26

DECLARATION OF JUDGE ODA

In this declaration I would like to make clear two reservations that
I have to the text of the Order.

1. I voted in favour of paragraph 3 of the operative part, albeit with
some hesitation. In my view, the date given in the passage reading

“the presence of any armed forces in the Bakassi Peninsula does not
extend beyond the position in which they were situated prior to
3 February 1996”

should have been 29 March 1994, that is, the date on which Cameroon
filed the Application instituting proceedings in this case and the date
which seems to be indicated in the mediation proposed by the President
of Togo (see para. 45).

2. { am a little concerned by the passage in paragraph 42 in which the
concept of “irreparable damage” is mentioned. The purpose of provi-
sional measures is to preserve the rights of either party, and it is estab-
lished in the jurisprudence that the rights in question are those which are
to be considered at the merits stage of the case and which constitute, or
are directly engaged by, the subject of the application. The urgency of the
relevant action or inhibition is a prerequisite. The anticipated or actual
breach of the rights to be preserved ought to be one which could not be
erased by the payment of reparation or compensation to be ordered in a
later judgment on the merits, and this irreparable prejudice must be
imminent. These conditions have been regarded by the Court as the cri-
teria according to which it has determined its position when indicating or
refusing to indicate provisional measures as requested by the applicant in
each case.

In the present case, when the Court states in the first part of para-
graph 42 that

“the events that have given rise to the request, and more especially
the killing of persons, have caused irreparable damage to the rights
that the Parties may have over the [Bakassi] Peninsula”,

this is simply a statement of facts that already exist. In the latter part of
paragraph 42, the Court talks about

“persons in the disputed area and, as a consequence, the rights of the
Parties within that area [that] are exposed to serious risk of further
irreparable damage”.

17
27 LAND AND MARITIME BOUNDARY (DECL. ODA)

I believe, however, that loss of life in the disputed area, distressing as it
undoubtedly 1s, does not constitute the real subject matter of the present
case.

In addition, the Court admits that it has not been able to form any
clear and precise idea of the events that took place on 3 February 1996 as
well as those which recurred on 16 and 17 February 1996 in the Bakassi
Peninsula, and has been unable to make definitive findings of fact or of
imputability (para. 43). In such an unclear situation the concept of
irreparable damage cannot be used to justify the indication of provisional
measures.

(Signed) Shigeru Opa.

18


DISSENTING OPINION BY COUNT ROSTWOROWSKI.

{ Translation.

I very much regret that Iam unable to concur with the judgment
given, in the suit concerning certain German interests in Polish
Upper Silesia, upon the ‘Plea to the Jurisdiction” filed by the
Polish Government on June 25th, 1925.

Without reverting to the various facts set out in the Judgment,
it is necessary to take as a starting point the “plea to the juris-
diction”’ referred to, in which it was submitted that:

(a) in regard to ‘affaire 1’ 1, the Court should declare that
it had no jurisdiction, or in the alternative that the Application
could not be entertained until the German-Polish Arbitral
Tribunal had given judgment ;

(b) in regard to ‘affaires IT”1, the Court should declare
that it had no jurisdiction, or in the alternative that the
Application could not be entertained.

The jurisdiction of the Permanent Court of International Justice,
which was accepted by the German Government in its first Applic-
ation and subsequently affirmed in the German Government’s
Observations of July roth, 1925, and in the course of the oral pro-
ceedings, was thus disputed by the Polish Government, both in its
plea to the jurisdiction and in the statements of Counsel. Poland
occupied the position of Applicant. The case was placed upon the
list in so far as the objections in question were concerned. The
Parties were duly informed of the decision to extend sine die the
times fixed for the deposit of the documents of procedure in regard
to the merits, should such procedure take place.

Proceedings having thus been commenced solely as concerns
the preliminary objections raised by Poland in regard to the
Court’s jurisdiction, it will be well to examine the legal aspect
of the problem. .

1 Of the German Application. [Author’s note.]
DISSENTING OPINION BY COUNT ROSTWOROWSKI 32

I,

According to Article 36, last paragraph, of the Statute :

“In the event of a dispute as to whether the Court has
jurisdiction, the matter shall be settled. by the decision of the
Court.”

Such a decision which, if taken, can clearly be based only on the
objective law applicable in the particular case, is of a purely declara-
tory nature ; and it can never create a right, i.e. bestow on the
Court itself a jurisdiction which is not supported by applicable
rules of law either general or particular.

A general rule laid down by Article 36, paragraph 1, of the Statute
provides for a compromis between the Parties, which in the present
case does notexist. It also refers to special Treaty provisions.

The German-Polish Convention regarding Upper Silesia, con-
cluded on May 15th, 1922, at Geneva, constitutes a special source of
jurisdiction of this kind, for it gives the Permanent Court of Inter-
national Justice jurisdiction in two different sets of circumstances:

(1) that dealt with in Article 2, paragraphs I and 2, in con-
junction with Article 586, where the Court’s jurisdiction is-strictly
limited and subordinated in each particular case to a previous
decision by the German-Polish Mixed Commission; this clause
does not come into account ;

(2) that provided for in Article 23, which is the only clause that
can be invoked in the present case. And itis precisely the applic-
ability of this clause which was affirmed by one Party and denied
by the other.

The opposing Parties in the present case left it to the Court to
decide whether Article 23 was applicable, being agreed to obtain
a decision as to the Court’s jurisdiction by means of an interpret-
ation of this article, that is to say by means of an interpretation
of their own common intention as expressed in this article.

It would appear that this interpretation should be a strict and
even a restrictive one, in order to avoid the possibility of either
of the contracting States being placed in the painful position of
DISSENTING OPINION BY COUNT ROSTWOROWSKI 33

having the Court’s jurisdiction imposed upon it in a case which had
not been willingly provided for in advance.

The opinion given by Mr. Moore (Judgment No. 2, page 60)
appears to be must judicious:

“The international judicial Tribunals so far created have
been tribunals of limited powers. Therefore, no presumption
in favour of their jurisdiction may be indulged. Their
jurisdiction must always affirmatively appear on the face
of the record.”’

A general idea of the great care taken by the Court before deciding
on a similar point in the case of the Mavrommatis Palestine Con-
cessions is given by the three following passages of Judgment
No. 2:

1. “It appears in fact from the documents before the
Court and from the speeches... that the preliminary
question to be decided is not merely whether the nature
and subject of the dispute laid before the Court are such
that the Court derives from them jurisdiction to entertain
it, but also whether the conditions upon which the exercise
of this jurisdiction is dependent are all fulfilled in the present
case.” (Page ro.)

2. ‘Before considering whether the case of the Mavrom-
matis concessions relates to the emlerpretation or application
of the Mandate and whether consequently its nature and
subject are such as to bring it within the jurisdiction of the
Court as defined in the article quoted above, it is essential
to ascertain whether the case fulfils all the other conditions

laid down in this clause ....” (Page 11.)
3. “.... the Court, bearing in mind the fact that its

jurisdiction is limited, that it is invariably based on the consent
of the respondent and only exists in so far as this consent has
been given, cannot content itself with the provisional con-
clusion that the dispute falls or not within the terms of the
Mandate. The Court, before giving judgment on the merits
of the case, will satisfy itself that the suit before it, in the
form in which it has been submitted and on the basis of the
facts hitherto established, falls to be decided by application
of the clauses of the Mandate. For the Mandatory has only
accepted the Court’s jurisdiction for such disputes.” (Page 16.)
DISSENTING OPINION BY COUNT ROSTWOROWSKI 34

It seems necessary to exercise similar care in the two suits
(I and II of the German Application) without losing sight of the fact
that the Geneva Convention, in general, and its Section IJI in
particular which includes the Article 23 in question, regulates the
exercise of public authority by Poland in Upper Silesia which became
Polish after the plebiscite. Certain rights of Poland, of the Polish
authorities and of the Polish Government in various branches of
public administration, in accordance with the various carefully
defined legal domains, are dealt with in great detail. By freely
consenting to submit to the Court’s jurisdiction certain clearly
defined disputes, Poland alone of the two Parties concerned was
the one making concessions—the only Party in practice compelled
to appear before the Court upon the application of the other Party ;
for the inverse situation could not arise. When Article 6 of the
Geneva Convention begins: “‘Poland may expropriate in Upper
Silesia undertakings. ...’’, it is the exercise of a right—of expropri-
ation—accruing to Poland only which is therein regulated.

In an endeavour to devote the same care to the settlement of
the two groups of cases now before the Court, we will abstain from
following the learned distinction, adopted in Judgment No. 2,
between the nature and object on the one hand, and other condi-
tions on the other hand, and we will rest content with considering
one by one the various conditions—all the conditions—contained
in Article 23 all of which are equally and to the same degree import-
ant for the solution of the problem under consideration. |

Article 23, the only clause dealing with this matter, is part of
Section III—entitled “Expropriation”’—of the Geneva Convention:
This article runs as follows :

[Translation.]
Article 23.

“ry. Should differences of opinion respecting the construc-

tion and application of Articles 6 to 22 arise between the

' German and Polish Governments, they shall be submitted to
the Permanent Court of International Justice.

“2, The jurisdiction of the Germano-Polish Mixed Arbitral
Tribunal derived from the stipulations of the Treaty of Peace
of Versailles shall not thereby be prejudiced.”
DISSENTING OPINION BY COUNT ROSTWOROWSKI 35

The first paragraph, which is positive in form, confers jurisdiction
on the Permanent Court of International Justice ; this clause we
will take first. The second paragraph, which is negative in form,
constitutes a reservation in regard to the first ; it will be analyzed
afterwards.

A. — Jurisdiction is conferred on the Court subject to the
fulfilment of all the conditions of fact, which may be grouped
under the three following headings :

1. — In the first place, the facts must include an actual
interpretation and application of specified articles.

The two contracting States are not in the same situation, Poland
alone being in a position both to interpret and apply the articles,
whilst Germany, or its Government, can only interpret them.
Interpretation, unaccompanied by application, even if undertaken
by both countries, is not sufficient, for it is devoid of all practical
interest. Jt is interpretation and application undertaken by
Poland, the responsible power, combined with the interpretation
of the German Government, which alone can give rise to differences
of opinion and render applicable the provisions of Article 23.
Application must take a positive form, that is to say must consist
of finding that the provisions of some particular article have been
fulfilled and of the application of the contemplated sanctions or
legal consequences. An article may have been well or badly
interpreted and applied, but it must have been applied. The
Court, therefore, is not given jurisdiction in the case of certain
expressly specified acts; it only obtains jurisdiction indirectly
through the use made by one of the two Governments of the
articles specially enumerated.

2. — In the next place, the only articles the interpretation and
application of which can give rise to a difference of opinion suitable
for submission to the Court are those exhaustively enumerated,
namely, Articles 6 to 22 of the same Convention. Of the three
sections included in the first part of the Convention entitled
General Provisions, only the third, Section III, regarding Expropri-
ation and including the articles referred to, is thus in effect placed
in a special position. Heading I concerning Laws in force and
Heading I concerning the Protection of vested rights, like any other

5
DISSENTING OPINION BY COUNT ROSTWOROWSKI 36

provisions of municipal or international law, are, on the contrary,
as regards their correct or incorrect interpretation and application,
entirely outside the Court’s jurisdiction in so far as that jurisdiction
is governed by Article 23. Are they or are they not also under the
protection of some jurisdiction whether national or international ?
Is it regarded as adequate or inadequate ? These are questions of
policy, of high international policy, and, in my view, the Court. of
International Justice cannot, on the basis of Article 23, be called
upon either to answer them or to find a remedy.

3. — Lastly, resulting from this interpretation and application of
the articles mentioned, there must be a difference of opinion arising
‘ between the German and Polish Governments. Such a difference
must result from—that is to say originate in—the interpretation
and application, but it must also arise, that is to say, take the form
of an official controversy between the twoGovernments. Article 23
does not specify the length of time which this controversy must
last ; nor does it include a clause similar to that which exists in
Article 26 of the Mandate for Palestine (“dispute.... if it cannot
be settled by negotiation”). It is sufficient but also essential that
this disagreement, this contradiction, this opposition of legal argu-
ments derived from practical experience, should in the first place
take shape in a controversy which, far from being a mechanical
juxtaposition of two individual opinions, constitutes the mutual
confronting of these opinions in the form of diplomatic steps taken
by the two Governments. If Article 23 requires that there must be
a definite dispute between the two Governments, this condition
cannot be fulfilled by unilateral action on the part of the applicant
Party, and it does not rest solely with the Party concerned to remove
this defect of form. It is equally necessary that the other Party
should at least have an opportunity to decide upon its attitude
with regard to its opponent’s contentions and to communicate
its views to the latter. Article 23, which makes a definite dispute
one of the conditions for an action before the Permanent Court of
International Justice, cannot be interpreted in a sense which would
in fact lead to the elimination of that condition ; and this would
inevitably occur if the submission of the application were regarded
as sufficient evidence of the existence of a difference of opinion.
DISSENTING OPINION BY COUNT ROSTWOROWSKI 37

An action at law which is dependent on the fulfilment of certain
conditions cannot be confused with, nor substituted for, one of
these conditions. The practical importance of this essential
condition is especially worthy of notice, because, apart from the
advantage of seeing States have recourse to legal proceedings as
an ultimum remedium, the mere reading of diplomatic documents
furnished by the Party or Parties concerned in support of the
application enables the Court at once to verify whether the two
other essential conditions are also fulfilled and, in particular,
whether the subject matter of the difference is indeed the interpret-
ation and actual application of Articles 6 to 22.

Such being the sense of Article 23, paragraph 1, it is easy to see
that, if, on the one hand, that article indirectly provides individuals
with a complete safeguard by guaranteeing to the State whose
nationals they are the right of assuring that the articles concerning
expropriation are correctly interpreted and applied, on the other
hand, it places no obstacle in the way of the question of the
Court’s jurisdiction being examined and settled independently
of any factors belonging to the merits of the case. The
question of applicability or non-applicability in general of the
régime of expropriation contained in Articles 6 to 22 cannot
even arise; for the essential condition of actual application has
. indisputably placed the two Parties on the same common ground,

that of Section ITI, entitled “Expropriation”. The strict applica-
ation of Article 23 in the sense referred to, and in conformity with
its terms, thus enables us to avoid two equally undesirable possi-
bilities : the possibility that the Court may affirm its jurisdiction in
a purely provisional manner, on the basis of the doubt that may
arise out of the very institution of proceedings, as regards the
applicability or non-applicability ; with the risk that later, in the
course of proceedings on the merits, this doubt may be dispelled,
in the sense that the articles are found inapplicable and the Court
thus without jurisdiction ; and, on the other hand, the possibility
that the Court may affirm its jurisdiction as the result of certain
considerations relating to the merits of the dispute; with the
danger of prejudging by the decision as to jurisdiction some point
or other which belongs to proceedings on the merits, and of com-
promising by this encroachment the essential position of equality
which the two Parties are justly entitled to claim in entering on the
field of these subsequent proceedings.
DISSENTING OPINION BY COUNT ROSTWOROWSKI . 38

B. — Paragraph 2 of Article 23 contains a negative provision :

“The jurisdiction of the Germano-Polish Mixed Arbitral
Tribunal derived from the stipulations of the Treaty of Peace
with Versailles shall not thereby be prejudiced.”

Whatever may have been the object of this reservation, whether
it were to ensure that the jurisdiction of the Court of International
Justice should not in any way exclude the right of individuals
to sue for their rights before the Mixed Arbitral Tribunal, or
whether it were to prevent one or other of the Governments from
substituting itself for its nationals and transferring the suit to
another sphere by making it the subject of a dispute between two
Governments, there is no doubt that we have here a reservation
which is indissolubly connected with the first paragraph and refers
to the Court’s jurisdiction, which it defines, by elimination, as
compared with the jurisdiction of the Mixed Arbitral Tribunal of
Paris. For there can have been no idea of creating in the previous
paragraph a concurrent or privileged, nor yet a hierarchically
superior jurisdiction. In each of these three eventualities the
competence of the Mixed Arbitral Tribunal would, either as regards
its sphere of activity, or as regards its authority, have certainly
been impaired. This Tribunal, in favour of which Article 304 (g)
of the Treaty of Versailles provides that :

“The High Contracting Parties agree to regard the decisions
of the Mixed Arbitral Tribunal as final and conclusive and
to render them binding upon their nationals’,

thus remains, before and after the Geneva Convention, free
in the exercise of its jurisdiction both to protect the private rights
of individuals, and for this purpose to give a final interpretation
of the law applicable in each particular case.

It follows that the jurisdiction of the International Court of
Justice, which cannot overlap with that of the Mixed Arbitral
Tribunal in Paris, must, within the sphere of its activities—a sphere
very limited vatione materre—, differ from that of the Tribunal as
regards its nature.

It none the less remains a true jurisdiction, and a jurisdiction
for the hearing of disputes ; but, starting from an examination of
particular instances of interpretation and application of Articles
6 to 22, which have necessarily been submitted to it, it reaches a
decision which is in its turn an interpretation of the articles in
question as regards the particular cases referred to. Without
DISSENTING OPINION BY COUNT ROSTWOROWSKI 39

remaining confined within an academic sphere of pure doctrine—
for this it avoids by dealing always with concrete contested cases—
it is none the less bound, in virtue of the mandate given by the
Parties in Article 23, paragraphs r and 2, to confine itself to deter-
mining only differences of opinion between the two Governments
concerned, without endeavouring by its decision to impose on one
or other Government any obligation as regards individuals, for
instance in the matter of reparation or indemnity.

It is solely in the interest of the Law—for Articles 6 to 22 of the
Geneva Convention constitute in this case the Law common to the
two Parties—that Article 23 of the same Convention, which has
already been analyzed, gives a very particular and very special
jurisdiction to the International Court of Justice.

TI.

When compared with the conditions laid down as necessary
in Article 23, the German Government’s Application instituting
proceedings, as regards conclusions 1(a), 1(b), 2(a) and 2(b), does not
show that any of these conditions have been fulfilled. It is con-
fronted with facts which are contrary to them. The documents
and statements by Counsel have clearly shown that the steps taken
by the Polish Government in regard to the Oberschlesische Stick-
stoffwerke Company, far from having constituted the application
and interpretation of Articles 6 to 22 of the Geneva Convention,
were inspired by other treaty provisions, such as Article 256 of the
Treaty of Versailles and the Spa Protocol, applied by the Polish
legislative enactments which were necessary for their execution.
This fact is so well established that the ‘Observations of the German
Government” themselves recognize it in the following passage
(page I):

“The German Government’s complaint against the Polish
Government is precisely that the latter Government has not
applied the articles in question, although it should have done
so.”

But a complaint in regard to the non-existence of a fact cannot
constitute its existence, or take the place of such fact.

Considering that neither the conditions of fact in regard to the
previous official dispute nor those relating to the source and subject
DISSENTING OPINION BY COUNT ROSTWOROWSKI 40

matter of the dispute are realized ; and considering that the sub-
missions of the German Application tend to raise quite another
issue, that of the applicability of the régime of expropriation, which
stands outside the limited sphere of Article 23 of the Geneva
Convention, and extends over a very large number of legal domains
entirely foreign to that which had been reserved by the Parties
for the jurisdiction of the Permanent Court of International Justice,
I can only conclude that the Court has no jurisdiction in the present
case,

Res

IIT.

As regards the third conclusion of the Application in the matter
of the rural estates, it is to bé noted that this is not based on the
previous existence of an official dispute between the two Govern-
ments and thus does not satisfy one of the essential conditions
laid down in Article 23.

As regards its subject matter, the conclusion stands strictly
within the scope of Article 23, since the Polish Government ex-
pressly recognized that it desired to avail itself of the rights pro- ~
vided in Article r2 and 13 of the Geneva Convention and that it had
proceeded to apply Articles 6 and following by notifying to the
proprietors its intention of expropriating them, as required by
Article 15 of the Convention.

The Court’s jurisdiction being thus, as regards the subject matter
of the dispute, definitely established, it is none the less clearly to be
understood that the Court’s enquiry and its decision can, in accord-
ance with Article 23, only extend to differences of opinion duly
found to exist in regard to the interpretation and application of
Articles 6 to 22 of the Convention, without extending to the ques-
tions of fact referred to in the Application instituting proceedings
(pages 6 and 8):

whether certain estates are or are not principally intended to
meet the requirements of undertakings belonging to the group
of major industries ;

whether a certain company is or is not controlled by German
nationals ;

whether the description of the property to be expropriated
is or is not sufficiently clear ;
DISSENTING OPINION BY COUNT ROSTWOROWSKI 4x

whether the extent of certain of the properties included in the
notifications is or is not less than 100 hectares of agricultural
land ; |

whether any given person is or is not of a certain nationality.

These questions of fact (which clearly lie outside the jurisdiction
of the Court and the solution of which alone can give the Polish
Government an opportunity of expressing its opinion and arriving
either at an agreement or a disagreement with the German Govern-
ment) form the subject matter of the steps taken by the Polish
Government in regard to the persons to whom the notification of
its intention was given. Six of the nine cases are still pending
before the Mixed German-Polish Arbitral Tribunal in Paris.
One of the ten cases—that of Madame H. Voigt, which was decided
in favour of the objector—gave the Polish Government an opportun-
ity of showing—by the immediate withdrawal of notice—that
neither after nor before the decision of the question of fact was there
in the case at issue any difference of opinion between it and the
German Government in regard to the interpretation and application
of Articles 6 to 22 of the Convention. It is by no means impossible
that a similar agreement may become manifest after the solution,
in one way or the other, of other problems of fact which have
arisen.

(Signed) ROSTWOROWSKI,