COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE NOTTEBOHM

(LIECHTENSTEIN c. GUATEMALA)
DEUXIEME PHASE

ARRET DU 6 AVRIL 1955

1955

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

NOTTEBOHM CASE

(LIECHTENSTEIN v. GUATEMALA)
SECOND PHASE

JUDGMENT OF APRIL 6th, 1955
Le présent arrét doit étre cité comme suit:

«Affaire Nottebohm (deuxième phase), Arrêt du 6 avril 1955:
C. I. J. Recueil 1955, p. 4.»

This Judgment should be cited as follows:

“Notiebohm Case (second phase), Judgment of April 6th, 1955:
I.C.J. Reports 1955, p. 4.”

Ne de vente: 13]
Sales number

INTERNATIONAL COURT OF JUSTICE

1955
YEAR 1955 April 6th
General List:
April 6th, 1955 No. 18

NOTTEBOHM CASE

(LIECHTENSTEIN v. GUATEMALA)
SECOND PHASE

Proceedings instituted by Application.—Objection to admissibility.—
Final Conclusions of the Parties.—Nationality as a condition for the
exercise of diplomatic protection and for international judicial pro-
ceedings.—Liechtenstein Nationality Law of January 4th, 1934.—
Naturalization in Liechtenstein.—Domestic jurisdiction with regard to
nationality.— Refusal by Guatemala to recognize nationality acquired
by naturalization in Liechtenstein.—Conditions to be satisfied in order
that nationality conferred upon an individual by a State may be relied
upon as against another State and give a title to the exercise of protection
against that State.—Real and effective character of nationality.—
Real link between the naturalized person and the naturalizing State.

JUDGMENT

Present : President HACKWORTEH ; Vice-President BADAWI; Judges
BASDEVANT, ZoRICIGé, KLAESTAD, READ, Hsu Mo,
ARMAND-UGON, KOJEVNIKOV, Sir Muhammad ZAFRULLA
KHAN, Moreno Quintana, CORDOVA ; M. GUGGENHEIM
and M. GaRciA BAUER, fudgesad hoc; Registrar LOPEZ
OLIVAN.

4
NOTTEBOHM CASE (JUDGMENT OF 6 IV 55) 5

In the Nottebohm Case,
between

the Principality of Liechtenstein,

represented by : |
Dr. Erwin H. Loewenfeld, LL.B., Solicitor of the Supreme Court,
as Agent,
assisted by :

Professor Georges Sauser-Hall, Honorary Professor at the
Universities of Geneva and of Neuchâtel,

Mr. James E. S. Fawcett, D.S.C., of the English Bar,

Mr. Kurt Lipstein, Ph.D., of the English Bar,

as Counsel,
and

the Republic of Guatemala,

represented by :
M. V. S. Pinto J., Minister Plenipotentiary,
as Agent,
assisted by :

Me. Henri Rolin, Professor of Law at the Free University of
Brussels,

M. Adolfo Molina Orantes, Dean of the Fatulty of Jurisprudence
of the University of Guatemala,

as Counsel,
and by

Me. A. Dupont-Willemin, of the Geneva Bar,
as Secretary,

THE COURT,
composed as above,
delivers the following Judgment :

By its Judgment of November 18th, 1953, the Court rejected
the Preliminary Objection raised by the Government of the Repub-
lic of Guatemala to the Application of the Government of the
Principality of Liechtenstein. At the same time it fixed time-limits
for the further pleadings on the merits. These time-limits were
subsequently extended by Orders of January 15th, May 8th and
September 13th, 1954. The second phase of the case was ready

5
NOTTEBOHM CASE (JUDGMENT OF 6 IV 55) 6

for hearing on November 2nd, 1954, when the Rejoinder of the
Government of Guatemala was filed.

Public hearings were held on February roth, 11th, r4th to roth,
21st to 24th and on March 2nd, 3rd, 4th, 7th and 8th, 1955. The
Court included on the Bench M. Paul Guggenheim, Professor at the
Graduate Institute of International Studies of Geneva and a Member
of the Permanent Court of Arbitration, chosen as Judge ad hoc
by the Government of Liechtenstein, and M. Carlos Garcia Bauer,
Professor of the University of San Carlos, former Chairman of the
Guatemalan Delegation to the General Assembly of the United
Nations, chosen as Judge ad hoc by the Government of Guatemala.

The Agent for the Government of Guatemala having filed a
number of new documents, after the closure of the written proceed-
ings, without the consent of the other Party, the Court, in accord-
ance with the provisions of Article 48, paragraph 2, of its Rules,
had, after hearing the Parties, to give its decision. Dr. Loewenfeld
and Mr. Fawcett, on behalf of the Government of Liechtenstein,
and M. Rolin, on behalf of the Government of Guatemala, addressed
the Court on this question at the hearings on February roth and
ith, 1955. The decision of the Court was given at the opening of
the hearing on February 14th, 1955. Having taken note of the fact
that during the course of the hearings the Agent of the Government
of Liechtenstein had given his consent to the production of certain
of the new documents; taking into account the special circum-
stances in connection with the search for, and classification and
presentation of, the documents in respect of which consent had
been refused, the Court permitted the production of all the docu-
ments and reserved to the Agent of the Government of Liechten-
stein the right, if he so desired, to avail himself of the opportunity
provided for in the second paragraph of Article 48 of the Rules
of Court, after having heard the contentions of the Agent of the
Government of Guatemala based on these documents, and after
such lapse of time as the Court might, on his request, deem just.
The Agent of the Government of Liechtenstein, availing himself
of this right, filed a number of documents on February 26th, 1955.

At the hearings on February 14th, 1955, and at the subsequent
hearings, the Court heard the oral arguments and replies of Dr.
Loewenfeld, Professor Sauser-Hall, Mr. Fawcett and Mr. Lipstein,
on behalf of the Government of Liechtenstein, and of M. Pinto,
M. Rolin and M. Molina, on behalf of the Government of Guatemala.

The following Submissions were presented by the Parties :

On behalf of the Government of Liechtenstein :

in the Memorial :

“The Government of Liechtenstein submit that the Court should
adjudge and declare that :

1. The Government of Guatemala in arresting, detaining, expelling
and refusing to readmit Mr. Nottebohm and in seizing and

6
NOTTEBOHM CASE (JUDGMENT OF 6 IV 55) 7

retaining his property without compensation acted in breach of
their obligations under international law and consequently in
a manner requiring the payment of reparation.

2. In respect of the wrongful arrest, detention, expulsion and
refusal to readmit Mr. Nottebohm the Government of Guatemala
should pay to the Government of Liechtenstein :

(i) special damages amounting, according to the data received
so far, to not less than 20,000 Swiss francs ;

(ii) general damages to the amount of 645,000 Swiss francs.

3. In respect of the seizure and retention of the property of
Mr. Nottebohm, the Government of Guatemala should submit an
account of the profits accruing in respect of the various parts
of the property since the dates on which they were seized and
should pay the equivalent in Swiss francs (with interest at
6 % from the date of accrual) of such sum as may be found in
that account to be owing by them. Further, the Government of
Guatemala should pay damages (at present estimated at
300,000 Swiss francs per annum) representing the additional
income which in the opinion of the Court would have been
earned by the property if it had remained under the control of
its lawful owner.

4. Further, the Government of Guatemala should restore to Mr. Not-
tebohm all his property which they have seized and retained
together with damages for the deterioration of that property.
Alternatively, they should pay to the Government of Liechten-
stein the sum of 6,510,596 Swiss francs representing the estimated
present market value of the seized property had it been main-
tained in its original condition.”

in the Reply :

“May it please the Court to hold and declare,

As to the pleas of non-admissibility of the claim of Liecnienstein
in respect of Mr. Nottebohm :

(1) that there is a dispute between Liechtenstein and Guatemala
which is the subject-matter of the application to the Court by
the Government of Liechtenstein and that it is admissible for
adjudication by the Court without further diplomatic exchanges
or negotiations between the Parties;

(2) that the naturalization of Mr. Nottebohm in Liechtenstein
on October zoth, 1939, was granted in accordance with the
municipal law of Liechtenstein and was not contrary to inter-
national law ; that in consequence Mr. Nottebohm was from
that date divested of his German nationality ; and that Liech-
tenstein’s claim on behalf of Mr. Nottebohm as a national of
Liechtenstein is admissible before the Court ;

(3) that the plea by Guatemala of the non-exhaustion of local
remedies by Mr. Nottebohm is excluded by the prorogation in
this case of the jurisdiction of the Court ; or alternatively that

7
NOTTEBOHM CASE (JUDGMENT OF 6 IV 55) 8

the plea goes properly not to the admissibility of Liechtenstein’s
claim on his behalf but to the merits of that claim ;

(4) that in any event Mr. Nottebohm exhausted all the local
remedies in Guatemala which he was able or required to exhaust
under the municipal law of Guatemala and under international
law.

As to the merits of its claim, the Government of Liechtenstein
repeats the Final Conclusions set out in its Memorial at p. 51 and
with reference to paragraphs 2, 3 and 4 of those Final Conclusions,
will further ask the Court to order, under Article 50 of the Statute,
such inquiry as may be necessary into the account of profits and
quantification of damages.’

as final Submissions presented at the hearing of March 4th, 1955:

“May it please the Court,

I. as to the pleas of non-adraissibility of the claim of Liechtenstein
in respect of Mr. Frederic Nottebohm :

(1)

(4)

to hold and declare that there is a dispute between Liechten-
stein and Guatemala, that it forms the subject-matter of
the present application to the Court by the Government of
Liechtenstein and that it is admissible for adjudication by
the Court without further diplomatic communication or
negotiations between the parties ;

to find and declare that the naturalization of Mr. Frederic

Nottebohm in Liechtenstein on October 13th, 1939, was not

contrary to international law; and that Liechtenstein’s

claim on behalf of Mr. Nottebohm as a national of Liechten-
stein is admissible before the Court ;

to hold and declare:

(a) that in regard to the person of Mr. Frederic Nottebohm
he was prevented from exhausting the local remedies
and that in any case such remedies would have been
ineffective ;

(b) (aa) that in regard to the properties in respect to which

no decision was given by the Minister upon the application
for exoneration, lodged by Mr. Frederic Nottebohm,
Mr. Frederic Nottebohm has exhausted the remedies
which were available to him in Guatemala and which he
was required to exhaust under the municipal law of
Guatemala and under international law;
(bb) that in regard to the properties in which a decision
was given by the Minister, Mr. Frederic Nottebohm was
not required to exhaust the local remedies under inter-
national law ;

if the Court should not hold and declare in favour of conclu-
sion (3) above

to declare nevertheless
NOTTEBOHM CASE (JUDGMENT OF 6 IV 55) 9

that the claim is admissible since the facts disclose a breach
of international law by Guatemala in the treatment of the
person and property of Mr. Frederic Nottebohm.

II. As to the Merits of its claim:

(5) to adjourn the oral pleadings for not less than three months
in order that the Government of Liechtenstein may obtain
and assemble documents in support of comments on the new
documents produced by the Government of Guatemala ;

(6) to request the Government of Guatemala to produce the
original or certified copy of the original of the 1922 agree-
ments referred to in the agreements of 8th January, 1924
(Document numbered VIII) and of 15th March, 1938
(Document numbered XI) ;

(7) to fix in due course a date for the completion of the oral
hearings on the Merits ;

(8) if the Court should not make any Order as requested in
(5)-(7), the Government of Liechtenstein repeats the final
conclusions set out in its Memorial at page 51, and with
reference to the paragraphs 2, 3 and 4 of those final conclu-
sions further asks the Court to order under Article 50 of the
Statute such enquiry as may be necessary into the account
of profits and quantification of damages.”

On behalf of the Government of Guatemala :
in the Counter-Memorial :

“May it please the Court,
subject to all reservations and without prejudice,
As to admissibility :
to declare that the claim of the Principality of Liechtenstein is
inadmissible
(i) by reason of the absence of any prior diplomatic negotiations ;
(ii) because the Principality of Liechtenstein has failed to prove
that M. Nottebohm, for whose protection it is acting, properly
acquired Liechtenstein nationality in accordance with the law
of the Principality ;

because, even if such proof were provided, the legal provisions
which would have been applied cannot be regarded as in conformity
with international law ;

and because M. Nottebohm appears in any event not to have
lost, or not validly to have lost, his German nationality ;

(iii) on the ground of M. Nottebohm’s failure to exhaust local
remedies ;

In the alternative, on the Merits:

to hold that neither in the legislative measures of Guatemala
applied in the case of M. Nottebohm, nor in the administrative or

9
NOTTEBOHM CASE (JUDGMENT OF 6 IV 55) Io

judicial measures taken with regard to him in pursuance of the
said laws, there has been proved any fault such as to involve the
responsibility of the Respondent State to the Principality of
Liechtenstein ; |

Consequently, to dismiss the claim of the Principality of
Liechtenstein ;

In the further alternative, as to the question of the amount claimed :

To hold that there is no case for damages, except in relation to
the property personally owned by Friedrich Nottebohm, and
excluding the shares which he possessed in the firm of Nottebohm
Hermanos, and

further to declare that the Government of Guatemala shall
be discharged from all responsibility on its acting in accordance
with the provisions of Decree No. 900, which contains the law
relating to Agrarian reform.”

in the Rejoinder :

“May it please the Court,

subject to all reservations and without prejudice as to admis-
sibility : .

to declare that the claim of the Principality of Liechtenstein is
inadmissible

(1) on the ground of the absence of any prior diplomatic negotia-
tions.

In the alternative, on this point :

to declare it inadmissible on this ground at least in so far as it
relates to reparation for injury allegedly caused to the person of
Friedrich Nottebohm

(2) on the ground that Nottebohm is not of Liechtenstein national-
ity.
In the alternative on this point :

to order the production by Liechtenstein of the original documents
in the archives of the central administration and the communal
administration of Mauren, together with the records of the Diet
relating to the naturalization of Nottebohm

(3) on the ground of the failure previously to exhaust the local
remedies.

In the alternative on this point :

to declare that this contention is well founded at least in respect
of reparation for injury allegedly caused to the person of Nottebohm
and for the expropriation of property other than his immovable
property and his interests in the immovable property held in the
name of the firm of Nottebohm Hermanos.

In the alternative, on the Merits:

to hold that the laws of Guatemala applied to M. Nottebohm
have violated no rule of international law and that no fault has
been established on the part of the Guatemalan authorities in

Io
NOTTEBOHM CASE (JUDGMENT OF 6 IV 55) II

their conduct in relation to him such as to involve the responsibility
of the Respondent State ;

consequently, to dismiss the claim of Liechtenstein.

In the further alternative, in the event of the ordering of an
expert opinion to determine the quantum of damages:

to hold that the amount of damages to be awarded should be
calculated in accordance with the Guatemalan law, namely, Decree
529 and, in respect of certain immovable property, the Agrarian
Reform Law.”

as final Submissions presented at the hearing of March 7th, 1955:

“May it please the Court,
subject to all reservations and without prejudice,
as to admissibility :

to declare that the claim of the Principality of Liechtenstein is
inadmissible

(x) on the ground of the absence of any prior diplomatic negotia-
tions between the Principality of Liechtenstein and Guatemala
such as would disclose the existence of a dispute between the two
States before the filing of the Application instituting proceedings ;

in the alternative on this point :

to declare that the claim of the Principality on this ground is
inadmissible, at least in so far as it relates to reparation for injury
allegedly caused to the person of Friedrich Nottebohm ;

(2) (a) on the ground that Mr. Nottebohm, for whose protection
the Principality of Liechtenstein is acting before the Court, has
not properly acquired Liechtenstein nationality in accordance
with the law of the Principality ;

(6) on the ground that naturalization was not granted to
Mr. Nottebohm in accordance with the generally recognized prin-
ciples in regard to nationality ;

(c) in any case, on the ground that Mr. Nottebohm appears to
have solicited Liechtenstein nationality fraudulently, that is to
say, with the sole object of acquiring the status of a neutral national
before returning to Guatemala, and without any genuine intention
to establish a durable link, excluding German nationality, between
the Principality and himself ;

in the alternative on this point :

to invite Liechtenstein to produce to the Court, within a time-
limit to be fixed by the latter, all original documents in the archives
relating to the naturalization of Nottebohm and, in particular,
the convocations of members of the Diet to the sitting on Octo-
ber 14th, 1939, and those of the Assembly of Mauren citizens on
October 15th, 1939, the agenda and minutes of the aforesaid sittings,
together with the instrument conferring naturalization allegedly
signed by His Highness the Prince Regnant ;

(3) on the ground of the non-exhaustion by Friedrich Nottebohm
of the local remedies available to him under the Guatemalan
legislation, whether in regard to his person or his property, even if

II
NOTTEBOHM CASE (JUDGMENT OF 6 IV 55) 12

it should appear that the complaints against Guatemala were
concerned with an alleged original breach of international law ;

in the alternative on this point :

to declare that this contention is well founded, at least in respect
of reparation for injury allegedly caused to the person of Nottebohm,
and to the property, other than immovable property, or shares
that he may have owned in immovable property registered as
belonging to the Nottebohm Hermanos Company ;

in the further alternative on the Merits :

to declare that there is no occasion to order the supplementary
enquiry proposed, since it was incumbent on the Principality, on
its own initiative, to discover the nature of Friedrich Nottebohm's
interests in the Nottebohm Hermanos Company and the successive
changes effected in the status of that Company and in its direct or
indirect relations with the Nottebohm Company of Hamburg ;

to hold that no violation of international law has been shown
to have been committed by Guatemala in regard to Mr. Nottebohm,
either in respect of his property or his person ;

more especially in regard to the liquidation of his prorerty, to
declare that Guatemala was not obliged to regard the naturalization
of Friedrich Nottebohm in the Principality of Liechtenstein as
binding upon her, or as a bar to his treatment as an enemy national
in the circumstances of the case ;

consequently, to dismiss the claim of Liechtenstein together
with her conclusions ;

as a final alternative in regard to the amount of the damages claimed :

to record a finding on behalf of Guatemala that she expressly
disputes the proposed valuations, which have no valid justification.”

By the Application filed on December 17th, 195x, the Govern-
ment of Liechtenstein instituted proceedings before the Court in
which it claimed restitution and compensation on the ground that
the Government of Guatemala had “acted towards the person and
property of Mr. Friedrich Nottebohm, a citizen of Liechtenstein,
in a manner contrary to international law’’. In its Counter-Memorial,
the Government of Guatemala contended that this claim was inad-
missible on a number of grounds, and one of its objections to the
admissibility of the claim related to the nationality of the person
for whose protection Liechtenstein had seised the Court.

It appears to the Court that this plea in bar is of fundamental
importance and that it is therefore desirable to consider it at the
outset.

12
NOTTEBOHM CASE (JUDGMENT OF 6 IV 55) 13

Guatemala has referred to a well-established principle of inter-
national law, which it expressed in Counter-Memorial, where it is
stated that “‘it is the bond of nationality between the State and the
individual which alone confers upon the State the right of diplo-
matic protection”. This sentence is taken from a Judgment of the
Permanent Court of International Justice (Series A/B, No. 76,
p. 16), which relates to the form of diplomatic protection constituted
by international judicial proceedings.

Liechtenstein considers itself to be acting in conformity with this
principle and contends that Nottebohm is its national by virtue of
the naturalization conferred upon him.

*
* *

Nottebohm was born at Hamburg on September 16th, 1881. He
was German by birth, and still possessed German nationality when,
in October 1939, he applied for naturalization in Liechtenstein.

In 1905 he went to Guatemala. He took up residence there and
made that country the headquarters of his business activities,
which increased and prospered; these activities developed in the
field of commerce, banking and plantations. Having been an em-
ployee in the firm of Nottebohm Hermanos, which had been founded
by his brothers Juan and Arturo, he became their partner in 1012
and later, in 1937, he was made head of the firm. After 1905 he
sometimes went to Germany on business and to other countries
for holidays. He continued to have business connections in Ger-
many. He paid a few visits to a brother who had lived in Liech-
tenstein since 1931. Some of his other brothers, relatives and friends
were in Germany, others in Guatemala. He himself continued to
have his fixed abode in Guatemala until 1943, that is to say, until
the occurrence of the events which constitute the basis of the present
dispute.

In 1939, after having provided for the safeguarding of his interests
in Guatemala by a power of attorney given to the firm of Nottebohm
Hermanos on March 22nd, he left that country at a date fixed by
Counsel for Liechtenstein as at approximately the end of March or
the beginning of April, when he seems to have gone to Hamburg,
and later to have paid a few brief visits to Vaduz where he was at
the beginning of October 1939. It was then, on October oth, a little
more than a month after the opening of the second World War
marked by Germany’s attack on Poland, that his attorney,
Dr. Marxer, submitted an application for naturalization on behalf
of Nottebohm.

The Liechtenstein Law of January 4th, 1934, lays down the con-
ditions for the naturalization of foreigners, specifies the supporting
documents to be submitted and the undertakings to be given and
defines the competent organs for giving a decision and the procedure
to be followed. The Law specifies certain mandatory requirements,
namely, that the applicant for naturalization should prove: (1)

13
NOTTEBOHM CASE (JUDGMENT OF 6 IV 55) 14

“that the acceptance into the Home Corporation ( He:matverband) of
a Liechtenstein commune has been promised to him in case of acquisi-
tion of the nationality of the State”; (2) that he will lose his former
nationality as a result of naturalization, although this requirement
may be waived under stated conditions. It further makes naturaliza-
tion conditional upon compliance with the requirement of residence
for at least three years in the territory of the Principality, although it
is provided that “this requirement can be dispensed with in circum-
stances deserving special consideration and by way of exception”. In
addition, the applicant for naturalization is required to submit à num-
ber of documents, such as evidence of his residence in the territory of
the Principality, a certificate of good conduct issued by the compe-
tent authority of the piace of residence, documents relating to his
property and income and, if he is not a resident in the Principality,
proof that he has concluded an agreement with the Revenue author-
ities, “subsequent to the revenue commission of the presumptive
home commune having been heard”. The Law further provides for
the payment by the applicant of a naturalization fee, which is fixed
by the Princely Government and amounts to at least one half of the
sum payable by the applicant for reception into the Home Corpora-
tion of a Liechtenstein commune, the promise of such reception con-
stituting a condition under the Law for the grant of naturalization.

The Law reveals concern that naturalization should only be granted
with knowledge of all the pertinent facts, in that it expressly
provides for an enquiry into the relations of the applicant with the
country of his former nationality, as well as into all other personal
and family circumstances, and adds that ‘‘the grant of nationality
is barred where these relations and circumstances are such as to
cause apprehension that prejudice of any kind may enure to the
State by reason of the admission to nationality’.

As to the consideration of the application by the competent organs
and the procedure to be followed by them, the Law provides that
the Government, after having examined the application and the
documents pertaining thereto, and after having obtained satisfac-
tory information concerning the applicant, shall submit the applica-
tion to the Diet. If the latter approves the application, the Govern-
ment shall submit the requisite request to the Prince, who alone is
entitled to confer nationality of the Principality.

Finally, the Law empowers the Princely Government, within a
period of five years from the date of naturalization, to withdraw
Liechtenstein nationality from any person who may have acquired
it if it appears that the requirements laid down in the Law were not
satisfied ; it likewise provides that the Government may at any time
deprive a person of his nationality if the naturalization was fraudu-
lently obtained.

This was the legal position with regard to applications for natur-
alization at the time when Nottebohm’s application was submitted.

14
NOTTEBOHM CASE (JUDGMENT OF 6 IV 55) I5

*
* *

On October gth, 1939, Nottebohm, ‘‘resident in Guatemala since
1905 (at present residing as a visitor with his brother, Hermann
Nottebohm, in Vaduz)”, applied for admission as a national of
Liechtenstein and, at the same time, for the previous conferment of
citizenship in the Commune of Mauren. He sought dispensation from
the condition of three years’ residence as prescribed by law, without
indicating the special circumstances warranting such waiver. He
submitted a statement of the Crédit Suisse in Zurich concerning his
assets, and undertook to pay 25,000 Swiss francs to the Commune of
Mauren, 12,500 Swiss francs to the State, to which was to be added
the payment of dues in connection with the proceedings. He further
stated that he had made “arrangements with the Revenue Author-
ities of the Government of Liechtenstein for the conclusion of a for-
mal agreement to the effect that he will pay an annual tax of natur-
alization amounting to Swiss francs 1,000, of which Swiss francs
600 are payable to the Commune of Mauren and Swiss francs 400
are payable to the Principality of Liechtenstein, subject to the
proviso that the payments of these taxes will be set off against
ordinary taxes which will fall due if the applicant takes up residence
in one of the Communes of the Principality”. He further undertook
to deposit as security a sum of 30,000 Swiss francs. He also gave
certain general information as to his financial position and indicated
that he would never become a burden to the Commune whose citi-
zenship he was seeking.

Lastly, he requested “that naturalization proceedings be initiated
and concluded before the Government of the Principality and before
the Commune of Mauren without delay, that the application be then
placed before the Diet with a favourable recommendation and,
finally, that it be submitted with all necessary expedition to His
Highness the Reigning Prince”.

On the original typewritten application which has been produced
in a photostatic copy, it can be seen that the name of the Commune
of Mauren and the amounts to be paid were added by hand, a fact
which gave rise to some argument on the part of Counsel for the
Parties. There is also a reference to the “Vorausverstdndmis” of the
Reigning Prince obtained on October 13th, 1939, which Liechtenstein
interprets as showing the decision to grant naturalization, which
interpretation has, however, been questioned. Finally, there is
annexed to the application an otherwise blank sheet bearing the
signature of the Reigning Prince, “Franz Josef”, but without any
date or other explanation.

A document dated October 15th, 1939, certifies that on that date
the Commune of Mauren conferred the privilege of its citizenship
upon Mr. Nottebohm and requested the Government to transmit
it to the Diet for approval. A certificate of October 17th, 1030,

15
NOTTEBOHM CASE (JUDGMENT OF 6 IV 55) 16

evidences the payment of the taxes required to be paid by Mr. Notte-
bohm. On October 2oth, 1939, Mr. Nottebohm took the oath of
allegiance and a final arrangement concerning liability to taxation
was concluded on October 23rd.

This was the procedure followed in the case of the naturalization
of Nottebohm. ;

A certificate of nationality has also been produced, signed on
behalf of the Government of the Principality and dated October 2oth,
1939, to the effect that Nottebohm was naturalized by Supreme
Resolution of the Reigning Prince dated October 13th, 1930.

Having obtained a Liechtenstein passport, Nottebohm had it
visa-ed by the Consul General of Guatemala in Zurich on Decem-
ber rst, 1939, and returned to Guatemala at the beginning of 1940,
where he resumed his former business activities and in particular
the management of the firm of Nottebohm Hermanos.

Relying on the nationality thus conferred on Nottebohm, Liech-
tenstein considers itself entitled to seise the Court of its claim on
his behalf, and its Final Conclusions contain two submissions in
this connection. Liechtenstein requests the Court to find and declare,
first, “that the naturalization of Mr. Frederic Nottebohm in
Liechtenstein on October: 13th, 1939, was not contrary to interna-
tional law’, and, secondly, ‘‘that Liechtenstein’s claim on behalf
of Mr. Nottebohm as a national of Liechtenstein is admissible
before the Court’.

The Final Conclusions of Guatemala, on the other hand, request
the Court ‘‘to declare that the claim of the Principality of Liech-
tenstein is inadmissible’’, and set forth a number of grounds relating
to the nationality of Liechtenstein granted to Nottebohm by natur-
alization.

Thus, the real issue before the Court is the admissibility of the
claim of Liechtenstein in respect of Nottebohm. Liechtenstein’s
first submission referred to above is a reason advanced for a decision
by the Court in favour of Liechtenstein, while the several grounds
given by Guatemala on the question of nationality are intended
as reasons for the inadmissibility of Liechtenstein’s claim. The
present task of the Court is limited to adjudicating upon the
admissibility of the claim of Liechtenstein in respect of Nottebohm
on the basis of such reasons as it may itself consider relevant and

proper.

In order to decide upon the admissibility of the Application, the
Court must ascertain whether the nationality conferred on Notte-
bohm by Liechtenstein by means of a naturalization which took

16
NOTTEBOHM CASE (JUDGMENT OF 6 IV 55) 17

place in the circumstances which have been described, can be validly
invoked as against Guatemala, whether it bestows upon Liechten-
stein a sufficient title to the exercise of protection in respect of
Nottebohm as against Guatemala and therefore entitles it to seise
the Court of a claim relating to him. In this connection, Counsel
for Liechtenstein said : ‘‘the essential question is whether Mr. Notte-
bohm, having acquired the nationality of Liechtenstein, that
acquisition of nationality is one which must be recognized by other
States”. This formulation is accurate, subject to the twofold
reservation that, in the first place, what is involved is not recog-
nition for all purposes but merely for the purposes of the admis-
sibility of the Application, and, secondly, that what is involved
is not recognition by all States but only by Guatemala.

The Court does not propose to go beyond the limited scope of
the question which it has to decide, namely whether the nationality
conferred on Nottebohm can be relied upon as against Guatemala
in justification of the proceedings instituted before the. Court. It
must. decide this question on the basis of international law; to do
so is consistent with the nature of the question and with the nature
of the Court’s own function.

In order to establish that the Application must be held to be
admissible, Liechtenstein has argued that Guatemala formerly
recognized the naturalization which it now challenges and cannot
therefore be heard to put forward a contention which is incon-
sistent with its former attitude.

Various documents, facts and actions have been relied upon in
this connection.

Reliance has been placed on the fact that, on December Ist, 1939,
the Consul General of Guatemala in Zurich entered a visa in the
Liechtenstein passport of Mr. Nottebohm for his return'to Guate-
mala; that on January 29th, 1940, Nottebohm informed the
Ministry of External Affairs in Guatemala that he had adopted
the nationality of Liechtenstein and therefore requested that the
entry relating to him in the Register of Aliens should be altered
accordingly, a request which was granted on January 31st ; that
on February 9th, 1940, a similar amendment was made to his iden-
tity document, and lastly, that a certificate to the same effect was
issued to him by the Civil Registry of Guatemala on July Ist, 1940.

The acts of the Guatemalan authorities just referred to pro-
ceeded on the basis of the statements made to them by the person
concerned. The one led to the other. The only purpose of the first,
as appears from Article 9 of the Guatemalan law relating to pass-

17
NOTTEBOHM CASE (JUDGMENT OF 6 IV 55) 18

ports, was to make possible or facilitate entry into Guatemala, and
nothing more. According to the Aliens Act of January 25th,
1936, Article 40, entry in the Register “constitutes a legal presump-
tion that the alien possesses the nationality there attributed to
him, but evidence to the contrary is admissible’. All of these acts
have reference to the control of aliens in Guatemala and not to the
exercise of diplomatic protection. When Nottebohm thus presented
himself béfore the Guatemalan authorities, the latter had before
them a private individual: there did not thus come into being any
relationship between governments. There was nothing in all this to
show that Guatemala then recognized that the naturalization con-
ferred upon Nottebohm gave Liechtenstein any title to the exercise
of protection.

Although the request sent by Nottebohm Hermanos to the Min-
ister of Finance and Public Credit on September 13th, 1940, with
reference to the inclusion of the firm on the British Statutory List,
referred to the fact that only one of the partners was ‘‘a national of
Liechtenstein/Switzerland’’, this point was only made incidentally,
and the whole request was based on the consideration that the firm
“is a wholly Guatemalan business” and on the interests of the
“national economy”. It was on this basis that the matter was dis-
cussed, and no reference whatsoever was made to any intervention
by the Government of Liechtenstein at that time.

Similarly unconnected with the exercise of protection was the
Note addressed on October 18th, 1943, by the Minister of Exter-
nal Affairs to the Swiss Consul who, having understood that the
registration documents indicated that Nottebohm was a Swiss
citizen of Liechtenstein, requested, in a Note of September 25th,
1943, that this matter might be clarified. He received the reply that
there was no such indication of Swiss nationality in the documents
and, although the Consul had referred to the representation of the
interests of the Principality abroad by the representatives of the.
Swiss Government, the reply sent to him made no allusion to the
exercise, by or on behalf of Liechtenstein, of protection in favour
of Nottebohm.

When, on October 2oth, 1943, the Swiss Consul asked that
“Mr. Walter Schellenberg of Swiss nationality and Mr. Federico Not-
tebohm of Liechtenstein”, who had been transferred to the United
States Military Base for the purpose of being deported, should, ‘‘as
citizens of neutral countries’, be returned home, the Minister of
External Affairs of Guatemala replied, on October 22nd, that the
action taken was attributable to the authorities of the United States,
and made no reference to the nationality of Nottebohm.

18
NOTTEBOHM CASE (JUDGMENT OF 6 IV 55} 19

In a letter of the Swiss Consul of December 15th, 1944, to the
Minister of External Affairs, reference is made to the entry on the
Black Lists of ‘Frederick Nottebohm, a national of Liechtenstein”.
Neither the text of these lists nor any extract therefrom has
been produced, but this is not germane to the present discussion.
The important fact is that Guatemala, in its reply dated Decem-
ber 2oth, 1944, expressly stated that it could not ‘recognize that
Mr. Nottebohm, a German subject habitually resident in Guatemala,
has acquired the nationality of Liechtenstein without changing
his habitual residence’. The Court has not at present to con-
sider the validity of the ground put forward for disputing Notte-
bohm’s nationality, which was subsequently put forward to justify
the cancellation of his registration as a citizen of the ‘“‘Condado”’ of
Liechtenstein. It is sufficient for it to note that there is here an
express denial by Guatemala of Nottebohm’s Liechtenstein nation-
ality.

Nottebohm’s name having been removed from the Register of
Resident Aliens, his relative Karl Heinz Nottebohm Stoltz, on
July 24th, 1946, requested the cancellation of the decision and the
restoration of Nottebohm’s name to the Register as a citizen of
Liechtenstein, putting forward a number of considerations, essen-
tially based on the exclusive right of Liechtenstein to decide as
to the nationality in question and the duty of Guatemala to
conform to such decision. Far from accepting the considerations
thus put forward, the Minister of External Affairs rejected the
request, on August rst, 1946, merely saying that it was pointless,
since Nottebohm was no longer a resident of Guatemala.

There is nothing here to show that before the institution of
proceedings Guatemala had recognized Liechtenstein’s title to
exercise protection in favour of Nottebohm and that it is thus
precluded from denying such a title.

Nor can the Court find any recognition of such title in the com-
munication signed by the Minister of External Affairs of Guate-
mala, addressed to the President of the Court, on September oth,
1952. In this communication reference is made to measures taken
against Nottebohm ‘‘who claims to be a national of the claimant
State” (“quien se alega ser ciudadano del Estado reclamante’”’ ). Then,
reference having been made to the claim presented by the Govern-
ment of the Principality of Liechtenstein with regard to these meas-
ures, it is stated that the Government of Guatemala “is quite will-
ing to begin negotiations with the Government of the said Princi-
pality with a view to arriving at an amicable solution, either in the
sense of a direct settlement, an arbitration or judicial settlement’.
It would constitute an obstacle to the opening of negotiations for
the purpose of reaching a settlement of an international dispute or.
of concluding a special agreement for arbitration and would hamper
the use of the means of settlement recommended by Article 33 of the
Charter of the United Nations, to interpret an offer to have recourse

19
NOTTEBOHM CASE (JUDGMENT OF 6 IV 55) 20

to such negotiations or such means, consent to participate in them or
actual participation, as implying the abandonment of any defence
which a party may consider it is entitled to raise or as implying
acceptance of any claim by the other party, when no such abandon-
ment or acceptance has been expressed and where it does not indis-
putably follow from the attitude adopted. The Court cannot see in
the communication of September gth, 1952, any admission by
Guatemala of the possession by Nottebohm of a nationality which
it clearly disputed in its last official communication on this subject,
namely, the letter of December 2oth, 1944, to the Swiss Consul, still
less can it find any recognition of Liechtenstein’s title, based on
such nationality, to exercise its protection and to seise the Court
in the present case.

%
* *

Since no proof has been adduced that Guatemala has recognized
the title to the exercise of protection relied upon by Liechtenstein
as being derived from the naturalization which it granted to Notte-
bohm, the Court must consider whether such an act of granting
nationality by Liechtenstein directly entails an obligation on the
part of Guatemala to recognize its effect, namely, Liechtenstein’s
right to exercise its protection. In other words, it must be deter-
mined whether that unilateral act by Liechtenstein is one which can
be relied upon against Guatemala in regard to the exercise of protec-
tion. The Court will deal with this question without considering that
of the validity of Nottebohm’s naturalization according to the law
of Liechtenstein.

It is for Liechtenstein, as it is for every sovereign State, to settle
by its own legislation the rules relating to the acquisition of its
nationality, and to confer that nationality by naturalization granted
by its own organs in accordance with that legislation. It is not neces-
sary to determine whether international law imposes any limitations
on its freedom of decision in this domain. Furthermore, nation-
ality has its most immediate, its most far-reaching and, for most
people, its only effects within the legal system of the State conferring
it. Nationality serves above all to determine that the person upon
whom it is conferred enjoys the rights and is bound by the obliga-
tions which the law of the State in question grants to or imposes on
its nationals. This is implied in the wider concept that nation-
ality is within the domestic jurisdiction of the State.

But the issue which the Court must decide is not one which
pertains to the legal system of Liechtenstein. It does not depend
on the law or on the decision of Liechtenstein whether that State
is entitled to exercise its protection, in the case under considera-
tion. To exercise protection, to apply to the Court, is to place one-

20
NOTTEBOHM CASE (JUDGMENT OF 6 IV 55) 21

self on the plane of international law. It is international law which
determines whether a State is entitled to exercise protection and
to seise the Court.

The naturalization of Nottebohm was an act performed by
Liechtenstein in the exercise of its domestic jurisdiction. The
question to be decided is whether that act has the international
effect here under consideration.

International practice provides many examples of acts per-
formed by States in the exercise of their domestic jurisdiction
which do not necessarily or automatically have international effect,
which are not necessarily and automatically binding on other
States or which are binding on them only subject to certain condi-
tions: this is the case, for instance, of a judgment given by the
competent court of a State which it is sought to invoke in another
State.

In the present case it is necessary to determine whether the
naturalization conferred on Nottebohm can be successfully invoked
against Guatemala, whether, as has already been stated, it can
be relied upon as against that State, so that Liechtenstein is
thereby entitled to exercise its protection in favour of Nottebohm
against Guatemala.

When one State has conferred its nationality upon an individual
and another State has conferred its own nationality on the same
person, it may occur that each of these States, considering itself to
have acted in the exercise of its domestic jurisdiction, adheres to its
own. view and bases itself thereon in so far as its own actions are
concerned. In so doing, each State remains within the limits of its
domestic jurisdiction.

This situation may arise on the international plane and fall to be
considered by international arbitrators or by the courts of a third
State. If the arbitrators or the courts of such a State should confine
themselves to the view that nationality is exclusively within the
domestic jurisdiction of the State, it would be necessary for them
to find that they were confronted by two contradictory assertions
made by two sovereign States, assertions which they would conse-
quently. have to regard as of equal weight, which would oblige them
to allow the contradiction to subsist and thus fail to resolve the
conflict submitted to them.

In most cases arbitrators have not strictly speaking had to
decide a conflict of nationality as between States, but rather to
determine whether the nationality invoked by the applicant
State was one which could be relied wpon as against the respon-
dent State, that is to say, whether it entitled the applicant State
to exercise protection. International arbitrators, having before
them allegations of nationality by the applicant State which.
were contested by the respondent State, have sought to ascertain
whether nationality had been conferred by the applicant State in
circumstances such as to give rise to an obligation on the part

21
NOTTEBOHM CASE (JUDGMENT OF 6 IV 55) 22

of the respondent State to recognize the effect of that nationality.
In order to decide this question arbitrators have evolved certain
principles for determining whether full international effect was
to be attributed to the nationality invoked. The same issue is
now before the Court: it must be resolved by applying the
same principles.

The courts of third States, when confronted by a similar situation,
have dealt with it in the same way. They have done so not in
connection with the exercise of protection, which did not arise
before them, but where two different nationalities have been
invoked before them they have had, not indeed to decide such
a dispute as between the two States concerned, but to determine
whether a given foreign nationality which had been invoked
before them was one which they ought to recognize.

International arbitrators have decided in the same way numerous
casés of dual nationality, where the question arose with regard to
the exercise of protection. They have given their preference to the
real and effective nationality, that which accorded with the facts,
that based on stronger factual ties between the person concerned
and one of the States whose nationality is involved. Different
factors are taken into consideration, and their importance will
vary from one case to the next: the habitual residence of the
individual concerned is an important factor, but there are other
factors such as the centre of his interests, his family ties, his
participation in public life, attachment shown by him for a given
country and inculcated in his children, etc.

Similarly, the courts of third States, when they have before them
an individual whom two other States hold to be their national, seek
to resolve the conflict by having recourse to international criteria
and their prevailing tendency is to prefer the real and effective
nationality.

The same tendency prevails in the writings of publicists and in
practice. This notion is inherent in the provisions of Article 3,
paragraph 2, of the Statute of the Court. National laws reflect this
tendency when, inier alia, they make naturalization dependent
on conditions indicating the existence of a link, which may vary in
their purpose or in their nature but which are essentially concerned
with this idea. The Liechtenstein Law of January 4th, 1934, is a
good example.

The practice of certain States which refrain from exercising
protection in favour of a naturalized person when the latter has
in fact, by his prolonged absence, severed his links with what is
no longer for him anything but his nominal country, manifests
the view of these States that, in order to be capable of being
invoked against another State, nationality must correspond with
the factual situation. A similar view is manifested in the relevant
provisions of the bilateral nationality treaties concluded between
the United States of America and other States since 1868, such as

22
NOTTEBOHM CASE (JUDGMENT OF 6 IV 55) 23

those sometimes referred to as the Bancroft Treaties, and in the
Pan-American Convention, signed at Rio de Janeiro on August 13th,
1906, on the status of naturalized citizens who resume residence
in their country of origin.

The character thus recognized on the international level as per-
taining to nationality is in no way inconsistent with the fact that
international law leaves it to each State to lay down the rules
governing the grant of its own nationality. The reason for this is
that the diversity of demographic conditions has thus far made
it impossible for any general agreement to be reached on the
rules relating to nationality, although the latter by its very nature
affects international relations. It has been considered that the best
way of making such rules accord with the varying demographic
conditions in different countries is to leave the fixing of such
tules to the competence of each State. On the other hand, a State
cannot claim that the rules it has thus laid down are entitled to
recognition by another State unless it has acted in conformity
with this general aim of making the legal bond of nationality
accord with the individual’s genuine connection with the State
which assumes the defence of its citizens by means of protection
as against other States.

The requirement that such a concordance must exist is to be
found in the studies carried on in the course of the last thirty
years upon the initiative and under the auspices of the League of
Nations and the United Nations. It explains the provision which
the Conference for the Codification of International Law, held at
The Hague in 1930, inserted in Article x of the Convention relating
to the Conflict of Nationality Laws, laying down that the law
enacted by a State for the purpose of determining who are its
nationals “shall be recognized by other States in so far as it is
consistent with .... international custom, and the principles of law
generally recognized with regard to nationality’. In the same spirit,
Article 5 of the Convention refers to criteria of the individual’s
genuine connections for the purpose of resolving questions of dual
nationality which arise in third States.

According to the practice of States, to arbitral and judicial
decisions and to the opinions of writers, nationality is a legal
bond having as its basis a social fact of attachment, a genuine
connection of existence, interests and sentiments, together with the
existence of reciprocal rights and duties. It may be said to consti-
tute the juridical expression of the fact that the individual upon
whom it is conferred, either directly by the law or as the result of
an act of the authorities, is in fact more closely connected with the
population of the State conferring nationality than with that of
any other State. Conferred by a State, it only entitles that State
to exercise protection vis-a-vis another State, if it constitutes a
translation into juridical terms of the indiyidual’s connection with
the State which has made him its national.

23
NOTTEBOHM CASE (JUDGMENT OF 6 IV 55) 24

Diplomatic protection and protection by means of international
judicial proceedings constitute measures for the defence of the
rights of the State. As the Permanent Court of. International
Justice has said and has repeated, “‘by taking up the case of one
of its subjects and by resorting to diplomatic action or inter-
national judicial proceedings on his behalf, a State is in reality
asserting its own rights—its right to ensure, in the person of its
subjects, respect for the rules of international law’ (P.C.IL.J., Series
A, No. 2, p. 12, and Series A/B, Nos. 20-21, p. 17).

*
* *

Since this is the character which nationality must present when
it is invoked to furnish the State which has granted it with a
title to the exercise of protection and to the institution of inter-
national judicial proceedings, the Court must ascertain whether
the nationality granted to Nottebohm by means of naturalization
is of this character or, in other words, whether the factual con-
nection between Nottebohm and Liechtenstein in the period
preceding, contemporaneous with and following his naturalization
appears to be sufficiently close, so preponderant in relation to
any connection which may have existed between him and any
other State, that it is possible to regard the nationality conferred
upon him as real and effective, as the exact juridical expression of a
social fact of a connection. which existed previously or came into
existence thereafter.

Naturalization is not a matter to be taken lightly. To seek and to
obtain it is not something that happens frequently in the life of a
human being. It involves his breaking of a bond of allegiance and
his establishment of a new bond of allegiance. It may have far-
reaching consequences and involve profound changes in the destiny
of the individual who obtains it. It concerns him personally, and to
consider it only from the point of view of its repercussions with
regard to his property would be to misunderstand its profound
significance. In order to appraise its international effect, it is impos-
sible to disregard the circumstances in which it was conferred, the
serious character which attaches to it, the real and effective,
and not merely the verbal preference of the individual seeking it
for the country which grants it to him.

At the time of his naturalization does Nottebohm appear to have
been more closely attached by his tradition, his establishment, his
interests, his activities, his family ties, his intentions for the near
future to Liechtenstein than to any other State ?

The essential facts appear with sufficient clarity from the record.
The Court considers it unnecessary to have regard to the docu-
ments purporting to show that Nottebohm had or had not
retained his interests in Germany, or to have regard to the alter-
native submission of Guatemala relating to a request to Liechten-

24
NOTTEBOHM CASE (JUDGMENT OF 6 IV 55) 25

stein to produce further documents. It would further point out that
the Government of Liechtenstein, in asking in its Final Conclusions
for an adjournment of the oral proceedings and an opportunity to
present further documents, did so only for the eventuality of the
Application being held to be admissible and not for the purpose of
throwing further light upon the question of the admissibility of the
Application.

The essential facts are as follows :

At the date when he applied for naturalization Nottebohm had
been a German national from the time of his birth. He had always
retained his connections with members of his family who had
remained in Germany and he had always had business connections
with that country. His country had been at war for more than a
month, and there is nothing to indicate that the application for
naturalization then made by Nottebohm was motivated by any
desire to dissociate himself from the Government of his country.

He had been settled in Guatemala for 34 years. He had carried on
his activities there. It was the main seat of his interests. He returned
there shortly after his naturalization, and it remained the centre of
his interests and of his business activities. He stayed there until
his removal as a result of war measures in 1943. He subsequently
attempted to return there, and he now complains of Guatemala’s
refusal to admit him. There, too, were several members of his
family who sought to safeguard his interests.

In contrast, his actual connections with Liechtenstein were
extremely tenuous. No settled abode, no prolonged residence in
that country at the time of his application for naturalization : the
application indicates that he was paying a visit there and confirms
the transient character of this visit by its request that the naturali-
zation proceedings should be initiated and concluded without delay.
No intention of settling there was shown at that time or realized
in the ensuing weeks, months or years—on the contrary, he re-
turned to Guatemala very shortly after his naturalization and
showed every intention of remaining there. If Nottebohm went
to Liechtenstein in 1946, this was because of the refusal of Guate-
mala to admit him. No indication is given of the grounds warrant-
ing the waiver of the condition of residence, required by the
1934 Nationality Law, which waiver was implicitly granted to him.
There is no allegation of any economic interests or of any activities
exercised or to be exercised in Liechtenstein, and no manifestation
of any intention whatsoever to transfer all or some of his interests
and his business activities to Liechtenstein. It is unnecessary
in this connection to attribute much importance to the promise to
pay the taxes levied at the time of his naturalization. The only
links to be discovered between the Principality and Nottebohm
are the short sojourns already referred to and the presence in
Vaduz of one of his brothers: but his brother’s presence is referred

25
NOTTEBOHM CASE (JUDGMENT OF 6 IV 55) 26

to in his application for naturalization only as a reference to his
good conduct. Furthermore, other members of his family have
asserted Nottebohm’s desire to spend his old age in Guatemala.

These facts clearly establish, on the one hand, the absence of
any bond of attachment between Nottebohm and Liechtenstein
and, on the other hand, the existence of a long-standing and close
connection between him and Guatemala, a link which his naturali-
zation in no way weakened. That naturalization was not based on
any real prior connection with Liechtenstein, nor did it in any
way alter the manner of life of the person upon whom it was
conferred in exceptional circumstances of speed and accommoda-
tion. in both respects, it was lacking in the genuineness requisite
to an act of such importance, if it is to be entitled to be respected
by a State in the position of Guatemala. It was granted without
regard to the concept of nationality adopted in international
relations.

Naturalization was asked for not so much for the purpose of
obtaining a legal recognition of Nottebohm’s membership in fact
in the population. of Liechtenstein, as it was to enable him to
substitute for his status as a national of a belligerent State that of
a national of a neutral State, with the sole aim of thus coming
within the protection of Liechtenstein but not of becoming wedded
to its traditions, its interests, its way of life or of assuming the
obligations—other than fiscal obligations—and exercising the rights
pertaining to the status thus acquired.

Guatemala is under no obligation to recognize a nationality
granted in such circumstances. Liechtenstein consequently is not
entitled to extend its protection to Nottebohm vis-a-vis Guatemala
and.its claim must, for this reason, be held to be inadmissible.

The Court is not therefore called upon to deal with the other
pleas in bar put forward by Guatemala or the Conclusions of the

- Parties other than those on which it is adjudicating in accordance
with the reasons indicated above.

For these reasons,
THE COURT,
by eleven votes to three,

Holds that the claim submitted by the Government of the
Principality of Liechtenstein is inadmissible.

26
NOTTEBOHM CASE (JUDGMENT OF 6 IV 55) 27

Done in French and English, the French text being authoritative,
at the Peace Palace, The Hague, this sixth day of April, one
thousand nine hundred and fifty-five, in three copies, one of which
will be placed in the archives of the Court and the others will
be transmitted to the Government of the Principality of Liech-
tenstein and to the Government of the Republic of Guatemala,
respectively.

(Signed) Green H. HACKWoRTH,

President.

(Signed) J. LôPEz O1ivAn,

Registrar.

Judges KLAESTAD and READ, and M. GUGGENHEIM, Judge ad hoc,
have availed themselves of the right conferred on them by Article 57
of the Statute and have appended to the Judgment statements of
their dissenting opinion.

(Imtialled) G. H. H.

(Imitialled) J. L. ©.

27


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE A LA SOUVERAINETE
SUR PULAU LIGITAN ET PULAU SIPADAN

(INDONESIE/MALAISIE)

ORDONNANCE DU 19 OCTOBRE 2000

2000

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING SOVEREIGNTY
OVER PULAU LIGITAN AND PULAU SIPADAN

(INDONESIA/MALAYSIA)

ORDER OF 19 OCTOBER 2000

Mode officiel de citation:

Souveraineté sur Pulau Ligitan et Pulau Sipadan
(Indonésie! Mulaisie), ordonnance du 19 octobre 2000,
C.J. Recueil 2000, p. 173

Official citation:

Sovereignty over Pulau Ligitan and Pulau Sipadan
(Indonesial Malaysia}, Order of 19 October 2000,
LC J. Reports 2000, p. 173

N° de vente:
ISSN 0074-4441 Sales number 800

ISBN 92-1-070877-6

19 OCTOBRE 2000

ORDONNANCE

SOUVERAINETE SUR PULAU LIGITAN
ET PULAU SIPADAN

(INDONESIE/MALAISIE)

SOVEREIGNTY OVER PULAU LIGITAN
AND PULAU SIPADAN

(INDONESIA/MALAYSIA)

19 OCTOBER 2000

ORDER
173

COUR INTERNATIONALE DE JUSTICE

2000 ANNÉE 2000
19 octobre
Rôle général
n° 102 19 octobre 2000

AFFAIRE RELATIVE À LA SOUVERAINETÉ
SUR PULAU LIGITAN ET PULAU SIPADAN

(INDONESIE/MALAISIE)

ORDONNANCE

Le président de la Cour internationale de Justice,

Vu l'article 48 du Statut de la Cour et les articles 44 et 46, para-
graphe |, de son Règlement,

Vu le compromis entre les deux Parties, signé à Kuala Lumpur le
31 mai 1997 et entré en vigueur le 14 mai 1998,

Vu l’ordonnance du 11 mai 2000, par laquelle la Cour, compte tenu de
l'accord des Parties, a reporté au 2 août 2000 la date d’expiration du délai
pour le dépôt d’un contre-mémoire par chacune des Parties,

Vu les contre-mémoires des Parties déposés dans le délai ainsi prorogé:

Considérant que, au paragraphe 2 c) de l’article 3 du compromis, les
Parties sont convenues que les pièces de la procédure écrite en l'espèce
comprendraient, outre les mémoires et contre-mémoires, «une réplique
présentée par chacune des Parties au plus tard quatre mois après la date
à laquelle chacune aura reçu la copie certifiée conforme du contre-
mémoire de l’autre Partie»;

Considérant que les coagents des deux Parties ont adressé à la Cour
une lettre conjointe, en date du 14 octobre 2000, qui indiquait notam-
ment ce qui suit:

«Par cette lettre, les soussignés souhaitent vous informer que les
174 PULAU LIGITAN ET PULAU SIPADAN (ORDONNANCE 19 X 00)

deux Parties ont l'intention de déposer des répliques, conformément
au paragraphe 2 c) de l’article 3 du compromis qu’elles ont signé le
31 mai 1997. Les dispositions du compromis prévoient que des ré-
pliques seront déposées au plus tard quatre mois après la date
à laquelle chacune des Parties aura reçu la copie certifiée conforme
du contre-mémoire de l’autre Partie, à savoir le 2 décembre 2000 au
plus tard.

Toutefois, les Parties prient respectueusement la Cour de bien
vouloir proroger de trois mois ce délai en reportant sa date d’expira-
tion au 2 mars 2001. Pour le reste, le compromis demeure inchangé»,

Compte tenu de l’accord intervenu entre les Parties,

Fixe au 2 mars 2001 la date d'expiration du délai pour le dépôt d'une
réplique par chacune des Parties:

Réserve la suite de la procédure.

Fait en français et en anglais, le texte français faisant foi, au Palais de
la Paix, à La Haye, le dix-neuf octobre deux mille, en trois exemplaires,
dont l’un restera déposé aux archives de la Cour et les autres seront
transmis respectivement au Gouvernement de la République d'Indonésie
et au Gouvernement de la Malaisie.

Le président,
{ Signé) Gilbert GUILLAUME.

Le greffier,
{ Signé) Philippe COUVREUR.


                              SEPARATE OPINION OF JUDGE OWADA

       1. I have voted in favour of the conclusions reached by the Court in the operative part
(dispositif) of the present Judgment, as I have no disagreement with these conclusions as such. It is
my view, however, that certain specific aspects of the reasoning (ratio decidendi) of the Judgment
that have led the Court to these conclusions have not been developed with sufficient clarity in the
reasoning part (motifs) of the Judgment. For this reason, I wish to attach this opinion of mine, with
a view to elaborating my own view on these points as I see them in the reasoning of the Judgment.
(It goes without saying that I do not intend to put my own words into the language of the Judgment,
but wish to explain how I see certain points covered by the Judgment.)

                I. THE ISSUE OF SOVEREIGNTY OVER THE DISPUTED TERRITORY

       2. In my view, the question of sovereignty over the “disputed territory” constitutes the
central issue of the dispute brought before the Court in 2010 by Costa Rica in relation to certain
activities conducted by Nicaraguan authorities. In the present Judgment, while the Court has
rightly concluded that the legal instruments relevant for determining sovereignty over the “disputed
territory” should be the 1858 Treaty, the Cleveland Award of 1888 and the Alexander Award
of 1897, the language of the Judgment does not seem to have been sufficiently articulate on the
logical sequence that exists between these relevant legal instruments. Thus on the issue of
territorial sovereignty, which should be the prerequisite for determining the concrete allegations by
the Applicant of violations of sovereignty by the Respondent, the Judgment summarily concludes
that “Articles II and VI [of the 1858 Treaty], taken together, provide that the right bank of a
channel of the river forms the boundary on the assumption that this channel is a navigable ‘outlet of
commerce’” (Judgment, paragraph 76).

        3. For the purpose of our analysis of these documents, however, the Court in my view should
start from the premise that what is determinative in this case is first and foremost the interpretation
of the 1858 Treaty and pursue the logical sequence of the relevant legal instruments, i.e., first the
1858 Treaty, then the Cleveland Award, which was meant to give an authoritative interpretation of
the 1858 Treaty, and finally the Alexander Awards, which were given under the mandate of
General Alexander to demarcate the boundary and to implement the Cleveland Award, in light of
their assigned roles and purposes in their contexts. In my view, thus, the central issue that
determines the issue of sovereignty over the disputed territory is not the identification of the
geographical location of “the first channel met”, used in the first Alexander Award, among the
many watercourses that could have existed (or now exist) in the wetland of the disputed territory,
as some of the counsel have tried to persuade the Court. In my view, however, the Court’s task is
rather to apply the basic interpretative reasoning followed by General Alexander within the scope
of his mandate under the Pacheco-Matus Convention of 1896, to “proceed with [the demarcation]
of the border line” on the basis of the 1858 Treaty and the Award rendered in 1888 by
President Cleveland, who had been entrusted with the task of deciding upon, inter alia, “all . . .
points of doubtful interpretation which either of the parties may find in the [1858 Treaty]”, and thus
of giving an authoritative interpretation of the 1858 Treaty. Under these circumstances, the task for
the Court has not and cannot have been literally to follow the line described in the first Alexander
Award in 1897, particularly as General Alexander already was faced with the difficulty of
investigating what the Cleveland Award had established as the authoritative interpretation of the
1858 Treaty, because of the changed geography of the area over the intervening 30 years. The
resolution by the Court of the question of territorial sovereignty over the disputed territory in this
situation is to be based on the same legal sources (i.e., the national boundary as determined by the
1858 Treaty) and the same legal reasoning that General Alexander applied in implementing the
Cleveland Award of 1888, which, even after the passage of 30 years, provided the authoritative and
binding interpretation and determination of the boundary prescribed by the 1858 Treaty.

                                                -2-

       4. It is this reasoning in my view that General Alexander applied in his first Award of
30 September 1897, when considering how the natural terminus of the San Juan River (which used
to be the “right-hand headland of the harbour mouth”) as determined by the 1858 Treaty could
reach the San Juan River proper following what used to be the San Juan River’s right bank.
Already at the time of the first Alexander Award, the only possible way to identify the navigable
waterway (as contrasted to any watercourse) that connected this “natural terminus” of the San Juan
River to the Lower San Juan River was to follow the edge of the Harbor Head Lagoon until it
reached the San Juan River proper. If we transfer this reasoning to the present situation, the
contour of the territory following from General Alexander’s underlying reasoning, rather than the
actual boundary line that he demarcated on the ground at that time, would unequivocally lead one
to the conclusion that the disputed territory is under Costa Rican sovereignty.

       5. Incidentally, in understanding the prescriptive description of the first Alexander Award, it
is useful to note that the term used by General Alexander was “the first channel met” (emphasis
added), and not “the first caño met”. (The term “channel”, according to the Oxford English
Dictionary, denotes as a geographic term “[a] (comparatively) narrow piece of water, wider than a
mere ‘strait’, connecting two larger pieces, usually seas”. This would appear to be the proper
definition of the term for establishing what General Alexander had in mind, assuming that the first
Alexander Award was originally drafted in English.) Be that as it may, there seems to be no doubt
that General Alexander came to the conclusion that this “channel” was the one to follow in
determining the boundary line as defined by the 1858 Treaty and interpreted by the Cleveland
Award, not because General Alexander found that it was there as the first watercourse that he came
across on his journey following the water along the Harbor Head Lagoon, but because he acted on
his understanding that this “first channel” represented part of the main stream of water flowing
from the San Juan River proper leading to the starting point of the boundary line which was at the
mouth of the River. In other words, General Alexander was trying faithfully to follow the
prescription of the 1858 Treaty contained in its Article II, namely that: “The dividing line between
the two Republics, starting from the Northern Sea, shall begin at the end of Punta de Castilla, at the
mouth of the San Juan de Nicaragua river, and shall run along the right bank of the said river up to
point three English miles distant from Castillo Viejo . . .” (Emphasis added.)

       6. The third Alexander Award is also indicative of the reasoning of General Alexander,
inasmuch as it explicitly affirms that the position of the boundary line will be altered only by
“changes in the banks or channels of the river . . . as may be determined by the rules of
international law applicable on a case-by-case basis” (third Alexander Award, RIAA, Vol. XXVIII,
p. 230; emphasis added), and not just by any watercourse that can serve the purpose of letting
water pass from the San Juan River proper to the Harbor Head Lagoon.

       7. In other words, if we translate the language and transfer the reasoning of the Alexander
Awards to the present-day geographical situation of the area, there could be no question that the
reasoning underlying the first Alexander Award would lead to the unequivocal outcome that the
Court has reached in the present Judgment on the question of sovereignty over the disputed
territory. The task of the Court is simply to apply the reasoning of General Alexander in his first
Award in a geographically generic, though not geodetically specific, manner to the boundary as
prescribed in the 1858 Treaty, in order to reach the conclusion on the issue of sovereignty over the
disputed territory. For this purpose, the Court has only to proceed from the “natural terminus” of
the Lower San Juan River determined in the 1858 Treaty as interpreted by the Cleveland Award
and as subsequently implemented by the Alexander Awards. This “natural terminus” is, as was
determined by General Alexander in his first Award, “the northwestern extremity of what seems to
be the solid land, on the east side of the Harbor Head Lagoon” (first Alexander Award, RIAA,
Vol. XXVIII, p. 220). Having thus identified the terminus of the boundary, the determination of
sovereignty over the disputed territory flows from the boundary line that runs along the right bank

                                                  -3-

of the river. Of course, such a riverine connection between the Harbor Head Lagoon and the
San Juan River itself is no longer in existence at the present time. In this situation, the only logical
way to draw that boundary line connecting what was “the right-hand headland of the harbour
mouth” to the San Juan River is to follow the edge of the Harbor Head Lagoon until it reaches the
present-day stream of the San Juan River proper. Once this line reaches the right bank of the river,
the boundary line must turn upstream as the 1858 Treaty prescribes.

       8. It should be added that the Parties in the present case have also provided the Court with a
number of arguments, including references to effectivités, and have produced a range of supporting
evidentiary materials, such as maps, witness affidavits, and expert statements relating to fluvial
morphology and other aspects of the geographical context of the disputed territory, all relating to
the question of whether or not any navigable channels might have traversed or currently traverse
the disputed territory. The Judgment has assessed the evidentiary merit of all these materials for
determining the question of territorial sovereignty, but has come to the conclusion that their
evidentiary value was not determinative of the question of sovereignty. My own conclusion is that
the totality of such evidence amounts in fact to very little that is material or conclusive for
determining the question of territorial sovereignty over the disputed territory, to the extent that the
central issue that is determinative of the question is the content of the 1858 Treaty, as interpreted
by the Cleveland Award and subsequently implemented by the Alexander Awards.

               II. LEGAL CONSEQUENCES OF THE COURT’S FINDING RELATING TO
                          SOVEREIGNTY OVER THE DISPUTED TERRITORY

       9. In my view, what is involved in the present dispute is not, in its fundamental nature, the
situation of a classical territorial dispute that is normally brought before the International Court of
Justice for judicial settlement. A territorial dispute is typically presented to the Court after attempts
by the Parties at an exchange of views in order to identify the existence of a difference of positions
on an issue and following a process of negotiations for its peaceful settlement. In the present case,
however, the territorial dispute has been caused primarily by unilateral action taken in the form of a
physical incursion by one State into the territory of another State that had been primarily held for
many years by the latter State. This appreciation of the nature of the dispute in the present case is
apparent from the language of the Judgment itself (Judgment, paragraphs 67-69 and
paragraph 229 (2)), including in addition its finding that Nicaragua breached the Court’s Order of
8 March 2011, inter alia, by establishing a military presence in the disputed territory (Judgment,
paragraph 229 (3)). Whatever validity the claim by the Respondent over the disputed territory may
have had, such a unilateral act of incursion by that State would amount to something more than an
incidental violation of the territorial sovereignty of that latter State.

       10. In my view, given this undisputable circumstance, it would have been appropriate for the
Court to have treated the actions by Nicaragua in question as a straightforward case of the
commission of an internationally wrongful act, which could arguably constitute an unlawful use of
force under Article 2 (4) of the United Nations Charter. An act of this nature would generally
entail an obligation to undertake remedial measures, including reparation, going beyond a mere
obligation to achieve the restitutio in integrum of the status quo ante.

       11. While I have concurred with the Court’s decision to consider that an incursion has taken
place, but to refrain from going further into the question of what other legal consequences of this
incursion should follow in light of the Court’s finding that “by excavating three caños and
establishing a military presence on Costa Rican territory, Nicaragua has violated the territorial
sovereignty of Costa Rica” (Judgment, paragraph 229 (2), see also paragraph 229 (3)), it is my
view that it would have been more appropriate for the Court to have gone further by declaring that

                                                -4-

these internationally wrongful acts by Nicaraguan authorities constituted an unlawful use of force
under Article 2 (4) of the United Nations Charter.

       12. The present Judgment has not pursued that course, limiting itself to the factual finding of
an incursion as referred to above, without going into any further discussion on the possible legal
consequences of such an incursion. A reference made to the Judgment in the Cameroon v. Nigeria
case of 2002 in this context to justify this approach would seem to be quite inappropriate. In that
earlier Judgment, the Court had concluded that

      “by the very fact of the present Judgment and of the evacuation of the Cameroonian
      territory occupied by Nigeria, the injury suffered by Cameroon by reason of the
      occupation of its territory will in all events have been sufficiently addressed. The
      Court will not therefore seek to ascertain whether and to what extent Nigeria’s
      responsibility to Cameroon has been engaged as a result of that occupation.”
      (Case concerning the Land and Maritime Boundary between Cameroon and Nigeria
      (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment, I.C.J.
      Reports 2002, p. 452, para. 319.)

This reference to the case of Cameroon v. Nigeria in my view could be quite misleading as the
Cameroon v. Nigeria case is qualitatively different from the present case and should clearly be
distinguished from the present situation, inasmuch as the former case, different from the present
case, had not been caused by an action of one Party to alter the existing status quo through
unilateral means. The Judgment should in my view have taken a more correct approach in its
characterization of such a blatant case of incursion and its legal consequences.

                    III. THE NATURE OF THE REQUIREMENT TO CONDUCT AN
                             ENVIRONMENTAL IMPACT ASSESSMENT

      13. In their written and oral pleadings, both Parties invoked the existence of a legal
obligation under general international law not to cause significant transboundary harm. The
existence of such an obligation has been confirmed in some of the Court’s past decisions,
including, in particular, its Judgment in the case concerning Pulp Mills on the River Uruguay (see
Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010 (I),
pp. 55-56, para. 101).

       14. In the process of carrying out the obligation to act in due diligence under international
environmental law, the requirement of conducting an environmental impact assessment becomes a
key element for determining whether certain activities may cause significant transboundary harm.
This requirement comes to play a significant role in both of the joined cases in the present
proceedings. The issue of environmental impact assessment has been raised by both Parties against
each other respectively in each of the joint cases. In this context, they seemed to quote approvingly
the dictum from the Court’s Judgment in the Pulp Mills case.

      15. In its Judgment in the Pulp Mills case, the Court referred to the environmental impact
assessment as “a practice, which in recent years has gained so much acceptance among States that
it may now be considered a requirement under general international law” (ibid., p. 83, para. 204).

      16. This dictum of the Court should be placed in contrast with that of the International
Tribunal for the Law of the Sea, which in its 2011 Advisory Opinion on the Responsibilities and
obligations of States with respect to activities in the Area appears to have gone a step further by
declaring that an environmental impact assessment as such is a “general obligation under

                                                -5-

customary international law”. More specifically, it states as follows: “It should be stressed that the
obligation to conduct an environmental impact assessment is a direct obligation under the
[UNCLOS] and a general obligation under customary international law.” (Responsibilities and
obligations of States with respect to Activities in the Area, Advisory Opinion, 1 February 2011,
ITLOS Reports 2011, para. 145; emphasis added.)

       17. By comparison, the reasoning of this Court in its Judgment in the Pulp Mills case appears
to take a more nuanced approach to this requirement, when it circumscribes the scope and content
of such an environmental impact assessment in the following manner:

      “general international law [does not] specify the scope and content of an
      environmental impact assessment . . . Consequently, it is the view of the Court that it
      is for each State to determine in its domestic legislation or in the authorization process
      for the project, the specific content of the environmental impact assessment required
      in each case, having regard to the nature and magnitude of the proposed development
      and its likely adverse impact on the environment as well as to the need to exercise due
      diligence in conducting such an assessment.” (Pulp Mills on the River Uruguay
      (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010 (I), p. 83, para. 205; emphasis
      added.)

      The Court also stressed the continuous nature of the process of environmental impact
assessment on a case-by-case basis, as follows:

      “an environmental impact assessment must be conducted prior to the implementation
      of a project. Moreover, once operations have started and, where necessary, throughout
      the life of the project, continuous monitoring of its effects on the environment shall be
      undertaken.” (Ibid., pp. 83-84, para. 205.)

       18. These statements of the Court in its Judgment in the Pulp Mills case would seem to
suggest that in the dictum quoted in paragraph 15 above, the Court emphasized the crucial
importance of this element in the context of the process of carrying out the obligation of due
diligence, which is a holistic process. To summarize, conducting an environmental impact
assessment is one important constituent element of the process that emanates from the international
obligation of States to act in due diligence to avoid or mitigate significant transboundary harm,
rather than a separate and independent obligation standing on its own under general international
law. This obligation to act with due diligence in such a way that the initiation of potentially
environmentally hazardous activities may be avoided constitutes an established obligation of
international environmental law. In this holistic process, an environmental impact assessment
plays an important and even crucial role in ensuring that the State in question is acting with due
diligence under general international environmental law. It should also be noted that in the Pulp
Mills case there was no need for the Court to establish this requirement of environmental impact
assessment as a general legal obligation of international environmental law or to define its limits
under customary international law, to the extent that the case hinged upon the construction of the
1975 Statute, which was a lex specialis applicable to that case.

      19. Against this background the Court in the present Judgment can be said in my view to
have maintained this balanced approach when it stated as follows:

                                                -6-

      “to fulfil its obligation to exercise due diligence in preventing significant
      transboundary environmental harm, a State must, before embarking on an activity
      having the potential adversely to affect the environment of another State, ascertain if
      there is a risk of significant transboundary harm, which would trigger the requirement
      to carry out an environmental impact assessment.

            Determination of the content of the environmental impact assessment should be
      made in light of the specific circumstances of each case.

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

             If the environmental impact assessment confirms that there is a risk of
      significant transboundary harm, the State planning to undertake the activity is
      required, in conformity with its due diligence obligation, to notify and consult in good
      faith with the potentially affected State, where that is necessary to determine the
      appropriate measures to prevent or mitigate that risk.” (Judgment, paragraph 104.)

      20. Based on this reasoning, the Court has held in the operative part of its Judgment that:
“Costa Rica has violated its obligation under general international law by failing to carry out an
environmental impact assessment concerning the construction of Route 1856” (Judgment,
paragraph 229 (6)).

       21. In sum, the environmental impact assessment, which is essentially of a technical nature,
is a means to achieve the ultimate objective of preventing transboundary harm  an obligation
relating to the due diligence required. In addition, an environmental impact assessment serves the
purpose of enabling the public or civil society to participate in the ultimate decision-making
process on activities with potentially significant environmental effects. Significant as the
environmental impact assessment may be, as reflecting prevailing practice in recent years, the fact
remains that the function of the environmental impact assessment is essentially one of a number of
means to be employed when the circumstances of the case so require, in order to attain the ultimate
legal objective that is binding upon States acting in the environmental field  an obligation to act
with due diligence in order to prevent significant transboundary harm in the light of the assessed
risks involved.

       22. The present Judgment is in my view based on this position, as demonstrated by the
passages of the Judgment quoted above. The relevant activities by States are to be reviewed in the
specific circumstances of the case in light of this obligation of due diligence, through verifying
whether the State has acted with due diligence, as evidenced by such elements as taking necessary
measures to prevent significant transboundary harm, as it is the case here with Costa Rica in
relation to its construction of the Road, or with Nicaragua in relation to the undertaking of its
dredging activities. Conducting an environmental impact assessment is one important element
(though not necessarily constituting an indispensable obligation as such) in the process of fulfilling
the obligation of acting with due diligence to prevent significant transboundary harm in each case.

                                                            (Signed)     Hisashi OWADA.

                                           ___________


               OPINION INDIVIDUELLE DE MME LA JUGE DONOGHUE, PRÉSIDENTE

[Traduction]

       Raisons de mon vote en faveur du point 5) du dispositif de l’arrêt  Parties considérant l’une
et l’autre que la Cour disposait d’informations suffisantes pour délimiter le plateau continental
étendu  Cour ne disposant cependant que de peu d’éléments concernant un tel plateau  Méthode
qui permet de parvenir à une délimitation équitable des zones en deçà de 200 milles marins ne
permettant pas nécessairement d’obtenir une délimitation équitable du plateau continental étendu.

        1. J’ai voté en faveur du point 5) du dispositif de l’arrêt, aux termes duquel la frontière
maritime se poursuit au-delà de 200 milles marins jusqu’à ce qu’elle atteigne la limite extérieure du
plateau continental ou la zone où les droits d’Etats tiers sont susceptibles d’être affectés. Je joins à
l’arrêt le présent exposé de mon opinion individuelle afin d’indiquer les raisons pour lesquelles j’ai
voté en ce sens et d’expliquer pourquoi je l’ai fait avec réticence.

       2. Ainsi que la Cour l’a relevé, les deux Parties l’avaient priée de délimiter le plateau
continental au-delà de 200 milles marins des lignes de base à partir desquelles est mesurée la largeur
de la mer territoriale (le «plateau continental étendu»). Chacune l’avait invitée à le faire en
prolongeant la frontière qu’elle proposait  une ligne d’équidistance pour la Somalie et le parallèle
pour le Kenya. La Cour pouvait raisonnablement supposer que les Parties lui avaient demandé de
procéder à cette délimitation en ayant conscience de ce qu’une frontière maritime fixée par elle ne
suit pas nécessairement le tracé proposé par une partie.

       3. De même, chacune des Parties avait parfaitement conscience du bien-fondé comme des
éventuelles faiblesses de la demande qu’elle avait soumise à la Commission des limites du plateau
continental (la «Commission des limites»). Aucune d’elles n’a mis en doute le droit de l’autre à un
plateau continental étendu ni sa position selon laquelle, en certains endroits de la zone de
chevauchement des revendications, ce droit s’étendait jusqu’à la limite des 350 milles marins fixée
au paragraphe 5 de l’article 76 de la convention des Nations Unies sur le droit de la mer
(la «CNUDM»). Tout semblait donc indiquer que les deux Parties considéraient que la Cour disposait
d’informations suffisantes pour parvenir à une délimitation équitable du plateau continental étendu.
C’est sur cette base que je suis arrivée à la conclusion qu’il convenait de procéder à la délimitation
de cette zone en la présente espèce.

      4. Mon hésitation quant à la décision d’effectuer cette délimitation est due au fait que la Cour
ne disposait que de peu d’éléments concernant l’existence, la forme, l’étendue et la continuité d’un
éventuel plateau continental étendu susceptible de relever des Parties. La Cour n’était pas bien placée
pour déterminer, même approximativement, une éventuelle zone de chevauchement des droits et,
partant, pour parvenir à une délimitation équitable d’une telle zone.

      5. Pour dissiper toute ambiguïté, je précise que mes doutes quant à la décision de la Cour de
délimiter le plateau continental étendu ne découlent pas de considérations de procédure. Le fait que
la Commission des limites n’ait pas encore formulé de recommandation sur les limites extérieures
du plateau continental des deux Etats ne fait pas obstacle en soi à une délimitation équitable du
plateau continental étendu.

                                                 -2-

       6. La présente affaire est entièrement différente d’autres affaires dans lesquelles un tribunal a
délimité le plateau continental étendu de deux Etats. Dans l’affaire de la Délimitation de la frontière
maritime dans le golfe du Bengale (Bangladesh/Myanmar), le Tribunal international du droit de la
mer (le «TIDM») a ainsi relevé que des «preuves scientifiques non contestées» établissaient «la
présence d’une épaisse couche de roches sédimentaires sur pratiquement l’intégralité des fonds
marins du golfe du Bengale, y compris des zones relevant du Bangladesh et du Myanmar»
(Délimitation de la frontière maritime dans le golfe du Bengale (Bangladesh/Myanmar), arrêt,
TIDM Recueil 2012, p. 115, par. 445-446). Le tribunal constitué en application de l’annexe VII de la
CNUDM aux fins de l’Arbitrage concernant la frontière maritime dans le golfe du Bengale entre le
Bangladesh et l’Inde a pris note du raisonnement du TIDM et de la délimitation maritime entre le
Bangladesh et le Myanmar pour conclure que le Bangladesh et l’Inde avaient tous les deux des droits
à un plateau continental étendu (Arbitrage concernant la frontière maritime dans le golfe du Bengale
(Bangladesh c. Inde), sentence du 7 juillet 2014, RSA, vol. XXXII, p. 138, par. 457-458).

     7. Dans l’affaire Ghana/Côte d’Ivoire, la Chambre spéciale du TIDM avait l’avantage de
pouvoir se reposer sur une recommandation favorable de la Commission des limites pour ce qui est
du Ghana. Elle a observé que la situation géologique de la Côte d’Ivoire était «identique» à celle du
Ghana (Délimitation de la frontière maritime dans l’océan Atlantique (Ghana/Côte d’Ivoire), arrêt,
TIDM Recueil 2017, p. 136, par. 491).

       8. En la présente espèce, la Cour ne disposait pas d’éléments de preuve comparables
concernant l’existence, l’étendue, la forme et la continuité d’un éventuel plateau continental étendu
relevant de l’une ou l’autre des Parties. Celles-ci lui avaient présenté les résumés des demandes
qu’elles avaient soumises à la Commission des limites (mais non les demandes elles-mêmes). Or, les
demandes soumises par les Etats à la Commission sont des déclarations unilatérales tendant à étendre
au maximum la zone du plateau continental à laquelle ils peuvent prétendre. Il ne peut être tenu pour
acquis que la Commission adoptera la demande soumise par un Etat.

      9. Mes doutes quant à la décision de la Cour de délimiter le plateau continental étendu ne
viennent pas du tracé spécifique de la frontière que celle-ci a retenu. Le manque d’informations sur
une éventuelle zone de chevauchement des droits serait problématique dans tous les cas de figure,
que la frontière ait suivi le parallèle, comme le proposait le Kenya, qu’elle ait suivi la ligne
d’équidistance, comme le préconisait la Somalie, ou qu’elle suive la ligne d’équidistance ajustée
déterminée par l’arrêt.

      10. Je formulerai également une brève observation sur la méthode qu’il convient de suivre
pour délimiter le plateau continental étendu.

       11. S’agissant des espaces situés en deçà de 200 milles marins, l’élément déterminant d’une
délimitation équitable est normalement la configuration des côtes des deux Etats (représentée par des
points de base lorsque la méthode suivie est celle de l’équidistance). La zone de chevauchement des
droits est déterminée sur la base de la projection vers le large de la côte pertinente de chaque partie,
étant entendu que la côte «doit, pour être considérée comme pertinente …, générer des projections
qui chevauchent celles de la côte de la partie adverse» (Délimitation maritime en mer Noire
(Roumanie c. Ukraine), arrêt, C.I.J. Recueil 2009, p. 97-98, par. 99). Une ligne d’équidistance
construite à partir de points de base situés sur les côtes des parties offre une première indication de
ce que pourrait être une répartition équitable de la zone de chevauchement, sous réserve
d’ajustements si des circonstances spéciales ou pertinentes le justifient.

                                                   -3-

        12. Au-delà de 200 milles marins depuis les côtes adjacentes de deux Etats, en revanche, une
zone de chevauchement des droits n’est pas déterminée par la configuration desdites côtes, mais par
application des critères géomorphologiques et géologiques visés à l’article 76 de la CNUDM. La
configuration des côtes ne devient pertinente aux fins du droit d’un Etat à un plateau continental
étendu que s’il a été établi (sur la base des critères visés au paragraphe 4 de l’article 76 de la
CNUDM) que le rebord externe de la marge continentale de cet Etat se situe à une distance pouvant
aller jusqu’à 350 milles marins des lignes de base à partir desquelles est mesurée la largeur de sa mer
territoriale, lorsque le droit de l’Etat considéré est limité par la restriction à 350 milles marins prévue
au paragraphe 5 de l’article 76 de la CNUDM.

       13. Dans une délimitation entre deux Etats dont les côtes sont adjacentes, il est facile, et donc
tentant, de prolonger la ligne de délimitation au-delà de la limite des 200 milles marins en utilisant
une flèche pour en indiquer la direction. Cependant, étant donné que le fondement juridique du droit
à un plateau continental étendu est entièrement différent de celui des droits en deçà de 200 milles
marins, l’on ne saurait présumer qu’une ligne assurant une délimitation équitable des zones en deçà
de 200 milles marins assurera également une délimitation équitable des zones de chevauchement du
plateau continental étendu de deux Etats.

                                                                 (Signé) Joan E. DONOGHUE.

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