26

DÉCLARATION DE M. ODA
[Traduction]

Dans la présente déclaration, je voudrais préciser deux réserves que j’ai
à l’égard du texte de l’ordonnance.

1. J'ai voté en faveur de l’alinéa 3 du dispositif, non sans hésitation.
Selon moi, la date indiquée dans le passage rédigé en ces termes:

«veillent à ce que la présence de toutes forces armées dans la pres-
qu'île de Bakassi ne s’étende pas au-delà des positions où elles se
trouvaient avant le 3 février 1996»,

aurait dû être le 29 mars 1994, c’est-à-dire la date à laquelle le Cameroun
a déposé Ja requête introductive d'instance dans la présente affaire et qui
semble être la date indiquée dans la proposition de médiation du prési-
dent du Togo (voir par. 4S).

2. Je suis un peu préoccupé par le passage, au paragraphe 42, où il est
question de la notion de «préjudice irréparable». Les mesures conserva-
toires ont pour objet de sauvegarder les droits de chacun et il est de juris-
prudence constante que ces droits sont ceux sur lesquels il doit étre statué
au stade de l’examen au fond de l’affaire et qui font l’objet de la requête
ou sont directement mis en cause par celle-ci. Le caractère d’urgence de
Paction ou de l’interdiction en cause constitue une condition préalable.
La violation escomptée ou effective des droits à sauvegarder devrait être
de celles auxquelles il ne peut être remédié par le versement d’une indem-
nité ou l’octroi d’une réparation qui serait fixée dans un arrêt ultérieur
sur le fond, et ce préjudice irréparable doit être imminent. La Cour a
considéré qu'il s'agissait là des critères qui fondaient, dans chaque affaire,
sa décision d'indiquer ou de refuser d’indiquer les mesures conservatoires
demandées par le requérant.

En l'espèce, lorsque la Cour indique au début du paragraphe 42 que:

«les événements qui sont à l’origine de la demande, et tout spéciale-
ment le fait que des personnes aient été tuées dans la presqu'île de
Bakassi, ont porté un préjudice irréparable aux droits que les Parties
peuvent avoir sur la presqu'île»,

il s’agit la tout simplement de l’énoncé de faits existants. La Cour men-
tionne ensuite dans ce méme paragraphe que

«les personnes se trouvant dans la zone litigieuse, et par voie de
conséquence les droits que les Parties peuvent y avoir, sont exposés
au risque sérieux d’un nouveau préjudice irréparable».

17
FRONTIÈRE TERRESTRE ET MARITIME (DÉCL. ODA) 27

Je crois cependant que les pertes en vies humaines dans la zone litigieuse,
aussi regrettables qu’elles soient assurément, ne constituent pas l’objet
réel de la présente affaire.

De surcroît, la Cour reconnaît qu’elle n’a pas été en mesure de se faire
une image claire et précise des événements qui sont survenus le 3 février
1996 ni de ceux qui se sont produits à nouveau les 16 et 17 février 1996
dans la presqu'île de Bakassi, et qu’elle n’était pas habilitée à conclure
définitivement sur les faits ou leur imputabilité (par. 43). Dans une situa-
tion aussi confuse, on ne saurait recourir à la notion de préjudice irrépa-
rable pour justifier indication de mesures conservatoires.

(Signé) Shigeru Opa.

18


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIES
ET ORDONNANCES

1999
(I)

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS
AND ORDERS

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

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

(YOUGOSLAVIE c. PORTUGAL)

DEMANDE EN INDICATION DE MESURES
CONSERVATOIRES

ORDONNANCE DU 2 JUIN 1999

1999

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING
LEGALITY OF USE OF FORCE

(YUGOSLAVIA v. PORTUGAL)

REQUEST FOR THE INDICATION OF PROVISIONAL
MEASURES

ORDER OF 2 JUNE 1999
Mode officiel de citation:

Licéité de l'emploi de la force (Yougoslavie c. Portugal),
mesures conservatoires, ordonnance du 2 juin 1999,
C.J. Recueil 1999, p. 656

Official citation:

Legality of Use of Force (Yugoslavia v. Portugal),
Provisional Measures, Order of 2 June 1999,
LC J. Reports 1999, p. 656

N° de vente:
ISSN 0074-4441 Sales number 733
ISBN 92-1-070801-6

2 JUIN 1999

ORDONNANCE

LICEITE DE L'EMPLOI DE LA FORCE
(YOUGOSLAVIE c. PORTUGAL)

DEMANDE EN INDICATION DE MESURES
CONSERVATOIRES

LEGALITY OF USE OF FORCE
(YUGOSLAVIA v. PORTUGAL)

REQUEST FOR THE INDICATION OF PROVISIONAL
MEASURES

2 JUNE 1999

ORDER
656

INTERNATIONAL COURT OF JUSTICE

YEAR 1999 1999
2 June
General List
2 June 1999 No. 111

CASE CONCERNING
LEGALITY OF USE OF FORCE

(YUGOSLAVIA v. PORTUGAL)

REQUEST FOR THE INDICATION OF PROVISIONAL
MEASURES

ORDER

Present: Vice-President WEERAMANTRY, Acting President; President
SCHWEBEL; Judges ODA, BEDJAOUI, GUILLAUME, RANJEVA,
HERCZEGH, SHI, FLEISCHHAUER, KOROMA, VERESHCHETIN,
HIGGINS, PARRA-ARANGUREN, KOOIMANS; Judge ad hoc
Kreca; Registrar VALENCIA-OSPINA.

The International Court of Justice,

Composed as above,
After deliberation,

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

Having regard to the Application by the Federal Republic of Yugo-
slavia (hereinafter “Yugoslavia”) filed in the Registry of the Court on
29 April 1999, instituting proceedings against the Portuguese Republic
(hereinafter “Portugal”) “for violation of the obligation not to use force”,
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 657

Makes the following Order:

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

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

2. Whereas in the said Application Yugoslavia refers, as a basis for the
jurisdiction of the Court, to Article 36, paragraph 2, of the Statute of the
Court and to Article [X of the Convention on the Prevention and Pun-
ishment of the Crime of Genocide, adopted by the General Assembly of
the United Nations on 9 December 1948 (hereinafter the “Genocide Con-
vention”);

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

“The Government of Portugal, together with the Governments of
other Member States of NATO, took part in the acts of use of force
against the Federal Republic of Yugoslavia by taking part in bomb-
ing targets in the Federal Republic of Yugoslavia. In bombing the
Federal Republic of Yugoslavia military and civilian targets were
attacked. Great number of people were killed, including a great
many civilians. Residential houses came under attack. Numerous
dwellings were destroyed. Enormous damage was caused to schools,
hospitals, radio and television stations, cultural and health institu-
tions and to places of worship. A large number of bridges, roads and
railway lines were destroyed. Attacks on oil refineries and chemical
plants have had serious environmental effects on cities, towns and
villages in the Federal Republic of Yugoslavia. The use of weapons
containing depleted uranium is having far-reaching consequences for
human life. The above-mentioned acts are deliberately creating con-
ditions calculated at the physical destruction of an ethnic group, in
whole or in part. The Government of Portugal is taking part in the
training, arming, financing, equipping and supplying the so-called

EC

‘Kosovo Liberation Army”;
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 658

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

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

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

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

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

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

— by taking part in attacks on civilian targets, Portugal has acted
against the Federal Republic of Yugoslavia in breach of its obli-
gation to spare the civilian population, civilians and civilian
objects;

— by taking part in destroying or damaging monasteries, monu-
ments of culture, Portugal has acted against the Federal Repub-

6
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 659

lic of Yugoslavia in breach of its obligation not to commit any
act of hostility directed against historical monuments, works of
art or places of worship which constitute cultural or spiritual
heritage of people;

— by taking part in the use of cluster bombs, Portugal has acted
against the Federal Republic of Yugoslavia in breach of its obli-
gation not to use prohibited weapons, i.e. weapons calculated to
cause unnecessary suffering;

— by taking part in the bombing of oil refineries and chemical
plants, Portugal has acted against the Federal Republic of Yugo-
slavia in breach of its obligation not to cause considerable envi-
ronmental damage;

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

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

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

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

— Portugal is responsible for the violation of the above interna-
tional obligations;

— Portugal is obliged to stop immediately the violation of the
above obligations vis-a-vis the Federal Republic of Yugoslavia;

— Portugal is obliged to provide compensation for the damage
done to the Federal Republic of Yugoslavia and to its citizens
and juridical persons”;

and whereas, at the end of its Application, Yugoslavia reserves the right
to amend and supplement it;
5. Whereas on 29 April 1999, immediately after filing its Application,

7
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 660

Yugoslavia also submitted a request for the indication of provisional
measures pursuant to Article 73 of the Rules of Court; and whereas that
request was accompanied by a volume of photographic annexes pro-
duced as “evidence”;

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

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

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

“If the proposed measure were not to be adopted, there will be
new losses of human life, further physical and mental harm inflicted
on the population of the FR of Yugoslavia, further destruction of
civilian targets, heavy environmental pollution and further physical
destruction of the people of Yugoslavia”;

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

“Portugal shall cease immediately its acts of use of force and shall
refrain from any act of threat or use of force against the Federal
Republic of Yugoslavia”;
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 661

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

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

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

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

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

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

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

13. Whereas, at the public hearings held between 10 and 12 May 1999,

9
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 662

oral observations on the request for the indication of provisional mea-
sures were presented by the Parties:

On behalf of Yugoslavia:

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

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

Mr. Miodrag Mitic,

Mr. Olivier Corten:

On behalf of Portugal:
Mr. José Leite Martins, Agent;

and whereas at the hearings a question was put by a Member of the
Court, to which one of the Parties replied orally and the other in writing;

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

On behalf of Yugoslavia:

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

Portugal . .. shall cease immediately the acts of use of force and
shall refrain from any act of threat or use of force against the Fed-
eral Republic of Yugoslavia”:

On behalf of Portugal:

“The submissions [of Portugal] are as follows:

— The International Court of Justice has not prima facie jurisdic-
tion to decide on the provisional measures requested by the Fed-
eral Republic of Yugoslavia.

— It has no jurisdiction based on Article 36, paragraph 2, of the
International Court of Justice Statute, as the Federal Republic
of Yugoslavia is not a United Nations member State; therefore,
only with the General Assembly and the Security Council’s per-
mission could it legally put forward such request.

— It has no jurisdiction since the declaration of the optional clause’s
acceptance formulated by the Federal Republic of Yugoslavia
substantially includes only the facts related to the period after
25-26 April 1999, and the situations originated before that date.

— Furthermore, it has no jurisdiction in accordance with Article IX
of the Genocide Convention, as the Portuguese Republic was
not a party at the time of the request’s deposition in Court.
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 663

Article IX of the Genocide Convention — another ground for
the Federal Republic of Yugoslavia’s claim — is not, clearly,
applicable to the facts referred.

In the unlikely event the International Court of Justice would
consider to have jurisdiction, it should take into consideration
that, underlying the Federal Republic of Yugoslavia’s request,
there is a situation of abuse of process since the declaration of
optional clause acceptance was delivered just a few days before
the action was filed in the International Court of Justice.

Undoubtedly, there is also abuse of process when the Federal
Republic of Yugoslavia comes before the International Court of
Justice in order to pursue an objective clearly rejected by the
United Nations Security Council, competent organ in the United
Nations system, ratione materiae.

If, hypothetically, the International Court of Justice would decide
it has prima facie jurisdiction and the Federal Republic of Yugo-
slavia’s request did not constitute an abuse of process, even then,
there would not be the requirements to indicate the provisional
measures — as there are no rights based either in the Genocide
Convention or in other international instruments that, in this
context, are in jeopardy, and as the interruption of NATO’s
effort puts in danger rights that must prevail over others that
eventually may be affected by that intervention.

An eventual indication of such measures, if restricted to a reduced
number of States, due to their position vis-a-vis the optional
clause, would have no significant effect under the prevailing
circumstances.

Furthermore, that eventual indication does not contribute, or
seems not to contribute, to a constructive approach to the reso-
lution of the legal dispute.

Having said so, the Portuguese Republic is of the view that the

Court should reject the request for indication of provisional meas-
ures formulated by the Federal Republic of Yugoslavia.”

x * +

15. Whereas the Court is deeply concerned with the human tragedy,
the loss of life, and the enormous suffering in Kosovo which form the
background of the present dispute, and with the continuing loss of life
and human suffering in all parts of Yugoslavia;

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

11
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 664

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

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

*
* *

19. Whereas the Court, under its Statute, does not automatically have
jurisdiction over legal disputes between States parties to that Statute or
between other States to whom access to the Court has been granted;
whereas the Court has repeatedly stated “that one of the fundamental
principles of its Statute is that it cannot decide a dispute between States
without the consent of those States to its jurisdiction” (East Timor ( Por-
tugal v. Australia), Judgment, 1 C.J. Reports 1995, p. 01, para. 26); and
whereas the Court can therefore exercise jurisdiction only between States
parties to a dispute who not only have access to the Court but also have
accepted the jurisdiction of the Court, either in general form or for the
individual dispute concerned;

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

* *

21. Whereas in its Application Yugoslavia claims, in the first place, to
found the jurisdiction of the Court upon Article 36, paragraph 2, of the
Statute; whereas each of the two Parties has made a declaration recog-
nizing the compulsory jurisdiction of the Court pursuant to that provi-
sion; whereas Yugoslavia’s declaration was deposited with the Secretary-
General of the United Nations on 26 April 1999, and that of Portugal on
19 December 1955;

22. Whereas Yugoslavia’s declaration is formulated as follows:

“{ hereby declare that the Government of the Federal Republic of
Yugoslavia recognizes, in accordance with Article 36, paragraph 2,
of the Statute of the International Court of Justice, as compulsory
ipso facto and without special agreement, in relation to any other
State accepting the same obligation, that is on condition of recipro-
city, the jurisdiction of the said Court in all disputes arising or which

12
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 665

may arise after the signature of the present Declaration, with regard
to the situations or facts subsequent to this signature, except in cases
where the parties have agreed or shall agree to have recourse to
another procedure or to another method of pacific settlement. The
present Declaration does not apply to disputes relating to questions
which, under international law, fall exclusively within the jurisdic-
tion of the Federal Republic of Yugoslavia, as well as to territorial
disputes.

The aforesaid obligation is accepted until such time as notice may
be given to terminate the acceptance”;

and whereas the declaration of Portugal reads as follows:

“Under Article 36, paragraph 2, of the Statute of the International
Court of Justice, [ declare on behalf of the Portuguese Government
that Portugal recognizes the jurisdiction of this Court as compulsory
ipso facto and without special agreement, as provided for in the said
paragraph 2 of Article 36 and under the following conditions:

(1) the present declaration covers disputes arising out of events both
prior and subsequent to the declaration of acceptance of the
“optional clause”which Portugal made on 16 December 1920 as
a party to the Statute of the Permanent Court of International
Justice:

(2) the present declaration enters into force at the moment it is
deposited with the Secretary-General of the United Nations; it
shall be valid for a period of one year, and thereafter until notice
of its denunciation is given to the said Secretary-General ;

(3) the Portuguese Government reserves the right to exclude from
the scope of the present declaration, at any time during its valid-
ity, any given category or categories of disputes, by notifying the
Secretary-General of the United Nations and with effect from
the moment of such notification”;

oe

23. Whereas Portugal contends that the jurisdiction of the Court can-
not be founded on Article 36, paragraph 2, of the Statute of the Court in
this case; whereas it argues that Yugoslavia’s declaration of acceptance
of the jurisdiction of the Court “states clearly that it applies only to dis-
putes ‘arising after the signature of the present declaration’”; whereas
Portugal adds, referring to the definition of a dispute given in the Mav-
rommatis case, that the “dispute object of the current procedure has
arisen well before 25 April 1999 (or 26 April 1999 . . .)”; and whereas

Portugal accordingly concludes that “the dispute which underlies the

13
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 666

request for the indication of provisional measures is not covered by the
optional clause declaration” made by Yugoslavia;

24. Whereas, according to Yugoslavia, “[t]he issue before the Court is
that of interpreting a unilateral declaration of acceptance of its jurisdic-
tion, and thus of ascertaining the meaning of the declaration on the basis
of the intention of its author”; whereas Yugoslavia contends that the text
of its declaration “allows all disputes effectively arising after 25 April
1999 to be taken into account”; whereas, referring to bombing attacks
carried out by NATO member States on 28 April, | May, 7 May and
8 May 1999, Yugoslavia states that, “[i]n each of these cases, which are
only examples, [it] denounced the flagrant violations of international law
of which it considered itself to have been the victim”, and the “NATO
member States denied having violated any obligation under international
law”; whereas Yugoslavia asserts that “each of these events therefore
gave rise to ‘a disagreement on a point of law or fact’, a disagreement . . .
the terms of which depend in each case on the specific features of the
attack” in question; whereas Yugoslavia accordingly concludes that,
since these events constitute “instantaneous wrongful acts”, there exist “a
number of separate disputes which have arisen” between the Parties
“since 25 April relating to events subsequent to that date”; and whereas
Yugoslavia argues from this that “[t]here is no reason to exclude prima
facie the Court’s jurisdiction over disputes having effectively arisen after
25 April, as provided in the text of the declaration”; and whereas Yugo-
slavia adds that to exclude such disputes from the jurisdiction of the
Court “would run entirely counter to the manifest and clear intention of
Yugoslavia” to entrust the Court with the resolution of those disputes;

25. Whereas Yugoslavia has accepted the Court’s jurisdiction ratione
temporis in respect only, on the one hand, of disputes arising or which
may arise after the signature of its declaration and, on the other hand, of
those concerning situations or facts subsequent to that signature (cf.
Right of Passage over Indian Territory, Merits, Judgment, 1 C.J. Reports
1960, p. 34); whereas, in order to assess whether the Court has jurisdic-
tion in the case, it is sufficient to decide whether, in terms of the text of
the declaration, the dispute brought before the Court “arose” before or
after 25 April 1999, the date on which the declaration was signed;

26. Whereas Yugoslavia’s Application is entitled “Application of the
Federal Republic of Yugoslavia against Portugal for Violation of the
Obligation Not to Use Force”; whereas in the Application the “subject of
the dispute” (emphasis added) is described in general terms (see para-
graph 1 above); but whereas it can be seen both from the statement of
“facts upon which the claim is based” and from the manner in which the
“claims” themselves are formulated (see paragraphs 3 and 4 above) that
the Application is directed, in essence, against the “bombing of the ter-
ritory of the Federal Republic of Yugoslavia” which the Court is
requested to bring to an end;

27. Whereas it is an established fact that the bombings in question

14
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 667

began on 24 March 1999 and have been conducted continuously over a
period extending beyond 25 April 1999; and whereas the Court has no
doubt, in the light, inter alia, of the discussions at the Security Council
meetings of 24 and 26 March 1999 (S/PV.3988 and 3989), that a “legal
dispute” (East Timor ( Portugal v. Australia), L C.J. Reports 1995, p. 100,
para. 22) “arose” between Yugoslavia and the Respondent, as it did also
with the other NATO member States, well before 25 April 1999 concern-
ing the legality of those bombings as such, taken as a whole;

28. Whereas the fact that the bombings have continued after 25 April
1999 and that the dispute concerning them has persisted since that date is
not such as to alter the date on which the dispute arose; whereas each
individual air attack could not have given rise to a separate subsequent
dispute; and whereas, at this stage of the proceedings, Yugoslavia has
not established that new disputes, distinct from the initial one, have
arisen between the Parties since 25 April 1999 in respect of subsequent
situations or facts attributable to Portugal;

29. Whereas, as the Court recalled in its Judgment of 4 December
1998 in the case concerning Fisheries Jurisdiction (Spain v. Canada),

“Tt is for each State, in formulating its declaration, to decide upon
the limits it places upon its acceptance of the jurisdiction of the
Court: ‘[t]his jurisdiction only exists within the limits within which
it has been accepted’ (Phosphates in Morocco, Judgment, 1938,
P.C.LJ., Series AIB, No. 74, p. 23)” (LC.J. Reports 1998, p. 453,
para. 44);

and whereas, as the Permanent Court held in its Judgment of 14 June
1938 in the Phosphates in Morocco case (Preliminary Objections), “it is
recognized that, as a consequence of the condition of reciprocity stipu-
lated in paragraph 2 of Article 36 of the Statute of the Court”, any limi-
tation ratione temporis attached by one of the Parties to its declaration of
acceptance of the Court’s jurisdiction “holds good as between the Parties”
(Phosphates in Morocco, Judgment, 1938, P.C.LJ., Series AIB, No. 74,
p. 10); and whereas it follows from the foregoing that the declarations
made by the Parties under Article 36, paragraph 2, of the Statute do not
constitute a basis on which the jurisdiction of the Court could prima facie
be founded in this case;

Pa

30. Whereas Portugal also contends that in this case the jurisdiction of
the Court cannot be founded on Article 36, paragraph 2, of the Statute
having regard to United Nations Security Council resolutions 777 (1992)
of 19 September 1992 and 821 (1993) of 28 April 1993 and to United
Nations General Assembly resolutions 47/1 of 22 September 1992 and
48/88 of 20 December 1993; whereas it argues in this connection that
“the Federal Republic of Yugoslavia is not a United Nations member”

15
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 668

and that, having failed to “renew its United Nations membership”, it is in
consequence not a party to the Statute of the Court;

31. Whereas Yugoslavia, referring to the position of the Secretariat, as
expressed in a letter dated 29 September 1992 from the Legal Counsel of
the Organization (doc. A/47/485), and to the latter’s subsequent practice,
contends for its part that General Assembly resolution 47/1 “[neither] ter-
minate[d] nor suspend[ed] Yugoslavia’s membership in the Organiza-
tion”, and that the said resolution did not take away from Yugoslavia
“fits] right to participate in the work of organs other than Assembly
bodies” :

32. Whereas, in view of its finding in paragraph 29 above, the Court
need not consider this question for the purpose of deciding whether or
not it can indicate provisional measures in the present case;

* *

33, Whereas in its Application Yugoslavia claims, in the second place,
to found the jurisdiction of the Court on Article IX of the Genocide
Convention, which provides:

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

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

“by taking part in activities listed above, and in particular by caus-
ing enormous environmental damage and by using depleted ura-
nium, Portugal has acted against the Federal Republic of Yugosla-
via in breach of its obligation not to deliberately inflict on a national
group conditions of life calculated to bring about its physical destruc-
tion, in whole or in part”;
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 669

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

35. Whereas for its part Portugal contends that Article IX of the
Genocide Convention “provides a basis for jurisdiction only in respect of
disputes concerning the interpretation, application or fulfilment of that
Convention”; that Yugoslavia “has failed to prove any breach of the
Genocide Convention, actual or threatened”; that “the specific intent
which is necessary for the crime [of genocide]’s existence is absent in the
case”; that the actions in which Portugal allegedly took part “are clearly
inadequate to the commitment of a crime that would require a selective
effort in the choice of victims, incompatible with the contingent effect of
the employed means”; and that in consequence “both the objective and
subjective elements of the crime are missing, and so there is not the slight-
est basis for claiming successfully the existence of facts relevant under the
Genocide Convention attributable to the Portuguese Republic”; and
whereas Portugal accordingly concludes that Article IX of the Genocide
Convention “[does not] provide a prima facie basis for jurisdiction” ;

36. Whereas, in order for Article IX of the Convention to be capable
of constituting a basis on which the jurisdiction of the Court might be
founded ratione materiae, the subject-matter of the dispute must relate to
“the interpretation, application or fulfilment” of the Convention, includ-
ing disputes “relating to the responsibility of a state for genocide or for
any of the other acts enumerated in article HI” of the said Convention;

37. Whereas, in order to determine, even prima facie, whether a dis-
pute within the meaning of Article IX of the Genocide Convention exists,
the Court cannot limit itself to noting that one of the Parties maintains
that the Convention applies, while the other denies it; and whereas in the
present case the Court must ascertain whether the breaches of the Con-
vention alleged by Yugoslavia are capable of falling within the provisions
of that instrument and whether, as a consequence, the dispute is one
which the Court has jurisdiction ratione materiae to entertain pursuant
to Article IX (cf. Oil Platforms (Islamic Republic of fran v. United States

17
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 670

of America), Preliminary Objection, Judgment, I C.J. Reports 1996 (11),
p. 810, para. 16);

38. Whereas the definition of genocide set out in Article II of the
Genocide Convention reads as follows:

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

(a) Killing members of the group;

(6) Causing serious bodily or mental harm to members of the
group,

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

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

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

39. Whereas it appears to the Court, from this definition, “that the
essential characteristic of genocide is the intended destruction of ‘a
national, ethnical, racial or religious group’” (Application of the Conven-
tion on the Prevention and Punishment of the Crime of Genocide, Provi-
sional Measures, Order of 13 September 1993, LC.J. Reports 1993,
p. 345, para. 42); whereas the threat or use of force against a State can-
not in itself constitute an act of genocide within the meaning of Article I]
of the Genocide Convention; and whereas, in the opinion of the Court, it
does not appear at the present stage of the proceedings that the bombings
which form the subject of the Yugoslav Application “indeed entail the
element of intent, towards a group as such, required by the provision
quoted above” (Legality of the Threat or Use of Nuclear Weapons, Advi-
sory Opinion, L C.J. Reports 1996 (1), p. 240, para. 26);

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

*

41. Whereas Portugal further contends that at the date on which
Yugoslavia filed its Application, namely 29 April 1999, Portugal “was
not party to the Genocide Convention — although its instrument of
accession had already been deposited in the United Nations”; and
whereas, in reply to a question from a Member of the Court at the hear-
ings, the Agent of Portugal produced a Note Verbale, dated 16 February
1999, in which the United Nations Secretary-General stated that, pursu-
ant to Article XIII, third paragraph, of the Convention, the latter would

18
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 671

enter into force for Portugal on 10 May 1999, that is, on the ninetieth day
following deposit of its instrument of accession;

42. Whereas Yugoslavia, in its written reply to the above question,
invoked for its part “the principle well established by the practice of the
Court according to which the Court should not penalize a defect in a pro-
cedural act which the Applicant could easily remedy”;

43. Whereas, in view of its finding in paragraph 40 above, there is no
need for the Court to consider this question for the purpose of deciding
whether or not it can indicate provisional measures in the present case;

* Ok

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

45. Whereas, however, the findings reached by the Court in the present
proceedings in no way prejudge the question of the jurisdiction of the
Court to deal with the merits of the case or any questions relating to the
admissibility of the Application, or relating to the merits themselves; and
whereas they leave unaffected the right of the Governments of Yugosla-
via and Portugal to submit arguments in respect of those questions;

x * x

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

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

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

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

19
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 672

50. For these reasons,
THE COURT,
(1) By eleven votes to four,

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

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

AGAINST: Vice-President Weeramantry, Acting President; Judges Shi, Veresh-
chetin; Judge ad hoc Kreéa;

(2) By fourteen votes to one,

Reserves the subsequent procedure for further decision.

IN FAVOUR: Vice-President Weeramantry, Acting President; President
Schwebel; Judges Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi,
Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren,
Kooimans; Judge ad hoc Kreéa:

AGAINST: Judge Oda.

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

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

(Signed) Eduardo VALENCIA-OSPINA,
Registrar.

Judge Koroma appends a declaration to the Order of the Court.

Judges Opa, HiGGins, PARRA-ARANGUREN and KooluMANS append
separate opinions to the Order of the Court.

20
LEGALITY OF USE OF FORCE (ORDER 2 VI 99) 673

Vice-President WEERAMANTRY, Acting President, Judges SH! and

VERESHCHETIN, and Judge ad hoc KRECA append dissenting opinions to
the Order of the Court.

(Initialled) C.G.W.
({nitialled} E.V.O.

21


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING PASSAGE
THROUGH THE GREAT BELT

(FINLAND v. DENMARK)

ORDER OF 10 SEPTEMBER 1992

1992

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE
DU PASSAGE PAR LE GRAND-BELT

(FINLANDE c. DANEMARK)

ORDONNANCE DU 10 SEPTEMBRE 1992
Official citation :

Passage through the Great Belt (Finland v. Denmark),
Order of 10 September 1992, I.C.J. Reports 1992, p. 348

Mode officiel de citation :

Passage par le Grand-Belt (Finlande c. Danemark),
ordonnance du 10 septembre 1992, C.1.J. Recueil 1992, p. 348

Sales number 6 2 5
N° de vente:

ISBN 92-1-070685-4

348

COUR INTERNATIONALE DE JUSTICE
ANNÉE 1992

10 septembre 1992

AFFAIRE
DU PASSAGE PAR LE GRAND-BELT

(FINLANDE c. DANEMARK)

ORDONNANCE

Le Président de la Cour internationale de Justice,

Vu l’article 48 du Statut de la Cour et l’article 89 de son Règlement,

Vu la requête déposée au Greffe de la Cour le 17 mai 1991, par laquelle
la République de Finlande a introduit une instance contre le Royaume du
Danemark au sujet d’un différend concernant le passage par le Grand-
Belt (Storebælt),

Vu l'ordonnance du 29 juillet 1991, par laquelle la Cour s’est prononcée
sur la demande en indication de mesures conservatoires présentée par la
Finlande le 23 mai 1991, et dans laquelle la Cour a déclaré notamment
que, «en attendant une décision de la Cour sur le fond, toute négociation
entre les Parties en vue de parvenir à un règlement direct et amiable serait
la bienvenue»,

Vu l'ordonnance prise le 29 juillet 1991 par le Président de la Cour par
laquelle il a fixé les dates d’expiration des délais pour le dépôt des pièces
de la procédure écrite; vu le mémoire déposé par la Finlande et le contre-
mémoire déposé par le Danemark, dans les délais ainsi fixés;

Considérant que, par lettre du 3 septembre 1992, reçue au Greffe de la
Cour par télécopie le même jour, l’agent de la Finlande, se référant au
passage cité ci-dessus de l’ordonnance de la Cour en date du 29 juillet
1991, a déclaré que la Finlande et le Danemark étaient parvenus ce jour-là

4

1992
10 septembre
Rôle général
n° 86


472

DÉCLARATION DE M. LE JUGE HERCZEGH

Article 59 du Statut — Critique injustifiée contenue dans le paragraphe 238
de l'arrêt — Protection offerte aux Etats tiers dépendant de l'interprétation et
de l'application que fait la Cour.

J'ai voté pour les points du dispositif de l’arrêt que j’approuve entière-
ment. Ils expriment les mêmes conclusions auxquelles je suis parvenu
après l'examen de la présente affaire.

Je ne peux toutefois souscrire à l’idée exprimée dans le paragraphe 238
des motifs, qui dit notamment:

«La Cour estime que, en particulier dans le cas de délimitations
maritimes intéressant plusieurs Etats, la protection offerte par l’ar-
ticle 59 du Statut peut ne pas toujours être suffisante. En l’espèce, il
est possible que l’article 59 ne protège pas suffisamment la Guinée
équatoriale ou Sao Tomé-et-Principe contre les effets — même indi-
rects — d’un arrêt affectant leurs droits.»

Je vois dans cette phrase une critique à peine voilée du Statut de la
Cour, qui fait partie intégrante de la Charte des Nations Unies, que je ne
peux partager. L'article 59 du Statut a la teneur suivante: «La décision
de la Cour n’est obligatoire que pour les parties en litige et dans le cas qui
a été décidé.» C’est une conséquence nécessaire, et même inévitable, du
fait que la compétence de la Cour repose sur le consentement des parties.
La Cour doit veiller à ce qu’elle ne prenne aucune décision qui dépasse-
rait les limites définies par l’article 59 et qui en conséquence n’aurait pas
force obligatoire, mais resterait lettre morte. Il s’agit là non seulement
d’un principe de bonne administration de la justice, mais aussi d’une obli-
gation de la Cour découlant de sa mission telle que définie par son Statut,
à savoir, notamment, de régler conformément au droit international les
différends qui lui sont soumis.

Dans certaines circonstances, satisfaire à l’obligation de ne pas affecter
les droits des Etats tiers peut poser des problèmes à la Cour, ce qui ex-
plique et justifie l'inclusion dans le Statut d’une disposition concernant
l'intervention d’un Etat tiers estimant avoir dans un différend un intérêt
d'ordre juridique en cause (art. 62). L'arrêt du 14 avril 1981, rendu dans
l'affaire du Plateau continental {Tunisiel Jamahiriya arabe libyenne),
requête à fin d'intervention, et les opinions individuelles de MM. Moro-
zov, Oda et Schwebel jointes à cet arrêt, puis l'arrêt du 21 mars 1984
rendu dans l'affaire du Plateau continental (Jamahiriya arabe libyennel
Malte), requête à fin d'intervention, ainsi que les opinions dissidentes de
MM. Sette-Camara, Oda, Schwebel et Jennings, montrent bien la com-

173
473 FRONTIÈRE TERRESTRE ET MARITIME (DÉCL. HERCZEGH)

plexité du problème, et les efforts de la Cour pour donner une interpré-
tation cohérente des dispositions pertinentes du Statut et les appliquer
conformément à leurs termes et à leur esprit. Le dernier mot reste encore
à dire dans ce débat. Toutefois, comme M. Schwebel l’a exprimé d’une
manière très juste: «aucune règle d'interprétation ne permet de penser
que l’article 59 raye du Statut l’article 62» (C.1.J. Recueil 1984, p. 134,
par. 9). Par ailleurs, à mon avis tout au moins, on ne peut pas conclure
que la protection offerte aux droits des tierces parties par Particle 59 du
Statut pourrait être insuffisante. La critique de cet article me semble mal
placée.

Il ne s’agit pas là d’une règle de droit qui, en soi, protégerait ou ne
protégerait pas de manière suffisante un intérêt d’ordre juridique de tel
ou tel pays. Il s’agit bien plutôt d’une disposition qu’il revient à la Cour
d'interpréter et d'appliquer de manière telle que cette protection soit ren-
due aussi efficace que possible. Que ladite protection se révèle suffisante
ou non dépend donc de la Cour. Dans la présente espèce, la Cour a éva-
lué soigneusement les intérêts d’ordre juridique de la Guinée équatoriale
et de Sao Tomé-et-Principe, et c’est dans ce sens et dans cet esprit qu’elle
a rendu son arrêt concernant la détermination de la frontière maritime du
Cameroun et du Nigéria. Pour ce faire, elle n’avait nul besoin d’adresser
une observation critique à l’encontre d’un article du Statut.

{ Signé) Géza HERCZEGH.

174


                                                                             765

            SEPARATE OPINION OF JUDGE RANJEVA

[Translation]

   Special circumstances and delimitation of the territorial sea — Rule-making
or corrective function — Geomorphology and course of the provisional equidis-
tance line — Notion of necessity and alternative course of the provisional line —
Bisector and equidistance line — History of Article 15 of the 1982 United
Nations Convention on the Law of the Sea — Development of jurisprudence —
A largely settled debate — Reversal of jurisprudence — “Particular circum-
stances”.

   1. I regret that I am unable to subscribe to the decision of the majority
of the Court with respect to the third paragraph of the operative clause of
the Judgment concerning the azimuth of the boundary segment starting
from the point with the co-ordinates 15° 00′ 52″ N and 83° 05′ 58″ W,
which follows the azimuth 70° 14′ 25″ until its intersection at point A
(with co-ordinates 15° 05′ 25″ N and 82° 52′ 54″ W) with the 12-nautical-
mile arc of the territorial sea of Bobel Cay. For this first section of the
single delimitation line the Judgment challenges the law and method of
delimitation of the territorial sea. In a vote on the other sections of the
boundary, I would have voted in favour.
   2. My disagreement centres on the way in which the Judgment treats
the special circumstances under Article 15 of the 1982 United Nations
Convention on the Law of the Sea (UNCLOS) in its construction of the
delimitation line. Contrary to the view of the majority of the Members of
the Court, for delimitation of the territorial sea between States with
adjacent or opposite coastlines, special circumstances possess not a rule-
making but a corrective and adjusting function in respect of the provi-
sional equidistance line. In paragraph 272 of the present Judgment, the
Court justifies its abandonment of the provisional equidistance line in the
following terms :
       “However, the equidistance method does not automatically have
     priority over other methods of delimitation and, in particular cir-
     cumstances, there may be factors which make the application of the
     equidistance method inappropriate.”
In support of its decision it invokes arguments of fact — the geomorpho-
logy resulting in the instability of the coastlines of both Parties, particu-
larly at the mouth of the River Coco and around Cape Gracias a Dios —
and arguments of law based on the interpretation of the last sentence of
Article 15 of UNCLOS :
       “The above provision does not apply, however, where it is neces-
     sary by reason of historic title or other special circumstances to

                                                                             110

          TERRITORIAL AND MARITIME DISPUTE (SEP. OP. RANJEVA)              766

     delimit the territorial seas of the two States in a way which is at vari-
     ance therewith.”
The divisive issue concerns the point of law alone, as geomorphological
features can, in certain instances, constitute special circumstances within
the meaning of Article 15.
  3. The role of special circumstances in delimitation of the territorial
sea is one of the classic issues of maritime delimitation law. A historical
review of the various stages of that debate is perhaps useful in the present
case, which has challenged the creative action of jurisprudence in settling
maritime delimitation law, inter alia, that of the territorial sea.

   4. The literal interpretation of Article 15 of UNCLOS advocates the
equidistance or median line for territorial sea delimitations when the
coasts of the States are adjacent or opposite. Exceptions can be made to
that rule of principle if special circumstances exist and if it is necessary to
delimit the territorial sea in another manner. The use of the adjective
“necessary”, which implies a notion of inescapable constraint, prescribes
a very strict and restrictive interpretation of the conditions which may,
exceptionally, justify abandoning the general rule. Paragraphs 268 and 269
of the present Judgment follow the path laid down by Article 15 of the
Montego Bay Convention, but the difficulty in subscribing to the major-
ity view derives from its conclusion that it is impossible to construct a
provisional equidistance line, and from the normative equipollence attrib-
uted by the majority to the equidistance line and the provisional equidis-
tance line in the second subparagraph of paragraph 280.

   5. In paragraph 282, the Judgment notes that the Parties have each
envisaged delimitation methods that did not systematically advocate the
use of the median line ; in other words, the conduct of the Parties has
been interpreted as an exception to the general rule. On closer analysis, a
distinction must be drawn between the content of the rule, whether or not
accepted by the two Parties, and the interpretation of that rule, given the
factual situation resulting from the geomorphology. In the present case,
the Parties acknowledge both the unstable nature of the coastline in the
area to be delimited and the difficulties of the exercise itself. Are these
considerations such as to justify in law the “necessary” nature of a dif-
ferent method of territorial sea delimitation? The technical arguments
must not be overlooked, but must, in any event, fall within the scope of
the applicable law.
   6. The general scheme of the geometric method adopted in the Judg-
ment in paragraph 281 takes as its foundations the “special circumstances
in which it [the Court] cannot apply the equidistance principle” ; those
circumstances are set forth in paragraph 280 in the following terms :
     “because of the changing conditions of the area the Court has made
     no finding as to sovereignty over these islands (see paragraph 145 [of
     the Judgment]). Moreover, whatever base points would be used for

                                                                           111

          TERRITORIAL AND MARITIME DISPUTE (SEP. OP. RANJEVA)             767

    the drawing of an equidistance line, the configuration and unstable
    nature of the relevant coasts, including the disputed islands formed
    in the mouth of the River Coco, would make these base points
    (whether at Cape Gracias a Dios or elsewhere) uncertain within a
    short period of time.”
Regardless of the correctness of that technical assertion, it raises a point
of law : is the condition of necessity required by the 1982 Convention ful-
filled ?
    7. In absolute terms, the notion of necessity involves an absence of
solution such that no alternative can be envisaged. The difficulties encoun-
tered are not of themselves sufficient to justify the necessity of abandon-
ing the general rule. The impossibility must be appraised from a legal
standpoint. In the present case, the Judgment focuses upon the unstable
geomorphological nature of the coastlines. But the restrictive approach
adopted in the Judgment is regrettable, since it takes account of the geo-
morphological element alone. Unlike the Court, the 1982 Convention did
not overlook the potential for extremely unstable coastlines, a possibility
which had not been envisaged by the Convention on the Territorial Sea
and the Contiguous Zone of 29 April 1958. Thus, the objection raised by
the Judgment is irrelevant as to the principles. A very different matter is
that of the applicability of Article 7, paragraph 2, of UNCLOS, which
states the following :
       “Where because of the presence of a delta and other natural con-
    ditions the coastline is highly unstable, the appropriate points may
    be selected along the furthest seaward extent of the low-water line
    and, notwithstanding subsequent regression of the low-water line,
    the straight baselines shall remain effective until changed by the
    coastal State in accordance with this Convention.”
The question is thus whether that provision of the Convention concern-
ing the progressive development of the law relative to customary law is
relevant. The status of the two litigant States with respect to the Conven-
tion renders the question devoid of purpose : the unstable nature of the
coastlines does not, in itself, constitute a situation of impossibility giving
rise to a legal vacuum such as to exclude the application of the general
rule of the equidistance line. The reasoning would have been credible if
this provision of UNCLOS on unstable coasts had been taken into
account.
   8. Given the consequences drawn by the Judgment from the impor-
tance it attributes to the geomorphological aspect, application of the pro-
visional median line would result in an impasse and the Judgment justi-
fies its solution by attributing a rule-making function to the special
circumstances referred to in Article 15 of UNCLOS. In so doing, the
Judgment reopens the debate that sank the diplomatic negotiations on
maritime delimitation, whereas a rule-making provision concerning terri-
torial sea delimitation has existed since 1958 in Article 12 of the Conven-

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tion on the Territorial Sea, and the jurisprudence of the Court, particu-
larly since the Jan Mayen case, has settled that debate. The current
Judgment represents a reversal of jurisprudence sanctioned by an
obiter dictum :

    “[h]owever, the equidistance method does not automatically have
    priority over other methods of delimitation and, in particular cir-
    cumstances, there may be factors which make the application of the
    equidistance method inappropriate”.

   9. The geometric figure that the line of delimitation represents is sur-
prising. The text of Article 15 of UNCLOS refers to “the median line
every point of which is equidistant from the nearest points on the base-
lines from which the breadth of the territorial seas of each of the two
States is measured”. (The difference in terminology between equidistance
and median lines relates not to the delimitation method but to the differ-
ent geographic situations to which that method is applied : equidistance
line in reference to adjacent coasts and median line for those opposite
one another (cf. A. L. Shalowitz, Shore and Sea Boundaries, Washing-
ton, D.C., United States Department of Commerce, 1962-1964, Vol. I,
pp. 232-235)). The Judgment, however, uses the bisector line to effect the
delimitation of the territorial sea. Beyond a straightforward question of
terminology, we are confronted with an operation of a completely differ-
ent nature. The bisector is a line segment which divides the angle of a
sector, that is to say a plane or area sector, by isometry and thus equally.
The bisector is used in apportionment or division of the area concerned,
in the present case the polygon formed by the adjacent maritime front-
ages. A reminder of this technical definition is necessary inasmuch as the
Court was requested to carry out a maritime delimitation and not an
apportionment or division. That consideration explains the omission of
the bisector method in 1953, during the working session of the Interna-
tional Law Commission and the group of experts on the technical impli-
cations of delimitation methods. In its 1956 report, when listing the pos-
sible methods, the International Law Commission also made no mention
of the bisector approach.

  10. With the lack of textual support in the applicable Convention for
the bisector technique, the issue next at hand concerns the relegation of
the provisional equidistance line. The Judgment abandons it in view of
the difficulties described in paragraphs 277 to 280. It concludes that

    “because of the changing conditions of the area the Court has made
    no finding as to sovereignty over these islands (see paragraph 145 [of
    the Judgment]). Moreover, whatever base points would be used for
    the drawing of an equidistance line, the configuration and unstable
    nature of the relevant coasts, including the disputed islands formed
    in the mouth of the River Coco, would make these base points

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    (whether at Cape Gracias a Dios or elsewhere) uncertain within a
    short period of time.”
On the legal level, there is no obstacle preventing the identification of
base points from which the pairs of points equidistant from the boundary
point would be fixed. In practice, drawing the equidistance line provides
a reminder of the relationship between nature and law in maritime
delimitation, the pons asinorum of international law : the law inevitably
transcends the natural features to which it attributes particular effects.
The law, like the jurisprudence, aims to prevent outcomes in which “pro-
nounced” configurations are ignored (North Sea Continental Shelf (Fed-
eral Republic of Germany/Denmark ; Federal Republic of Germany/Neth-
erlands), Judgment, I.C.J. Reports 1969, p. 51, para. 96), and also an
overly basic interpretation of nature. Gidel mentioned as a possible jus-
tification for abandoning the equidistance line “cases in which it would
involve real drawbacks [and] . . . lead to serious inequity between the two
coastal States” (G. Gidel, Le droit international de la mer, 3 vols., 1932-
1934, p. 771). The plotting of the provisional line must add to the element
of stability and permanence which characterizes a boundary delimitation
exercise. The Court has not denied itself its discretionary powers to deter-
mine an abstract point from which the required linear geometrical figure
is constructed (see paragraph 280 of the Judgment). Figure 7 (b)
appended to the work by L. Lucchini and M. Voelckel (Droit de la mer,
tome 2, Vol. 1, 1996) could have been of help in drawing such a provi-
sional line. In the present instance, the choice of endpoints for the two
States’ coastal fronts and of the point established by the Mixed Commis-
sion of 1962 has been clearly identified on sketch-map No. 3 on page 750
of the present Judgment. An equidistance line can then be constructed
from pairs of points equidistant from the point determined by the Mixed
Commission in 1962. Those pairs of points will be selected in such a way as
to take account of the salient features of the coastal fronts of each State.
   11. The genesis of Article 15 was mentioned in justification of the rule-
making function, even by default, of special circumstances. The median
line rule lies at the heart of the operative provisions of Article 15, the
wording of which was practically settled, at the Third United Nations
Conference on the Law of the Sea, in the 7 May 1975 draft of the single
negotiating text. In such a situation, on that particular point of the con-
substantial links between equidistance line and special circumstances, the
Third Conference did not challenge the fundamental basis of the general
scheme of Article 12 of the Geneva Convention on the Territorial Sea
and the Contiguous Zone. In support of its interpretation, the Judgment
takes refuge behind the commentaries in the Yearbook of the Interna-
tional Law Commission, 1952, Vol. II, p. 38. But the Judgment neglects
to take account of the opinion of the Special Rapporteur in 1956 :
       “The Yugoslav Government had proposed the deletion of . . . the
    phrase ‘unless another boundary line is justified by special circum-
    stances’. He did not believe that the Commission was prepared to

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    delete the latter phrase, because it attached considerable weight to it
    and its deletion would make the article too rigid.” (United Nations,
    Summary Record of the 366th Meeting, doc. A/CN.4/SR.366.)

It was on the basis of that proposed interpretation that a vote was held
the same day on a text combining draft Articles 12 and 14 drawn up by
the Special Rapporteur. The Special Rapporteur’s view was that the role
of special circumstances was to correct the effects of strict application of
a median or equidistance line. At the 61st meeting of the First Committee
of the United Nations Conference on the Law of the Sea (Geneva,
24 February-27 April 1958), “[t]he phrase ‘special circumstances’ in the
second sentence was adopted by 38 votes to 7, with 22 abstentions”
(A/CONF.13/L.28/Rev.1, Plenary Meetings, Vol. II, p. 119). That pre-
scription does not mean that the median line is obligatory, for that would
destroy the consubstantial relationship between the median line and spe-
cial circumstances, and thus the median line has only a provisional status
in the delimitation of the territorial sea.
   12. The jurisprudence relied upon by the Judgment to justify the aban-
donment of the provisional equidistance line is not decisive either. Among
arbitral proceedings, the Guinea/Guinea-Bissau case is well known, in
that the Arbitration Tribunal sought an equitable delimitation taking
account of a broader geographic area to avoid prejudicing subsequent
delimitations concerning third States (see case concerning the Delimita-
tion of the Maritime Boundary between Guinea and Guinea-Bissau, Inter-
national Law Reports, decision of 14 February 1985, para. 109). In that
case, the capricious character of the configuration of the coastal geogra-
phy was decisive for the Tribunal because of the effect of the coastal con-
figuration on the equidistance line. The Tribunal ruled out the equidis-
tance line after assessing whether the delimitation would be of an equitable
nature using the provisional equidistance line. In fact, the adoption of the
equidistance approach would have had the
    “drawback of resulting in the middle country [Guinea in that
    instance] being enclaved by the other two and thus prevented from
    extending its maritime territory as far seaward as international law
    permits” (ibid., para. 104).
The short concave coastline was thus left aside in favour of a convex con-
figuration covering the maritime front of West Africa as a whole. The
overall orientation of the coasts constitutes a special circumstance,
account of which had to be taken in adjusting or even ruling out the equi-
distance line. The Judgment effects an amalgamation by taking into con-
sideration only the final outcome and making the provisional line an
intermediate stage.
   13. The plotting of a single maritime boundary does not, from the
standpoint of the jurisprudence, call into question the principles govern-
ing special circumstances. The debates at the Third United Nations Con-

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ference on the Law of the Sea highlighted, on the one hand, the general
adherence to a unitary conception of the basis of the law of maritime
delimitation and, on the other, with respect to special circumstances, the
fact that the rule is “consubstantial” with equidistance, in that the two
notions complement and support each other. The evolution of the Court’s
jurisprudence over the period from 1969 to 1985 reflected the often ten-
tative efforts to that end, before the advent of a solution of principle in
1993. The Court recalls in paragraph 271 of the present Judgment its own
findings in the case concerning the Land and Maritime Boundary between
Cameroon and Nigeria (Cameroon v. Nigeria : Equatorial Guinea inter-
vening) :
       “The Court has on various occasions made it clear what the appli-
    cable criteria, principles and rules of delimitation are when a line
    covering several zones of coincident jurisdictions is to be deter-
    mined. They are expressed in the so-called equitable principles/rele-
    vant circumstances method. This method, which is very similar to
    the equidistance/special circumstances method applicable in delimi-
    tation of the territorial sea, involves first drawing an equidistance
    line, then considering whether there are factors calling for the adjust-
    ment or shifting of that line in order to achieve an ‘equitable result’.”
    (Judgment, I.C.J. Reports 2002, p. 441, para. 288.)

  14. In 1969, the Court established the principle that the pursuit of an
equitable outcome was the objective of all maritime delimitations :
      “it is necessary to seek not one method of delimitation but one
    goal” (North Sea Continental Shelf (Federal Republic of Germany/
    Denmark ; Federal Republic of Germany/Netherlands), Judgment,
    I.C.J. Reports 1969, p. 50, para. 92).
The median line was at the time at the centre of a controversy which, in
retrospect, gives rise to some amusement. The Libya/Malta Judgment
constitutes a significant stage in the development of the law with its dec-
laration that
    “[t]he Court is unable to accept that, even as a preliminary and pro-
    visional step towards the drawing of a delimitation line, the equidis-
    tance method is the one which must be used” (Continental Shelf
    (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports 1985,
    p. 37, para. 43).
The use of the emphasized verb “must” reflects, initially, the Court’s
rejection of compulsory and systematic application of the equidistance
line on a preliminary and provisional basis ; but, subsequently, such a
line, previously condemned, could be taken into consideration. After all,
the 1985 Judgment applied the equidistance line to the case, proceeding
by stages.
   15. In 1993, the entry into force of the Montego Bay Convention was

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regarded as probable in the near future, as that instrument was inter-
preted as an expression of positive law and the Court accepted it and
regarded it as such. Thus the Judgment in the Maritime Delimitation in
the Area between Greenland and Jan Mayen (Denmark v. Norway) case
put the finishing touches to that development when it adopted the method
of delimitation by stages, but without the reservations still expressed in
the 1985 decision. When the Court straightforwardly applied the delimi-
tation by stages method, it was mindful of coherence and predictability,
two concerns already expressed in the Continental Shelf (Libyan Arab
Jamahiriya/Malta) case Judgment. Article 6 of the Geneva Convention
on the Continental Shelf, in the Court’s view, provided for an approach

    “taking provisionally the median line . . . and then enquiring whether
    ‘special circumstances’ require ‘another boundary line’” (Maritime
    Delimitation in the Area between Greenland and Jan Mayen (Den-
    mark v. Norway), Judgment, I.C.J. Reports 1993, pp. 59-60,
    para. 49).
Later in the same Judgment, the Court places its judicial policy approach
within a unitary framework by stating that “[j]udicial decisions on the
basis of the customary law governing continental shelf delimitation
between opposite coasts have likewise regarded the median line as a pro-
visional line” (ibid., p. 60, para. 50). Unity of method, if not of régime,
was thenceforth regarded as the rule, whether for territorial seas, the con-
tinental shelf, exclusive economic zones or fishing zones. The pursuit of
an equitable result did not rule out a simple and readily understandable
solution. The traditional and apparently parallel pairs, that is to say, on
the one hand, equidistance/special circumstances and, on the other, rele-
vant circumstances/equitable principles, have since 1993 formed part of
the same dynamic process : both seek to obtain an equitable result in
maritime delimitation. There are two consequences, the first establishing
that the specific terminology relating to areas does not affect the coher-
ence of the rules and the second that the plotting, on a preliminary and
provisional basis, of an equidistance line is indispensable. The Judgments
in the Maritime Delimitation and Territorial Questions between Qatar
and Bahrain (Qatar v. Bahrain) and the Land and Maritime Boundary
between Cameroon and Nigeria (Cameroon v. Nigeria : Equatorial Guinea
intervening) cases, in 2001 and 2002 respectively, consolidated the devel-
opment represented by the step-by-step approach based on the provi-
sional median line.

  16. In paragraph 272, the present Judgment refers to “particular cir-
cumstances”. The Court thus invents a third category of circumstances
alongside the special circumstances and the relevant circumstances of the
Convention on the Law of the Sea. That new category is thus of an un-
specified nature and corresponds to what the Franco-British arbitral
award called “a wholly different criterion of delimitation” (case concern-

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         TERRITORIAL AND MARITIME DISPUTE (SEP. OP. RANJEVA)            773

ing the Delimitation of the Continental Shelf between the United King-
dom of Great Britain and Northern Ireland, and the French Republic,
decision of 30 June 1997, United Nations, RIAA, Vol. XVIII, p. 116,
para. 249). The major problem is that the majority of the Members of the
Court base themselves upon those “particular circumstances” to depart
from the application of the provisional median line rule and justify the
use of a different rule, that of the bisector. Those circumstances, as dis-
tinct from the circumstances known as “special or relevant”, are no
longer assigned the merely corrective function prescribed by the law and
all jurisprudence to date, but instead a rule-making function. The Court
has directly endorsed the analyses concerning the geomorphology of the
coasts in order to construct a bisector line. Contrary to the Court’s juris-
prudence, which excludes from the field of directly applicable rules any
principle other than that of preliminary and provisional equidistance, the
present Judgment challenges the creative exercise progressively under-
taken by the Court. It opens up the way for new uncertainties which may
lead to a direct normativity of equitable principles at the expense of the
rule of positive law.
   17. To conclude, the present Judgment, in so far as it concerns the azi-
muth in the area of the territorial sea between the point fixed by the
Mixed Commission in 1962 and the intersection with the outer limit of
Bobel Cay, constitutes a repudiation of the law and the Court’s jurispru-
dence in matters of territorial sea delimitation.

                                         (Signed) Raymond RANJEVA.

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