280

SEPARATE OPINION OF JUDGE AJIBOLA

I have voted in favour of the Judgment in this case in which the Court, in
effect, dismissed the claims of both Denmark and Norway. The Court
rejected the submission of Denmark “that Greenland is entitled to a full
200-mile fishery zone and continental shelf area vis-a-vis the Island of
Jan Mayen”. It also rejected Norway’s submission that outright median
lines constitute the boundary for the purpose of delimitation of the rele-
vant areas of the continental shelf and fisheries zones between Greenland
and Jan Mayen. Furthermore, I am firmly and strongly supportive of the
decision of the Court as to the applicable laws both in terms of the area of
the continental shelf and that of the fishery zone. The decision once again
reinforces and confers a seal of approval upon the jurisprudence of the
Court consistently enunciated and firmly established since the North Sea
Continental Shelf cases in 1969.

The reason why I feel I must write this separate opinion is that there are
some areas of the Judgment which I personally consider are in need of
further elaboration, and which I now intend to deal with.

BASIC PROCEDURAL ISSUE

There seem to be some procedural problems relating to jurisdiction
which require a measure of clarification in this case, even though no preli-
minary objections have been raised by Norway. There are sufficient
indications contained both in the written pleadings and, even more so,
in the oral arguments of the Parties, which of necessity enjoin a careful
appraisal.

The initial application of Denmark as presented to the Court is a
request:

“to decide, in accordance with international law, where a single line
of delimitation shall be drawn between Denmark’s and Norway’s
fishing zones and continental shelf areas in the waters between
Greenland and Jan Mayen”.

On the other hand, Norway’s response to the Danish application is a
submission that the Court must draw two lines. In Norway’s own words,
the Court is asked:

“to adjudge and declare that:

(1) The median line constitutes the boundary for the purpose of
delimitation of the relevant areas of the continental shelf between

246
281 MARITIME DELIMITATION (SEP. OP. AJIBOLA)

Norway and Denmark in the region between Jan Mayen and Green-
land;

(2) The median line constitutes the boundary for the purpose of
delimitation of the relevant areas of the fisheries zones between
Norway and Denmark in the region between Jan Mayen and
Greenland”.

In other words the request of Norway is not for a dual-purpose single line
as requested by Denmark but rather one line for the continental shelf
boundary and the other one for the fishery zone.

Added to the question of a line or lines is the second contention of
Norway that, in a case of this nature, the actual delimitation cannot be
effected by the Court; that the Court should rather content itself with a
mere declaratory judgment. On this point Norway asserts that

“the adjudication should result in a judgment which is declaratory
as to the bases of delimitation and which leaves the precise articula-
tion (or demarcation) of the alignment to negotiation between the
Parties” (CR 93/9, p. 52).

As was observed in the Judgment of the Court, this particular view of
Norway affects the mode of presentation of its case. For example, while
Denmark in all its submissions and oral arguments lays claim to a
200-mile limit off the coast of Greenland, Norway restricts itself through-
out to a claim repeatedly based on the median line.

The third argument of Norway — still on procedure — is that the uni-
lateral application as filed in this case is inappropriate to the matter in
hand. Norway says:

“Delimitation is inherently unsuitable for cases brought by
unilateral application unless there is some form of agreement on
the part of the respondent as to the role and powers of the Court.”
(CR 93/9, p. 81.)

This assertion of Norway — coupled with others already mentioned —
is sufficient to compel the Court to consider carefully, even proprio motu,
whether this is not a case in which the question of its competence and
apparent jurisdiction is not being called into question by Norway. Per-
haps the case is a “unicum” for this reason. Virtually all the celebrated
cases on maritime delimitation were submitted to the Court on the basis of
a Special Agreement between the parties. Thus (1) the North Sea Conti-
nental Shelf cases (Federal Republic of Germany/Netherlands; Federal
Republic of Germany/Denmark), (2) the Continental Shelf (Tunisia/Libyan
Arab Jamahiriya) case, (3) the case concerning Delimitation of the
Maritime Boundary in the Gulf of Maine Area (Canada/United States of
America) all fell within the category of cases brought to the Court by
Special Agreement.

247
282 MARITIME DELIMITATION (SEP. OP. AJIBOLA)

In this regard, a few questions need to be raised and examined:

Is it possible for the Court, in the light of all the submissions of both
Parties and of their written pleadings and oral arguments, to draw any
line/lines of delimitation as requested by Denmark? Should the Court in
fact draw a dual-purpose single line as requested by Denmark or two lines
as demanded by Norway? What form of judgment should the Court have
handed down in this case — should it have given merely a declaratory
judgment or have aimed at a full settlement of the case?

Norway’s request for two coincident single lines is not without reason
and quite understandable. Of the two strands of maritime delimitation
involved in this case one is the continental shelf boundary, which Norway
considers to be governed by the Agreement entered into between it and
Denmark on 8 December 1965 as well as the 1958 Geneva Convention on
the Continental Shelf and on the basis of which Norway argues it is
already in place between both Parties. The second delimitation involved is
that of the fishery zone which Norway contends should also be delimited
by the median line — even though it ultimately agrees that customary
international law is applicable in that context. In the light of such state-
ment of fact, it may therefore be quite logical for Norway to advance this
request.

There is also the issue of a special agreement as raised by Norway in
fairly emphatic terms:

“It seems to be oblivious of the basic legal principle that the con-
sent of parties is required in order to have the Court engage in a deli-
mitation of maritime areas — just as the consent of parties would be
required for them to effect the delimitation themselves.” (CR 93/9,

p. 50.)

Has Norway any ground to advance this view so strongly? Norway
does not give the Court its reasons and no authority is cited to this effect.
But a careful examination of the provisions of some relevant Conventions
may throw sufficient light on the way in which Norway has approached
this particular problem.

Article 6, paragraph 1, of the 1958 Geneva Convention on the Conti-
nental Shelf states :

“Where the same continental shelf is adjacent to the territories of
two or more States whose coasts are opposite each other, the bound-
ary of the continental shelf appertaining to such States shall be deter-
mined by agreement between them.” (Emphasis added.)

In fact this is the Convention that both Parties agree is binding on them
with respect to the delimitation of the continental shelf. Similarly
Article 74 of the 1982 United Nations Convention on the Law of the Sea
(which is not yet in force), deals with the delimitation of exclusive econ-
omic zones between States with opposite or adjacent coasts and primarily
stipulates that such a delimitation “shall be effected by agreement on the

248
283 MARITIME DELIMITATION (SEP. OP. AJIBOLA)

basis of international law”. The same form of words advocating “Agree-
ment” is to be found in Article 83 of the 1982 Convention which deals with
delimitation of the continental shelf between States with opposite or adja-
cent coasts. There are similar provisions in other Geneva Conventions of
1958 especially the Geneva Convention on the Territorial Sea and the
Contiguous Zone (see Article 12). |

However, it cannot validly be argued that the absence of an agreement
— be it special or general — can prevent the Court from carrying out its
task of deciding any legal matter referred to it for a decision on the merits.
That may be the reason why all Norway can urge in the circumstances is
“judicial restraint”. Hence Norway elects to:

“remind the Court of the restraint articulated on the exercise of its
judicial functions in the case concerning the Northern Cameroons
(CJ. Reports 1963, p. 3) or of the substantial thought that was
devoted to this and to cognate subjects by the late Judge Sir Hersch
Lauterpacht ...”.

It is my considered opinion that Norway’s appeal for caution in this
regard is misplaced and that the Court is right in rejecting it. Once an
application is properly and validly placed before the Court, it is in duty
bound to deal in accordance with international law with all such disputes
as are submitted to it. To that end, it is required to apply international
conventions, international custom, general principles of law recognized
by civilized nations, judicial decisions, etc. Here it may be desirable to
quote the important provision of Article 38, paragraph 1, of the Statute
which empowers:

“The Court, whose function is to decide in accordance with inter-
national law such disputes as are submitted to it, . . . [to] apply:

(a) international conventions, whether general or particular, estab-
lishing rules expressly recognized by the contesting States;

(b) international custom, as evidence of a general practice accepted
aslaw;
(c) the general principles of law recognized by civilized nations;

(d) subject to the provisions of Article 59, judicial decisions and the
teachings of the most highly qualified publicists of the various
nations, as subsidiary means for the determination of rules of
law.”

In my opinion, there is no doubt that this case clearly falls within the
ambit of paragraphs (a) and (b) above. The relevance and the application
of international conventions, whether bilateral or multilateral, are clear
and there are many of them invoked in this case, notably the 1958 Geneva
Convention on the Continental Shelf and the 1965 Treaty between both

249
284 MARITIME DELIMITATION (SEP. OP. AJIBOLA)

Parties. Customary international law is also invoked in this case, espe-
cially with regard to the fishery zone.

Therefore, if the Court is of the opinion that it should give more than a
declaratory judgment and proceed to draw a line or lines in this case, it has
a sufficient mandate and competence to do so. If the Court considers that
the solutions advocated by either Denmark or Norway, or even both of
them, fail to accord with the correct application of the general principles
of international law in order to settle this dispute, it is free to apply what-
ever it considers to be just and proper in accordance with the law.

According to the Danish application, the jurisdiction of the Court is
validly invoked since both Parties have accepted, by their declarations, its
compulsory jurisdiction under paragraph 2 of Article 36 of the Statute and
the case has also been brought in a manner that accords with the provi-
sions of Article 40, paragraph 1, of the same Statute. Whatever may there-
fore be the objection or hesitation of Norway in relation to this case, it
cannot hold water in the light of its declaration of acceptance of the com-
pulsory jurisdiction of the Court, and the Court is fully empowered to
determine any issue placed before it, in order to reach an effective deci-
sion on the merits of the dispute in question, whether in relation to the
drawing of one or more lines, and despite the fact that no special agree-
ment has been entered into between the Parties in this case.

If Norway strongly felt (as it vigorously contends) that the Court for
whatever reason has no jurisdiction or is incompetent in any way to draw
any line whatsoever in a matter of this nature, it was free to raise a prelimi-
nary objection as to jurisdiction and admissibility before the Court. But
this, Norway has failed to do.

One may therefore ask why Norway did not pursue this line of action.
My hypothesis is that the answer is to be found in Norway’s oral argu-
ments, when it explains that:

“Norway was therefore faced with a dilemma. On the one hand, it
did not wish to file preliminary objections to the jurisdiction of the
Court, in view of the optional clause declarations of the Parties and the
broad scope of Article 36, paragraph 2, of the Statute.” (CR 93/9, p. 50;
emphasis added.) ;

So, Norway anticipates — perhaps rightly — that if a preliminary
objection had been raised in relation to Denmark’s application before the
Court, it could well have been rejected by the Court as the final arbiter on
this issue or any issue for that matter, having regard to the power of the
Court under Article 36, paragraph 6, of the Statute.

CONCLUSION ON THE ISSUE OF PROCEDURE

Perhaps I may effectively summarize this view of mine by referring to
the attitude of the Court in the case concerning the Northern Cameroons
(Cameroon v. United Kingdom) (I.C.J. Reports 1963, p. 17) where it dealt

250
285 MARITIME DELIMITATION (SEP. OP. AJIBOLA)

with the issue of what one may consider “technicalities” or formal require-
ments — which to my mind constitute the most serious problem in this
case before the Court. The attitude of the Court was clear when it declared
that it would not allow mere formalities to prevent it from doing justice on
any substantive matter pertaining to any dispute placed before it. In that
regard, it stated specifically that it was following the line of reasoning of
the Permanent Court of International Justice. What the Court is most con-
cerned with is that the matter before it must “reveal the existence of a dis-
pute in the sense recognized by the jurisprudence of the Court ...”.

The classical pronouncement of the Court on this point was expressed
in the following terms:

“The Court cannot be indifferent to any failure, whether by Appli-
cant or Respondent, to comply with its Rules which have been
framed in accordance with Article 30 of its Statute. The Permanent
Court of International Justice in several cases felt called upon to con-
sider whether the formal requirements of its Rules had been met. In
such matters of form it tended to ‘take a broad view’. (The ‘Société
Commerciale de Belgique’, P.C.1.J., Series A/B, No. 78, p. 173). The
Court agrees with the view expressed by the Permanent Court in the
Mavrommatis Palestine Concessions case (P.C.1.J., Series A, No. 2,
p. 34):

‘The Court, whose jurisdiction is international, is not bound to
attach to matters of form the same degree of importance which
they might possess in municipal law.” (CJ. Reports 1963,
pp. 27-28.)

Once the Court is convinced that there is an issue or issues in dispute
(and I presume that this is so in the case before us), then it ought to proceed
to a decision on the merits.

Perhaps it may be considered judicially appropriate to refer at this stage
to the final award in the Delimitation of the Continental Shelf between the
United Kingdom and France case, where the Court of Arbitration dis-
missed all the preliminary objections alleging a lack of jurisdiction, in
favour of dispensing substantial justice between both parties, thereby
deciding positively on the dispute as presented to it. Maybe justice is
not doing “something, nothing” (to borrow the words of Shakespeare in
Othello), especially in this Court whose decision is final and binding
without any possibility of an appeal to any other or further appellate court.

LINE OR LINES
Drawing a line or lines of delimitation in maritime boundary cases is
nothing new for the Court; one may even say that it is familiar with the
exercise. For example, such a request was made to the Court in the Gulfof

251
286 MARITIME DELIMITATION (SEP. OP. AJIBOLA)

Maine case in 1984 when, by special agreement between Canada and the
United States of America, the Chamber was requested to describe and
determine the course of the maritime boundary in terms of geodetic lines
connecting geographic co-ordinates of points between the coasts of the
two Parties. In the present case, as already stated, there is no special agree-
ment to guide the Court. It is also observed from the available evidence
and arguments before the Court, that while Denmark has presented some
relevant materials to assist in the drawing of the requested single line of
delimitation, Norway was not sufficiently forthcoming in this regard, or at
best the materials are scanty. Detailed geodesic base lines and base points
connecting geographic co-ordinates in terms of destinations, longitudes
and latitudes are sufficiently provided by Denmark, especially in its final
submissions. The issue is even further complicated in that the materials
supplied by Denmark are based on its request and assumptions for a
single line delimitation, and not on two lines. Of course, as has already
been indicated, Norway stresses that the Court should reject the sub-
mission of Denmark relating to a single line, and urges the need for judi-
cial circumspection.

Once one has concluded that the Court can draw any line/lines, the
next issue on which the Court must decide is whether to draw a dual-
purpose single line or two coincidental lines. Whatever decision is reached
on this point must accord with the relevant applicable law in this case. It
cannot be denied that the Court is dealing with two distinct institutions of
maritime delimitation — the continental shelf boundary and the fishery
zone — in response to Denmark’s request on which Norway joins issue
with it. The present case is not like Libya/Malta where the Court’s role
was confined to the delimitation of the continental shelf. Whatever may
be the ultimate decision in this case, it is only prudent, judicially desirable
and even legally mandatory to keep, at least prima facie, these two régimes
distinct, since separate decisions have to be taken on each of them. The
two lines may eventually coincide by operation of the applicable law
(which in effect may amount to a distinction which will not ultimately
make any difference), but the distinction must first be drawn quite inde-
pendently.

I am, therefore, persuaded that separate legal consideration has to be
given to the régime of the continental shelf area apart from that of the
delimitation of the fishery zone.

This case will undoubtedly constitute a landmark in the development of
the jurisprudence of this Court on maritime delimitation. In this respect,
as already mentioned, one can consider it to be unique, and the Court is
now asked, perhaps for the first time, to tackle this question head-on. Ina
number of cases adjudicated upon either by the Court, its Chamber or
arbitral tribunals, parties have invariably, in their compromis, agreed on

252
287 MARITIME DELIMITATION (SEP. OP. AJIBOLA)

single line delimitation. It is also observed that judges have put questions
to the parties on this particular issue on a number of occasions. For
example, during the oral proceedings in the Tunisia/Libya case, the
question was put as to whether, in view of the identity between the provi-
sions of the 1982 Convention on the delimitation of the continental shelf
boundary and the exclusive economic zone, the delimitation of these two
areas ought or ought not to be different, and whether the circumstances
to be taken into consideration in each area should not be different as
well. The conflicting approach of parties to these two jurisdictions
is better described by Professor Prosper Weil in his book on The Law
of Maritime Delimitation — Reflections where he advanced this germane
hypothesis :

“It is obvious what is at stake here. If one of the parties has
obtained, by agreement or through judicial means, a continental
shelf delimitation which seems to it to be unfavorable, it will quite
naturally seek to obtain a different delimitation for the exclusive
economic zone; the other party, in contrast, will want to extend to the
exclusive economic zone the favorable delimitation it has obtained
for the continental shelf.” (P. 118.)

Judges and jurists alike are very much aware of this development, not
only in respect of litigation and arbitrations on the issue of drawing a
single line, but also with regard to State practice which has in fact
favoured a single line, perhaps because of the convenience it offers. Opin-
ions are divided too. There are judges whose beliefs and reasoning sup-
port the unity of delimitation by a single line, while there are others who
believe that there should be a duality of delimitation lines in appropriate
cases. The case-law thus far, as already indicated, has tended to approach
the issue with caution. One is not very much surprised by this, since the
issue was left unresolved during the debate at UNCLOS III on the nature
of the relationship between these two jurisdictions. However, a careful
study of Article 74 and Article 83 of the 1982 Convention on the Law of the
Sea (which, even though not yet in force, nonetheless reflect the current
international customary law), may throw some light on this problem.

The régime of the exclusive economic zone was treated independently
under Article 74, while that of the continental shelf jurisdiction was dealt
with under Article 83. The two Articles use identical language. Again, it is
also correct to suggest that whatever the argument might be in favour of
the duality of delimitation lines, it has been whittled down by the provi-
sion of Article 56, paragraph 3, of the 1982 Convention which states that
“The rights set out in this article [on the exclusive economic zone] shall be
exercised in accordance with Part VI” (which deals with the continental
shelf). However, this point which seems to favour the unity of delimitation
should not be pressed any further. One should perhaps go back to the
history and background of the continental shelf theory, which attained

253
288 MARITIME DELIMITATION (SEP. OP. AJIBOLA)

undisputed recognition and acceptance after the 1945 Truman Proclama-
tion, and which also established the distinction between the water column
and rights to the sea-bed and the duality of these two maritime jurisdic-
tions.

The differentiation, or perhaps confusion, is even more pronounced
with the current innovation of creating fishery zones to coexist with the
exclusive economic zone. However, in this particular case of delimitation
involving Greenland and Jan Mayen, the facts are such as to render inevi-
table the concept and even the application of a duality of lines. It is not
denied by both Parties that they are bound in their treaty relations by
Article 6 of the 1958 Geneva Convention on the Continental Shelf.
Thus it becomes imperative for the Court, in this case, to consider and
adjudge independently on the continental shelf regime and the fisheries
jurisdiction.

It must be recognized, and accepted, that a single delimitation line has
the advantage of convenience and practical utility. That, in fact, must be
the reason why the State practice leans heavily towards this solution. The
issue of vertical superimposition of rights is a problem and complication
that States would prefer to avoid. What is relevant here, is the applicable
law and the legal consideration to be given to the problem of a single
delimitation line as claimed by Denmark.

The present situation is not to be compared with the situation in the case
concerning Delimitation of the Maritime Boundary in the Gulf of Maine
Area where the Chamber made the following observation:

“With regard to this second aspect, the Chamber must observe that
the Parties have simply taken it for granted that it would be possible,
both legally and materially, to draw a single boundary for two differ-
ent jurisdictions. They have not put forward any arguments in sup-
port of this assumption. The Chamber, for its part, is of the opinion
that there is certainly no rule of international law to the contrary, and,
in the present case, there is no material impossibility in drawing a
boundary of this kind. There can thus be no doubt that the Chamber
can carry out the operation requested of it.” (C.J. Reports 1984,
p. 267, para. 27.)

Again, the situation in the case in hand is unlike that which prevailed in
the North Sea Continental Shelf cases where the Federal Republic of Ger-
many, though a signatory of the 1958 Geneva Convention on the Con-
tinental Shelf, had never ratified that Convention; this fact in effect
excluded the consideration of the 1958 Geneva Convention on the
Continental Shelf, as distinct from the current trend in the customary inter-
national law which is much influenced by the 1982 Montego Bay Con-
vention on the Law of the Sea.

It has further been argued in some quarters that the need for a duality of

254
289 MARITIME DELIMITATION (SEP. OP. AJIBOLA)

maritime delimitations has been marginalized considerably since the phy-
sical characteristics of the sea-bed, which used to be a distinct considera-
tion, now seem to be merging with the exclusive economic zone and that it
can no longer be maintained that the equitable criteria for the two régimes
of maritime delimitation are justifiable. Another point advanced is that
the “distance criterion” must now apply to the continental shelf boundary
as it applies to the exclusive economic zone. These points were made in
paragraph 34 of the Judgment in the Libya/Malta case. Relating this cur-
rent trend of customary international law to the case in hand may not be
appropriate, because in the present case the Parties are specifically bound
by the 1958 Geneva Convention on the Continental Shelf which came into
force in 1964, was ratified by Denmark in 1963, and also ratified by
Norway in 1971 and which both Parties recognize is binding upon them. It
may be appropriate to conclude the statement of my views on this particu-
lar question by quoting again from Professor Weil’s Law of Maritime Deli-
mitation — Reflections which recognized this problem couched in the
following terms:

“one cannot exclude the possibility that a continental shelf delimita-
tion agreement concluded at a time when the theory of natural pro-
longation prevailed, may have been inspired by physical considera-
tions now out of date. Its extension to the exclusive economic zone
would in that case no longer be convincingly justifiable.” (P. 135.)

ENTITLEMENT VERSUS DELIMITATION

Initially, the application of Denmark to the Court seems to present no
problem, as it takes the form of a simple straightforward request to the
Court for a single line delimitation, in accordance with international law,
of the fishery zone and continental shelf area in the waters between
Greenland and Jan Mayen. However, the subsequent submissions of
Denmark present both legal and geophysical difficulties. In its Reply the
Danish Government submits that the Court should:

“(1) ... adjudge and declare that Greenland is entitled to a full
200-mile fishery zone and continental shelf area vis-a-vis the Island of
Jan Mayen; and consequently

(2) ... draw a single line delimitation of the fishery zone and con-
tinental shelf area of Greenland in the waters between Greenland
and Jan Mayen at a distance of 200 nautical miles measured from
Greenland’s baseline, the appropriate point of which is given by
straight lines (geodesics) . . .” (emphasis added).

255
290 MARITIME DELIMITATION (SEP. OP. AJIBOLA)

This claim of Denmark drew a sharp reaction from Norway and the
claim of 200 miles by Denmark on behalf of Greenland was characterized
as “eccentric”. In the words of Mr. Haug, which were subsequently sup-
ported and substantially repeated by Professor Brownlie (counsel for
Norway):

“while the first application was simply for a single line of delimita-
tion, the principal submission was changed to ask for a declaratory
judgment of entitlement to a full 200-mile fishery zone and a full
200-mile continental shelf vis-à-vis the Norwegian island of
Jan Mayen...

The question of entitlement is sensitive for States in various
regions of the world. In my respectful submission a decision which
appeared to give some degree of support for the eccentric Danish
thesis would militate against the development of a stable régime of
maritime boundary delimitation in the future.” (CR 93/5, pp. 13
and 15; emphasis added.)

Is Denmark’s claim one of entitlement or delimitation? Is the Danish
submission lacking in clarity as argued by Norway? In the Libya/Malta
case, Libya sought to undermine the claim of Malta because of its
(Malta’s) size and insular nature, but the Court remarked that “the entitle-
ment to the continental shelf is the same for an island as well as for a main-
land”. The issue of entitlement emanates from the State’s sovereignty over
the coast to which such rights attach with regard to its continental shelf
ipso facto and ab initio. The rules and principles of international law con-
fer on Greenland a basic entitlement relating to the continental shelf, no
less than that which they confer on Jan Mayen; this in effect ensures an
equal entitlement prima facie to both coasts. Therefore, Greenland is
entitled to claim the 200-mile outer limit (where such can be claimed)
just as Jan Mayen is equally entitled to claim the same. If, therefore, Green-
land is claiming in this case an outer boundary limit line of 200-miles
within the waters between it and Jan Mayen, where the entire distance
between the two of them is 250 miles, then it is not difficult for one to
understand Norway’s argument that this is a claim for entitlement rather
than a request for a delimitation.

The Danish position is clearly stated in its Reply, as follows:

“The Government of Denmark does not, however, question
Jan Mayen’s status as an island under international law, as is evi-
denced by the fact that Denmark did not object to the establishment
of Jan Mayen’s 200-mile fishery zone to the east towards the open
sea... [The] Danish contention is that an equitable boundary line in
the waters between Greenland and Jan Mayen ‘should be drawn

256
291 MARITIME DELIMITATION (SEP. OP. AJIBOLA)

along the outer limit’ of Greenland’s fishery zone — to borrow the
term used by Norway in describing the delimitation line between
Iceland and Jan Mayen.” (Reply, p. 152, para. 414; emphasis
added.)

Having regard to the above statement of the position taken by Den-
mark, one can perhaps understand and even sympathize with its reasons
for asserting such a claim, which to my mind is more of a claim of entitle-
ment than a call for a delimitation. What amounts to an equitable bound-
ary or an equitable solution for that matter is for the Court, not Denmark,
to decide. The principle of non-encroachment is bound to take into con-
sideration the whole of the relevant area, including the area in dispute, as
well as the area of overlapping entitlement and any areas in the process of
delimitation.

The position was made clear in 1969 in the North Sea Continental Shelf
cases when the Court stated:

“More important is the fact that the doctrine of the just and equi-
table share appears to be wholly at variance with what the Court
entertains no doubt is the most fundamental of all the rules of law
relating to the continental shelf, enshrined in Article 2 of the
1958 Geneva Convention, though quite independent of it, — namely
that the rights of the coastal State in respect of the area of continental
shelf that constitutes a natural prolongation of its land territory into
and under the sea exist ipso facto and ab initio, by virtue of its sover-
eignty over the land, and as an extension of it in an exercise of sover-
eign rights for the purpose of exploring the seabed and exploiting its
natural resources. In short, there is here an inherent right. In order to
exercise it, no special legal process has to be gone through, nor have
any special legal acts to be performed. Its existence can be declared
(and many States have done this) but does not need to be consti-
tuted.” (CJ. Reports 1969, p. 22, para. 19.)

The reasons for Denmark’s submission requesting the 200-mile fishery
zone and continental shelf vis-a-vis Jan Mayen are not far fetched. One
reason may perhaps be found in its argument that Norway must “con-
cede” to Greenland the same 200 miles outer limit as it conceded to Ice-
land by virtue of an agreement which it sees as constituting a precedent.
But another reason is the undeniable difference in size (and coastal
lengths) of Greenland and Jan Mayen. Denmark initially considered
Jan Mayen to be a rock (possibly falling within the scope of Article 121
of the 1982 Convention on the Law of the Sea), but later conceded that it is
an island; albeit one which “sustains no population... and has never done
so” — “the visualization of Greenland as a mainland and of Jan Mayen as
asmall island detached from its mainland coast” (CR 93/1, pp. 25 and 23).

257
292 MARITIME DELIMITATION (SEP. OP. AJIBOLA)

Over two centuries ago, Vattel wrote that “A dwarf is no less of a man
than a giant. A small Republic is no less of a State than the most powerful
Kingdom.” (Dictionnaire de la terminologie du droit international, Paris,
Sirey 1960, under “Egalité”, p. 248.) Thus however small the island of
Jan Mayen may be, this cannot affect its rights under international law
with respect to the issue of entitlement and the non-encroachment prin-
ciple.

Finally, on this point, I am inclined to support this view which receives
support from a relevant paragraph of the Judgment in the Aegean Sea
Continental Shelf case, where the Court again confirmed that:

“The reason is that legally a coastal State’s rights over the conti-
nental shelf are both appurtenant to and directly derived from the
State’s sovereignty over the territory abutting on that continental
shelf. ... itis solely by virtue of the coastal State’s sovereignty over the
land that rights of exploration and exploitation in the continental
shelf can attach to it, ipso jure, under international law. In short, con-
tinental shelf rights are legally both an emanation from and an auto-
matic adjunct of the territorial sovereignty of the coastal State.”
(C.J. Reports 1978, p. 36, para. 86.)

EQUITABLE PRINCIPLES AND DELIMITATION

I have no difficulty whatsoever in agreeing with the Court in the matter
of the applicable law in this case. After observing that it has never had
occasion to apply the 1958 Geneva Convention, the Court proceeds to
state that since both States are parties to that Convention, and there being
no joint request for a single maritime boundary as in the Gulf of Maine
case, then the 1958 Geneva Convention is applicable to the delimitation of
the continental shelf boundary between Greenland and Jan Mayen. The
Court then goes on to say that Article 6, paragraph 1, of the Geneva Con-
vention is applicable to the continental shelf, but that does not mean that
this treaty law is to be interpreted and applied exclusively and without
reference to international customary law on the subject or independently
of the fact that a fishery zone is also located in these waters. It is the role of
customary international law that I wish to amplify here in order to empha-
size its importance and relevance, as well as touching on its genesis in
order to appreciate once again the evolution of the applicability of equi-
table principles and their development over the past four decades.

To begin with, one may ask what is the customary international law
applicable in this case? The Court boldly enunciated it in its 1985 Judg-
ment in the case concerning the Continental Shelf (Libyan Arab Jamahi-
riya/Malta) in the following terms:

258
293 MARITIME DELIMITATION (SEP. OP. AJIBOLA)

“Judicial decisions are at one — and the Parties themselves agree
(paragraph 29 above) — in holding that the delimitation of a conti-
nental shelf boundary must be effected by the application of equi-
table principles in all the relevant circumstances in order to achieve
an equitable result.” (I.C.J. Reports 1985, p. 38, para. 45; emphasis
added.)

Thus one can say that the relevance of equitable principles, as a funda-
mental legal regime governing maritime boundary delimitation, has now
been firmly entrenched by the jurisprudence of the Court supported by
international arbitral tribunals. It may therefore be desirable, before
examining these rules and principles of international law, to quote a full
statement of their content:

“What general international law prescribes in every maritime deli-
mitation between neighbouring States could therefore be defined as
follows:

(1) No maritime delimitation between States with opposite or
adjacent coasts may be effected unilaterally by one of those States.
Such delimitation must be sought and effected by means of an agree-
ment, following negotiations conducted in good faith and with the
genuine intention of achieving a positive result. Where, however,
such agreement cannot be achieved, delimitation should be effected
by recourse to a third party possessing the necessary competence.

(2) In either case, delimitation is to be effected by the application
of equitable criteria and by the use of practical methods capable of
ensuring, with regard to the geographic configuration of the area and
other relevant circumstances, an equitable result.” (.C.J. Reports
1984, pp. 299-300, para. 112; emphasis added.)

A careful analysis of this definition will show that it is a very compre-
hensive and all-embracing statement, and that the principles it formulates
are essential to a fair and just judgment. But that is not to say that it has not
given rise to certain attendant problems and criticisms. However, before
going into this, it may be necessary to re-examine its historical back-
ground in a nutshell, in order to justify and fortify the Court in its adher-
ence to this fundamental norm of international law in the field of
maritime boundary delimitation and also to stress its apparently universal
acceptability.

Equitable principles in maritime delimitation as established today are
not the “creation” of the Court. Perhaps one can regard the Court’s role as
that of a “foster parent”. The applicability of equitable principles received
its first authoritative formulation in 1945, as the Court recognized when it
stated that:

259
294 MARITIME DELIMITATION (SEP. OP. AJIBOLA)

“Such a review may appropriately start with the instrument, gen-
erally known as the “Truman Proclamation’, issued by the Govern-
ment of the United States on 28 September 1945. Although this
instrument was not the first or only one to have appeared, it has in the
opinion of the Court a special status.” (.C.J. Reports 1969, p. 32,
para. 47.)

Before that date, ideas had been advanced by jurists, publicists and
technical experts on various theories of how best to approach the nature
and extent of conflicting rights exercisable over the continental shelf. Two
principles emerge from the Proclamation. The first is that the coastal
States have original, natural and exclusive or even vested rights to the con-
tinental shelf of their shores, to the exclusion of other coastal States. This
principle is reflected in Article 2 of the 1958 Geneva Convention on the
Continental Shelf. The first two paragraphs of that Article are important
enough to mention here:

“1. The coastal State exercises over the continental shelf sovereign
rights for the purpose of exploring it and exploiting its natural
resources.

2. The rights referred to in paragraph 1 of this article are exclusive
in the sense that if the coastal State does not explore the continental
shelf or exploit its natural resources, no one may undertake these
activities, or make a claim to the continental shelf, without the
express consent of the coastal State.”

The other principle which is more relevant to this opinion relates to
agreements based on “equitable principles”. It lays down that boundaries
“shall be determined by the United States and the State concerned in
accordance with equitable principles”. As a part of its assignment of
developing and codifying international law, the International Law Com-
mission of the United Nations took up this juridical project between 1950
and 1956 but no definite rule was formulated by the Commission,
and the general trend of opinion among its members was still in favour
of agreement or referral to arbitration. However, during this period, the
Commission referred the matter to a Committee of Hydrographical
Experts which eventually produced, in 1953, a report favouring equi-
distance — understandably enough, given its convenience. It should be
noted that equidistance was only one of the four methods suggested to
the experts. Even after the adoption of the Report of the Committee
of Experts in favour of equidistance, there were still doubts and hesitation
in the minds of some of the members of the Commission:

“on such grounds for instance as that its strict application would
be open, in certain cases, to the objection that the geographical con-
figuration of the coast would render a boundary drawn on this
basis inequitable” (Z.C.J. Reports 1969, p. 35, para. 53).

260
295 MARITIME DELIMITATION (SEP. OP. AJIBOLA)

An independent observer in the arena of maritime boundary delimita-
tion would have no difficulty in discerning the existence of a “running
battle” between the two schools of thought in this field, with those
upholding equitable principles on one side, and those advocating the
“equidistance principle” on the other side, each constantly pointing out
the defects and weaknesses in the arguments of the other. The so-called
“equidistance principle” continues to win the battle as far as State practice
is concerned, because of its relative convenience (which cannot be
denied), but that is all that can be said for it, since the method is quite
inadequate to meet all global situations, especially where the geographi-
cal configuration would render such a method inequitable as in the pres-
ent case. It is because of this patent defect in the method that the Court
rejected it as not forming part of the customary law and deserving the
status of nothing more than one method among others.

Historically therefore, as I have pointed out above, the equitable prin-
ciple, as developed over the years from the time of the Truman Procla-
mation to the period when it received the attention of the International
Law Commission, has now been fully developed and has achieved the
status of an accepted rule of law within the jurisprudence of the Court
and that of international arbitral tribunals.

In common law, the traditional role of equity as a system standing sepa-
rate from the law is sharply at variance with its role and meaning in inter-
national law, and especially in the field of maritime boundary delimita-
tion. “The classical role of equity” as known to common law

“is to modify the rule of law where it might, if strictly applied, work
injustice. Thus law and equity working together should serve the end
of justice by introducing flexibility, adaptability and even limitations
upon the application of legal rules.” (Sir Robert Jennings in Staat
und Vélkerrechtsordnung, pp. 400-401.)

What then is meant by equity or equitable principles in maritime
boundary delimitation? An answer was given in the 1982 Continental
Shelf (Tunisia/Libyan Arab Jamahiriya) case, where the Court defined
that concept in the following terms:

“Equity as a legal concept is a direct emanation of the idea of jus-
tice. The Court whose task is by definition to administer justice is
bound to apply it. In the course of the history of legal systems the
term ‘equity’ has been used to define various legal concepts. It was
often contrasted with the rigid rules of positive law, the severity of
which had to be mitigated in order to do justice. In general, this con-
trast has no parallel in the development of international law; the legal

261
296 MARITIME DELIMITATION (SEP. OP. AJIBOLA)

concept of equity is a general principle directly applicable as law.”
(C.J. Reports 1982, p. 60, para. 71.)

The Court shed light on this as far back as 1969, when it defended it as
follows:

“in short, it is not a question of applying equity simply as a matter of
abstract justice, but of applying a rule of law which itself requires the
application of equitable principles, in accordance with the ideas
which have always underlain the development of the legal régime of
the continental shelf in this field” (C.J. Reports 1969, p. 47, para. 85).

Some of the grey areas of equity need to be examined and considered
here. Take for example the maxim that equality is equity, or “equity did
delight in equality”. Well, that may be positively so in common law, but
may not necessarily hold good in the field of international law. Hence in
1969, the Court pronounced that “Equity does not necessarily imply
equality” and went on to state that:

“There can never be any question of completely refashioning
nature, and equity does not require that a State without access to the
sea should be allotted an area of continental shelf, any more than
there could be a question of rendering the situation of a State with an
extensive coastline similar to that of a State with restricted coastline.”
(Ibid., pp. 49-50, para. 91.)

In the Gulf of Maine case in 1984, the Chamber was confronted with a
choice between the criteria applicable, and resolved to favour and apply
one that was “long held to be as equitable as it is simple — equal division”.
Perhaps, in the absence of any special circumstance, the Judgment in the
Gulf of Maine case is a good example of equity implying equality. In that
case, the Chamber concluded:

“In short, the Chamber sees in the above findings confirmation of
its conviction that in the present case there are absolutely no condi-
tions of an exceptional kind which might justify any correction of the
delimitation line it has drawn. The Chamber may therefore confi-
dently conclude that the delimitation effected in compliance with the
governing principles and rules of law, applying equitable criteria and
appropriate methods accordingly, has produced an equitable overall
result.” (1.C.J. Reports 1984, p. 344, para. 241.)

A similar conclusion was reached by another Chamber in 1986 in the
Frontier Dispute case where it concluded that although

262
297 MARITIME DELIMITATION (SEP. OP. AJIBOLA)

“*Equity does not necessarily imply equality’ (North Sea Continental
Shelf, .C.J. Reports 1969, p. 49, para. 91), where there are no
special circumstances the latter is generally the best expression of
the former” (1.C.J. Reports 1986, p. 633, para. 150).

But all these concordant declarations do not mean that there are no
inherent problems with the “interpretation and application” of equitable
principles. Even the Court in one of its Judgments alluded to these prob-
lems and draw a distinction as well as suggesting an amendment to an
“unsatisfactory terminology” :

“The result of the application of equitable principles must be equi-
table. This terminology, which is generally used, is not entirely satis-
factory because it employs the term equitable to characterize both the
result to be achieved and the means to be applied to reach this result.
It is, however, the result which is predominant; the principles are
subordinate to the goal.” (1.C.J. Reports 1982, p. 59, para. 70.)

In the present case, the Court has decided to start with a provisional
median line which I perfectly agree with. Then it moves on to correct the
line applying the equitable procedure in order to obtain an equitable
result. Whatever may be the method or principle employed, the ultimate
result is what is important — an equitable result likewise deriving from the
principle.

There is also the criticism constantly levelled against the Court regard-
ing its application of equitable principles, i.e., that its decisions are ex
aequo et bono which can only be invoked when requested for under
Article 38, paragraph 2, of the Statute of the Court. This contention that
decisions of the Court are an exercise of discretion or conciliation has
been refuted by the Court in many of its Judgments.

The Court made its position abundantly clear even in the Judgment in
1969 in the North Sea Continental Shelf cases:

“Nevertheless, when mention is made of a court dispensing justice
or declaring the law, what is meant is that the decision finds its objec-
tive justification in considerations lying not outside but within the
rules, and in this field it is precisely a rule of law that calls for the
application of equitable principles. There is consequently no ques-
tion in this case of any decision ex aequo et bono...” (LC.J. Reports
1969, p. 48, para. 88.)

A similar view was again expressed in the Tunisia/Libya case when the
Court said that:

“Application of equitable principles is to be distinguished from a
decision ex aequo et bono... While it is clear that no rigid rules exist as

263
298 MARITIME DELIMITATION (SEP. OP. AJIBOLA)

to the exact weight to be attached to each element in the case, this is
very far from being an exercise of discretion or conciliation; nor is it
an operation of distributive justice.” (.C.J. Reports 1982, p. 60,
para. 71.)

This important assertion disclaiming the use of equity ex aequo et bono
can also be found in the Judgment of the Chamber in the Gulf of Maine
case and in the Arbitral Award in the Guinea/Guinea-Bissau case.

To conclude this discussion of equitable principles, and despite all of
their alleged “defects”, they have worked effectively for over two decades,
and have received overwhelming support from the entire world commu-
nity as reflected in the 1982 Convention on the Law of the Sea, and all the
United Nations Conferences on the Law of the Sea. They are now the
fundamental principles which customary international law brings to the
task of maritime delimitation and perhaps constitute the fons et origo of its
future development. The judicial process, like the law, is dynamic. It will
continue to develop and be improved upon. The use of equitable prin-
ciples in this field is definitely on course and equity is not floundering in
uncharted seas. There will always be room for fine-tuning, but there is no
doubt that the international customary law of maritime boundary delimi-
tation, now solidly based on equitable principles, has come to stay.

SOLVING THE EQUATION

This present case is an important one in the history of the development
of customary international law on maritime boundary delimitation. It is a
delimitation case in which the Court has to resolve the dispute between
the Parties even in the absence of a special agreement. It is also the first
case relating to the maritime area of the North-East Atlantic where the
effect of ice on that maritime area was an issue in the dispute. Moreover,
and most importantly, this is the first case before the Court that has
required a definitive interpretation and application of the 1958 Geneva
Convention on the Continental Shelf, in particular Article 6, paragraph 1,
thereof. In this case, both Parties agree that they are bound by the provi-
sions of the Convention which was signed by Denmark on 29 April 1958,
and subsequently ratified on 12 June 1963 ; Norway acceded to it on 9 Sep-
tember 1971.

Hence, the first direct inference is that the median line method of deli-
mitation is applicable to any matter of maritime delimitation in respect of
the continental shelf boundary between Greenland and Jan Mayen. Even
the Danish Memorial admits (on p. 59, para. 210) and confirms that the
1958 Convention remains in force as between both States.

264
299 MARITIME DELIMITATION (SEP. OP. AJIBOLA)

The point of departure, however, between Denmark and Norway is that
while Norway insists that the median line as stipulated in Article 6 of the
1958 Convention applies without any condition or reservation, Denmark
argues that the rule in Article 6 is one of equidistance-special circum-
stances, and that Jan Mayen is a special circumstance “par excellence”.

The crux of the matter is accordingly the question of whether
Jan Mayen is a special circumstance par excellence. Unfortunately, Den-
mark did not elaborate on what it considered to constitute a special cir-
cumstance of that kind. From the evidence before the Court, it was
established by Denmark and apparently conceded by Norway, that
Jan Mayen is a relatively small, isolated and uninhabited island. As to
population it was common ground between both Parties that there are
about 25 persons on the island at any given time, and that their presence
is mainly connected with meteorological activities. In paragraphs 206 and
207 of the Danish Memorial, Jan Mayen was described as a desolate
island without natural resources of any significance. Mining and hunting
activities were once attempted there, but have since been abandoned. It
has no harbour (natural or artificial) and even attempts to construct a port
there for a fishing base were subsequently given up. The question is
whether this geographical, economic, and social feature of Jan Mayen is
enough to give it the status of a special circumstance par excellence in
international law. Some of the important considerations that could so
qualify Jan Mayen may now have to be received.

The first such consideration is whether Jan Mayen is a rock. If it is a
mere rock, then its legal position may have to be related to Article 121,
paragraph 3, of the 1982 Convention on the Law of the Sea in which a rock
is defined as that “which cannot sustain human habitation or economic
life of [its] own” and “shall have no exclusive economic zone or continen-
tal shelf”. So it is clear from this definition that if Jan Mayen is a rock, it
may not be entitled to an exclusive economic zone and continental shelf,
unlike an island. But here there can be no doubt, especially after
Denmark’s presentation of its arguments at the hearings, that Jan Mayen
is not a rock but an island. This legal status of Jan Mayen was accepted by
Denmark during the oral presentation of its case, and Jan Mayen was also
referred to as an island in its pleadings. If, therefore, Jan Mayen is not a
rock but an island, it can be defined under Article 121, paragraphs | and 2,
as “a naturally formed area of land surrounded by water, which is above
water at high tide” and:

“the territorial sea, the contiguous zone, the exclusive economic zone
and the continental shelf of an island are determined in accordance
with the provisions of this Convention, applicable to other land terri-
tory” (United Nations Convention on the Law of the Sea, Part VIII,
Art. 121).

265
300 MARITIME DELIMITATION (SEP. OP. AJIBOLA)

The conclusion which must inevitably be reached here is that since
Jan Mayen is acknowledged to be an island, it is entitled to the considera-
tions that would normally be attached to other land territory. Hence, it is
like any territory entitled to its own continental shelf and fisheries zone in
the same manner as Greenland, and for this purpose cannot constitute a
special circumstance.

Another suggestion on special circumstances that may be worthy of
consideration at this point is whether Jan Mayen is an incidental special
feature. If it is, it may then amount to a special circumstance under
Article 6 of the 1958 Geneva Convention. Perhaps it is necessary to put
in perspective the important provision of Article 6, paragraph 1, which is
the Article being examined here:

“Where the same continental shelf is adjacent to the territories of
two or more States whose coasts are opposite each other, the bound-
ary of the continental shelf appertaining to such States shall be deter-
mined by agreement between them. In the absence of agreement, and
unless another boundary is justified by special circumstances, the
boundary is the median line, every point of which is equidistant from
the nearest points of the baselines from which the breadth of the terri-
torial] sea of each State is measured.” (Emphasis added.)

Here, it is difficult to assert that Jan Mayen is an incidental special fea-
ture. In this regard, the decision in the North Sea Continental Shelf cases
may well be very relevant, even though there is no similarity between the
geographical situation in the case between the Federal Republic of
Germany, Denmark and the Netherlands, and this case before the Court.
In the geographical situation of this case, there is no consideration of
“quasi-equality as between States”, as was found to exist in the North Sea
Continental Shelf cases (Federal Republic of Germany/Denmark; Federal
Republic of Germany/ Netherlands).

It may therefore not be correct to state that Jan Mayen will have such a
distorting effect in any sense whatsoever. The median line issue here is not
between mainland Norway and Greenland — the distance between which
is well over 700 miles with high seas in between. It follows that the issue of
a small island close to the median line or located in such a way as to bring
about a distorting effect does not arise in this case and for this reason the
issue of incidental special features does not arise.

What again is left to be considered here is whether, as in the North Sea
Continental Shelf cases, there is a geographical situation which may bring
Jan Mayen into the ambit of provisions relating to the “presence of islets,
rocks and minor coastal projections” (1.C.J. Reports 1969, p. 36, para. 57).
As [have already pointed out, the situation here is different. Jan Mayen is
neither an islet, nor a rock, nor a minor coastal projection.

Having treated the question of special circumstances as it relates to the
equidistance method under Article 6, paragraph 1, of the Geneva Conven-

266
301 MARITIME DELIMITATION (SEP. OP. AJIBOLA)

tion on the Continental Shelf, I shall now turn my attention to the other
side of the equation referred to in the jurisprudence of the Court as “rele-
vant circumstances”. While one may venture to say that special circum-
stances relate to geophysical peculiarities in respect of coasts of States, the
term “relevant circumstances” is perhaps wider in scope, but similar in
purpose and content.

However, an examination of the pronouncements by the Court on
“relevant circumstances” as a pertinent consideration in cases of mari-
time boundary delimitation points to some ways in which international
law continues to develop.

In the North Sea Continental Shelf cases, the Court states:

“In fact, there is no legal limit to the considerations which States
may take account of for the purpose of making sure that they apply
equitable procedures, and more often than not it is the balancing-up
of all such considerations that will produce this result rather than
reliance on one to the exclusion of all others. The problem of the rela-
tive weight to be accorded to different considerations naturally varies
with the circumstances of the case.” (.C.J. Reports 1969, p. 50,
para. 93.)

On the other hand, not all factors that come within the category of “rele-
vant circumstances” in general are in fact relevant in every case. This again
was made clear by the Court in the Libya/Malta case when it declared
that although there was no legal limit to the considerations which the State
might take into account yet “only those that are pertinent to the institution
of the continental shelf as it has developed within the law . . . will qualify
for such inclusion” (1.C.J. Reports 1985, p. 50, para. 48).

It is now clear that, apart from geographical configuration, “relevant
circumstances” also accommodate all other circumstances such as popu-
lation, socio-economic structures, security, conduct of the parties, etc.,
where these are relevant. The equitable principles of customary interna-
tional law which, as already stated, constitute the applicable law in this
case with regard to the fishery zone, equally require account to be taken of
proportionality (as in the case of the continental shelf) or what should
better be called the disparity of coastal lengths of the Parties, as a relevant
circumstance. If we therefore take a critical look at the length of the coast-
line of Greenland in comparison with that of Jan Mayen we may say that
the difference is clear (the length of the coast of Greenland is 524 kilo-
metres, while that of Jan Mayen is 54.8 kilometres). It is also clear that
under the equitable principles of customary international law such a dis-
parity of coastal lengths is a relevant circumstance to be taken into con-
sideration because:

267
302 MARITIME DELIMITATION (SEP. OP. AJIBOLA)

“While every case of maritime delimitation is different in its cir-
cumstances from the next, only a clear body of equitable principles
can permit such circumstances to be properly weighed, and the
objective of an equitable result, as required by general international
law, to be attained.” (.C.J. Reports 1985, p. 55, para. 76.)

A clear picture has now emerged of the possible link between the con-
cept of “relevant circumstances” as enshrined in the equitable principles
of customary international law and “special circumstances” as a notice-
able peculiarity in the geographical configuration of the coastlines of
Greenland and Jan Mayen. This link (or what has been termed the “foot-
bridge” by one great jurist) was a component of the decision reached by
the Anglo-French Court of Arbitration, an arbitral tribunal that had the
opportunity of applying the provisions of Article 6, paragraph 1, of the
Geneva Convention on the Continental Shelf in 1977. In its Award the
link was effected thus:

“In short the rôle of the ‘special circumstances’ condition in Ar-
ticle 6 is to ensure an equitable delimitation; and the combined ‘equi-
distance-special circumstance rule’, in effect, gives particular expres-
sion to a general norm that, failing agreement, the boundary between
States abutting on the same continental shelf is to be determined on
equitable principles. In addition, Article 6 neither defines ‘special
circumstances’ nor lays down the criterion by which it is to be
assessed whether any given circumstances justify a boundary line
other than the equidistance line. Consequently, even under Article 6
the question whether the use of the equidistance principle or some
other method is appropriate for achieving an equitable delimitation
is very much a matter of appreciation in the light of the geographical
and other circumstances.” (Reports of International Arbitral Awards
(RIAA), Vol. XVII, p. 45, para. 70.)

We now have all the necessary components or ingredients of the equa-
tion which has to be resolved in this case and in all subsequent cases on
maritime boundary delimitation. On the one hand, the provision of Ar-
ticle 6, paragraph 1, of the Geneva Convention on the Continental Shelf
enjoins all States to settle all their delimitation matters by agreement and
then goes on to say that, if this fails the equidistance method should be
applied unless there are “special circumstances”. On the other hand, gen-
eral international law also postulates that all delimitation matters should
be resolved by agreement between the parties and that, in the event of a
failure to reach agreement, equitable principles should be applied. Such
an equitable procedure must have regard to “relevant circumstances”.

In the first case, the resolving of delimitation matters by agreement is
common to both sets of provisions. There is also a requirement to give

268
303 MARITIME DELIMITATION (SEP. OP. AJIBOLA)

consideration to geophysical or other peculiarities which are termed
either “special circumstances” or “relevant circumstances” and the
method advocated by the Convention is equidistance, while general inter-
national law requires the application of equitable principles. Thus the end
result of solving the equation is special circumstances/equidistance being
equal apparently to relevant circumstances/equitable principles. In
other words agreement/special circumstances/equidistance equals
agreement/relevant circumstances/equitable principles. One however is
encapsulated in the other as was found by the Court of Arbitration in the
Anglo-French case which declared that

“In the view of this Court, therefore, the rules of customary law
are a relevant and even essential means both for interpreting and com-
pleting the provisions of Article 6.” (RIAA, p. 48, para. 75.)

In my final appraisal, therefore, the supreme contribution of current
customary international law as compared to the special circumstances-
equidistance rule (as in this case where both these institutions of maritime
boundary delimitation have to be considered) is that the ultimate rule of
law is the application of equitable principles; this is the contemporary law
on this matter. In conclusion to this part of my opinion I should like to give
a classic example of solving equations similar to the one that presents
itself in this case. It reads thus:

“The Court accordingly finds that the Geneva Convention of 1958
on the Continental Shelf is a treaty in force, the provisions of which
are applicable as between the Parties to the present proceedings
under Article 2 of the Arbitration Agreement. This finding, the Court
wishes at the same time to emphasise, does not mean that it regards
itself as debarred from taking any account in these proceedings of
recent developments in customary law. On the contrary, the Court
has no doubt that it should take due account of the evolution of the
law of the sea in so far as this may be relevant in the context of the
present case.” (Ibid., p. 37, para. 48.)

This decision is inter-temporal in tone, but there is no doubt that it
reflects the current view of the law on maritime boundary delimitation —
law is dynamic and moves with the times.

(Signed) Bola AJIBOLA.

269


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE A LA LICEITE
DE L’EMPLOI DE LA FORCE

(YOUGOSLAVIE c. FRANCE)

DEMANDE EN INDICATION DE MESURES
CONSERVATOIRES

ORDONNANCE DU 2 JUIN 1999

1999

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING
LEGALITY OF USE OF FORCE

(YUGOSLAVIA v. FRANCE)

REQUEST FOR THE INDICATION OF PROVISIONAL
MEASURES

ORDER OF 2 JUNE 1999
Mode officiel de citation:

Licéité de l'emploi de la force (Yougoslavie c. France),
mesures conservatoires, ordonnance du 2 juin 1999,
C.I.J. Recueil 1999, p. 363

Official citation:

Legality of Use of Force {Yugoslavia v. France),
Provisional Measures, Order of 2 June 1999,
LC.J. Reports 1999, p. 363

N° de vente:
ISSN 0074-444] Sales number 729

ISBN 92-1-070797-4

2 JUIN 1999

ORDONNANCE

LICEITE DE L’EMPLOI DE LA FORCE
(YOUGOSLAVIE c. FRANCE)

DEMANDE EN INDICATION DE MESURES
CONSERVATOIRES

LEGALITY OF USE OF FORCE
(YUGOSLAVIA r. FRANCE)

REQUEST FOR THE INDICATION OF PROVISIONAL
MEASURES

2 JUNE 1999

ORDER
363

INTERNATIONAL COURT OF JUSTICE

YEAR 1999 1999
2 June
General List
2 June 1999 No. 107

CASE CONCERNING
LEGALITY OF USE OF FORCE

(YUGOSLAVIA v. FRANCE)

REQUEST FOR THE INDICATION OF PROVISIONAL
MEASURES

ORDER

Present: Vice-President WEERAMANTRY, Acting President; President
SCHWEBEL; Judges ODA, BEDJAOUI, GUILLAUME, RANIEVA,
HERCZEGH, SHI, FLEISCHHAUER, KOROMA, VERESHCHETIN,
HiGGins, PARRA-ARANGUREN, KooimMans; Judge ad hoc
KRECA; Registrar VALENCIA-OSPINA.

The International Court of Justice,

Composed as above,
After deliberation,

Having regard to Articles 41 and 48 of the Statute of the Court and to
Articles 73 and 74 of the Rules of Court,

Having regard to the Application by the Federal Republic of Yugo-
slavia (hereinafter “ Yugoslavia”) filed in the Registry of the Court on
29 April 1999, instituting proceedings against the French Republic (here-
inafter “France”) “for violation of the obligation not to use force”,

Makes the following Order:
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 364

1. Whereas in that Application Yugoslavia defines the subject of the
dispute as follows:

“The subject-matter of the dispute are acts of the Republic of
France by which it has violated its international obligation banning
the use of force against another State, the obligation not to intervene
in the internal affairs of another State, the obligation not to violate
the sovereignty of another State, the obligation to protect the civil-
ian population and civilian objects in wartime, the obligation to pro-
tect the environment, the obligation relating to free navigation on
international rivers, the obligation regarding fundamental human
rights and freedoms, the obligation not to use prohibited weapons,
the obligation not to deliberately inflict conditions of life calculated
to cause the physical destruction of a national group”;

2. Whereas in the said Application Yugoslavia refers, as a basis for the
jurisdiction of the Court, to Article IX of the Convention on the Preven-
tion and Punishment of the Crime of Genocide, adopted by the General
Assembly of the United Nations on 9 December 1948 (hereinafter the
“Genocide Convention”), and to Article 38, paragraph 5, of the Rules of
Court;

3. Whereas in its Application Yugoslavia states that the claims sub-
mitted by it to the Court are based upon the following facts:

“The Government of the Republic of France, together with the
Governments of other Member States of NATO, took part in the
acts of use of force against the Federal Republic of Yugoslavia by
taking part in bombing targets in the Federal Republic of Yugosla-
via. In bombing the Federal Republic of Yugoslavia military and
civilian targets were attacked. Great number of people were killed,
including a great many civilians. Residential houses came under
attack. Numerous dwellings were destroyed. Enormous damage was
caused to schools, hospitals, radio and television stations, cultural
and health institutions and to places of worship. A large number of
bridges, roads and railway lines were destroyed. Attacks on oil refin-
eries and chemical plants have had serious environmental effects on
cities, towns and villages in the Federal Republic of Yugoslavia. The
use of weapons containing depleted uranium is having far-reaching
consequences for human life. The above-mentioned acts are deliber-
ately creating conditions calculated at the physical destruction of an
ethnic group, in whole or in part. The Government of the Republic
of France is taking part in the training, arming, financing, equipping
and supplying the so-called ‘Kosovo Liberation Army’”:
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 365

and whereas it further states that the said claims are based on the follow-
ing legal grounds:

“The above acts of the Republic of France represent a gross viola-
tion of the obligation not to use force against another State. By
financing, arming, training and equipping the so-called ‘Kosovo Lib-
eration Army’, support is given to terrorist groups and the secession-
ist movement in the territory of the Federal Republic of Yugoslavia
in breach of the obligation not to intervene in the internal affairs of
another State. In addition, the provisions of the Geneva Convention
of 1949 and of the Additional Protocol No. 1 of 1977 on the protec-
tion of civilians and civilian objects in time of war have been vio-
lated. The obligation to protect the environment has also been
breached. The destruction of bridges on the Danube is in contraven-
tion of the provisions of Article 1 of the 1948 Convention on free
navigation on the Danube. The provisions of the International Cov-
enant on Civil and Political Rights and of the International Cov-
enant on Economic, Social and Cultural Rights of 1966 have also
been breached. Furthermore, the obligation contained in the Con-
vention on the Prevention and Punishment of the Crime of Genocide
not to impose deliberately on a national group conditions of life cal-
culated to bring about the physical destruction of the group has been
breached. Furthermore, the activities in which the Republic of France
is taking part are contrary to Article 53, paragraph 1, of the Charter
of the United Nations”;

4. Whereas the claims of Yugoslavia are formulated as follows in the
Application:

“The Government of the Federal Republic of Yugoslavia requests
the International Court of Justice to adjudge and declare:

— by taking part in the bombing of the territory of the Federal
Republic of Yugoslavia, the Republic of France has acted against
the Federal Republic of Yugoslavia in breach of its obligation
not to use force against another State;

— by taking part in the training, arming, financing, equipping and
supplying terrorist groups, i.e. the so-called ‘Kosovo Liberation
Army’, the Republic of France has acted against the Federal
Republic of Yugoslavia in breach of its obligation not to inter-
vene in the affairs of another State;

— by taking part in attacks on civilian targets, the Republic of
France has acted against the Federal Republic of Yugoslavia in
breach of its obligation to spare the civilian population, civilians
and civilian objects;
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 366

by taking part in destroying or damaging monasteries, monu-
ments of culture, the Republic of France has acted against the
Federal Republic of Yugoslavia in breach of its obligation not to
commit any act of hostility directed against historical monu-
ments, works of art or places of worship which constitute cul-
tural or spiritual heritage of people;

by taking part in the use of cluster bombs, the Republic of
France has acted against the Federal Republic of Yugoslavia in
breach of its obligation not to use prohibited weapons, i.e. weap-
ons calculated to cause unnecessary suffering;

by taking part in the bombing of oil refineries and chemical
plants, the Republic of France has acted against the Federal
Republic of Yugoslavia in breach of its obligation not to cause
considerable environmental damage;

by taking part in the use of weapons containing depleted ura-
nium, the Republic of France has acted against the Federal
Republic of Yugoslavia in breach of its obligation not to use
prohibited weapons and not to cause far-reaching health and
environmental damage;

by taking part in killing civilians, destroying enterprises, commu-
nications, health and cultural institutions, the Republic of France
has acted against the Federal Republic of Yugoslavia in breach
of its obligation to respect the right to life, the right to work, the
right to information, the right to health care as well as other
basic human rights;

by taking part in destroying bridges on international rivers, the
Republic of France has acted against the Federal Republic of
Yugoslavia in breach of its obligation to respect freedom of
navigation on international rivers;

by taking part in activities listed above, and in particular by
causing enormous environmental damage and by using depleted
uranium, the Republic of France has acted against the Federal
Republic of Yugoslavia in breach of its obligation not to delib-
erately inflict on a national group conditions of life calculated to
bring about its physical destruction, in whole or in part;

the Republic of France is responsible for the violation of the
above international obligations;

the Republic of France is obliged to stop immediately the viola-
tion of the above obligations vis-a-vis the Federal Republic of
Yugoslavia;

the Republic of France is obliged to provide compensation for

7
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 367

the damage done to the Federal Republic of Yugoslavia and to
its citizens and juridical persons”:

and whereas, at the end of its Application, Yugoslavia reserves the right
to amend and supplement it;

5. Whereas on 29 April 1999, immediately after filing its Application,
Yugoslavia also submitted a request for the indication of provisional
measures pursuant to Article 73 of the Rules of Court; and whereas that
request was accompanied by a volume of photographic annexes pro-
duced as “evidence”;

6. Whereas, in support of its request for the indication of provisional
measures, Yugoslavia contends inter alia that, since the onset of the
bombing of its territory, and as a result thereof, about 1,000 civilians,
including 19 children, have been killed and more than 4,500 have sus-
tained serious injuries; that the lives of three million children are endan-
gered; that hundreds of thousands of citizens have been exposed to poi-
sonous gases; that about one million citizens are short of water supply;
that about 500,000 workers have become jobless; that two million citi-
zens have no means of livelihood and are unable to ensure minimum
means of sustenance; and that the road and railway network has suffered
extensive destruction; whereas, in its request for the indication of provi-
sional measures, Yugoslavia also lists the targets alleged to have come
under attack in the air strikes and describes in detail the damage alleged
to have been inflicted upon them (bridges, railway lines and stations,
roads and means of transport, airports, industry and trade, refineries and
warehouses storing liquid raw materials and chemicals, agriculture, hos-
pitals and health care centres, schools, public buildings and housing
facilities, infrastructure, telecommunications, cultural-historical monu-
ments and religious shrines); and whereas Yugoslavia concludes from
this that:

“The acts described above caused death, physical and mental
harm to the population of the Federal Republic of Yugoslavia; huge
devastation; heavy pollution of the environment, so that the Yugo-
slav population is deliberately imposed conditions of life calculated
to bring about physical destruction of the group, in whole or in
part”;

7. Whereas, at the end of its request for the indication of provisional
measures, Yugoslavia states that

“If the proposed measure were not to be adopted, there will be
new losses of human life, further physical and mental harm inflicted
on the population of the FR of Yugoslavia, further destruction of
civilian targets, heavy environmental pollution and further physical
destruction of the people of Yugoslavia”;
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 368

and whereas, while reserving the right to amend and supplement its
request, Yugoslavia requests the Court to indicate the following measure:

“The Republic of France shall cease immediately its acts of use of
force and shall refrain from any act of threat or use of force against
the Federal Republic of Yugoslavia”;

8. Whereas the request for the indication of provisional measures was
accompanied by a letter from the Agent of Yugoslavia, addressed to the
President and Members of the Court, which read as follows:

“T have the honour to bring to the attention of the Court the latest
bombing of the central area of the town of Surdulica on 27 April
1999 at noon resulting in losses of lives of civilians, most of whom
were children and women, and to remind of killings of peoples in
Kursumlija, Aleksinac and Cuprija, as well as bombing of a refugee
convoy and the Radio and Television of Serbia, just to mention
some of the well-known atrocities. Therefore, I would like to caution
the Court that there is a highest probability of further civilian and
military casualties.

Considering the power conferred upon the Court by Article 75,
paragraph 1, of the Rules of Court and having in mind the greatest
urgency caused by the circumstances described in the Requests for
provisional measure of protection I kindly ask the Court to decide
on the submitted Requests proprio motu or to fix a date for a hearing
at earliest possible time”;

9. Whereas on 29 April 1999, the day on which the Application and
the request for the indication of provisional measures were filed in the
Registry, the Registrar sent to the French Government signed copies of
the Application and of the request, in accordance with Article 38, para-
graph 4, and Article 73, paragraph 2, of the Rules of Court; and whereas
he also sent to that Government copies of the documents accompanying
the Application and the request for the indication of provisional meas-
ures;

10. Whereas on 29 April 1999 the Registrar informed the Parties that
the Court had decided, pursuant to Article 74, paragraph 3, of the Rules
of Court, to hold hearings on 10 and 11 May 1999, where they would be
able to present their observations on the request for the indication of pro-
visional measures;

11. Whereas, pending the notification under Article 40, paragraph 3,
of the Statute and Article 42 of the Rules of Court, by transmittal of the
printed bilingual text of the Application to the Members of the United
Nations and other States entitled to appear before the Court, the Regis-
trar on 29 April 1999 informed those States of the filing of the Applica-
tion and of its subject-matter, and of the filing of the request for the
indication of provisional measures;
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 369

12. Whereas, since the Court includes upon the bench no judge of
Yugoslav nationality, the Yugoslav Government has availed itself of the
provisions of Article 31 of the Statute of the Court to choose Mr.
Milenko Kreca to sit as Judge ad hoc in the case; and whereas no objec-
tion to that choice was raised within the time-limit fixed for the purpose
pursuant to Article 35, paragraph 3, of the Rules of Court;

13. Whereas, at the public hearings held between 10 and 12 May 1999,
oral observations on the request for the indication of provisional meas-
ures were presented by the following:

On behalf of Yugoslavia:

Mr. Rodoljub Etinski, Agent,
Mr. Ian Brownlie,

Mr. Paul J. I. M. de Waart,
Mr. Eric Suy,

Mr. Miodrag Mitié,

Mr. Olivier Corten;

On behalf of France:

Mr. Ronny Abraham, Agent,
Mr. Alain Pellet;

14. Whereas, in this phase of the proceedings, the Parties presented the
following submissions:

On behalf of Yugoslavia:

“[T]he Court [is asked] to indicate the following provisional
measure:

[T]he Republic of France . . . shall cease immediately the acts of
use of force and shall refrain from any act of threat or use of force
against the Federal Republic of Yugoslavia”;

On behalf of France:

“France considers that the Court cannot proceed upon the Appli-
cation of the Federal Republic of Yugoslavia. Neither of the two
bases of jurisdiction relied upon is pertinent. Neither of them is
capable of founding the jurisdiction of the Court in this case”;

“The Court [is requested], on behalf of the French Republic, to
order that the Application submitted by the Federal Republic of
Yugoslavia be removed from the General List”;

*
* *

15. Whereas the Court is deeply concerned with the human tragedy,
the loss of life, and the enormous suffering in Kosovo which form the

10
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 370

background of the present dispute, and with the continuing loss of life
and human suffering in all parts of Yugoslavia;

16. Whereas the Court is profoundly concerned with the use of force
in Yugoslavia; whereas under the present circumstances such use raises
very serious issues of international law;

17. Whereas the Court is mindful of the purposes and principles of the
United Nations Charter and of its own responsibilities in the mainte-
nance of peace and security under the Charter and the Statute of the
Court;

18. Whereas the Court deems it necessary to emphasize that all parties
appearing before it must act in conformity with their obligations under
the United Nations Charter and other rules of international law, includ-
ing humanitarian law;

*
* *

19. Whereas the Court, under its Statute, does not automatically have
jurisdiction over legal disputes between States parties to that Statute or
between other States to whom access to the Court has been granted;
whereas the Court has repeatedly stated “that one of the fundamental
principles of its Statute is that it cannot decide a dispute between States
without the consent of those States to its jurisdiction” (East Timor ( Por-
tugal v. Australia), Judgment, LC.J. Reports 1995, p. 101, para. 26); and
whereas the Court can therefore exercise jurisdiction only between States
parties to a dispute who not only have access to the Court but also have
accepted the jurisdiction of the Court, either in general form or for the
individual dispute concerned;

20. Whereas on a request for provisional measures the Court need not,
before deciding whether or not to indicate them, finally satisfy itself that
it has jurisdiction on the merits of the case, yet it ought not to indicate
such measures unless the provisions invoked by the applicants appear,
prima facie, to afford a basis on which the jurisdiction of the Court might
be established ;

x *%

21. Whereas in its Application Yugoslavia claims in the first place to
found the jurisdiction of the Court on Article IX of the Genocide Con-
vention, which provides:

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

11
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 371

and whereas in its Application Yugoslavia states that the subject of the
dispute concerns inter alia “acts of the Republic of France by which it
has violated its international obligation . . . not to deliberately inflict con-
ditions of life calculated to cause the physical destruction of a national
group”; whereas, in describing the facts on which the Application is
based, Yugoslavia states: “The above-mentioned acts are deliberately
creating conditions calculated at the physical destruction of an ethnic
group, in whole or in part”; whereas, in its statement of the legal grounds
on which the Application is based, Yugoslavia contends that “the obliga-
tion ... not to impose deliberately on a national group conditions of life
calculated to bring about the physical destruction of the group has been
breached”; and whereas one of the claims on the merits set out in the
Application is formulated as follows:

“by taking part in activities listed above, and in particular
by causing enormous environmental damage and by using depleted
uranium, the Republic of France has acted against the Federal
Republic of Yugoslavia in breach of its obligation not to deliberately
inflict on a national group conditions of life calculated to bring
about its physical destruction, in whole or in part”;

22. Whereas Yugoslavia contends moreover that the sustained and
intensive bombing of the whole of its territory, including the most heavily
populated areas, constitutes “a serious violation of Article II of the
Genocide Convention”; whereas it argues that “the pollution of soil, air
and water, destroying the economy of the country, contaminating the
environment with depleted uranium, inflicts conditions of life on the
Yugoslav nation calculated to bring about its physical destruction”;
whereas it asserts that it is the Yugoslav nation as a whole and as such
that is targeted; and whereas it stresses that the use of certain weapons
whose long-term hazards to health and the environment are already
known, and the destruction of the largest part of the country’s power
supply system, with catastrophic consequences of which the Respondent
must be aware, “impl[y] the intent to destroy, in whole or in part”, the
Yugoslav national group as such;

23. Whereas for its part France contends that Article IX of the Geno-
cide Convention does not constitute a basis of jurisdiction in this case,
and that “this is absolutely manifest”; whereas, referring to Article II (c)
of the Convention, France states that genocide, as defined by the 1948
Convention, consists of two elements: “One is objective: the destruction
of all or part of a national or religious group as such. The other is sub-
jective: an intention to achieve this result, which is in conflict . . . with
‘the most elementary principles of morality’”; and whereas, with regard
to the objective element, France asserts inter alia that “the NATO forces
.… are making all efforts to ensure that the civilian population suffers no
needless harm”, that, “as to the allegation of the use of depleted uranium,

12
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 372

... French armed forces have no weapons of this kind”, and that “the
use of any given weapon, especially when this is in no way illegal, has no
connection with the definition of genocide”; and whereas with regard to
the subjective element France stresses “the manifest absence in this case
of the element of intention” and “the total silence of the applicant State”
on this point;

24. Whereas it is not disputed that both Yugoslavia and France are
parties to the Genocide Convention without reservation; and whereas
Article IX of the Convention accordingly appears to constitute a basis on
which the jurisdiction of the Court might be founded to the extent that
the subject-matter of the dispute relates to “the interpretation, applica-
tion or fulfilment” of the Convention, including disputes “relating to the
responsibility of a State for genocide or for any of the other acts enumer-
ated in article III” of the said Convention;

25. Whereas, in order to determine, even prima facie, whether a dis-
pute within the meaning of Article IX of the Genocide Convention exists,
the Court cannot limit itself to noting that one of the Parties maintains
that the Convention applies, while the other denies it; and whereas in the
present case the Court must ascertain whether the breaches of the Con-
vention alleged by Yugoslavia are capable of falling within the provisions
of that instrument and whether, as a consequence, the dispute is one
which the Court has jurisdiction ratione materiae to entertain pursuant
to Article IX (cf. Oi! Platforms (Islamic Republic of Iran v. United States
of America), Preliminary Objection, Judgment, 1.C.J. Reports 1996 (11),
p. 810, para. 16):

26. Whereas the definition of genocide set out in Article I] of the
Genocide Convention reads as follows:

“In the present Convention, genocide means any of the following
acts committed with intent to destroy, in whole or in part, a national,
ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the
group;

{c) Deliberately inflicting on the group conditions of life calculated
to bring about its physical destruction in whole or in part:

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group”;

27. Whereas it appears to the Court, from this definition, “that [the]
essential characteristic [of genocide] is the intended destruction of ‘a
national, ethnical, racial or religious group’” (Application of the Conven-
tion on the Prevention and Punishment of the Crime of Genocide, Provi-
sional Measures, Order of 13 September 1993, LC.J. Reports 1993,
p. 345, para. 42); whereas the threat or use of force against a State can-
not in itself constitute an act of genocide within the meaning of Article II
of the Genocide Convention; and whereas, in the opinion of the Court, it

13
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 373

does not appear at the present stage of the proceedings that the bombings
which form the subject of the Yugoslav Application “indeed entail the
element of intent, towards a group as such, required by the provision
quoted above” (Legality of the Threat or Use of Nuclear Weapons, Advi-
sory Opinion, C.J. Reports 1996 (1), p. 240, para. 26);

28. Whereas the Court is therefore not in a position to find, at this
stage of the proceedings, that the acts imputed by Yugoslavia to the
Respondent are capable of coming within the provisions of the Genocide
Convention; and whereas Article IX of the Convention, invoked by
Yugoslavia, cannot accordingly constitute a basis on which the jurisdic-
tion of the Court could prima facie be founded in this case;

* *

29. Whereas in its Application Yugoslavia claims, in the second place,
to found the jurisdiction of the Court on Article 38, paragraph 5, of the
Rules of Court, which reads as follows:

“5. When the applicant State proposes to found the jurisdiction of
the Court upon a consent thereto yet to be given or manifested by
the State against which such application is made, the application
shall be transmitted to that State. It shall not however be entered in
the General List, nor any action be taken in the proceedings, unless
and until the State against which such application is made consents
to the Court’s jurisdiction for the purposes of the case”;

30. Whereas France contends that Article 38, paragraph 5, of the
Rules of Court is without effect, because France does not accept the
jurisdiction of the Court in this case;

31. Whereas it is quite clear that, in the absence of consent by France,
given pursuant to Article 38, paragraph 5, of the Rules, the Court cannot
exercise jurisdiction in the present case, even prima facie;

* Ox

32. Whereas it follows from what has been said above that the Court
lacks prima facie jurisdiction to entertain Yugoslavia’s Application; and
whereas it cannot therefore indicate any provisional measure whatsoever
in order to protect the rights invoked therein;

33. Whereas, however, the findings reached by the Court in the present
proceedings in no way prejudge the question of the jurisdiction of the
Court to deal with the merits of the case under Article IX of the Geno-
cide Convention, or any questions relating to the admissibility of the
Application, or relating to the merits themselves; and whereas they leave
unaffected the right of the Governments of Yugoslavia and France to
submit arguments in respect of those questions;

14
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 374

34. Whereas in consequence the Court cannot, at this stage of the pro-
ceedings, accede to France’s request that the case be removed from the
List;

x * x

35. Whereas there is a fundamental distinction between the question
of the acceptance by a State of the Court’s jurisdiction and the compat-
ibility of particular acts with international law; the former requires con-
sent; the latter question can only be reached when the Court deals with
the merits after having established its jurisdiction and having heard full
legal arguments by both parties;

36. Whereas, whether or not States accept the jurisdiction of the
Court, they remain in any event responsible for acts attributable to them
that violate international law, including humanitarian law; whereas any
disputes relating to the legality of such acts are required to be resolved
by peaceful means, the choice of which, pursuant to Article 33 of the
Charter, is left to the parties;

37. Whereas in this context the parties should take care not to aggra-
vate or extend the dispute;

38. Whereas, when such a dispute gives rise to a threat to the peace,
breach of the peace or act of aggression, the Security Council has special
responsibilities under Chapter VII of the Charter;

39. For these reasons,
THE Court,
(1) By twelve votes to three,

Rejects the request for the indication of provisional measures submit-
ted by the Federal Republic of Yugoslavia on 29 April 1999;

IN FAVOUR: Vice-President Weeramantry, Acting President; President
Schwebel: Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh,
Fleischhauer, Koroma, Higgins, Parra-Aranguren, Kooijmans;

AGAINST: Judges Shi, Vereshchetin; Judge ad hoc Kre¢a;
(2) By fourteen votes to one,

Reserves the subsequent procedure for further decision.

IN FAVOUR: Vice-President. Weeramantry, Acting President; President
Schwebel: Judges Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi,
Fleischhauer, Koroma, Vereshchetin, Higgins,  Parra-Aranguren,
Kooijmans; Judge ad hoc Kre¢a;

AGAINST: Judge Oda.
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 375

Done in French and in English, the French text being authoritative, at
the Peace Palace, The Hague, this second day of June, one thousand nine
hundred and ninety-nine, in three copies, one of which will be placed in
the archives of the Court and the others transmitted to the Government
of the Federal Republic of Yugoslavia and the Government of the
French Republic, respectively.

(Signed) Christopher G. WEERAMANTRY,
Vice-President.

(Signed) Eduardo VALENCIA-OSPINA,
Registrar.

Vice-President WEERAMANTRY, Acting President, and Judges Sui,
KoroMA and VERESHCHETIN append declarations to the Order of the
Court.

Judges OpA and PARRA-ARANGUREN append separate opinions to the
Order of the Court.

Judge ad hoc KRECA appends a dissenting opinion to the Order of the
Court.

(Initialled) C.G.W.
(Initialled) E.V.O.

16