231

DISSENTING OPINION OF JUDGE READ

I am unable to concur in the answer given by the Court to
Question III, or with the reasons by which it is justified, and
feel bound, with regret, to state the reasons for my dissent. As
I am of the opinion that an affirmative answer should be given
to Question III, it is also necessary for me to state the reasons
which have led me to the conclusion that an affirmative answer
should be given to Question IV.

Circumstances have now arisen in which it is necessary to deal
with Questions III and IV. The Court is not called upon to
pronounce upon the substance of the disputes which have arisen,
but, in appreciating the juridical scope of the Disputes Articles,
I cannot disregard the Articles in the Treaties in respect of which
the disputes arose, or the attitudes which have been maintained
by the parties tc the disputes.

The importance of the maintenance of human rights and
fundamental freedoms is emphasized by their inclusion in the
purposes of the United Nations as set forth in Article 1 of the
Charter, and by the central position taken by the Human Rights
Articles of the Treaties of Peace.

It is inconceivable to me that the Allied and Associated Powers
would have consented to the setting up of machinery for the
settlement of disputes arising out of such important matters
which could be rendered ineffective by the sole will of any one
of the three Governments concerned, Bulgaria, Hungary and
Romania. I am, therefore, inclined at the outset to the view that
the Disputes Articles must be interpreted in a manner which will
ensure their real effectiveness rather than a manner which would
deprive them of all effectiveness.

The Questions which have been put to the Court have arisen
out of a complicated network of disputes between certain of the
Allied and Associated Powers and Bulgaria, Hungary and Roma-
nia. It is unnecessary to examine these disputes in detail. It is
sufficient to note certain common factors.

They all involve specific charges of violations of the under-
takings given in the Human Rights Articles of the Treaties of
Peace to secure human rights and fundamental freedoms. They
all involve denials of the charges and justification of the conduct
complained of.

Throughout the controversy, the Powers which have made the
charges have maintained a consistent attitude. They have stood
for the defence and maintenance of the fundamental freedoms ;

14
DISSENTING OPINION OF JUDGE READ 232

and they have been unremitting in their efforts to have the charges
reviewed and decided by a judicial tribunal, the Treaty Com-
missions provided for in the Disputes Articles of the Peace Treaties.

The accused Governments have maintained an equally consistent
attitude. They have denied the charges; they have denied the
existence of the disputes ; they have objected to the competence
of this Court; they have refrained from appointing national
representatives on the Treaty Commissions; they have been
unremitting in their efforts to prevent the charges from being
reviewed and decided by the judicial tribunals; but they have
not at any time questioned the competence of Treaty Commis-
sions, to which they have not appointed representatives, to review
the charges and to make binding decisions in settlement of the
disputes.

The legal issues which have been put to the Court must be
considered in the light of these attitudes. The central issue is
whether the provisions of the Peace Treaties should be construed
as authorizing Bulgaria, Hungary and Romania to frustrate the
operation of the Disputes Articles and to prevent judicial review
of the charges and decision of the disputes, by the simple device of
defaulting on their obligations under the Treaties in the matter
of appointing their national representatives on the Treaty Com-
missions.

+
* *

It will be convenient, before answering the Questions, to consider
the special problem of the competence of a Treaty Commission
composed of a representative of the government which has
made the charges and a third member appointed by the Secretary-
General, a problem which depends, not upon general rules of law,
but upon the meaning which should be given to the Disputes
Article.

The Disputes Article is an arbitration clause. It is not contained
in a special agreement providing for arbitration of a particular
case, but in a general treaty, the Treaty of Peace. It is designed
to provide for the judicial settlement of any disputes arising
under the Treaty (apart, of course, from special types of disputes
for which a different procedure is provided). Accordingly, it is
not open to the Court to give a narrow or restrictive interpretation
of the Disputes Article.

The provisions of Article 92 of the Charter disclose the intention
of the United Nations that continuity should be maintained
between the Permanent Court of International Justice and this

15
DISSENTING OPINION OF JUDGE READ 233

Court. There can be no doubt that the United Nations intended
continuity in jurisprudence, as well as in less important matters.
While this does not make the decisions of the Permanent Court
binding, in the sense in which decisions may be binding in
common-law countries, it does make it necessary to treat them
with the utmost respect, and to follow them unless there are
compelling reasons for rejecting their authority. This is doubly
true in matters of treaty interpretation, because draftsmen, in
deciding upon the language to be used in a treaty provision, e.g.,
the Disputes Article, have constantly in mind the principles of
interpretation as formulated and applied by the Permanent Court
and by this Court. Failure to follow established precedents in
the matter of treaty interpretation inevitably leads to the frustra-
tion of the intention of the parties.

The Permanent Court, when called upon to interpret arbitration
clauses of widely varying types, with provisions for the settlement
of international disputes, did not hesitate to adopt and apply
broad and liberal interpretations, designed to make them workable
and to give practical effect to the evident intention of the parties
as shown by the provisions of the treaties in which the clauses
were included. To ascertain their intention, the Permanent Court
examined each treaty as a whole in order to learn its general
purpose and object.

Series A No. 2, August 30th, 1924. Judgment. The Mavrom-
matis Palestine Concessions

Series B No. 12. November 21st, 1925. Advisory Opinion.
Article 3, paragraph 2, of the Treaty of Lausanne
(Mosul Boundary Case)

“Series A No. 9. July 26th, 1927. Judgment. The Factory at
Chorzéw (Claim for Indemnity) (Jurisdiction)

Series B No. 16. August 28th, 1928. Advisory Opinion. Inter-
pretation of the Greco-Turkish Agreement of Decem-
ber rst, 1926 (Final Protocol, Article IV)

The precise point of interpretation, with which the Court is now
concerned, did not arise in these cases, but the fundamental
rules of construction, adopted and applied by the Permanent
Court, can and should be adopted and applied by this Court in
ascertaining the true meaning of the Disputes Article in the
Treaty of Peace.

In addition to the cases in which the Permanent Court dealt
with the interpretation of arbitration clauses, there were other
important instances in which it adopted and applied the principle
of effectiveness, and the same principle has been recognized and
applied by this Court.

16
DISSENTING OPINION OF JUDGE READ 234

Series B Nos. 2 and 3. August 12th, 1922. Advisory Opinions.
Competence of the International Labour Organization
with respect to Agricultural Labour

Series B No. 6. September roth, 1923. Advisory Opinion.
German Settlers in Poland

Series B No. 7. September 15th, 1923. Advisory Opinion.
Acquisition of Polish Nationality

Series B Nos. 8 and 9. December 6th, 1923, and September 4th,
1924. Advisory Opinions. (These Opinions, dealing
with boundary questions on the Czechoslovak-Polish
and on the Albanian frontiers, might, perhaps, have
been included in the list of authorities which dealt
with arbitration clauses.)

Series B No. 13. July 23rd, 1926. Advisory Opinion. Com-
petence of the International Labour Organization to
regulate, incidentally, the personal work of the
Employer

Series A No. 22. August 19th, 1929. Order. Free Zones. (Cited,
with approval, by this Court in the Corfu Channel
Case (Merits), I.C.J. Reports 1949, at p. 24.)

The Corfu Channel Case (Merits), 1.C.J. Reports 1949, p. 4

Reparations for injuries suffered in the Service of the United
Nations. Advisory Opinion. I.C.J. Reports 1949, p. 174

The principle of international law applicable to the interpretation
of treaties, which has been established by the series of authorities
cited in this and in the preceding paragraph, was concisely and
accurately stated by the Permanent Court in its Advisory Opinion,
Series B, No. 7. The Court was dealing with the Polish Minorities
Treaty. In considering an objection to the competence of the
League of Nations, the Court refused to accept the Polish argument
for a restrictive interpretation of the Treaty and stated, at page 16:

“Tf this were not the case, the value and sphere of application
of the Treaty would be greatly diminished. But in the Advisory
Opinion given with regard to the questions put concerning German
Colonists in Poland, the Court has already expressed the view
that an interpretation which would deprive the Minorities Treaty
of a great part of its value is inadmissible. In the present case, it
would be still less admissible, since it would be contrary to the
actual terms of the Treaty, which lays down in Article 12 that
the clauses preceding this Article, including therefore those con-
tained in Article 4, are placed under the guarantee of the League
of Nations.” (Italics added.)

17
DISSENTING OPINION OF JUDGE READ 235

Professor Lauterpacht, in The Development of International
Law by the Permanent Court of International Justice, made an
exhaustive examination of the authorities as they stood at the
date of publication, 1934, including most of those which are
cited above, and a number of other relevant Judgments and
Opinions of the Permanent Court. He records the result of this
study at pages 69-70:

‘“…. The work of the Permanent Court has shown that alongside
the fundamental principle of interpretation, namely, that effect
is to be given to the intention of the parties, full use can be made
of another hardly less important principle, namely, that the treaty
must remain effective rather than ineffective. Res magis valeat
quam pereat. It is a major principle, in the light of which the
intention of the parties must always be interpreted, even to the
extent of disregarding the letter of the instrument and of reading
into it something which, on the face of it, it does not contain.”

The principles established by these judgments and advisory
opinions may be stated as follows:

{1j That “the treaty must be read as a whole, and that its
meaning is not to be determined merely upon particular phrases
which, if detached from the context, may be interpreted in
more than one sense”. (Series B, Nos. 2 and 3, p. 23.)

(2) ‘An interpretation which would deprive the .... Treaty
of a great part of its value is inadmissible.” (Series B, No. 7—
the word omitted is ‘‘minorities’’.)

(3) Particular provisions should be interpreted in such a
manner as to give effect to the general purposes and objects
of the Treaty provided that “it does not involve doing violence
to their terms’. (1.C.J. Reports 1940, p. 24.)

*
* *

The adoption and application of these principles or rules of
construction make it necessary to undertake a three-fold task.

rst task

The examination of the provisions of the Peace Treaty as a whole
with a view to ascertaining whether there is a general purpose
or object disclosed by this examination which should infiuence or
even control the interpretation of the Disputes Article.

2nd task

Consideration of a possible negative answer to Question 1V with
a view to ascertaining whether it would conflict with the general

18
DISSENTING OPINION OF JUDGE READ 236

purposes and objects of the Treaty, and whether it would deprive
the Treaty of a great part of its value so as to be inadmissible in
accordance with the second rule of construction.

3rd task

Consideration of a possible affirmative answer to Question IV
with a view to ascertaining whether it would further the general
purposes and objects of the Treaty, and whether it would znvolve
doing violence to the terms of the Disputes Article so as to be excluded
in accordance with the third rule of construction.

*

The first task involves an examination of the provisions of the
Peace Treaty considered as a whole.

The Treaty with Hungary contains 37 Articles with substan-
tive provisions :

Part I Frontiers of Hungary.
» I Political Clauses.
» il Military and Air Clauses.
» IV Withdrawal of Allied Forces.
» Vv Reparation and Restitution.
» VI Economic Clauses.
» VIT Clause relating to the Danube.

Within these Parts, I to VII, there is a special procedure for settle-
ment of disputes in Article 5 (2), applicable only to disputes arising
under Article 5 (1); and a special procedure (in Article 35) for
disputes arising In connexion with Articles 24, 25 and 26 and An-
nexes IV, V and VI.

Part VIII of the Treaty, ‘Final Clauses’, contains Article 40,
which is applicable to Articles I to 38 inclusive, excepting Articles 5,
24,25, 26, 35 and 36. It is a clause providing for compulsory arbitra-
tion of all disputes ‘concerning the interpretation or execution of
the present Treaty’’, other than those which arise under specifically
excepted Articles referred to above.

This survey of the Peace Treaty discloses the close integration.
between the Disputes Article and the substantive provisions of
the Treaty. It leads inescapably to two conclusions. In the first
place, the text of the Disputes Article considered by itself shows
a firm intention of the Parties to provide a workable compulsory
jurisdiction to deal with disputes arising out of the substantive
provisions of the Treaty. In the second place, that firm intention
is re-inforced when Article 40 is read in relation to the Treaty as
a whole.

19
DISSENTING OPINION OF JUDGE READ 237

*

This brings me to the second task. Would an interpretation
leading to a negative answer to Question IV deprive the Treaty
of a great part of its value—would it conflict with the general
purposes and objects of the Treaty ?

The purposes and objects of the Treaty are disclosed by the
action of the Parties. This is indeed a case in which actions
speak louder than words. The Parties were not content to
leave “freedom” to depend on legal obligation alone. They pro-
vided a regime of arbitration, the Disputes Article. The Disputes
Article was, in form, reciprocal. However, the obligations of
the Allied and Associated Powers were executed, whilst the
undertakings of the Governments of Bulgaria, Hungary and
Romania were largely executory ; so that in substance, if not in
form, this Article was obviously included as a guarantee or sanction
to ensure performance by them of their undertakings and other
obligations arising under provisions of the Treaty. It is unthinkable
that the Parties, when they drafted this Article and included it
in the Treaty, intended to forge a brutum fulmen, a provision for
judicial review and decision dependent for its effect upon the
momentary whim or interest of a defaulting party.

Above all, when the Parties used the expression—shall, unless
the parties to the dispute mutually agree upon another means of
settlement, be referred at the request of either party to the dispute
to a Commission, etc.—they meant shall and not may. They
meant at the request of either party ; and not at the request of etther
party provided that the other party was willing to cooperate in the
reference,

In the entire history of the Permanent Court, there is no instance
in which an argument was advanced that went so far in depriving
a treaty of a great part of its value, or in frustrating its general
purposes and objects, as the contention necessarily involved in
a negative answer to Question IV. A negative answer would
destroy the Disputes Article as an effective guarantee of the
substantive provisions of the Treaty: it would render largely
nugatory the undertakings given to secure the enjoyment of
human rights and fundamental freedoms. It would not merely
prevent judicial review of the specific charges. It would give
rise to a position in which the three Governments would no longer
be subject to effective control under the provisions of the Disputes
Articles.

A possible objection might be raised to the establishment of
a Treaty Commission consisting of the third member and a national
representative, in the case of default by the other party to the

20
DISSENTING OPINION OF JUDGE READ 238

dispute. It might be suggested that the Commission would be
unable to perform its task if the defaulting government refused
to co-operate. There is no reason for assuming that governments
now in default would continue to default if faced with appointments
by the Secretary-General. There is certainly no reason for assuming —
that any of the governments would refrain from exercising its
duty and privilege of naming a national representative in that
event. However, even in the event of continued default, there is
no justification for assuming that the governments which have
made the charges will not be able to present sufficient evidence
to the Commission to justify decision.

In these circumstances I am compelled to conciude that an
interpretation leading to a negative answer to Question IV would
deprive the Treaties of Peace of a great part of their value,
and that it would conflict with their general purposes and objects.
In accordance with the principles of international law established
in the cases cited above, I am bound to reject this interpretation
as inadmissible.

This brings me to the third task—the consideration of a possible
affirmative answer to Question IV with a view to ascertaining
whether it would further the general purposes and objects of
the Treaty, and whether it would involve doing violence to the
terms of the Disputes Article so as to be excluded in accordance
with the third rule of construction referred to above.

The first aspect of this task presents no problem. In view of
the considerations set forth above it is obvious that an affirmative
answer to Question [V would further the general purposes and
objects of the Treaty.

In the cases which have been cited above the Permanent Court
went a very long distance by way of interpretation to give effect
to the principle of effectiveness. It is impossible to apply the
rules which govern resort to preparatory work in the interpretation
of treaties to the present probiem. The Permanent Court has
always recognized that the application of the principle of effect-
iveness is subject to different considerations. It is, however,
necessary to admit that there is no instance in which the Per-
manent Court intimated that it would apply the principle of
effectiveness if application involved doing violence to the terms
of the treaty provisions under consideration.

Accordingly, it is necessary to give close consideration to the
text of the Disputes Article which reads as follows :

21
DISSENTING OPINION OF JUDGE READ 239

<e

I. .... Any such dispute not resolved by them within a period
of two months shall, unless the parties to the dispute mutually
agree upon another means of settlement, be referred at the request
of either party to the dispute to a Commission composed of one
representative of each party and a third member selected by
mutual agreement of the two parties from nationals of a third
country. Should the two parties fail to agree within a period of
one month upon the appointment of the third member, the
Secretary-General of the United Nations may be requested by
either party to make the appointment.

2. The decision of the majority of the members of the Com-
mission shall be the decision of the Commission, and shall be
accepted by the parties as definitive and binding.”

I have omitted the first sentence in paragraph 1 because it refers to
conditions which have already been satisfied, and which are not
directly relevant to the present phase of this Question.

In construing this Article, it will be observed at the outset that
it bears the hall-marks of a compulsory arbitration clause. When it
provides that any such dispute shall be referred at the request of
either party to the dispute to a Commission, it plainly indicates an
intention of the Parties to the Treaty to establish a regime
of compulsory arbitration. The dispute is to be referred to a Com-
mission composed of one representative of each party and a third
member selected by mutual agreement of the two parties from
nationals of a third country. In using the expression ‘a third
member” it seems to be clear that the parties had in mind not the
chronological order of appointment, but a third member in the
sense that that member was to be “additional to and distinct from
two others already known or mentioned” (Shorter Oxford English
Dictionary, Volume II, p. 2174), or in other words, additional to
the provision for party representation. The last sentence of the
first paragraph provides for the contingency which might arise
in the event of failure of the parties to agree upon the
“third member’’, and gives authority to the Secretary-General
at the request of either party to make an appointment.

The second paragraph made special provision for the situation
which might arise if both parties to the dispute exercised the right
under the Treaty to have representatives on the Treaty Commis-
sion. In such a contingency it was necessary to provide for a majority
decision. There was no need to make provision for thesituation
which would arise if one or both parties to the dispute waived the
privilege of representation on the Commission.

22
DISSENTING OPINION OF JUDGE READ 240

It is necessary to make special reference to the expression in the
text ‘‘a Commission composed of one representative of each party
and a third member, etc.” The Parties to the Treaty did not state
that the Commission was to be a three-member tribunal, but it is
possible to construe this expression as indicating by implication
the intention of the parties that the Commission should be a three-
member tribunal. It is also possible to construe this expression as
indicating the intention of the Parties to create a Commission on
which each of the parties to a dispute should have the right or
privilege, or even duty, to appoint a representative ; but as not
requiring that the Commission should necessarily consist of three
members, in the case of waiver by a party of the exercice of the
right or privilege thus conferred or its failure to do its duty. The
problem of interpretation with which the Court is confronted is
a choice between two possible constructions, neither of which does
violence to the language of the Treaty and both of which are
based upon inferences drawn from the expressions actually used
in the text.

In these circumstances, it seems to be clear that the Court is not
precluded from adopting either of the foregoing interpretations
by the third rule of construction which is set forth above.

This view is strongly supported by another consideration. It
is noteworthy that the Parties to the Treaty made express provision
to prevent the general purposes and objects of the Disputes Clause
from being frustrated by failure of the parties to the dispute to
agree upon the selection of the third member. They provided for
appointment by the Secretary-General. On the other hand, they
made no express provision for the contingency which has actually
arisen, of attempted frustration of the purposes and objects of the
Treaty by failure of one party to the dispute to appoint its represent -
ative on the Treaty Commission. There is a gap or lacuna in the
Disputes Article. I am not suggesting that this was due to oversight
on the part of those who were responsible for the drafting of the
Treaty of Peace. They were undoubtedly familiar with the prin-
ciples of international law as developed and applied by the
Permanent Court, and were justified in assuming that the Disputes
Article would be interpreted and applied in accordance with those
principles. In the present proceedings the Court is faced with the
problem of dealing with this gap or lacuna in the Treaty. It is the
problem of dealing with a contingency for which the Parties have
made no express provision, and which can be solved only by judicial
interpretation with a view to giving effect to the intention of the
Parties as disclosed by legal implication based upon the terms
and expressions actually used.

23
DISSENTING OPINION OF JUDGE READ 241

Two possible solutions need to be considered in turn.

The first possible solution is based upon a reasonable con-
struction of the text of the Disputes Article in conformity with
the principles of international law, and with the clearly indicated
intention and purpose of the Parties to the Treaty. Following
this construction the provisions for representation of the parties
to:the dispute would be construed as intended to confer on each
party a right or privilege which it could exercise or waive. In
the present instance, the government in default, by failing to
appoint its representative, has clearly waived its right or privilege
under the Treaty and defaulted in the performance of its duty—
—although, of course, it would be open to that Government at
any time to withdraw its waiver to comply with its obligations
under the Treaty and to make an appointment—but. no party
to a treaty can destroy the effect of the treaty itself by its own
default or by its failure to exercise a right or a privilege. In the
present instance, that government could not by such an omission
prevent the Treaty Commission from performing its allotted task.

The second possible solution presents much more difficulty. It
involves the filling of the gap by a process of judicial interpretation
in such a manner as to establish by implication an “escape” or
“escalator” clause whereby a party to a dispute can, by failure
to exercise its right and by disregarding its Treaty obligation,
find an easy way out from the regime of compulsory arbitration.
There have been many instances in Treaties, especially in those
dealing with the limitation of armaments, in which express
provision has been made for “escape” or “‘escalator’’ clauses.
They have always been devised to protect a party acting in good
faith from being prejudiced by the default of a party in bad
faith. There is none in modern treaty practice in which an escape
clause has been established, based on implication ; and: there is
certainly no instance of either an implied or express escape clause
made available only to those Parties to the Treaty which have
defaulted in their Treaty obligations.

The considerations which I have disclosed above in dealing
with the first and second tasks lead me to reject the second
solution.

* *

There is a further consideration. There have been a great many
arbitration clauses included in treaties in the course of the last
century and a half, and no recorded instance has been drawn
to the attention of the Court in which a party to a dispute has
sought to evade arbitration by the comparatively simple device

24
DISSENTING OPINION OF JUDGE READ 242

of refraining from appointing its national representative. Inter-
national practice has treated these provisions as conferring rights
or privileges upon the parties to the dispute which they would
refrain from exercising at their peril—the peril of being confronted
with an arbitral decision by a tribunal on which they had no
representative. The adoption of the second solution referred to
above would not merely frustrate the intentions of the Parties
as clearly indicated in the Treaty of Peace, it would go directly
contrary to international usage in the matter of arbitration as
it has been developed since the Jay Treaty of 1794. It is note-
worthy that neither the Members of the United Nations, nor
the three non-member States concerned have placed before the
Court the contention that it is open to a party to the dispute
to prevent its arbitration by the expedient of refraining from
appointing a representative on the Commission. There are 61 States
“entitled to appear before the Court”, all of which have the
right to present written statements or observations under Article 66
of the Statute. Eight of these States have availed themselves
of this right: but not one of them has stood for this position.
The Governments of Bulgaria, Hungary and Romania have
presented observations, and have not made this contention. The
fact that no State has adopted this position is the strongest
possible confirmation of the international usage or practice in
matters of arbitration which is set forth above.

In the Written Observations submitted by the United Kingdom
Government, in the Written Statement of the United States Govern-
ment, and in the course of the very able and helpful arguments
presented to the Court by Mr. Cohen and Mr. Fitzmaurice, the
attention of the Court has been directed to a long line of precedents
in which it has been established that a party to a dispute, under
an arbitration clause, cannot prevent the completion of the arbitra-
tion and the rendering of a binding decision by the device of with-
drawing its national representative from the tribunal.

I am of the opinion that the principle established by these prece-
dents is equally applicable to the case where a party to a dispute
acts in bad faith from the outset, and attempts to use the device
of defaulting on its treaty obligation to appoint its national repre-
sentative on the tribunal in order to prevent the provisions of the
arbitration clause from taking effect.

There are three phases in the life of an arbitral tribunal. The
first phase may be referred to as the constitution of the tribu-
nal. At this stage the tribunal may deal with matters of some
import, such as procedure. However, it consists largely of admi-
nistrative and protocol matters: emoluments; forum; enrol-
ment on the local diplomatic list; exchange of calling cards; and
even less weighty matters. The second phase is that in which

25
DISSENTING OPINION OF JUDGE READ 243

the tribunal hears the evidence and arguments. The third phase
includes deliberation and judgment. I do not need to emphasize
the relative importance of the second and third phases, as compared
with the first. I have suggested that the principle is equally applic-
able to default at the outset. As a matter of fact, the case for apply-
ing the principle to default at the outset is much stronger. It is
much more difficult to construe an arbitration clause as indicating
the intention of the parties that a tribunal consisting of the third
member and the representative of one party can hear the evidence
and give a decision, than it is to construe it as indicating their
intention that a decision to invite the local mayor to give an
address of welcome at the opening session could be made in the
absence of a national representative.

If a Treaty Commission—which, as the result of the withdrawal
of a national representative, consists of the third member and the
representative of the party which is not in default—is competent
to hear the evidence and render a decision, it means that a Commis-
sion of two members is a “‘commission” within the meaning of
paragraph 2 of the Disputes Article. It follows that such a Treaty
Commission consisting of two members must also be a ‘“‘commission”’
within the meaning of paragraph x of the Disputes Article. The
whole foundation of the contention that only a so-called three-
member Commission can be a “commission” within the meaning
of the Disputes Article falls to the ground.

*

Another consideration supports an affirmative answer. The
Court has not been asked for its Opinion on an academic question.
The recitals, in the preamble of the General Assembly’s Resolution
of October 22nd, 1949, clearly indicate that the answers to the
Questions must be directly related to the actual disputes. The
answers must be applied to the complicated network of disputes
to which J have referred. It is necessary to deal with the question
in the same way as if it arose in contested proceedings between
these two parties. The General Assembly is not interested in the
academic question of the competence of a Treaty Commission
composed of members appointed by the United States Government
and by the Secretary-General in circumstances which do not exist.
It wants the same answer as would be given if the same question
had been included in special agreements concluded between the
parties to the disputes.

26
DISSENTING OPINION OF JUDGE READ 244

Accordingly, I think that I am bound to take into account the
fact that, in the existing circumstances and under existing inter-
national law, a defaulting government could not object to the
competence of such a tribunal. If it raised the objection before
such a Treaty Commission, it would be bound to apply existing
international law and refuse to let such a government profit from
its own wrong. If it raised the objection in proceedings before
this Court, it would be necessary for the International Court of
Justice, which is not a law-making organ, to apply existing legal
principles and recognize that it was estopped from alleging its own
treaty violation in support of its own contention. It is impossible
for me, acting as a judge in advisory procedure, to raise this
objection, which the defaulting government itself would be prev-
ented from raising in any proceedings which recognized the prin-
ciples of justice.

There can be no doubt as to the law on this point. It was settled
by the Permanent Court in Judgment No. 8: Series A, No. 9.
The Factory at Chorzéw (Claim for Indemnity) (Jurisdiction),
at page 31. No reasons have been submitted, in the Written
Statements or Observations or during the oral argument, on
which any distinction in principle between the two cases could
be based or which would justify the rejection of the legal prin-
ciples adopted and applied in that case.

*

Still another consideration can be advanced, in support of an
affirmative answer to Question IV, or as a compelling reason
for rejecting a negative answer. In 1758, Vattel formulated a
rule or principle of interpretation in the following words :

“Any interpretation that leads to an absurdity should be rejected :
or, in other words, we cannot give to a deed a sense that leads
to an absurdity, but we must interpret it so as to avoid the
absurdity...” (The Law of Nations or the Principles of Natural
Law. Text of 1758: Book II: s. 282.)

This rule has been regarded as authoritative by the foreign
offices of the world and by international lawyers and tribunals
for one hundred and ninety-two years.

The authority of the principle, which is embodied in Vattel’s
formula, has been recognized as recently as March 3rd, 1950,
by this Court. In the case, Competence of the Assembly regarding
admission to the United Nations, Advisory Opinion : I.C.J. Reports
1950, at page 8, it is stated:

“ ... The Court considers it necessary to say that the first duty
of a tribunal which is called upon to interpret and apply the

27
DISSENTING OPINION OF JUDGE READ 245

provisions of a treaty, is to endeavour to give effect to them in
their natural and ordinary meaning in the context in which they
occur, If the relevant words in their natural and ordinary meaning
make sense in their context, that is an end of the matter. If, on
the other hand, the words in their natural and ordinary meaning
are ambiguous or lead to an unreasonable result, then, and then
only, must the Court, by resort to other methods of interpretation,
seek to ascertain what the parties really did mean when they
used these words. As the Permanent Court said in the case
concerning the Polish Postal Service in Danzig (P.C.I.J., Series B,

No. II, p. 39):

‘It is a cardinal principle of interpretation that words must
be interpreted in the sense which they would normally have
in their context, unless such interpretation would lead to
something unreasonable or absurd.’ ”

It has been established above that a negative answer to
Question IV would lead to the establishment, by the process of
judicial interpretation, of an escape clause, available only to
treaty violators, which would enable a defaulting Party to the
Treaty of Peace to destroy the effectiveness of the Disputes
Article and to disregard with impunity most of its undertakings
under the substantive provisions, and, in particular, to render
largely nugatory the guarantees for securing human rights and
fundamental freedoms.

I am firmly of the opinion that I am bound, by the terms of
Article 38 of the Statute and in accordance with the views of
this Court, as set forth in the case cited above, to reject a negative
answer which would “lead to an unreasonable result”, and to
give an affirmative answer to Question IV.

In the light of the foregoing considerations, it is necessary to
deal with Question III, which reads as follows:

“III. If one party fails to appoint a representative to a Treaty
Commission under the Treaties of Peace with Bulgaria,
Hungary and Romania where that party is obligated to
appoint a representative to the Treaty Commission, 1s the
Secretary-General of the United Nations authorized to
appoint the third member of the Commission upon the
request of the other party to a dispute according to the
provisions of the respective Treaties ?”

28
DISSENTING OPINION OF JUDGE READ 246

The Disputes Article (cited above) uses the expression ‘‘third
member”. I have already referred to my reasons for thinking
that the Parties did not mean “third” in the order of chronological
appointment. They meant “third” in the sense in which lawyers
speak of “third parties” or “third party procedure”, or in the
sense in which international lawyers use the expressions ‘‘third
member” or “third State” in international matters, including
arbitration practice. This view is confirmed by the use of the
expression ‘‘third country”. It would be impossible to attribute
numerical significance to “‘third’’ in the latter expression. In
a dispute, another Party to the Treaty would be a “third
country” if the word “‘third” is construed as having its numerical
and primary meaning. I have no doubt that the Parties intended
to restrict the Secretary-General’s authority to the appoint-
ment of nationals of countries which were not Parties to the
Treaty and which would therefore be disinterested. Accordingly,
I am of the opinion that the expressions “third member’ and
“third country” are a concise and convenient way of referring
to members of countries which are neutral or disinterested in
the disputes.

The Court cannot overlook the significance of the fact that
the provisions of the Disputes Article prescribe only one condition
to be satisfied before the Secretary-General has authority to
appoint the third member. That condition is stated in the following
words: “Should the two parties fail to agree within a period of
one month upon the appointment ‘of the third member...” When
the Parties have, in plain language, set forth the condition, the
happening of which must precede the exercise of an authority,
only the strongest and most compelling reasons would justify
the establishment of an additional condition by the process of
judicial interpretation. There are no strong and compelling reasons.
On the contrary, I have set forth above the strongest and most
compelling reasons for rejecting such a judicial interpretation.

Accordingly, I am of the opinion that an affirmative answer
must be given to the third question.

Question IV reads as follows:

“In the event of an affirmative reply to Question III:
29
DISSENTING OPINION OF JUDGE READ 247

IV. Would a Treaty Commission composed of a representative
of one party and a third member appointed by the Secretary-
General of the United Nations constitute a Commission,
within the meaning of the relevant Treaty articles, competent
to make a definitive and binding decision in settlement of a

dispute ?”

I have already given sufficient reasons for my conclusion that
an affirmative answer must be given to the fourth question.

(Signed) J. E. Reap.

30


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING RIGHTS OF
NATIONALS OF THE UNITED STATES

OF AMERICA IN MOROCCO
(FRANCE / UNITED STATES OF AMERICA)

ORDER OF OCTOBER 31st, 1951

1951

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE AUX DROITS
DES RESSORTISSANTS
DES ETATS-UNIS D’AMERIQUE

AU MAROC
(FRANCE / ETATS-UNIS D’AMERIQUE)

ORDONNANCE DU 31 OCTOBRE 1951

SOCIETE D’EDITIONS A. W. SIJTHOFF’S

LEYDE LEYDEN
A. W. SIJTHOFF PUBLISHING COMPANY _
This Order should be cited as follows :

“Case concerning rights of nationals of the United States
of America in Morocco, Order of October 31st, I051 :
I.C. J. Reports 1951, p. 109.”

La présente ordonnance doit étre citée comme suit:

« Affaire relative aux droits des ressortissants
des États-Unis d'Amérique au Maroc, Ordonnance du
3x octobre 1957: C. I. J. Recueil 1951, p. 10g.»

N° de vente : 79
Sales number

109

COUR INTERNATIONALE DE JUSTICE

1931
Le 31 octobr

ANNÉE 1951 Rôle généra

n° 11a

31 octobre 1951

AFFAIRE RELATIVE AUX DROITS
DES RESSORTISSANTS
DES ÉTATS-UNIS D’AMERIQUE

AU MAROC
(FRANCE / ÉTATS-UNIS D’AMERIQUE)

ORDONNANCE

Présents : M. GUERRERO, Vice-Président, faisant fonction de
Président en ladite affaire ; M. BASDEVANT, Président ;
MM. ALVAREZ, HACKWORTH, WINIARSKI, ZORICIC, DE
VISSCHER, Sir Arnold McNair, M. KLAESTAD, BADAWI
PacHA, MM. Reap, Hsu Mo, Juges; M. Hampro,
Grefier.

La Cour internationale de Justice,

ainsi composée,

aprés délibéré en Chambre du Conseil,

vu l’article 48 du Statut de la Cour,

vu les articles 62 et 69 du Réglement de la Cour,
Rend l'ordonnance suivante :

Vu l'exception préliminaire en l'affaire des droits des ressortis-
sants des Etats-Unis d'Amérique au Maroc, présentée par le

4
ORDONN. DU 3I X 5I (RESSORTISSANTS DES E.-U. AU MAROC) IIO

Gouvernement des Etats-Unis le 21 juin 1951, c’est-à-dire dans le
délai qui avait été fixé en ladite affaire pour le dépôt par ce Gou-
vernement du contre-mémoire ;

Vu l'ordonnance du 25 juin 1951, fixant au 6 août 1951 le délai
pour le dépôt par le Gouvernement de la République française
d'un exposé écrit contenant ses observations et conclusions sur
l'exception ;

Vu ledit exposé, présenté dans le délai fixé ;

Vu la décision prise par la Cour le 4 octobre 1951, invitant l'agent
du Gouvernement de la République française à préciser la qualité
en laquelle la République française entend agir en la présente
affaire et spécialement si elle entend le faire à la fois en son nom
propre et en tant que Puissance protectrice du Maroc ;

Vu la lettre en date du 6 octobre 1951, parvenue au Greffe le
9 octobre, et dont copie a été transmise le même jour à l'agent
du Gouvernement des États-Unis d'Amérique, par laquelle l'agent
du Gouvernement de la République française, en réponse à la
demande de la Cour, fait savoir que le Gouvernement de la Répu-
blique française est prêt, pour dissiper les doutes qui subsistent
dans l'esprit du Gouvernement des États-Unis d'Amérique, à
compléter ses observations et conclusions sur l'exception en préci-
sant que la République française agit en la présente affaire à la
fois en son nom propre et en tant que Puissance protectrice du
Maroc, l'arrêt de la Cour devant s'imposer à la France et au Maroc ;

Considérant que, par lettre du 22 octobre 1951, parvenue au
Greffe le 25 octobre, l'agent du Gouvernement des États-Unis
d'Amérique, se référant à la lettre de l'agent du Gouvernement
de la République française du 6 octobre, a déclaré que, eu égard
aux termes de cette lettre, le Gouvernement des Etats-Unis d’Amé-
rique était disposé à retirer son exception ;

Considérant que, par lettre du 25 octobre 1951, copie de la
communication de l'agent du Gouvernement des Etats-Unis
d'Amérique a été transmise à l’agent du Gouvernement de la
République française, lequel a été invité, par application de
l’article 69 du Règlement, à faire savoir le plus rapidement possible
sil s’opposait à ce retrait ;

Considérant que, par lettre du 27 octobre 1951, parvenue au
Greffe le 29 octobre, l’agent du Gouvernement de la République
française a déclaré ne pas faire opposition au retrait de l'exception ;
ORDONN. DU 31 X 51 (RESSORTISSANTS DES E.-U. AU MAROC) III

La Cour

prend. acte du désistement du Gouvernement des États-Unis
qd’ Amérique de la procédure introduite par l’exception préliminaire
présentée le 21 juin 1951;

ordonne que ladite procédure soit rayée du rôle de la Cour;

constate que la procédure sur le fond, suspendue par l'exception,
reprend son cours ;

fixe les délais pour la présentation

du contre-mémoire du Gouvernement des États-Unis d'Amérique
au 20 décembre I05I;

de la réplique du Gouvernement de la République française au
15 février 1952;

de la duplique du Gouvernement des États-Unis d'Amérique
au II avril 1952.

Fait en anglais et en français, le texte anglais faisant foi, au
Palais de la Paix, à La Haye, le trente et un octobre mil neuf cent
cinquante et un, en trois exemplaires, dont l’un restera déposé
aux archives de la Cour et dont les autres seront transmis respecti-
vement au Gouvernement des États-Unis d'Amérique et au Gou-
vernement de la République française.

Le Vice-Président,
(Signé) J. G. GUERRERO.

Le Greffier,
(Signé} E. HAMBRO.


                     114

                               DISSENTING OPINION OF JUDGE SEBUTINDE

                        The Court should have determined the maritime boundary between the Parties
                     de novo — There is no agreement between the Parties, tacit or otherwise,
                     establishing a permanent all‑purpose maritime boundary — Neither Party invokes
                     the 1954 Agreement as a basis for a pre‑existing maritime boundary — The
                     Parties’ practice does not reflect the existence of an agreement concerning an
                     all‑purpose maritime boundary along the parallel of latitude up to 80 nautical
                     miles — The stringent standard of proof required for the inference of a tacit
                     agreement is not met.

                                                    Introduction

                         1. I agree with the Court’s finding in point 1 of the operative paragraph
                      of the Judgment that “the starting‑point of the single maritime boundary
                      delimiting the respective maritime areas between the Republic of Peru and
                      the Republic of Chile is the intersection of the parallel of latitude passing
                      through Boundary Marker No. 1 with the low‑water line”. However, I have
                      voted against points 2 and 3 of the operative paragraph in which the Court
                      decides, respectively, that “the initial segment of the single maritime boun-
                     dary follows the parallel of latitude passing through Boundary Marker No. 1
                     westward” and that “this initial segment runs up to a point (Point A) situated
                     at a distance of 80 nautical miles from the starting‑point of the single mari-
                     time boundary”. Consequently, I also voted against point 4 of the operative
                     paragraph of the Judgment in which the Court determines the course of the
                     second segment of the single maritime boundary, starting from Point A.
                         2. For the reasons set out in this opinion, I do not concur with the
                     view of the majority of the Court that an agreed all‑purpose maritime
                     boundary already exists between the Parties along the parallel of latitude
                     passing through the Boundary Marker No. 1 up to a distance of 80 naut
                     ical miles. In my view no agreement of the Parties to this effect (tacit or
                     otherwise) can be inferred from the evidence submitted to the Court.
                     Accordingly, the Court should have determined the entirety of the
                     single maritime boundary line between the Parties, by applying its well-
                      established three‑step delimitation method in order to achieve an equit
                      able result. The following reasons underpin my opinion.

                             I. Neither Party Invokes the 1954 Agreement as a Basis
                                     for a Pre‑existing Maritime Boundary

                       3. Chile consistently maintains that it is the 1952 Santiago Declaration

                     115

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                     115 	            maritime dispute (diss. op. sebutinde)

                      concluded between Chile, Ecuador and Peru (and not the 1954 Agree-
                     ment) that effected an all‑purpose maritime delimitation between Chile
                     and Peru and accordingly requests the Court to confirm this delimitation.
                     According to Chile, the 1954 Agreement merely demonstrates the practice
                     of the Parties confirming and implementing the pre‑existing maritime
                     boundary. Acknowledging that the Santiago Declaration contains no
                     clear and unequivocal delimitation provision, Chile asserts that Article IV
                     thereof should be interpreted as establishing an international maritime
                     boundary between Chile and Peru along the parallel of latitude passing
                     through the starting‑point of their land boundary and extending to a min-
                     imum of 200 nautical miles seaward. Peru, on the other hand, consistently
                     denies that it has ever concluded with Chile, any agreement establishing
                     an international maritime boundary, nor has it given up, expressly or tacit-
                     ly, the maritime zones to which it is entitled under international law. Peru
                     accordingly asks the Court to plot a boundary line applying the
                     equidistance method in order to achieve an equitable result. Applying the
                      established principles of treaty interpretation to the 1952 Santiago Decla-
                      ration and in particular to Article IV thereof, the Court rightly rejects the
                      very foundation of Chile’s claim and concludes that the Parties “did not,
                      by adopting the 1952 Santiago Declaration, agree to the establishment of
                      a lateral maritime boundary between them along the line of latitude run-
                      ning into the Pacific Ocean from the seaward terminus of their land
                      boundary” (Judgment, para. 70).
                         While the Court is not bound by the Parties’ submission, the fact
                      that either Party asserts the existence of a tacit agreement either in 1952
                      or in 1954 regarding the establishment of a permanent maritime boundary,
                      is, in my view, a strong indication that there was no meeting of the
                      minds between the Parties on this important issue, and that the Court
                      should have taken this factor into account before presuming the existence
                      of one.

                             II. The Stringent Standard Required for the Inference
                                         of a Tacit Agreement Is not Met

                        4. In the absence of a formal maritime delimitation agreement between
                     Chile and Peru, a legally binding maritime boundary between them could
                     only be based on a tacit agreement or upon acquiescence. Peru discounts
                     the existence of an all‑purpose maritime boundary with Chile based on
                     either of these notions, while Chile deliberately and expressly refrained
                     from basing its claim upon a tacit agreement or upon acquiescence, even
                     on a subsidiary basis. Nevertheless, the Court holds that it is precisely on
                     the basis of “a tacit agreement” that an all‑purpose maritime boundary
                     already exists between the Parties along the parallel of latitude passing
                     through the Boundary Marker No. 1 up to a distance of 80 nautical miles.

                        5. The Court finds evidence of such tacit agreement in the 1954 Special

                     116

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                     116 	              maritime dispute (diss. op. sebutinde)

                     Maritime Frontier Zone Agreement (hereinafter the “1954 Agreement”)
                     concluded between the three parties to the Santiago Declaration (Chile,
                     Ecuador and Peru), specifically, in a reference, contained in Article 1
                     thereof, to “the parallel which constitutes the maritime boundary between
                     the two countries”. The Court, while acknowledging that “the operative
                     terms and purpose of the 1954 Special Maritime Frontier Zone Agree-
                     ment are indeed narrow and specific”, concludes, nevertheless, that Art
                     icle 1 of that Agreement read together with the Preamble, “acknowledge[s]
                     in a binding international agreement that a maritime boundary already
                     exists” (Judgment, para. 90). Noting that the 1954 Agreement “gives no
                     indication of the nature or extent of the maritime boundary . . . [n]or does
                     it indicate its extent” (ibid., para. 92) and that it “does not indicate when
                     and by what means that boundary was agreed upon”, the Court never
                     theless considers that “[t]he Parties’ express acknowledgment of its exist
                     ence can only reflect a tacit agreement which they had reached earlier”
                     (ibid., para. 91). The Court then refers back to the 1952 Santiago Declar
                     ation, pointing out that certain elements of that Declaration, together
                     with the 1947 Proclamations of the Parties, “suggested an evolving under-
                     standing between the Parties concerning their maritime boundary” (ibid.,
                     paras. 43, 69 and 91) ; and that the 1954 Agreement “cements the tacit
                     agreement” which has somehow “evolved” in the two intervening years
                     (ibid., para. 91).
                        6. In my view, the above analysis of the evidence before the Court and
                     conclusion thereon, fall short of the stringent and well‑established stand
                     ard of proof which the Court itself has set for establishing a permanent
                     maritime boundary in international law on the basis of a tacit agreement.
                     In Nicaragua v. Honduras, the Court set out that standard as follows :

                              “Evidence of a tacit legal agreement must be compelling. The estab-
                           lishment of a permanent maritime boundary is a matter of grave
                           importance and agreement is not easily to be presumed. A de facto
                           line might in certain circumstances correspond to the existence of an
                           agreed legal boundary or might be more in the nature of a provisional
                           line or of a line for a specific, limited purpose, such as sharing a scarce
                           resource. Even if there had been a provisional line found convenient
                           for a period of time, this is to be distinguished from an international
                           boundary.” (Territorial and Maritime Dispute between Nicaragua and
                           Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment,
                           I.C.J. Reports 2007 (II), p. 735, para. 253.)

                        7. Respectfully, I am not at all convinced that the evidence on which
                     the Court has based its finding regarding the existence of a tacit agree-
                     ment establishing a permanent maritime boundary is “compelling” ; nor
                     am I convinced that it was the intention of the parties under the 1952 San-
                     tiago Declaration or the 1954 Agreement to establish such a boundary.

                     117

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                     117 	            maritime dispute (diss. op. sebutinde)

                          8. While the 1954 Agreement is an important element to be taken into
                     account in determining whether Peru and Chile agreed to delimit their
                     respective maritime zones, taken on its own, that Agreement does not suf-
                     ficiently prove the existence of an agreement in respect of an all‑purpose
                     maritime boundary. The existence or otherwise of such an agreed boundary
                     has to be determined by reference to a thorough examination of the prac-
                     tice of the Parties to the dispute, of which the 1954 Agreement is just one
                     example. Contrary to what the Court asserts in the Judgment, the language
                     of the 1954 Agreement cannot be said to have clearly acknowledged the
                     existence of an all‑purpose maritime boundary along the parallel of latitude
                     beyond a distance of 12 nautical miles from the coast (Judgment, paras. 90
                     and 102). In my view, the provisions of the 1954 Agreement must be care-
                     fully construed not only in light of the object and purpose of that treaty,
                     but also as “an integral and supplementary part of . . . the resolutions
                     and agreements adopted at the Conference on the Exploitation and Con-
                     servation of the Maritime Resources of the South Pacific, held in
                     Santiago de Chile in August 1952” (see Article 4 of the 1954 Agreement).
                          9. It will be recalled that the object and purpose of the 1952 Santiago
                      Declaration (of which the 1954 Agreement is an integral part), was to
                      establish a process of tripartite maritime co‑operation (between Chile/
                      Peru/Ecuador) with a view to protecting the adjacent sea from the preda-
                      tory activities of foreign fleets, thereby jointly protecting and conserving
                      the marine resources of their peoples. This joint action was preceded by
                      the unilateral claims made by Chile and Peru in 1947 in relation to their
                      new maritime areas (the 1947 Proclamations). The object of the 1952 Dec-
                      laration was not to establish permanent maritime boundaries between the
                      three States. Accordingly, the object and purpose of the 1954 Agreement
                      which must be understood in the overall context of the Santiago reso
                      lutions and agreements of 1952, is “narrow and specific” as correctly
                      observed by the Court, and was to create a special zone of tolerance
                      aimed at averting disputes involving accidental transgressions of “the
                      maritime frontier [la frontera marítima] between adjacent States” by
                      small fishing vessels manned by crews with insufficient knowledge of
                      navigation or not equipped with the necessary instruments to determine
                       accurately their position on the high seas, with a view to fostering the
                       spirit of co‑operation and unity amongst the States parties to the San
                       tiago instruments. It is noteworthy that this agreement was between Ecua-
                       dor, Peru and Chile, and not just between the Parties to the present case.
                       To this end, Article 1 of the 1954 Agreement established in relation to
                       each pair of adjacent countries (Ecuador/Peru and Peru/Chile), a “special
                       zone . . . at a distance of 12 nautical miles from the coast, extending to a
                     breadth of 10 nautical miles on either side of the parallel which consti-
                       tutes the maritime boundary [el límite marítimo] between the two coun-
                       tries”. Article 2 provides that the “accidental presence” of small fishing
                       vessels of either of the adjacent countries within the special zone “shall
                       not be considered to be a violation of the waters of the maritime zone”.
                       While the wording of Articles 1 to 3 indicates the existence of some sort

                     118

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                     118 	            maritime dispute (diss. op. sebutinde)

                     of a maritime boundary between the adjacent States along an undeter-
                     mined parallel running beyond a distance of 12 nautical miles from the
                     coast, this is, in my view, a reference to “provisional lines” for a specific
                     purpose (namely, the sharing of fishing resources) and is not determina-
                     tive of a permanent, all‑purpose maritime boundary as understood in
                     international law. Those provisions (which, as the Court notes, contain
                     no indication of the nature or extent of a maritime boundary) were aimed
                     at dealing with small fishing boats accidentally straying into waters on
                     either side of those provisional lines, and cannot easily be construed as
                     clearly confirming the existence of a tacit agreement in respect of a per-
                     manent, all‑purpose international maritime boundary along a parallel of
                     latitude beyond a distance of 12 nautical miles from the coast. It is my
                     considered opinion that it is this narrow and strict interpretation of the
                     1954 Agreement that accords with the resolutions and agreements adopted
                     at the tripartite Conference on the Exploitation and Conservation of the
                     Maritime Resources of the South Pacific, held in Santiago de Chile in
                     August 1952, and reflected in the Santiago Declaration of 1952.

                        10. This interpretation is further confirmed by the historical context in
                     which the 1954 Agreement was concluded, particularly by the fact that
                     back in 1954, the concepts of an exclusive economic zone or of a 12‑nau-
                     tical‑mile territorial sea entitlement were alien to international customary
                     law. Accordingly, to the extent that the special tolerance zone established
                     by the 1954 Agreement started at a distance of 12 nautical miles from the
                     coast of Peru and Chile along the “parallel which constitutes the maritime
                     boundary”, it concerned what at the time were considered high seas and
                     could not be presumed to have concerned maritime zones over which the
                     Parties had exclusive sovereign rights under international law. Further-
                     more, the most important instances of State practice pointing to the exis-
                     tence of a “maritime boundary” between the Parties invariably concern
                     the water column (not the subsoil).

                          III. The Parties’ Practice Does not Reflect the Existence
                      of an Agreement concerning an All‑purpose Maritime Boundary
                                along the Parallel of Latitude that Extends
                                     up to 80 Nautical Miles out to Sea

                        11. In the Judgment, the Court rightly finds that the unilateral
                     1947 Proclamations cannot be interpreted as “reflecting a shared under
                     standing of the Parties concerning maritime delimitation” (Judgment,
                     para. 43) and that the 1952 Santiago Declaration cannot be said to reflect
                     an agreement of the Parties regarding “the establishment of a lateral

                     119

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                     119 	             maritime dispute (diss. op. sebutinde)

                     maritime boundary between them along the line of latitude” (Judgment,
                     para. 70). These two findings make it all the more imperative to interpret
                     the 1954 Agreement with caution and not to read into it inferences that
                     are far from obvious.
                        12. The Parties’ practice (contemporaneous and subsequent), viewed in
                     the light of the object and purpose of the 1952/1954 arrangements, con-
                     firms the above view. That practice, in my opinion, indicates that the Par-
                     ties’ intention was to regulate the sharing of a common resource and to
                     protect that resource vis‑à‑vis third or non‑States parties, rather than to
                     effect a maritime delimitation. While certain documents and/or events
                     that were considered by the Court may be said to reflect some degree of
                     the Parties’ shared understanding that there was a “maritime boundary”
                     in place between them along the parallel of latitude passing through the
                     coastal terminus of their land boundary, there are others that could
                     equally be said to demonstrate the absence of such an agreement. Besides,
                     even those potentially “confirmatory” examples do not unambiguously
                     prove that the Parties were acting (or failing to act) on an assumption
                     that this line constituted an all‑purpose and definitive maritime boundary
                     delimiting all possible maritime entitlements of the Parties. Furthermore,
                     all these ambiguities and uncertainties are set against the backdrop of a
                     complete absence of any international or domestic legal instrument dat-
                     ing from the post‑1954 period, which would unequivocally stipulate that
                     an agreed international maritime boundary exists between Peru and Chile
                     along the parallel of latitude passing through the coastal terminus of the
                     land boundary.
                        13. It is on the basis of these same considerations that I also find highly
                     problematic the basis upon which the Court has arrived at its conclusion
                     that the “agreed maritime boundary running along the parallel of lati-
                     tude” extends up to a distance of 80 nautical miles out to sea. By the
                     Court’s own admission, all the practice involving incidents between the
                     two Parties, including enforcement activities, was within about 60 naut
                     ical miles of their coasts and usually much closer. It was only starting in
                     1996 that arrests frequently occurred beyond 60 nautical miles (ibid.,
                     paras. 128, 146 and 147). Yet notwithstanding the above findings, the
                     Court draws the conclusion that
                           “the evidence at its disposal does not allow it to conclude that the
                           maritime boundary, the existence of which the Parties acknowledged
                           at that time, extended beyond 80 nautical miles along the parallel
                           from its starting‑point. The later practice which it has reviewed does
                           not lead the Court to change that position. The Court has also had
                           regard to the consideration that the acknowledgment, without more,
                           in 1954 that a ‘maritime boundary’ exists is too weak a basis for
                           holding that it extended far beyond the Parties’ extractive and enforce-
                           ment capacity at that time.” (Ibid., para. 149.)

                     120

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                     120 	           maritime dispute (diss. op. sebutinde)

                       14. It is unclear to me how the Court’s conclusion that the Parties
                     could not be said to have tacitly agreed on a maritime boundary beyond
                     80 nautical miles can simply be turned into a legal finding that they have
                     agreed on a boundary up to 80 nautical miles (or on any other distance
                     beyond 12 nautical miles for that matter). In my view, this finding of the
                     Court rests on dangerously weak and speculative grounds.

                                                   Conclusion

                        15. The legal bar set by the Court for establishing a permanent,
                     all‑purpose maritime boundary on the basis of a tacit agreement is very
                     high, and for good reason. All elements considered, I remain of the view
                     that the strict standard laid down in Nicaragua v. Honduras has not been
                     met in the present case.

                                                                  (Signed) Julia Sebutinde.

                     121

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