime (Nicaragua c. Colombie),
ordonnance du 24 septembre 2003, C.I.J. Recueil 2003, p. 158

Sales number
ISSN 0074-4441 N° de vente: 875

ISBN 92-1-070983-7

24 SEPTEMBER 2003

ORDER

TERRITORIAL AND MARITIME DISPUTE
(NICARAGUA +. COLOMBIA)

DIFFEREND TERRITORIAL ET MARITIME
(NICARAGUA c. COLOMBIE)

24 SEPTEMBRE 2003

ORDONNANCE
158

COUR INTERNATIONALE DE JUSTICE

ANNÉE 2003 2003
24 septembre
Rôle général

24 septembre 2003 n° 124

AFFAIRE DU DIFFÉREND TERRITORIAL

ET MARITIME

(NICARAGUA c. COLOMBIE)

ORDONNANCE

Présents: M. Sui, président; M. RANIEVA, vice-président, MM. Koroma,

VERESHCHETIN, M Hiccins, MM. PARRA-ARANGUREN,
KOOLMANS, REZEK, AL-KHASAWNEH, BUERGENTHAL, ELARABY,
Owaba, SIMMA, TOMKA, juges; M. COUVREUR, greffier.

La Cour internationale de Justice,

Ainsi composée,

Après délibéré en chambre du conseil,
Vu l’article 48 du Statut de la Cour et les articles 31 et 79 de son Règle-

Vu l’ordonnance du 26 février 2002, par laquelle la Cour a fixé au
28 avril 2003 et au 28 juin 2004 les dates d'expiration des délais pour le
dépôt. respectivement, d’un mémoire de la République du Nicaragua et
d'un contre-mémoire de la République de Colombie,

Vu le mémoire du Nicaragua déposé dans le délai ainsi fixe;

Considérant que, le 21 juillet 2003, la République de Colombie a
déposé certaines exceptions préliminaires d’incompétence ;

Considérant qu’en conséquence, en vertu des dispositions du para-
graphe 5 de l’article 79 du Règlement de la Cour, la procédure sur le fond

4

DIFFEREND TERRITORIAL ET MARITIME (ORD. 24 IX 03) 159

est suspendue et qu'il échet de fixer un délai dans lequel la Partie adverse
pourra présenter un exposé écrit contenant ses observations et conclu-
sions sur les exceptions préliminaires:

Considérant que, au cours d’une réunion que le président de la Cour a
tenue avec les agents des Parties le 17 septembre 2003, le Nicaragua a
déclaré qu'il souhaitait disposer d’un délai de quatre mois, à compter de
la date de l'ordonnance à adopter, pour la préparation de son exposé
écrit; et que la Colombie a marqué son accord sur un tel délai;

Compte tenu de l'accord des Parties,
Fixe au 26 janvier 2004 la date d'expiration du délai dans lequel la
République du Nicaragua pourra présenter un exposé écrit contenant ses

observations et conclusions sur les exceptions préliminaires soulevées par
la République de Colombie;

Réserve la suite de la procédure.

Fait en anglais et en français, le texte anglais faisant foi, au Palais de la
Paix, à La Haye, le vingt-quatre septembre deux mille trois, en trois
exemplaires, dont l’un restera déposé aux archives de la Cour et les autres
seront transmis respectivement au Gouvernement de la République du
Nicaragua et au Gouvernement de la République de Colombie.

Le président,
(Signé) Sui Jiuyong.
Le greffier,
(Signé) Philippe COUVREUR.


54 CONTINENTAL SHELF (JUDGMENT)

(1) the general configuration of the coasts of the Parties, as well as the
presence of any special or unusual features;

(2) so far as known or readily ascertainable, the physical and geological
structure, and natural resources, of the continental shelf areas in-
volved;

(3) the element of a reasonable degree of proportionality, which a delimi-
tation carried out in accordance with equitable principles ought to
bring about between the extent of the continental shelf areas apper-
taining to the coastal State and the length of its coast measured in
the general direction of the coastline, account being taken for this
purpose of the effects, actual or prospective, of any other continental
shelf delimitations between adjacent States in the same region.

Done in English and in French, the English text being authoritative
at the Peace Palace, The Hague, this twentieth day of February, one
thousand nine hundred and sixty-nine, in four copies, one of which will
be placed in the archives of the Court and the others transmitted to the
Government of the Federal Republic of Germany, to the Government
of the Kingdom of Denmark and to the Government of the Kingdom of
the Netherlands, respectively.

(Signed) J. L. BUSTAMANTE R.,
President.

(Signed) S. AQUARONE,
Registrar.

Judge Sir Muhammad ZAFRULLA KHAN makes the following declara-
tion:

I am in agreement with the Judgment throughout but would wish to
add the following observations.

The essence of the dispute between the Parties is that the two Kingdoms
claim that the delimitation effected between them under the Agreement
of 31 March 1966 is binding upon the Federal Republic and that the
Federal Republic is bound to accept the situation resulting therefrom,
which would confine its continental shelf to the triangle formed by lines
ABE and C-D-E in Map 3. The Federal Republic stoutly resists that
claim.

Not only is Article 6 of the Geneva Convention of 1958 not opposable
to the Federal Republic but the delimitation effected under the Agree-
ment of 31 March 1966 does not derive from the provisions of that Article
as Denmark and the Netherlands are neither States ‘whose coasts are
opposite each other’ within the meaning of the first paragraph of that
Article nor are they “two adjacent States” within the meaning of the

55
55 CONTINENTAL SHELF (DECL. ZAFRULLA KHAN)

second paragraph of that Article. The situation resulting from that delimi-
tation, so far as it affects the Federal Republic is not, therefore, brought
about by the application of the principle set out in either of the paragraphs
of Article 6 of the Convention.

Had paragraph 2 of Article 6 been applicable to the delimitation of
the continental shelf between the Parties to the dispute, a boundary line,
determined by the application of the principle of equidistance, would
have had to allow for the configuration of the coastline of the Federal
Republic as a “‘special circumstance”.

In the course of the oral pleadings the contention that the principle
of equidistance cum special circumstances had crystallized into a rule of
customary international law was not advanced on behalf of the two
Kingdoms as an alternative to the claim that that principle was inherent
in the very concept of the continental shelf. The Judgment has, in fair-
ness, dealt with these two contentions as if they had been put forward
in the alternative and were thus consistent with each other, and has
rejected each of them on the merits. I am in agreement with the reasoning
of the Judgment on both these points. But, I consider, it is worth men-
tioning that Counsel for the two Kingdoms summed up their position
in regard to the effect of the 1958 Convention as follows:

“,., They have not maintained that the Convention embodied al-
ready received rules of customary law in the sense that the Conven-
tion was merely declaratory of existing rules. Their position is rather
that the doctrine of the coastal State’s exclusive rights over the
adjacent continental shelf was in process of formation between 1945
and 1958; that the State practice prior to 1958 showed fundamental
variations in the nature and scope of the rights claimed: that, in
consequence, in State practice the emerging doctrine was wholly
lacking in any definition of these crucial elements as it was also of
the legal régime applicable to the coastal State with respect to the
continental shelf; that the process of the definition and consolidation
of the emerging customary law took place through the work of the
International Law Commission, the reaction of governments to that
work and the proceedings of the Geneva Conference; that the
emerging customary law, now become more defined, both as to the
rights of the coastal State and the applicable régime, crystallized in
the adoption of the Continental Shelf Convention by the Conference;
and that the numerous signatures and ratifications of the Convention
and the other State practice based on the principles set out in the
Convention had the effect of consolidating those principles as cus-
tomary law.”

If it were correct that the doctrine of the coastal State’s exclusive
rights over the adjacent continental shelf was in process of formation

56
56 CONTINENTAL SHELF (DECL. BENGZON)

between 1945 and 1958 and that in State practice prior to 1958 it was
wholly lacking in any definition of crucial elements as it was also of the
legal régime applicable to the coastal State with respect to the continental
shelf, then it would seem to follow conclusively that the principle of
equidistance was not inherent in the concept of the continental shelf.

Judge BENGZON makes the following declaration:

I regret my inability to concur with the main conclusions of the
majority of the Court. T agree with my colleagues who maintain the view
that Article 6 of the Geneva Convention is the applicable international
law and that as between these Parties equidistance is the rule for delimita-
tion, which rule may even be derived from the general principles of law.

President BUSTAMANTE Y RIVERO, Judges JESSUP, PADILLA NERVO and
AMMOUN append Separate Opinions to the Judgment of the Court.

Vice-President KORETSKY, Judges TANAKA, MORELLI, LACHS and Judge
ad hoc SGRENSEN append Dissenting Opinions to the Judgment of the
Court.

(Initialled) J. L. B.-R.

(Initialled) 8. A.

57


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

VOTING PROCEDURE ON QUESTIONS
RELATING TO REPORTS AND PETITIONS
CONCERNING THE TERRITORY OF
SOUTH-WEST AFRICA

ADVISORY OPINION OF JUNE 7th, 1955

1955

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

PROCEDURE DE VOTE APPLICABLE AUX

QUESTIONS TOUCHANT LES RAPPORTS

ET PETITIONS RELATIFS AU TERRITOIRE
DU SUD-OUEST AFRICAIN

AVIS CONSULTATIF DU 7 JUIN 1955
This Opinion should be cited as follows:

“South-West Africa—V oting Procedure, Advisory Opinion of
June 7th, 1955: I.C.J. Reports 1955, p. 67.”

Le présent avis doit étre cité comme suit:

«Sud-Ouest africain — Procédure de vote, Avis consultatif du

7 juin 1955: C. I. J. Recueil 1955, p. 67. »

Sales number 1 32
N° de vente :

67

1955
June 7th
General List :
No. 24

INTERNATIONAL COURT OF JUSTICE

YEAR 1955
June 7th, 1955

VOTING PROCEDURE ON QUESTIONS

RELATING TO REPORTS AND PETITIONS

CONCERNING THE TERRITORY OF
SOUTH-WEST AFRICA

Resolution 844 (IX) of General Assembly.— Rule F governing majority
required for decisions relating to reports and petitions concerning
Territory of South-West Africa.—Article 18 of Charter.

Elucidation of Advisory Opinion of July rrth, 1950.—Limitations
on degree of supervision to be exercised over Mandated Territory and
on procedure to be followed.

“Degree of supervision” relates to measures, not to voting system.—
Extent of obligations of Mandatory Power not affected by system adopted
for voting.—Competence of General Assembly based on Charter.—
Unanimity rule under Covenant of League not within scope of Question.,

Voting system not contemplated in Opinion of 1950.—Adoption of

Rule F by General Assembly within bounds of legal possibility.— Com-
patibility of Rule F with Opinion of 1950.

ADVISORY OPINION

Present : President HACKWORTH ; Vice-President BADAWI; Judges

GUERRERO, BASDEVANT, WINIARSKI, ZORICIC, KLAESTAD,
Reap, Hsu Mo, ARMAND-Ucon, KOJEVNIKOV, Sir
Muhammad ZAFRULLA KHAN, LAUTERPACHT, MORENO
QuiNTANA, CORDOVA; Registrar LOPEZ OLIVAN.
68 OPIN. OF 7 VI 55 (S.-W. AFR.—VOTING PROCEDURE)

In the matter of the Voting Procedure on Questions relating
to Reports and Petitions concerning the Territory of South-
West Africa,

THE Court,
composed as above,

gives the following Advisory Opinion :

With a letter of December 2nd, 1954, filed in the Registry on
December 6th, the Secretary-General of the United Nations
transmitted to the Court a certified true copy of a Resolution
904 (IX) of the General Assembly of the United Nations of Novem-
ber 23rd, 1954, which was in the following terms :

“The General Assembly,

Having accepted, by resolution 449 A (V) of 13 December, 1950,
the advisory opinion of the International Court of Justice of
11 July 1950 with respect to South-West Africa,

Having regard, in particular, to the Court’s opinion on the
general question, namely, ‘that South-West Africa is a Territory
under the international Mandate assumed by the Union of South
Africa on 17 December 1920’, and to the Court’s opinion on
question (a), namely, ‘that the Union of South Africa continues
to have the international obligations stated in Article 22 of the
Covenant of the League of Nations and in the Mandate for South-
West Africa as well as the obligation to transmit petitions from
the inhabitants of that Territory, the supervisory functions to
be exercised by the United Nations, to which the annual reports
and the petitions are to be submitted, and the reference to the
Permanent Court of International Justice to be replaced by a
reference to the International Court of Justice, in accordance
with Article 7 of the Mandate and Article 37 of the Statute of
the Court’,

Having expressed, in resolution 749 A (VIII) of 28 November
1953, its opinion ‘that without United Nations supervision the
inhabitants of the Territory are deprived of the international
supervision envisaged by the Covenant of the League of Nations’
and its belief ‘that it would not fulfil its obligation towards the
inhabitants of South-West Africa if it were not to assume the
supervisory responsibilities with regard to the Territory of South-
West Africa which were formerly exercised by the League of
Nations’,

Having regard to the opinion of the International Court of Justice
that ‘the degree of supervision to be exercised by the General
Assembly should not .... exceed that which applied under the
Mandates System, and should conform as far as possible to the
procedure followed in this respect by the Council of the League
of Nations’ and that ‘these observations are particularly .applic-
able to annual reports and petitions’,
69 OPIN. OF 7 VI 55 (S.-W. AFR.—VOTING PROCEDURE)

Having adopted, by resolution 844 (IX) of 11 October 1954, a
special rule F on the voting procedure to be followed by the General
Assembly in taking decisions on questions relating to reports and
petitions concerning the Territory of South-West Africa,

Having adopted this rule in a desire ‘to apply, as far as possible,
and pending the conclusion of an agreement. between the United
Nations and the Union of South Africa, the procedure followed in
that respect by the Council of the League of Nations’,

Considering that some elucidation of the advisory opinion is
desirable,

Requests the International Court of Justice to give an advisory
opinion on the following questions :

(a) Is the following rule on the voting procedure to be followed
by the General Assembly a correct interpretation of the
advisory opinion of the International Court of Justice of
Ir July 1950:

‘Decisions of the General Assembly on questions relating
to reports and petitions concerning the Territory of South-
West Africa shall be regarded as important questions within
the meaning of Article 18, paragraph 2, of the Charter
of the United Nations’ ?

(b) If this interpretation of the advisory opinion of the Court
is not correct, what voting procedure should be followed by
the General Assembly in taking decisions on questious relating
to reports and petitions concerning the Territory of South-
West Africa ?”

In accordance with Article 66, paragraph 1, of the Statute, notice
was given on December oth, 1954, to all States entitled to appear
before the Court of the letter of the Secretary-General of the United
Nations and of the Resolution annexed thereto. The Court was not
sitting and the President considered that the States Members of
the United Nations were likely to be able to furnish information on
the questions referred to the Court. Accordingly, the Registrar, in
pursuance of Article 66, paragraph 2, of the Statute, notified these
States‘on December 16th, 1954, that the Court would be prepared
to receive written statements from them within a time-limit fixed
by an Order of the same date at March 15th, 1955.

The Governments of the United States of America, of the Repub-
lic of Poland, and of India availed themselves of this opportunity
to submit written statements. The Governments of Israel and of the
Republic of China, while not submitting written statements,
referred to the views expressed by their representatives in the
General Assembly when the question which had given rise to the
request for an Advisory Opinion was there debated. Finally, the
Government of Yugoslavia indicated that it was of the opinion that

6
70 OPIN. OF 7 VI 55 (S.-W. AFR.—VOTING PROCEDURE)

the question had already been dealt with exhaustively by an Advi-
sory Opinion of the Court on the question of the Territory of South-
West Africa.

In accordance with Article 65, paragraph 2, of the Statute, the
Secretary-General of the United Nations transmitted to the Court
the documents likely to throw light upon the question. He also
submitted an Introductory Note commenting on these documents.

The States Members of the United Nations were notified on
March 25th, 1955, that the oral proceedings would begin on
May roth, 1955; at the same time they were requested to inform the
Registrar, not later than April 15th, 1955, whether they intended
to submit oral statements. No State having requested to be heard,
the Court did not hold a public hearing.

*
* *

By Resolution go4 (IX) of November 23rd, 1954, the General
Assembly

“Requests the International Court of Justice to give an advisory

opinion on the following questions :

(a) Is the following rule on the voting procedure to be followed
by the General Assembly a correct interpretation of the
advisory opinion of the International Court of Justice of
II July 1950:

‘Decisions of the General Assembly on questions relating
to reports and petitions concerning the Territory of South-
West Africa shall be regarded as important questions
within the meaning of Article 18, paragraph 2, of the
Charter of the United Nations’ ?

{b) If this interpretation of the advisory opinion of the Court
is not correct, what voting procedure should be followed by
the General Assembly in taking decisions on questions
relating to reports and petitions concerning the Territory
of South-West Africa ?”

The rule quoted in this Request for an Advisory Opinion is
Rule F, which is set out in Resolution 844 (IX) adopted by the
General Assembly on October 11th, 1954. This Rule prescribes a
voting system to be followed by the General Assembly.

The General Assembly asks, in the first place, whether this Rule
is a correct interpretation of the Advisory Opinion given by the
Court on July 11th, 1950. This is the first question to be considered.
The second question arises only in the event that the Court expresses
the opinion that Rule F is not a correct interpretation of the
Advisory Opinion of 1950.

By Resolution 449 (V) A of December 13th, 1950, the Opinion of
1950 was adopted by the General Assembly as the basis for the
supervision of the administration of the mandated Territory of

7
7I OPIN. OF 7 VI 55 (S.-W. AFR.—VOTING PROCEDURE)

South-West Africa. There followed prolonged and unfruitful
negotiations between representatives of the Government of the
Union of South Africa and an ad hoc Committee of the General
Assembly.

At the Eighth Session, the General Assembly, by Resolution
749 (VIII) of November 28th, 1953, established a Committee on
South-West Africa. It was requested to:

“a) Examine, within the scope of the Questionnaire, adopted
by the Permanent Mandates Commission of the League of Nations
in 1926, such information and documentation as may be available
in respect of the Territory of South-West Africa ;

(6) examine, as far as possible, in accordance with the procedure
of the former Mandates System, reports and petitions which may
be submitted to the Committee or to the Secretary-General ;

(c) transmit to the General Assembly a report concerning condi-
tions in the Territory taking into account, as far as possible, the
scope of the reports of the Permanent Mandates Commission of the
League of Nations ;

(d) prepare, for the consideration of the General Assembly, a
procedure for the examination of reports and petitions which
eshould conform as far as possible to the procedure followed in this
respect by the Assembly, the Council and the Permanent Mandates
Commission of the League of Nations.”

Acting under this authority, the Committee on South-West
Africa prepared two sets of rules. One set of rules relates to its own
procedure, and to the examination of reports, petitions and other
information concerning the Territory of South-West Africa. The
procedure was designed to be analogous to that which was followed
by the Permanent Mandates Commission under the League of
Nations. Provision was made for obtaining the views of the Manda-
tory Power and for the submission of reports and observations by
the Committee to the General Assembly. The other set of rules
prepared by the Committee prescribed the procedure to be followed
by the General Assembly in its consideration of the reports and
observations of the Committee on South-West Africa. The rules
covered such matters as reports, petitions, and private meetings,
as well as the way in which decisions of the General Assembly with
regard to reports and petitions were to be made, the last-mentioned
matter being dealt with in Rule F.

It appears that Rule F is part of a regime established by Reso-
lutions of the General Assembly of November 28th, 1953, and
October r1th, 1954, in which the expressed intention of the General
Assembly was to conform to the Opinion of 1950.

The scope of Question fa) is thus limited by the wording used
and by the reference to the General Assembly’s acceptance of the
Opinion previously given by the Court. It is therefore essential

8
72 OPIN. OF 7 VI 55 (S.-W. AFR.—VOTING PROCEDURE)

that the Court should keep within the bounds of the question put
to it by the General Assembly.

*
* *

In the question submitted to the Court there is a slight difference
between the wording of the English and the French texts. The
French version seems to express more precisely the intention of the
General Assembly in submitting the matter to the Court for its
Opinion. It asks whether Rule F corresponds to a correct inter-
pretation of the previous Opinion. It refers generally to the previous
Opinion, but the debates in the Fourth Committee and in the
General Assembly indicate that the latter was primarily concerned
with the question whether the rule as to the system of voting
corresponds to a correct interpretation of the following passage :

“The degree of supervision to be exercised by the General Assem-
bly should not therefore exceed that which applied under the
Mandates System, and should conform as far as possible to the
procedure followed in this respect by the Council of the League of
Nations.”

At this stage consideration will be given to the first part of this
passage, namely, the statement that ‘The degree of supervision to
be exercised by the General Assembly should not therefore exceed
that which applied under the Mandates System...” The task of
the Court is to establish the true meaning of this statement. The
question is whether this statement may properly be construed as
including the system of voting to be followed by the General
Assembly.

The function of supervision exercised by the General Assembly
generally takes the form of action based on the reports and obser-
vations of the Committee on South-West Africa; whose functions
are analogous to those exercised by the Permanent Mandates
Commission. The words “‘the degree of supervision” relate to the
extent of the substantive supervision thus exercised, and not to
the manner in which the collective will of the General Assembly
is expressed.

Accordingly, these words, if given their ordinary and natural
meaning, should not be interpreted as relating to procedural matters.
They relate to the measure and means of supervision. They comprise
the means employed by the supervising authority in obtaining
adequate information regarding the administration of the Territory
and the methods adopted for evaluating such information, main-
taining working relations with the Mandatory, and otherwise
exercising normal and customary supervisory functions. The
statement that the degree of supervision to be exercised by the
General Assembly should not exceed that which was applied under
the Mandates System means that the General Assembly should not

9
73 OPIN. OF 7 VI 55 (S.-W. AFR.—VOTING PROCEDURE)

adopt such methods of supervision or impose such conditions on
the Mandatory as are inconsistent with the terms of the Mandate
or with a proper degree of supervision measured by the standard
and the methods applied by the Council of the League of Nations.

Consequently, the action of the General Assembly in adopting
Rule F, which prescribes the two-thirds majority rule, cannot be
regarded as relevant to the ‘‘degree of supervision’’. It follows
that this Rule cannot be considered as instituting a greater degree
of supervision than that which was envisaged by the previous
Opinion of the Court.

*
* *

This interpretation of the words used is confirmed by an examin-
ation of the circumstances which led to their use.

The Court, in the previous Opinion, was answering the question :
“Does the Union of Sovth Africa continue to have international
obligations under the Mandate for South-West Africa and, if so,
what are those obligations >’? It was dealing with two kinds of
international obligations assumed by the Union of South Africa
under the Mandate.

The first kind of obligation was directly related to the adminis-
tration of the Territory and corresponded to the sacred trust of
civilization referred to in Article 22 of the Covenant. The Court
found that these obligations did not lapse on the dissolution of
the League of Nations.

The second kind of obligations related to the supervision of the
administration of the mandated Territory by the League. The
Court, taking into account the Eesolution of the Assembly of the
League of Nations of April 18th, 1946, and the provisions of Arti-
cles 10 and 80 of the Charter, recognized that the General Assembly
was legally qualified to exercise the supervisory functions which
had previously been exercised by the Council of the League. It was
necessary for the purpose of defining the international obligations
of the Union to indicate the limits within which it was subject
to the exercise of supervision by the General Assembly.

In order to indicate those limits, it was necessary to deal with
the problem presented by methods of supervision and the scope of
their application. The General Assembly was competent, under
the Charter, to devise methods of supervision and to regulate,
within prescribed limitations, the scope of their application. These
were matters in which the obligations could be subjected to precise
and objective determination, and it was necessary t indicate this
in a clear and unequivocal manner. This was done wen it was said
in the previous Opinion that: “The degree of su.rvision to be
exercised by the General Assembly should not © erciore exceed
that which applied under the Mandates System

TO
74 OPIN. OF 7 VI 55 (S.-W. AFR.—VOTING PROCEDURE)

On the other hand, in marking out those limits, the Court did
not need to deal with the system of voting. In recognizing that the
competence of the General Assembly to exercise its supervisory
functions was based on the Charter, the Court also recognized
implicitly that decisions relating to the exercise of such functions
must be taken in accordance with the relevant provisions of the
Charter, that is, the provisions of Article 18. If the Court had
intended that the limits to the degree of supervision should be
understood to include the maintenance of the system of voting
followed by the Council of the League of Nations, it would have
been contradicting itself and running counter to the provisions
of the Charter. It follows that the statement that “The degree of
supervision to be exercised by the General Assembly should not
therefore exceed that which applied under the Mandates System”
cannot be interpreted as extending to the voting system of the
General Assembly.

Accordingly, the Court finds that the statement in the Opinion
of July r1th, 1950, that “The degree of supervision to be exercised
by the General Assembly should not therefore exceed that which
applied under the Mandates System”, must be interpreted as
relating to substantive matters, and as not including or relating to
the system of voting followed by the Council of the League of
Nations.

*
* *

In the course of the proceedings in the General Assembly and
Committees of the United Nations, it was contended by represen-
tatives of the Union of South Africa that Rule F would not corre-
spond to a correct interpretation of the previous Opinion. It was
argued that the rule of unanimity governed the proceedings in the
Council of the League of Nations, in which the mandatory Power
was entitled to participate and vote ; and that Rule F, by sub-
stituting a two-thirds majority rule, would lead to a degree of
supervision exceeding that which applied under the Mandates
System.

These contentions were questioned by representatives of other
Governments and also in the written statements submitted to the
Court in the present proceedings.

In view of the finding of the Court that the statement in the
Opinion of 1950 that ‘‘The degree of supervision to be exercised by
the General Assembly should not therefore exceed that which
applied under the Mandates System” does not include or relate to
the system of voting, it is unnecessary to deal with the issues raised
by these contentions or to examine the extent and scope of the
operation of the rule of unanimity under the Covenant of the
League of Nations.

IT
75 OPIN. OF 7 VI 55 (S.-W. AFR.—VOTING PROCEDURE)

*
* *

The Court will now consider whether Rule F is in accord with
the statement in the Opinion of 1950, that the supervision to be
exercised by the General Assembly ‘should conform as far as
possible to the procedure followed in this respect by the Council
of the League of Nations”.

While, as indicated above, the statement regarding the degree of
supervision to be exercised by the General Assembly over the
Mandate of South-West Africa, relates to substantive matters, the
statement requiring conformity ‘‘as far as possible” with the proce-
dure followed in the matter of supervision by the Council of the
League of Nations, relates to the way in which supervision is to be
exercised, a matter which is procedural in character. Thus, both
substance and procedure are dealt with in the passage in question
and both relate to the exercise of supervision. The word ‘‘proce-
dure’ there used must be understood as referring to those proce-
dural steps whereby supervision is to be effected.

The voting system of the General Assembly was not in contem-
plation when the Court, in its Opinion of 1950, stated that “‘super-
vision should conform as far as possible to the procedure followed
in this respect by the Council of the League of Nations’. The
constitution of an organ usually prescribes the method of voting
by which the organ arrives at its decisions. The voting system is
related to the composition and functions of the organ. It forms one
of the characteristics of the constitution of the organ. Taking
decisions by a two-thirds majority vote or by a simple majority
vote is one of the distinguishing features of the General Assembly,
while the unanimity rule was one of the distinguishing features of
the Council. of the League of Nations. These two systems are
characteristic of different organs, and one system cannot be
substituted for the other without constitutional amendment. To
transplant upon the General Assembly the unanimity rule of the
Council of the League would not be simply the introduction of a
procedure, but would amount to a disregard of one of the charac-
teristics of the General Assembly. Consequently the question of
conformity of the voting system of the General Assembly with that
of the Council of the League of Nations presents insurmountable
difficulties of a juridical nature. For these reasons, the voting
system of the General Assembly must be considered as not being
included in the procedure which, according to the previous Opinion
of the Court, the General Assembly should follow in exercising its
supervisory functions.

*
* *
There is, however, another aspect of this question. Rule F is
contained in a group of six special rules, which were adopted by
12
76 OPIN. OF 7 VI 55 (S.-W. AFR.—VOTING PROCEDURE)

the General Assembly in Resolution 844 (IX) of October 11th, 1954.
They were designed to apply ‘‘as far as possible, and pending the
conclusion of an agreement between the United Nations and the
Union of South Africa, the procedure followed in that respect by
the Council of the League of Nations”. It seems to be clear that,
both in adopting Rule F and in referring Question (a) to the Court,
the General Assembly was proceeding upon the assumption that
the word “procedure”, as used in the second part of the passage
in question, includes the voting system. It is also necessary to
examine the question on the basis of that assumption. Looking at
the matter from that point of view, there is equally no incompati-
bility between Rule F and the previous Opinion.

It is to be recalled that the Court, in its previous Opinion, stated
‘that “The competence of the General Assembly of the United
Nations to exercise such supervision and to receive and examine
reports is derived from the provisions of Article 10 of the Charter,
which authorizes the General Assembly to discuss any questions
or any matters within the scope of the Charter and to make recom-
mendations on these questions or matters to the Members of the
United Nations”. Thus, the authority of the General Assembly to
exercise supervision over the administration of South-West Africa
as a mandated Territory is based on the provisions of the Charter.
While, in exercising that supervision, the General Assembly should
not deviate from the Mandate, its authority to take decisions in
order to effect such supervision is derived from its own constitution.

Such being the case, it follows that the General Assembly, in
adopting a method of reaching decisions in respect of the annual
reports and petitions concerning South-West Africa should base
itself exclusively on the Charter. Article 18 of the Charter authorizes
the General Assembly to decide whether decisions of this nature
involve “important questions” or “‘other questions”. The General
Assembly has concluded that decisions by it on questions relating
to reports and petitions concerning the Territory of South-West
Africa shall be regarded as decisions on important questions to
which the two-thirds majority rule should apply. It is from the
Charter that the General Assembly derives its competence to
exercise its supervisory functions ; and it is within the framework
of the Charter that the General Assembly must find the rules
governing the making of its decisions in connection with those
functions. It would be legally impossible for the General Assembly,
on the one hand, to rely on the Charter in receiving and examining
reports and petitions concerning South-West Africa, and, on the
other hand, to reach decisions relating to these reports and petitions
in accordance with a voting system entirely alien to that prescribed
by the Charter.

When the Court stated in its previous Opinion that in exercising
its supervisory functions the General Assembly should conform

13
77 OPIN. OF 7 VI 55 (S.-W. AFR.—VOTING PROCEDURE)

“as far as possible to the procedure followed in this respect by the
Council of the League of Nations”, it was indicating that in the
nature of things the General Assembly, operating under an instru-
ment different from that which governed the Council of the League
of Nations, would not be able to follow precisely the same proce-
dures as were followed by the Council. Consequently, the expression
“as far as possible” was designed to allow for adjustments and
modifications necessitated by legal or practical considerations.

In the matter of determining how to take decisions relating to
reports and petitions concerning the Territory of South-West
Africa, there was but one course open to the General Assembly.
It had before it a text, Article 18 of the Charter, which prescribes
the methods for taking decisions. The Opinion of 1950 left the
General Assembly with Article 18 of the Charter as the sole legal
basis for the voting system applicable to decisions in connection
with its supervisory functions. It was on that basis that Rule F
was adopted. In adopting that Rule, the General Assembly acted
within the bounds of legal possibility.

There is thus no incompatibility between Rule F and the Opinion
of 1950 in which the Court stated that the supervision to be exer-
cised by the General Assembly should conform as far as possible
to the procedure followed in this respect by the Council of the
League of Nations.

* * *

The Court therefore considers that Rule F, recited in Question
(a) of Resolution 904 (IX) of the General Assembly of Novem-
ber 23rd, 1954, is in accord with the passage contained in the Court’s
previous Opinion, namely, that “The degree of supervision to be
exercised by the General Assembly should not .... exceed that
which applied under the Mandates System, and should conform as
far as possible to the procedure followed in this respect by the
Council of the League of Natiuns’’. Accordingly, the Court concludes
that Rule F corresponds to a correct interpretation of its Advisory
Opinion of 1950.

Question (a) having been answered in the affirmative, it is not
necessary to consider Question (bd).

14
78 OPIN: OF 7 VI 55 (S.-W. AFR.—VOTING PROCEDURE)

For these reasons,
THE COURT IS UNANIMOUSLY OF OPINION
with regard to Question (a):

“Ts the following rule on the voting procedure to be followed
by the General Assembly a correct interpretation of the
advisory opinion of the International Court of Justice of
11 July 1950:

‘Decisions of the General Assembly on questions relating
to reports and petitions concerning the Territory of South-
West Africa shall be regarded as important questions within
the meaning of Article 18, paragraph 2, of the Charter of
the United Nations’ ?”

that the said rule is a correct interpretation of the Advisory Opinion
of July 1rth, 1050.

Done in English and French, the English text being authoritative,
at the Peace Palace, The Hague, this seventh day of June, one
thousand nine hundred.and fifty-five, in two copies, one of which
will be placed in the archives of the Court and the other transmitted
to the Secretary-General of the United Nations.

(Signed) Green H. HACKWORTH,

President.

(Signed) J. LOPEZ OLIVAN,

Registrar.

Judge KoJEvnikov declares that he subscribes to the Opinion
which the Court has given on Question (a) asked by the General
Assembly of the United Nations on November 23rd, 1954. He
would, however, like to indicate. that the fact that he has voted in
favour of the final part of the Advisory Opinion does not mean that
he agrees with all that has been said, or with the reasoning advanced
in all respects, nor that he acknowledges the correctness of the
whole of the Advisory Opinion of July 11th, 1950.

He does not share the view, expressed in the Court’s Advisory
Opinion of 1950, that the provisions of Chapter XII of the Charter
do not impose a legal obligation on the Union of South Africa to

35
79 OPIN. OF 7 VI 55 (S.-W. AFR.—VOTING PROCEDURE)

place the Territory under the Trusteeship System. On the contrary,
he considers that the Charter of the United Nations imposes on the
Union of South Africa the obligation te place the Territory of
South-West Africa under the Trusteeship System.

Judges BASDEVANT, KLAESTAD and LAUTERPACHT, availing
themselves of the right conferred on them by Articles 57 and 68
of the Statute, append to the Opinion of the Court statements of
their separate opinions.

(Initialled) G. H. H.
(Initialled) J. L. O.

16