228

                 DECLARATION OF JUDGE TOMKA

[English Original Text]

  Search for an equitable solution in the delimitation of the exclusive economic
zone and the continental shelf — Need to avoid a pronounced cut-off effect of the
maritime boundary line — Adjustment of the provisional equidistance line —
Appropriate balancing of the entitlements of the Parties.

   1. Although I have voted in favour of all of the ﬁndings of the Court,
I am not fully satisﬁed with the way in which the Court has determined
the maritime boundary between the Parties in the Caribbean Sea. In my
view, the ﬁrst segment of the maritime boundary as determined by the
Court produces a cut-oﬀ eﬀect for a non-negligible — indeed a substan-
tial — part of the Nicaraguan concave coast in the Bahía de San Juan del
Norte.
   2. The applicable law for the delimitation of the exclusive economic
zone and the continental shelf between Costa Rica and Nicaragua, both
States being party to the 1982 United Nations Convention on the Law of
the Sea (“UNCLOS”), is to be found in its Articles 74 and 83 respectively.
These almost identical provisions (the only diﬀerence being that Arti-
cle 74 refers to the exclusive economic zone while Article 83 refers to the
continental shelf) stipulate that:
         “1. The delimitation of the [exclusive economic zone/continental
      shelf] between States with opposite or adjacent coasts shall be eﬀected
      by agreement on the basis of international law, as referred to in Arti-
      cle 38 of the Statute of the International Court of Justice, in order to
      achieve an equitable solution.
         2. If no agreement can be reached within a reasonable period of
      time, the States concerned shall resort to the procedures provided for
      in Part XV . . .”.
   3. Being of a very general nature, these provisions do not provide clear
guidance. States are expected to negotiate with the aim of agreeing on a
delimitation of the exclusive economic zone and the continental shelf
which achieves “an equitable solution”. What is “equitable” is a matter of
their perception. But once they reach agreement, they are deemed to be
satisﬁed that they have achieved such “an equitable solution”. Should
they, however, be unable to agree, they are to refer the unresolved issue
of their maritime boundary to dispute settlement procedures. Where the
Court is chosen as the forum for the settlement of that dispute, its func-
tion in fact substitutes for that which originally appertained to the States
concerned, namely the reaching of “an equitable solution”. In practical

93

229 maritime delimitation and land boundary (decl. tomka)

terms, the outcome will be a delimitation line upon which a majority of
the Judges sitting are able to agree.

   4. That exercise could lead to a result which, although binding on the
parties, may be more or less convincing. The Court has elaborated its
jurisprudence in order to provide guidance on how maritime delimitation
should be undertaken, always with the aim of reaching “an equitable
solution”. According to that jurisprudence, a boundary line should not
lead to a cut-oﬀ of the maritime projections of the coast of one of the
parties (see Territorial and Maritime Dispute (Nicaragua v. Colombia),
Judgment, I.C.J. Reports 2012 (II), pp. 703-704, paras. 215-216). As the
Court stated in Maritime Delimitation in the Black Sea (Romania v.
Ukraine), the line drawn by it should allow “the adjacent coasts of the
Parties to produce their eﬀects, in terms of maritime entitlements, in a
reasonable and mutually balanced way” (Judgment, I.C.J. Reports 2009,
p. 127, para. 201). When required in order to achieve “an equitable solu-
tion”, the Court has considered that provisional equidistance line which
produces a cut-oﬀ is to be adjusted (Territorial and Maritime Dispute
(Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012 (II), pp. 703-704,
para. 215). Similarly, the International Tribunal for the Law of the Sea,
considering the coast of one of the parties “decidedly concave” and caus-
ing the provisional equidistance line to produce “a pronounced cut-oﬀ
eﬀect on the southward maritime projection of [its] coast”, qualiﬁed this
as “a relevant circumstance, requiring an adjustment of the provisional
equidistance line” (Delimitation of the Maritime Boundary in the Bay of
Bengal (Bangladesh /Myanmar), Judgment, ITLOS Reports 2012, p. 87,
paras. 323-324).

   5. In my view, the Court, in the present case, has not fully succeeded in
avoiding the cut-oﬀ eﬀect generated by the ﬁrst part of the delimitation
line in the Caribbean Sea. As illustrated on the following sketch-map A
(p. 230), which is an enlargement based on sketch-map No. 11 in the
Court’s Judgment, the delimitation line runs as follows.
   6. This sketch-map reveals that the initial part of the delimitation line
has the eﬀect of cutting oﬀ Nicaragua’s coastal projections (not only
employing radial projections, but also employing frontal projections)
as they relate to almost half of its signiﬁcant concave coast in the
Bahía de San Juan del Norte. I do not consider this solution as fully equit-
able. The Court should have undertaken some adjustment of the line relat-
ing to the exclusive economic zone and the continental shelf to alleviate
this cut-oﬀ. In my view, an appropriate adjustment of the boundary line
would have been to join point Lx (the endpoint of the maritime
boundary line in the territorial sea) to point P (marked on sketch-map A)
by a straight line.
   7. This adjustment would have better served the purpose of balancing
more appropriately the entitlements of both Parties and reaching a more
equitable overall solution, particularly since the Court decided “not [to]

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230 maritime delimitation and land boundary (decl. tomka)

take into account any entitlement which might result from” the sandbar
separating Harbor Head Lagoon from the Caribbean Sea (Judgment,
para. 105). Sovereignty over that sandbar and lagoon appertain to Nica-
ragua (ibid., para. 205, subpara. (2)). The Court, without making any
ﬁnding as to whether the sandbar generates any maritime entitlement for
Nicaragua, simply observes that “[s]hould territorial waters be attributed
to the enclave, they would be of little use to Nicaragua, while breaking
the continuity of Costa Rica’s territorial sea” (ibid., para. 105). While one
can perhaps understand this pragmatic approach, one could also have
expected a more balanced approach by the Court when it dealt with the
impact of the pronounced concave Nicaraguan coast in the Bahía
de San Juan del Norte, in combination with the short convex Costa
Rican coast immediately adjacent thereto.

                                                 (Signed) Peter Tomka.

95


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING THE
AERIAL INCIDENT OF 3 JULY 1988

(ISLAMIC REPUBLIC OF IRAN v». UNITED STATES
OF AMERICA)

ORDER OF 18 DECEMBER 1991

1991

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRÊTS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DE L’INCIDENT AERIEN
DU 3 JUILLET 1988

(RÉPUBLIQUE ISLAMIQUE D'IRAN c. ÉTATS-UNIS
D’AMERIQUE)

ORDONNANCE DU 18 DÉCEMBRE 1991
Official citation :

Aerial Incident of 3 July 1988 (Islamic Republic of Iran
v. United States of America), Order of 18 December 1991,
1.C.J. Reports 1991, p. 187

Mode officiel de citation :

Incident aérien du 3 juillet 1988 (République islamique d'Iran
c. Etats-Unis d'Amérique), ordonnance du 18 décembre 1991,
CL.J. Recueil 1991, p. 187

Sales number 6 0 6
N° de vente :

18 DECEMBER 1991
ORDER

AERIAL INCIDENT OF 3 JULY 1988

(ISLAMIC REPUBLIC OF IRAN v. UNITED STATES
OF AMERICA)

INCIDENT AERIEN DU 3 JUILLET 1988

(RÉPUBLIQUE ISLAMIQUE D'IRAN c. ÉTATS-UNIS
D'AMÉRIQUE)

18 DÉCEMBRE 1991

ORDONNANCE
1991
18 December
General List
No. 79

187

INTERNATIONAL COURT OF JUSTICE

YEAR 1991

18 December 1991

CASE CONCERNING THE
AERIAL INCIDENT OF 3 JULY 1988

(ISLAMIC REPUBLIC OF IRAN v. UNITED STATES
OF AMERICA)

ORDER

The President of the International Court of Justice,

Having regard to Article 48 of the Statute of the Court and to Article 44,
paragraphs 3 and 4, and Article 79, paragraphs 3 and 4, of the Rules of
Court,

Having regard to the preliminary objections to the jurisdiction of the
Court filed in this case on 4 March 1991 by the United States of America,

Having regard to the Order made by the Court on 9 April 1991 fixing
9 December 1991 as the time-limit within which the Islamic Republic of
Iran might present a written statement of its observations and submissions
on the preliminary objections raised by the United States of America;

Whereas by a letter dated 2 December 1991, received in the Registry on
3 December 1991, the Agent of Iran requested an extension of that time-
limit by six months;

Whereas a copy of that letter was forthwith transmitted to the Agent of
the United States of America, who was at the same time informed that the
President of the Court had fixed 19 December 1991 as the time-limit
within which the United States might state its views on that request;

Whereas the Agent of the United States of America, by a letter of
188 AERIAL INCIDENT OF 3 VII 88 (ORDER 18 XII 91)

13 December 1991, informed the Court that his Government “has no
objection to this extension, on the understanding that the United States
will receive a similar amount of time to prepare a response to [the] obser-
vations and submissions” of Iran,

Extends to 9 June 1992 the time-limit for the written observations and
submissions of the Islamic Republic of Iran on the preliminary objections
of the United States of America; and

Reserves the subsequent procedure for further decision.

Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this eighteenth day of December, one thou-
sand nine hundred and ninety-one, in three copies, one of which will be
placed in the archives of the Court and the others transmitted to the
Government of the Islamic Republic of Iran and the Government of the
United States of America, respectively.

(Signed) R. Y. JENNINGS,
President.

(Signed) Eduardo VALENCIA-OSPINA,
Registrar.


351

                 DECLARATION OF JUDGE TOMKA

[English Original Text]

  Duty of vigilance — Toleration by Zaire on its territory of activities of rebel
groups against Uganda in 1994-1997 period — Duty of Uganda to prosecute
those who have committed grave breaches of international humanitarian law —
Self-defence and the prohibition of the use of force : order of their consideration.

  Having voted in favour of the dispositif, with the exception of its
paragraph 9, I wish to clarify my position on several issues in relation
to the Judgment.

           I. DUTY OF VIGILANCE — FAILURE TO TAKE ACTION

   1. The Court rejected the first counter-claim of the Republic of Uganda
(paragraph 9 of the dispositif). When voting on this paragraph, I was
faced with a dilemma. I concur with the views of the Court concerning
the counter-claim relating to the second period, from May 1997 until
2 August 1998, and to the third period, following 2 August 1998 (see para-
graphs 302-304 of the Judgment). However, my position regarding the
first period, from 1994 until May 1997, is — in respect of one of its
aspects — different from that of the majority. I agree with the majority,
that “Uganda has not produced sufficient evidence to show that the Zair-
ean authorities were involved in providing political and military support
for specific attacks against Ugandan territory” (para. 298). But, to my
regret, I cannot subscribe to the reasoning and conclusion of the majority
that the Democratic Republic of Congo (DRC) has not breached its duty
of vigilance during the period 1994-1997 by tolerating Ugandan rebel
movements’ use of the DRC’s territory to launch attacks on Uganda
(paras. 300-301). As the Court observes, “[t]he DRC recognized that
anti-Ugandan groups operated on the territory of the DRC from at least
1986” (para. 300). It is not disputed that in the period relevant for this
part of Uganda’s claim (1994-May 1997), the anti-Ugandan rebel move-
ments used the territory of the then Zaire to launch attacks against
Uganda and its population who were victims of these attacks. Zaire was
well aware of the situation.

   2. Sovereignty of a State does not involve only rights but also obliga-
tions of a territorial State. The State has an obligation not only to protect
its own people, but also to avoid harming its neighbours. This Court, in
the Corfu Channel case, confirmed the “general and well-recognized prin-

187

352                  ARMED ACTIVITIES (DECL. TOMKA)

ciple” according to which every State has the “obligation not to allow
knowingly its territory to be used for acts contrary to the rights of other
States” (Merits, Judgment, I.C.J. Reports 1949, p. 22).
   3. In accordance with the provisions of the Declaration on Principles
of International Law concerning Friendly Relations and Co-operation
among States, provisions which are declaratory of customary rules, “every
State has the duty to refrain from . . . acquiescing in organised activities
within its territory directed towards the commission of such acts [i.e. acts
of civil strife or terrorist acts] when the acts involve a threat or use of
force” ; and, “no State shall . . . tolerate subversive, terrorist or armed
activities directed towards the violent overthrow of the regime of another
State” (A/RES/2625 (XXV)).

   4. The duty of vigilance required Zaire to exert all good efforts in
order to prevent its territory from being used to the detriment of Uganda.
Whether Zaire complied with such a duty should be determined on the
basis of Zaire’s conduct. The geomorphological features or size of the ter-
ritory does not relieve a State of its duty of vigilance nor render it less
strict. Nor does the absence of central governmental presence in certain
areas of a State’s territory set aside the duty of vigilance for a State in
relation to those areas. Otherwise such absence, coupled with the attacks
originating in that territory would have justified the neighbouring State,
victim of attack, to step in and to put an end to the attacks.

   The duty of vigilance is an obligation of conduct, not an obligation of
result. It may happen that despite all good efforts of a State, which has a
duty of vigilance, the neighbouring State will nevertheless suffer harm.
The occurrence of harm does not necessarily prove that the duty of vigi-
lance was breached. But its occurrence creates the presumption that the
obligation of vigilance has not been complied with. In such a case it
would be for the State which has the duty of vigilance (i.e., the DRC in
the present case) to demonstrate that it exerted all good efforts to prevent
its territory from being misused for launching attacks against its neigh-
bour in order to rebut such a presumption.
   5. The DRC has not provided the Court with credible information on
any such bona fide effort. Therefore, I am unable to concur with the view
of the majority that the absence of action by Zaire’s Government against
the rebel groups in the border area is not tantamount to “tolerating” or
“acquiescing” in their activities (para. 301). I am convinced that justice
would have been done if the DRC were found responsible for Zaire’s
toleration of the activities of (anti-Ugandan) rebel groups from its terri-
tory against Uganda, in the first period up to May 1997, that is, for its
own failure to comply with its obligation of vigilance.

 6. The Court’s finding in paragraph 9 of the dispositif concerns
Uganda’s first counter-claim in toto. Although I concur with the majority

188

353                  ARMED ACTIVITIES (DECL. TOMKA)

with respect to the major part of the first counter-claim, nevertheless I
cannot agree with its finding with respect to one of the elements of the
counter-claim. That is sufficient, in my view, for upholding the counter-
claim. So, at the end, I felt to be left with no other choice than to vote
against paragraph 9 of the dispositif. Needless to say that what I
consider to be a breach by the Democratic Republic of the Congo of its
duty of vigilance cannot be compared to the magnitude of Uganda’s
breach of the prohibition of the use of force.

      II. GRAVE BREACHES OF INTERNATIONAL HUMANITARIAN LAW —
                      OBLIGATION TO PROSECUTE

  7. The Court has found that Uganda has breached its obligations
under international humanitarian law (paragraph 3 of the dispositif).
When considering the allegation of breaches of international humanitar-
ian law obligations by the Uganda Peoples’ Defence Forces (UPDF), the
Court, being convinced that they were committed, qualifies these breaches
as grave (see paragraphs 207 and 208).
  8. The Court has also determined the legal consequences of Uganda’s
breaches of its international legal obligations, including the obligations
under international humanitarian law (see the dispositif, paragraph 6,
and also paragraphs 251-261). In doing that, the Court took as a point of
departure the fourth final submission of the DRC (see paragraphs 25 and
252) and determined these consequences under the general rules of inter-
national law on responsibility of States for internationally wrongful acts.

   9. Nevertheless, since grave breaches of international humanitarian
law were committed, there is another legal consequence which has not
been raised by the DRC and on which the Court remains silent. That
consequence is provided for in international humanitarian law. There
should be no doubt that Uganda, as party to both the Geneva Conven-
tions of 1949 and the Additional Protocol I of 1977 remains under the
obligation to bring those persons who have committed these grave
breaches before its own courts (Article 146 of the Fourth Geneva
Convention, and Article 85 of the Protocol I Additional to the Geneva
Conventions).

             III. SELF-DEFENCE AND THE NON-USE OF FORCE

   10. The order in which the Court, in the present case, has dealt with
legal issues relating to self-defence and the prohibition of the use of force
is worthy of note.
   The Court having first made its findings on the facts concerning
Uganda’s use of force (paras. 55 et seq.), then moves to the analysis of
relevant legal norms. In this analysis, leaving aside the issue of the alleged

189

354                   ARMED ACTIVITIES (DECL. TOMKA)

consent by the DRC to Uganda’s military presence on the former’s terri-
tory, the consideration of self-defence precedes that of the prohibition
of the use of force. One may consider that order understandable since if,
according to Article 51 of the Charter,
      “[n]othing in the present Charter shall impair the inherent right of
      individual or collective self-defence if an armed attack occurs against
      a Member of the United Nations, until the Security Council has
      taken measures necessary to maintain international peace and
      security”,
then a lawful exercise of the right to self-defence cannot constitute a
breach of any relevant article of the United Nations Charter (in concreto,
Art. 2, para. 4), and there would be no point in analysing the latter. Only
once the Court concludes that “the legal and factual circumstances for
the exercise of a right of self-defence by Uganda . . . were not present”
(para. 147), is it incumbent upon it to consider, and to make findings on,
the prohibition of the use of force (paras. 148 et seq.).

   11. The prohibition on the use of force cannot be read without having
regard to the Charter provisions on self-defence. The provisions on self-
defence, in fact, delineate the scope of rules prohibiting the use of force.
If a measure in question constitutes a lawful measure of self-defence, it
necessarily falls outside the ambit of the prohibition. In other words, the
prohibition of the use of force is not applicable to the use of force in law-
fully exercised self-defence.

   12. The order in which the Court considers self-defence and the pro-
hibition of the use of force in the present case is thus different from that
in which it considered them in the case concerning Military and Para-
military Activities in and against Nicaragua (Nicaragua v. United States
of America) (Merits, Judgment, I.C.J. Reports 1986, pp. 98-106,
paras. 187-201 ; and pp. 118-123, paras. 227-238), although it does not
lead to different conclusions.

                                                 (Signed) Peter TOMKA.

190