97

SEPARATE OPINION OF
JUDGE SIR GERALD FITZMAURICE

IT agree with the decision of the Court in this case, and I also
consider that the main ground for it, as stated in the Judgment
(namely that the claim is not of a character to engage the Court’s
judicial function), forms a correct and sufficient basis for the
decision. | have however certain additional remarks to make, and
also an additional ground for reaching the same conclusion. Finally,
because of the particular considerations on which the Judgment
is founded, the Court has not thought it necessary to consider
whether it would have jurisdiction to entertain the claim if the
grounds of objection mentioned in the Judgment did not exist.
While I think the Court was right in this, I have reasons for wanting
to deal with the main jurisdictional issues indicated in the submis-
sions of the Parties.

In this opinion, Parts I and IT (pp. 97-100, and 100-108) contain
my additional observations on the basis of the Court’s decision.
Part III (pp. 108-111) gives my additional ground for reaching the
same conclusion. In Part IV (pp. 111-127) I consider the jurisdictional
issues arising on Article 19 of the Trusteeship Agreement for the
former British Cameroons; and in Part V (pp. 127-130) I discuss the
objection rafione temporis advanced by the Respondent State to the
admissibility of a part of the claim.

I

“MOOT”? CHARACTER OF THE CASE.
THE QUESTION OF REPARATION

It has been obvious from the start that this case had certain
very unusual features, arising from the combined facts that the
Applicant State’s claim or request related to a situation which was
not merely in the past, but wholly terminated and non-recurrent,
and which for all practical purposes was so at the date of the Appli-
cation; while at the same time the latter contained no claim for any
compensation or other form of reparation in respect of the illegali-
ties alleged to have been committed during the period when this

1 The term “moot’’ is here used in the sense given to it in American legal ter-
minology, as denoting a case or claim which is or has become pointless and without
object.

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98 JUDG. 2 XII 63 (SEP. OPIN. SIR GERALD FITZMAURICE)

situation wasstill actively in existence. Nor was any attempt made
to introduce such a claim at any later stage of the proceedings 1.

This combination makes the case almost unique in the annals of
international litigation. It concerns alleged breaches of an inter-
national agreement, the Trusteeship Agreement for the former
British Cameroons. Now, it is in no way singular that an allegation
that a breach of treaty has occurred, should not be accompanied
by any claim for compensation or other reparation, where the
treaty is still in force and operating; for in that case, any finding in
favour of the plaintiff State functions as a prohibition on the con-
tinuance or repetition of the breach of treaty, and this may be all
that is required, and in any event makes the judgment effective 2.
Moreover, the latter necessarily operates as a finding about the
correct interpretation or application of the treaty, and therefore
serves a useful and effective legal purpose during the life-time of the
treaty.

Equally, it would be quite normal to allege in respect of a treaty
that was no longer in force, that breaches of it which occurred
during its currency had caused damage to the plaintiff State, for
which the latter claimed compensation or other reparation. In the
absence of such a claim however, the issue of whether there was a
breach of the treaty while it was still in force, could only be an
academic one: a judgment on that issue, even if favourable to the
plaintiff State, could create no rights or obligations for either party
to receive, enjoy, do or refrain from doing anything. Nor would the
treaty any longer be in existence, so that the judgment could have
no operative relevance by way of declaring the treaty’s correct
interpretation or application. Such a judgment could at most
afford a moral satisfaction to the party in whose favour it was pro-
nounced, and could at most have an academic interest, however
high its authority as a pronouncement of law. But courts of law
are not there to make legal pronouncements in adsivacto, however

1 It is not proposed to discuss here whether the framing of such a claim would
in fact have been practicable at all, or if so, would have been permissible at a later
stage than that of the initial Application. What was quite clear throughout, was
that there had been no error or oversight. On the contrary, it was insisted in the
most positive manner that the Applicant State was not asking for anything but a
declaration that the Respondent State had administered the Trust irregularly.

2 This also applies to what may occur in cases such as the Corfu Channel case,
where the Court, though finding that a violation of territorial sovereignty had
taken place, awarded no compensation or other reparation (none was requested),
but declared (I.C.J. Reports 1949, at pp. 35 and 36) that its finding as to the vio-
lation constituted “‘in itself an appropriate satisfaction”. This declaration, how-
ever, though it related to a past and irreversible event, was also relevant to a still
continuing situation in which a repetition of the violation of sovereignty could occur,
and it had operative legal effect as a prohibition or interdiction on any such
repetition. This was quite a different case from the present one.

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great their scientific value as such. They are there to protect existing
and current legal rights, to secure compliance with existing and
current legal obligations, to afford concrete reparation if a wrong
has been committed, or to give rulings in relation to existing and
continuing legal situations. Any legal pronouncements that emerge
are necessarily in the course, and for the purpose, of doing one or
more of these things. Otherwise they serve no purpose falling
within or engaging the proper function of courts of law as a
judicial institution.

Since, in the present case, it is the combination of the two
things—the process of alleging breaches of a treaty instrument due
to come to an end two days after the Application was filed, coupled
with the failure to claim any reparation for these alleged breaches,
that gives the case its special character—it is worth considering
certain other consequences of the latter circumstance, which would
immediately have come to light had the Court proceeded to the
merits, and which in my opinion have a direct relevance to the
question of the admissibility (or perhaps more appropriately in the
context—the examinability) of the Applicant State’s request,
considered as such.

By not claiming any compensation, the Applicant State placed
itself in a position in which, had the Court proceeded to the merits,
the Applicant could have obtained a judgment in its favour merely
by establishing that breaches of the Trust Agreement had been
committed, without having to establish, as it would otherwise
have had to do (i.e. if reparation had been claimed) that these
breaches were the actual and proximate cause of the damage
alleged to have been suffered—that is the incorporation of the
Northern Cameroons in the Federation of Nigeria rather than in the
Republic of Cameroon; without, in short, having to establish the
international responsibility of the United Kingdom for this out-
come. Neither in the Application or Memorial of the Applicant
State, nor in its oral pleadings, did it do more than seek to set up a
general presumption that if the United Kingdom, as Administering
Authority, had conducted matters differently, the result would have
been different. No proof of this was offered, nor even any real
prima facie evidence of it, and in the nature of the case it hardly could
have been. There are, moreover, aspects which suggest that not even

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a presumption to that effect could legitimately be drawn. In short,
it could only remain entirely speculative what would have happened
if this or that circumstance or action had been different }.

The point is that, on the basis of the Application as framed, and
without establishing any actual causal link between the irregularities
alleged and the damage complained of, the Applicant State could
have called for a judgment in its favour. The result is that, had the
Court proceeded to the merits, and had it considered the allegations
of irregularities in the administration of the Trust, and in the conduct
of the plebiscite leading up to its terinination, to be justified, it
would have found itself in the position of being obliged to give
judgment against the Respondent State, irrespective of whether
these irregularities had been the cause of the damage complained of.

This is clearly not a position in which the Court ought to allow
itself to be placed. It is not the task of an international tribunal
to apportion blame i vacuo, or to find States guilty of illegalities
except as a function of, and relative to a decision that these have
been the cause of the consequences complained of, for which the
State concerned is accordingly internationally responsible; or
except in relation to a still continuing legal situation in which a
pronouncement that illegalities have occurred may be legally
material and relevant.

IT

THE RIGHT OF THE COURT NOT TO GIVE ANY FINDING
ON JURISDICTION. THE QUESTION OF JUDICIAL
PROPRIETY

The Judgment of the Court in the present case is essentially
founded on the view that, irrespective of the Courts competence
to go into the merits of the case (and even if it is competent to do so),

1 The majority in favour of joining the Federation of Nigeria was broadly 3-2.
It would have needed a heavy swing for this to be converted into a majority the
other way. Moreover, the very fact that as many as two out of every five voted to
join the Republic of Cameroon, tends to show that the vote was free and unin- :
fluenced by anterior policies. This was equally the view taken in the independent
report of the universally respected United Nations Commissioner, Ambassador Abdoh,
on which the General Assembly acted in framing its resolution No. 1608 (XV) of
21 April 1961. A further point is that the Southern Cameroons, no less than the
Northern, had always been administered as an integral part of Nigeria. Yet this
did not prevent its population from opting to join the Republic of Cameroon, not
Nigeria. The presumption, if any, must be that the previous method of admin-
istration had little direct bearing on the result. Yet this previous method of
administration constituted the Applicant State’s chief ground of complaint.

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IOI JUDG. 2 XII 63 (SEP. OPIN. SIR GERALD FITZMAURICE)

the claim is of such a character that the Court ought not to entertain
it; or alternatively, that any decision that might be given by the
Court in favour of the Applicant State (and if none, then cadit
quaestio), could only be of such a character that the Court ought
not, in the prevailing circumstances, to give it, and ought not
therefore to examine the claim at all. The Court has not, I think,
pronounced the claim to be formally inadmissible, but it has in
effect (to make use of the French term recevabilité) treated it as non-
receivable or unexaminable because of the consequences (i.e. strictly,
the lack of any) which would ensue if it was acceded to.

In my opinion, however, a claim which would and could only have
the outcome described in the Judgment of the Court (assuming
even, that there was a finding on the merits in favour of the claim),
must itself be regarded as inadmissible.

Underlying the Judgment of the Court there are clearly consider-
ations of propriety, and this raises a general issue of principle—that
is to say, of how far and in what circumstances a court which has,
or may have, jurisdiction to go into a case, can and should decline to
exercise that jurisdiction (or even to consider the question of
jurisdiction) on the ground that it would not be proper for it to do
so in the circumstances. Although the Judgment refers to previous
cases in which the Court, or its predecessor the Permanent Court,
declined to pronounce on certain matters for reasons essentially of
unsuitability, and these cases are clearly relevant, I regard them
as not quite comparable to the present case, in which the position is
that, irrespective of its jurisdiction (and even if it has it), the Court
is declining altogether to exercise it, or even to consider whether
it has any jurisdiction. This involves an issue familiar in connection
with requests for advisory opinions !, but less so in the field of
international litigation, where it may be argued that if a court is
competent in relation to a given case, it must exercise that compe-
tence, and must therefore consider the question of its competence.
This is a serious issue which requires to be dealt with, since it is in
a general way evident that courts exist in order to go into and
decide the cases they are both duly seised of, and have jurisdiction
to entertain, without picking and choosing which they will pro-
nounce upon, and which not ?.

1 For a recent judicial affirmation of the right of the Court to decline to give
an advisory opinion even where competent to do so, see the case of Certain Expenses
of the United Nations {I.C.J. Reporis 1962, at p. 155).

2 The fact that jurisdiction is assumed, does not of course mean that the tri-
bunal concerned necessarily proceeds to hear and determine the merits, for it may
reject the claim in limine on some ground of inadmissibility (non-exhaustion of
local remedies, undue delav, operation of a time-limit, etc.). Such a rejection however,
on grounds of this kind, is itself an exercise of jurisdiction.

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102 JUDG. 2 XII 63 (SEP. OPIN. SIR GERALD FITZMAURICE)

No doubt there is a duty in principle for an international tribunal
to hear and determine the cases it is both seised of, and competent
to go into; and therefore, equally to consider the question of its
competence. But there must be limits to this duty. In order to
see what these may be, it will be necessary to discuss the general
relationship between jurisdiction or competence on the one hand,
and, on the other, the considerations which may cause a tribunal
to refuse to proceed to the merits.

The line between questions of jurisdiction (which basically relate
to the competence of the Court to act at all) and questions of
admissibility, receivability or examinability (which relate to the
nature of the claim, or to particular circumstances connected with
it)+ is apt in certain cases to get blurred. For this reason, inter-
national courts have tended to decline to draw too hard and fast a
distinction, or to sub-categorise too rigidly the general category of
“preliminary objections”, or else they have declared the distinction
to be of secondary importance ?; and there have certainly been
cases in which a clatm has been pronounced to be inadmissible, even
though the objections on the score of jurisdiction had not been
fully disposed of, so that strictly the court might not be competent
to act at all>. Per contra, there have been cases in which a court
has found itself to be competent, yet has refused to proceed any
further, on what were essentially grounds of propriety 4.

A given preliminary objection may on occasion be partly one of
jurisdiction and partly of receivability, but the real distinction
and test would seem to be whether or not the objection is based on,

1 See generally, British Year Book of International Law for 1958, pp. 8-25, and
Rosenne, The International Court of Justice, pp. 249-259.

2 See the Permanent Court in the Mavrommatis and Polish Upper Silesia cases
(P.C.LJ., Series A, No. 2, p. 10 and No. 6, p. 19).

3 See the Interhandel case (Jurisdiction), I.C.J. Reports 1959, p. 6, in which
the present Court upheld a plea of inadmissibility, although an objection to its
jurisdiction was still outstanding, and was never disposed of. The immediate re-
sult is the same, but not necessarily in the long run; for a successful objection to
the jurisdiction necessarily terminates the affair once and for all, whereas some
pleas of inadmissibility (e.g. that local remedies have not been exhausted) relate
to defects that may be cured by the subsequent action of the party concerned.

* In the Monetary Gold case (I.C. J. Reports 1954, at pp. 31-33) the Court,
while expressly finding that jurisdiction had been conferred upon it by the Parties,
declined to exercise it because of the absence of another State which the Court
regarded as a necessary party to the proceedings.

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103 JUDG. 2 XII 63 (SEP. OPIN. SIR GERALD FITZMAURICE)

or arises from, the jurisdictional clause or clauses under which the
jurisdiction of the tribunal is said to exist. If so, the objection
is basically one of jurisdiction. If it is founded on considerations
lying outside the ambit of any jurisdictional clause, and not
involving the interpretation or application of such a provision,
then it will normally be an objection to the receivability of the
claim (see further in Part V hereof).

I have however pointed out elsewhere! that the classification
of preliminary questions into the two categories of jurisdictional
questions and admissibility questions is oversimplified, and can be
misleading when it comes to considering and determining at what
stage and in what order given objections, of either kind, can properly
be acted upon—for each category is capable of subdivision into (a)
questions which, while remaining preliminary (in the sense of
preliminary to the merits), are substantive in character, and {b)
questions which are of a wholly antecedent or, as it were, ‘“pre-
preliminary” character. Considerations of propriety or suitability
will certainly figure amongst the latter. Thus in the jurisdictional
field, there is the substantive or basic jurisdiction of the Court
(i.e. to hear and determine the ultimate ? merits), and there is the
possibility of (preliminary) objections to the exercise of that
jurisdiction. But also, there is the Court’s preliminary or “‘inci-
dental” jurisdiction (e.g. to decree interim measures of protection,
admit counterclaims or third-party interventions, etc.) which it
can exercise even in advance of any determination of its basic
jurisdiction as to the ultimate merits; even though the latter is
challenged; and even though it may ultimately turn out that the
Court lacks jurisdiction as to the ultimate merits 3. Although much
(though not all) of this incidental jurisdiction is specifically provided
for in the Court’s Statute, or in Rules of Court which the Statute
empowers the Court to make, it is really an inherent jurisdiction,
the power to exercise which is a necessary condition of the Court—
or of any court of law—being able to function at all. Nevertheless,
there may in particular cases be objections (which would accordingly
be of a pre-preliminary character) to the Court being entitled to
exercise this power in relation to some specific part of its incidental
jurisdiction. For example, a request for interim measures may be
met either with a denial that, on their merits, these should be
granted, or with a challenge to the right of the Court to grant them,

1 See for instance British Year Book of International Law for 1958, pp. 56-60.
2 There may be intermediate issues of merits—e.g. where interim measures of
protection are requested, but the necessity for them is contested on the merits.
3 This occurred in the Anglo-Ivanian Oil Company case, in which the Court
granted a request for the indication of interim measures in advance of any decision
as to its competence to go into the ultimate merits, on the basis that it could have
such competence (I.C.J. Reports 1951, at pp. 92-93); but in the subsequent juris-
dictional phase of the case the Court decided that it had not—which entailed
automatically the cancellation of the interim measures (I.C.J. Reporis 1952, at p. 114).

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or the propriety of its doing so in the given case—in effect a juris-
dictional issue !.

It is thus clear that arising from its seisin—that is to say from
the fact of being duly seised of a case by means of a formally
valid application stating the grounds of the claim, and the grounds
upon which it is contended that the Court is competent to entertain
it 2, the Court, Irrespective of its substantive jurisdiction in re-
lation to the ultimate merits, becomes immediately possessed of
a preliminary competence enabling it to do a variety of things in
relation to the case.

It is in pursuance of this preliminary competence, which, as I have
said, is really inherent in the functioning of any court of law, that
the Court must be considered to have acted in the present case in
declining to examine the claim, irrespective of its competence to do
so. But in considering how far the Court is entitled to act in this
way, irrespective of, and without deciding, the question of its
competence, it is necessary to bear in mind that there are also differ-
ent categories of preliminary objections of a non-jurisdictional
character, and that the category of questions of receivability is
itself sub-divisible.

The essence of any preliminary objection (and this applies as well
to receivability as to jurisdictional objections) is that, if good, it
holds good and brings the proceedings to an end 3, irrespective of
the plaintiff State’s ability to prove its case on the merits. But
in the field of admissibility or receivability, some objections clearly
cannot, or ought not, to be gone into or decided until after the
competence of the tribunal is fully established; whereas others can,
and must, be taken in advance, and irrespective of any determina-
tion of competence. An example of the former category would be
pleas of inadmissibility closely connected with the merits, such as
the objection ratione temporis in the present case, whereby it was
sought to exclude im imine any complaints about acts or events
taking place prior to the Applicant State’s admission to the United
Nations (see Part V hereof). Another case would be a plea of
inadmissibility relating to defects which are capable of being cured

1 According to its settled jurisprudence, the Court will not insist on its juris-
diction in respect of the ultimate merits being affirmatively established before
it grants a request for interim measures. On the other hand, it will not grant the
request if it is clear, even at that stage, that there is not any possible basis on which
it could be competent as to the ultimate merits—see British Year Book of Inter-
national Law for 1958, PP. I09-114.

2 Statute, Article 40; Rules of Court, Article 32.

3 Except of course where the objection is joined to the merits or in the type
of case mentioned in note 3 on p. 102.

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105 JUDG. 2 XII 63 (SEP. OPIN. SIR GERALD FITZMAURICE)

by appropriate action, such as a plea of non-exhaustion of local
remedies: if the plaintiff State is able to cure the defect, it would
obviously be absurd for it to return to the Court, only to find that
the latter then declared itself to be incompetent on jurisdictional
grounds. Therefore, all jurisdictional issues should be disposed of
first in such a case,

There are however other objections, not in the nature of objec-
tions to the competence of the Court, which can and strictly
should be taken in advance of any question of competence. Thus a
plea that the Application did not disclose the existence, properly
speaking, of any legal dispute between the parties, must precede
competence, for if there is no dispute, there is nothing in relation
to which the Court can consider whether it is competent or not.
It is for this reason that such a plea would be rather one of ad-
mussibility or receivability than of competence. In the present
case, this particular ground of objection arose as one of competence,
because the jurisdictional clause invoked, namely Article 19 of the
Trust Agreement, itself required the existence of a dispute. But
irrespective of the particular language of the jurisdictional clause,
the requirement that there must be an actual dispute in the proper
sense of the term, and not merely (for instance) a simple difference
of opinion, is a general one, which must govern and limit the
power of any tribunal to act. For reasons I shall give later, 1
consider that there was not, in this sense, a dispute in the present
case.

Very similar considerations apply to the plea that the Application
should not be entertained on the ground that, owing to events
occurring since it was filed, it has manifestly lost all raison d’éire—
that it has become “‘moot’’—so that a decision on the merits
would be objectless. There would clearly be an element of absurdity
in the Court going through all the motions of establishing its
jurisdiction, if it considered it must then in any event decline to
examine the claim on this ground, however competent it might be
to do so. This ground is in fact one of those on which the Court has,
and rightly, declined to act in the present case.

In the same way, if the Court considered (as it did in the Monetary
Gold case—supra, p. 102, note 4) that because of the absence of a
necessary party, it could not examine the claim, this is a conclusion
which would make a decision on competence unnecessary ?, and

1 That-this was not done in the Interhandel case (see footnote 3, p. 102 above), was
due to the special character, and allegedly ‘moot’ status of the jurisdictional
objection ostensibly left open.

2? Except where a joinder of the party in question was possible and seemed
probable: for it would be pointless to effect the joinder unless the Court was com-
petent—see pp. 102 and 104 supra, and footnote 3 on p. 102.

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“106 JUDG. 2 XII 63 (SEP. OPIN. SIR GERALD FITZMAURICE)

even impossible if the presence of that party was required not only
for a determination of the merits, but also of the question of
competence—as the Court might well have held in the present case
in relation to the Federation of Nigeria.

A similar sort of position must arise where the objection touches
not so much the substance of the claim, as the character of what the
Court is requested to do about it, having regard to the surrounding
circumstances—as for instance if the Court is asked to do something
which does not appear to lie within, or engage, its judicial function
as a court of law. In cases of this kind, the question of competence
or jurisdiction becomes irrelevant, for it would be inappropriate,
and even misleading, for the Court to avoid the issue by simply
finding itself to lack jurisdiction, even if it did lack it; or alter-
natively, to find itself to be competent when it was manifest that
it could not in any event exercise that competence for & priori
reasons touching the whole nature of its function as an international
tribunal and judicial institution.

It is in the manner above indicated that the dismissal of a claim
on what are essentially grounds of propriety, and irrespective of
competence, can be reconciled with the general rule that if the
Court is in fact competent, it must exercise its competence and
proceed to the merits unless the claim falls to be rejected for some
reason of inadmissibility arising on its substance; for the issue of
propriety is one which, if it arises, will exist irrespective of com-
petence, and will make it unnecessary and undesirable for compe-
tence to be gone into, so that there will be no question of the Court
deciding that it has jurisdiction but refusing to exercise it.

There is another reason also for postulating a certain latitude for
the Court, on grounds of policy or propriety, to decline 1m limine to
entertain claims that it might be competent to go into, and which
might not be open to objection on grounds of straight inadmissi-
bility. In the general international legal field there is nothing cor-
responding to the procedures found under most national systems
of law, for eliminating at a relatively early stage, before they reach
the court which would otherwise hear and decide them, claims
that are considered to be objectionable or not entertainable on
some a priori ground. The absence of any corresponding “‘filter’’

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procedures in the Court’s jurisdictional field! makes it necessary
to regard a right to take similar action, on similar grounds, as
being part of the inherent powers or jurisdiction of the Court
as an international tribunal.

*
* 6

It has however been contended that the Applicant State’s claim
in the present case would engage the Court’s judicial function,
because a judgment in favour of that State could have effects, in
the sense that it could be put to some use; and that in any case the
task of the Court is to declare the law (dive le droit) and not to
concern itself with the effects of its decisions. This might be true
if the decision could have some /egai effect. It is quite another
matter when it would manifestly be incapable of any effective
legal application at all, for it then becomes a decision of a kind a
court of law ought not in principle to render.

Evidently a judgment of the Court, even if not capable of effective
legal application, could have other uses. It could afford a moral
satisfaction. It could act as an assurance to the public opinion of one
or other of the parties that something had been done or at least
attempted. There might also be political uses to which it could be
put. Are these objects of a kind which a judgment of the Court
ought to serve? The answer must, I think, be in the negative, if
they are the only objects which would be served—-that is, if the
judgment neither would nor could have any effective sphere of legal
application.

It was also suggested on behalf of the Applicant State during the
oral hearing, that a judgment of the Court in its favour would, or at
any rate might, have a legal effect or possible legal application,
inasmuch as it might be made the basis of further proceedings,
before either the Court itself or some other international tribunal.
Whether this would be the case can only be entirely speculative, and
the Court could not in any event render a judgment on a hypo-
thetical basis of this kind.

However, prima facie, and so far as can be seen at present, no
such further proceedings would be possible without the consent of
the Respondent State. Furthermore, it would seem that the Court
could not, on any subsequent request for an interpretation of its
judgment (if it had given one on the merits), declare by way of
purported interpretation, that the judgment gave rise to obligations

1 It may exist in special cases—for instance the European Convention on Human

Rights provides for a screening procedure whereby claims can be declared irre-
ceivable before ever they reach the European Commission or Court of Human Rights.

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that had not been asserted in the original claim, and the merits
of which (having regard to the considerations set out in the second
half of Part I of the present Opinion) would never have been gone
into. This would not be to interpret the judgment, but to give
effect to a new claim, and without any investigation of it as such,
or into the question whether the irregularities, on this hypothesis
found to have occurred, had actually been the cause of the result
complained of. In the Reght of Asylum (Interpretation of Judgment)
case, the Court was emphatic that it could not, by way of inter-
pretation of its Judgment in the original Right of Asylum case,
pronounce upon what was essentially a new claim. It said (/.C_/.
Reports 1950, at p. 403) that the gaps which the Applicant State
claimed to have discovered in its original Judgment were ‘‘in
reality ... new questions which cannot be decided by means of
interpretation. Interpretation can in no way go beyond the limits
of the Judgment, fixed in advance by the Parties themselves in
their submissions.”’ The Court went on to say that, in reality, the
object of the questions then being put to it was “ to obtain by the
indirect means of interpretation, a decision on questions which
the Court was not called upon by the Parties to answer’’. Similarly
in the subsequent and related Haya de la Torre case (I.C.J. Reports
1951, at p. 79), the Court declared that questions “not submitted
to the Court [by the original application] and consequently ...
not decided by it” could not be made the basis of any deduction
“as to the existence or non-existence of an obligation” resulting from
the original decision. In the present case, the question of any
obligation for the Respondent State to pay compensation or make
reparation in any other form, even if the alleged irregularities in
the administration of the trust territory were established, has not
been submitted to the Court, and does not form part of the claim.

Ii

THE QUESTION OF THE EXISTENCE OF ANY LEGAL
DISPUTE, PROPERLY SO CALLED

The Court could, in my opinion, on another ground have reached
the conclusion that it could not examine the claim—namely that
there was not, properly speaking and in the legal sense, any dispute
between the Parties at the date of the Application to the Court.
I cannot share the Court’s view that there was a dispute, because
it seems to me, as I shall hope to show, that logically the very
same considerations which have led the Court to find that it would
be incompatible with its judicial function to entertain the claim,

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10g JUDG. 2 XII 63 (SEP. OPIN. SIR GERALD FITZMAURICE)

should also have led it to hold that there was not, in the proper
sense, any legal dispute. The two things are really different
aspects of the same basic juridical situation.

The question of the existence of a dispute would of course have
arisen on Article 19 of the Trust Agreement, if the Court had gone
into that provision. It is however, as I said earlier, a general ques-
tion, which must arise in any event since, unless there is in the legal]
sense a dispute, there exists nothing which the Court, as a court
of law, can deal with, even for the purpose of determining its compe-
tence. On this point, and in order to show that the question is
one ‘which, strictly speaking, does not relate to the jurisdiction of
the Court: a problem which, indeed, arises prior to any question of
jurisdiction ...”’, I associate myself with the reasoning contained in
Part I of my colleague Judge Morelli’s Dissenting Opinion in the
South West Africa case (Jurisdiction)—I.C..J. Reports 1962, at pp. 546-
566.

It must be admitted however that it may not be easy in a given
case to say whether a dispute exists or not—particularly where,
superficially, there may now be all the appearance of one. The Judg-
ment of the Court, in my opinion, proceeds on the basis that since the
Parties take different views as to whether the United Kingdom did
or did not correctly administer the Trust—one alleging and the
other denying this—there must be a dispute between them. This
seems to me to beg the question. That there should be difficulty
about the matter is due to the lack of any clear definition of what
is meant by a dispute for legal purposes. It is generally accepted
that if there is a dispute, it must have existed before, and at the
date of, the Application to the Court, and that the making of the
Application does not suffice per se to create a dispute. It is also
accepted that the mere assertion or denial of a dispute is not
sufficient in itself either to establish or refute its existence; and
further, that a dispute must involve something more than a mere
difference of opinion. Beyond that, there are only subjective ideas,
and there is little agreement on any objective test.

I share the view expressed in Part II of Judge Morelli’s Opinion
already referred to (1.C.J. Reports 1962, pp. 566-588), that there
is a minimum required in order to establish the existence of a
legal dispute, properly so called—that is (to come very close to
the language of the present Judgment itself) a dispute capable of
engaging the judicial function of the Court. This minimum is that
the one party should be making, or should have made, a complaint,
claim, or protest about an act, omission or course of conduct,
present or past, of the other party, which the latter refutes, rejects,
or denies the validity of, either expressly, or else implicitly by
persisting in the acts, omissions or conduct complained of, or by
failing to take the action, or make the reparation, demanded. If

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110 JUDG. 2 XII 63 (SEP. OPIN. SIR GERALD FITZMAURICE)

these elements exist, then as Judge Morelli said, it does not matter
whether the claim comes first, the rejection (in terms or by conduct)
coming afterwards, or whether the conduct comes first, followed by
a complaint, protest, or claim that is not acceded to.

However, while this definition embodies the minimum, and is
also adequate to cover the great majority of cases, it does not
bring out quite clearly what is, to me, the essential ingredient of the
existence of a dispute, the one element necessary in order to establish
objectively, and beyond possibility of argument, that there exists a
legal dispute properly so-called; the element in the absence of
which the so-called dispute can only be a mere divergence of view
about matters of theoretical, scientific or academic interest !. For
this purpose, I accept the definition of a legal dispute put forward
by the Respondent State in this case—the United Kingdom—which,
in my opinion, constitutes a useful contribution to the clarification
of a difficult matter. According to this definition (which I shall
slightly emend) there exists, properly speaking, a legal dispute
(such as a court of law can take account of, and which will engage
its judicial function), only if its outcome or result, in the form of a
decision of the Court, is capable of affecting the /egal interests or
relations of the parties, in the sense of conferring or imposing upon
(or confirming for) one or other of them, a legal right or obligation,
or of operating as an injunction or a prohibition for the future, or
as a ruling material to a still subsisting legal situation.

Applying this test in the present case—then, since no compensation
or other form of reparation is claimed, a decision of the Court could
not award any, and consequently could not impose any obligation
to pay or afford such compensation or other reparation, or any
right to receive it. Therefore, there can be no dispute between the
Parties as to the existence of any such right or obligation. Similarly,
the Trusteeship for the Northern Cameroons being terminated, a
decision of the Court could not confer or impose any right or obli-
gation on either Party as regards the conduct of the Trust, or as
regards its interpretation ot application. Again, the basis of termi-
nation being irrevocable, and beyond the power of either Party to
reverse or alter, a decision of the Court could not deal with that
matter. Thus, there can be no dispute between the Parties as to
the future conduct of the Trust (since it no longer exists), or as to
what should be done about the basis of the termination of the Trust,

1 Having regard to my earlier references to Judge Morelli’s Dissenting Opinion
in the South West Africa case, it is right that I should say that from this point on,
his views diverge from mine. He considers that there is a dispute in the present
case.

99
III JUDG. 2 XII 63 (SEP. OPIN. SIR GERALD FITZMAURICE)

since this is admitted to be irreversible, and no claim that it can
or should be altered is put forward.

In short, a decision of the Court neither would, nor could, affect
the legal rights, obligations, interests or relations of the Parties
in any way; and this situation both derives from, and evidences,
the non-existence of any dispute between the Parties to which a
judgment of the Court could attach itself in any concrete, or even
potentially realizable, form. The conclusion must be that there may
be a disagreement, contention or controversy, but that there is
not, properly speaking, and as a matter of law, any dispute.

To state the point in another way, the impossibility for a de-
cision of the Court in favour of the Applicant State to have any
effective legal application in the present case (and therefore the
incompatibility with the judicial function of the Court that would
be involved by the Court entertaming the case) is the reverse
of 3 coin, the obverse of which is the absence of any genuine dispute.

Since, with reference to a judicial decision sought as the out-
come of a dispute said to exist between the Parties, the dispute
must essentially relate to what that decision ought to be, it follows
that if the decision (whatever it might be) must plainly be without
any possibility of effective legal application at all, the dispute
becomes void of all content, and is reduced to an empty shell.

IV

ARTICLE 19 OF THE TRUST AGREEMENT.
THE QUESTION OF JURISDICTION

Even if, for the reasons given above, and in the Judgment of the
Court itself, I did not consider that the Court is entitled to hold,
and right in holding, that it should not examine the claim of the
Applicant State, and need not go into the question of its juris-
diction to do so, I should in any event hold that it did not possess
such jurisdiction, for broadly the same reasons, mutatis mutandis,
as those contained in Parts V, VI and VII of the Joint Dissenting
Opinion which my colleague Judge Sir Percy Spender and I wrote
in the South West Africa case (Jurisdiction) (I.C./. Reports 1962,
at pp. 518-526 and 547-562).

However, I share the view expressed by Judge Sir Percy Spender
in his Separate Opinion in the present case, that this case has
features of its own relative to the question of jurisdiction, that
require to be dealt with. I am in general agreement with his Opinion
and associate myself with it. I can therefore confine my own remarks
to certain points I specially want to make. Moreover, having regard

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II2 JUDG. 2 XII 63 (SEP. OPIN. SIR GERALD FITZMAURICE)

to what is said in Judge Sir Percy Spender’s Opinion, I need not
deal with the additional reasons which exist in the present case for
thinking that such clauses as Article 19 of the Trust Agreement
must be interpreted and applied so as to avoid the unreasonable
and impossible conflicts (of which the present case could have
afforded, and indeed did potentially afford, a conspicuous example)
liable to arise if the Court is regarded as having a concurrent
jurisdiction with the appropriate political organ or organs, in order
to supervise the conduct of the Trust.

For the purposes of what follows, I shall assume that, contrary
to the views expressed in Part III above, there is a dispute within
the meaning of Article 19, since otherwise cadit quaestio.

Fa
* *

1. The scope of Article 19g.

(a) Analysis of the provisions of the Trust Agreement. What rights
did 1t confer on what States or other entities ?

The jurisdictional clause of the Trust Agreement for the former
British Cameroons, Article 19, was as follows:

“Tf any dispute whatever should arise between the Administering
Authority and another Member of the United Nations relating to
the interpretation or application of the provisions of this Agreement,
such dispute, if it cannot be settled by negotiation or other means,
shall be submitted to the International Court of Justice provided
for in Chapter XIV of the United Nations Charter.”

The central issue of jurisdiction arising on this clause (as on Article 7
of the Mandate for South West Africa 1}, is what are the provisions
here intended to be referred to by the words “the provisions of
this Agreement”. In my opinion, these words must be read as if
they were followed by the phrase “in respect of which that Member
enjoys substantive rights under the Agreement’’. Before giving my
main reason for this view, I must briefly state the nature of the
Trust Agreement.

Like the former Mandates (and the one remaining one), and like
most ? of the other Trusteeships, the British Cameroons Trusteeship
involved two classes of provisions—that is of substantive provisions,
for Article 19, being a purely jurisdictional clause, stood by itself

1 But in the South West Africa case there was a second central issue arising on
the jurisdictional clause, which does not arise in the presentcase—see I.C.J. Reporis
1962, at pp. 504 ff.

2 Significantly, all those Trusteeships which only contained provisions about
the administration of the Trust in the interests of the population of the Trust
Territory (and did not confer commercial or other rights on Members of the
United Nations), did not contain any jurisdictional or adjudication clause.

Ior
113 JUDG. 2 XII 63 (SEP. OPIN. SIR GERALD FITZMAURICE)

and apart from the substantive provisions. The two classes of the
latter were (a) provisions as to the rights and obligations of the
Administering Authority (the United Kingdom) for the adminis-
tration of the Trust in the interests of the population of the Trust
Territory—which it will be convenient hereinafter to call “conduct
of the Trust” provisions or articles; and (8) provisions in which
rights, mainly of an economic or establishment character (equality
of treatment, non-discrimination, right to enter, travel or reside in
the Territory, to own property there, etc.), were conferred on the
Members of the United Nations as a class, for themselves individu-
ally as States, or for their nationals. It will be convenient herein-
after to call the provisions in this category “national rights” pro-
visions or articles.

The complaint of the Applicant State in the present case (as
with that of the two Applicant States in the South West Africa
case) related exclusively to the former category of provisions
(conduct of the Trust). The Applicant did not invoke or make
any claim or complaint in respect of the national rights provisions
of Articles 9, 10, rr and 13.

Three further points require to be stressed:

First, the mention of Members of the United Nations occurred
exclusively in the Articles conferring rights upon them in their
individual capacity or upon their nationals—Articles 9, Io, 1 and 13.
They were not mentioned in any of the conduct of the Trust
provisions or even in those of the Preamble to the Agreement. All
these provisions referred only to the Administering Authority, or
to organs of the United Nations such as the General Assembly or the
Trusteeship Council. Correspondingly, these organs were not men-
tioned in any of the national rights articles, although the Ad-
ministering Authority naturally was. Thus it can be plainly seen
that one of these two categories of provisions (conduct of the
Trust) created a link exclusively between the Administering Au-
thority and the United Nations as an entity, or certain of its organs;
‘while it was only the other category (of national rights provisions)
that created any link or contractual tie between the Administering
Authority and the Members of the United Nations individually.

Secondly, to make the picture thus presented even clearer, the
Trust Agreement was concluded by being embodied in a resolution
of the United Nations Assembly, and it has been common ground
throughout the present case that the sole entities formally parties
to it were the Administering Authority on the one hand, and the
United Nations represented by the General Assembly on the other,
and that the Members of the United Nations, as such, were not

102
II4  JUDG. 2 XII 63 (SEP. OPIN. SIR GERALD FITZMAURICE)

individually parties to the Agreement. The particular rights they
individually possessed under certain clauses of it (and those only)
were in effect “third-party” rights. It was admitted on behalf of the
Applicant State that the Members of the United Nations were third
parties in relation to the Trust Agreement, although it was sought
to argue that they were a ‘somewhat special’ kind of third party.
But it was not seriously suggested that they could, in relation to
the Agreement derive direct #ndividual rights from their corporate
Membership of the entity which alone was, and as such, a party
to the Agreement.

Thirdly, although the point is a lesser one, it is worth noticing
that, whereas the organs of the United Nations could be relied
upon to supervise the execution of the conduct of the Trust pro-
visions with which they were directly concerned, they might well
feel no particular interest in the enforcement of the national rights
provisions. [t was in this latter respect that the role of the Court
under Article 19 was a necessary one. It was not in any other respect
necessary, given the functions to be carried out by the organs of the
United Nations in supervising the administration of the Trust—
functions involving a far closer control than any which the League
of Nations had exercised in respect of the former Mandates.

The situation just described can, in my opinion, lead to only
one valid legal conclusion, which is that to be stated in the next
sub-section.

(b) Did the Applicant State have the capacity to invoke Article 19
in respect of matters relating to the conduct of the Trust?

The real issue that arises on the scope of Article Ig is not what
provisions of the Trust Agreement it relates to (its actual language is
quite general) but under what provisions the individual Members of
the United Nations had rights which they could assert by invoking
Article 19. This must be so because it is axiomatic that a State can
only invoke the jurisdictional clause of an international agreement
in respect of, and in order to assert, rights which (whether as a
party to the agreement, or on a “third-party” basis) that State
possesses, under or in relation to one or more of the provisions of
the agreement. If there are provisions of the agreement relative to
which it is clear, a priori, that the State concerned has and can

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II5  JUDG. 2 XII 63 (SEP. OPIN. SIR GERALD FITZMAURICE)

have no substantive rights, then it must necessarily lack capacity
to invoke the jurisdictional clause in respect of them 1.

The conclusion just stated results directly and inevitably from
the universally accepted principle that, whatever the apparent
generality of its language (“any dispute whatever” relating to
“the provisions” of the Agreement), a purely jurisdictional clause,
such as Article 19 of the Trust Agreement, cannot confer substantive
rights. The substantive rights it refers to must be sought elsewhere,
either in the same instrument or in another one. All a jurisdictional
clause can do, is to enable any such rights, whatever they may be
(and if they independently exist), to be asserted by recourse to the
tribunal provided for—this provision being the real purpose of a
jurisdictional clause, and all it normally does.

Thus, in the present case, the scope of Article 19 is necessarily
governed not only by what it says itself, but also, and even more
importantly, by what rights were conferred by the vest of the Trust
Agreement, and on what parties or entities. As has already been seen,
the Trust Agreement only conferred separate substantive rights on
Members of the United Nations individually, by Articles 9, 10, II
and 13, which are not invoked in the present case. No rights for
Member States, as such and individually, were conferred by any of
the remaining provisions, which relate to the conduct of the Trust.
Hence Article 19 can only be invoked by individual Member States
in respect of the former class of provisions, for only under these did
the separate Member States possess rights in their individual
capacity. This is not merely a valid, but a necessary conclusion, and
for the following reason also.

There are in general only two ways in which a State can, as such
and individually, claim rights under a treaty: (i) the State may be
an actual party to the treaty, in which case (subject of course to
any specific exceptions or exclusions contained in the treaty itself)
such State will have rights in relation to the treaty as a whole, and
can invoke all its provisions, without needing to be expressly
indicated as entitled to do so under one or more specific provisions ;
or (ii) though not a party, a State can enjoy rights if these are
expressly conferred on it eo nomine, or as a member of a named or
indicated class. But from this it follows that, in case (ii), anon-party
State can claim only the actual rights conferred on non-parties,

1 This is of course quite a different question from the question—which can only
arise on the merits of any given case—whether, if a State “‘qualifies’’ as possessing
rights under a particular provision of a treaty, those rights have in fact been vio-
lated. The question of qualification itself, is a preliminary one affecting the capa-
city of the State concerned to invoke the jurisdictional clause of the treaty, and
hence affecting the competence of the Court.

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II6 JUDG. 2 XII 63 (SEP. OPIN. SIR GERALD FITZMAURICE)

and could not claim rights in respect of any other provision of the
treaty. Therefore, in the present case, the Members of the United
Nations, not being individually parties to the Trust Agreement, could
claim rights only under the national rights provisions, and could net
individually claim them in respect of the conduct of the Trust
provisions. It follows that, since Article 19 could only be invoked
by a Member State in respect of the substantive rights it possessed
under the Trust Agreement, and since the individual Members of the
United Nations did not, as such, possess rights under the conduct
of the Trust provisions (being neither named in them nor separate
parties to the Agreement as a whole), they could not invoke Article 19
in respect of those provisions.

Whatever the generality of its language, Article 19 must be read
subject to the fundamental consideration that it is only a juris-
dictional clause, not conferring any substantive rights. The difficulty
is not that Article 19 is incapable on its language of applying to the
conduct of the Trust provisions, if the Member States had, in their
individual capacities, any rights under these. But they had not; and
Article 19 (being a purely jurisdictional provision) could not by itself
create them. It could operate only in respect of rights which the party
invoking it already possessed. The Applicant State in the present
case had, as a non-party to the Trust, no individual rights under the
conduct of the Trust provisions which alone it cites, and therefore
cannot invoke Article rg in respect of them. In short the Applicant
State lacks the capacity to invoke Article 19 in respect of the only
provisions of the Trust which are the subject of its complaint; and
if the Applicant State lacks this capacity, then the Court can have
no jurisdiction to entertain a claim which, in effect, the Applicant
State has no legal right to make.

The foregoing conclusion, stated in this particular way—i.c. on
the basis not so much of the scope of Article 19, as of the incapacity
of Members of the United Nations to invoke it in respect of pro-
visions under which they had no direct rights—seems to me in-
controvertible in the present case, and I have wanted to stress this
way of looking at it for two reasons which are peculiar to the present
case as compared with the South West Africa case.

First, whereas in that case it was arguable (though not in my
opinion correctly so—see I.C.J. Reports 1962, pp. 499-502) that if the
Mandate for South West Africa was a treaty, the Members of the
former League of Nations were all individually parties to it, this is

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not possible in the present case. It is admitted that they were not
parties to the Trust Agreement, and that the United Nations in its
corporate capacity was the sole party, apart from the Administering
Authority.

Secondly, whereas in the days of the League of Nations it might
not universally have been considered that a body such as the League
of Nations was, as an entity, possessed of international personality
over and above, and distinct from, the aggregation of its Member
States, so that it might lack treaty-making capacity (see Z.C.].
Reports 1962, p. 475, note 1), the Court in the case of Injuries to
United Nations Servanis recognized once and for all the separate
and distinct international personality of the United Nations
(Z.C.J. Reports 1949, at p. 179). Its capacity to enter into or be
a party to international agreements is admitted—and it has fre-
quently been exercised 1.

The conclusion which inevitably follows from and is necessitated
by these unquestionable legal facts, and by the position of the
United Nations, in its corporate capacity, as the sole other party to
the Trust Agreement, is and must be that the interest of the
individual Member States in the conduct of the Trust was exer-
cisable and realizable only through the corporate machinery and
action of the United Nations. This is the answer—at least in the
present case—to the contention that all Member States had an
interest in the conduct of the Trust; they had it, but they could
exercise it only through the United Nations, and net through the
Court, except as regards provisions of the Trust conferring national
rights on them as separate States. This conclusion is not affected
by the fact that, in the present case, geographical propinquity
gave the Republic of Cameroon a greater interest in the conduct
of the Trust than was possessed by most other Member States.
This could not suffice to entitle the Republic to exercise or realize
that interest except through the machinery of the United Nations;
for that interest, during the currency of the Trust, was bound up
with that of the United Nations, and of the whole Trusteeship
System, and could not be independently served or dealt with.
And clearly the Applicant State cannot now have other or greater
rights or capacities than it enjoyed while the Trust was still in force.

*
* *

(c) The contention thai the termination of the Trust was not part
of the conduct of the Trust.

The Respondent State in the present case, while making the
considerations just discussed one of its main contentions, also put

1 See also Article 1 of the General Convention on the United Nations Privileges
and Immunities of 13 February 1946.

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II8 JUDG. 2 XII 63 (SEP. OPIN. SIR GERALD FITZMAURICE)

forward an additional argument, to the effect that even if Article 19
were regarded as applying to ail the provisions of the Trust Agree-
ment, and the Applicant State as having rights under (and as being
entitled to invoke) them all, the present case would still not be
covered, since it related not to the conduct, but to the termination
of the Trust, its incidents and outcome, and this was a matter on
which the Trust Agreement was wholly silent. It was part of this
contention that although the Applicant State did indeed invoke
specific provisions of the Trust, and alleged violations of them, it
did so only as part of, or in order to lead up to, the complaints
relating to the termination of the Trust.

This contention does not seem to me to be well founded. The latter
part of it only goes to the motives which the Applicant State may
have had in alleging violations of specific provisions of the Trust:
it does not alter the fact that they were alleged. Whether the
Applicant State would in fact ever have made these allegations
except in the context of the termination of the Trust may be
doubted; but there can be no doubt that it could have invoked these
provisions ?, in order to allege irregularities in the conduct of the
Trust, quite independently of the Trust’s prospective termination,
and even if there had been no immediate question of that. In short,
allegations of irregularities in the conduct of the Trust, whether
justified or not, retain their status as such whatever the aim with
which they are made.

Moreover, even if it is literally true that Article 19 speaks of
disputes about ‘‘the provisions” of the Trust Agreement, and that
there are no express provisions about termination, I think that
eventual termination must be regarded as being inherent in the
declared aim of the Trust, namely of ‘‘progressive development to-
wards self-government and independence” (see Article 76 {b} of the
United Nations Charter, and the reference in Article 3 of the Trust
Agreement to the ‘‘basic objectives of the International Trusteeship
System laid down in Article 76 of the... Charter’’). Since the attain-
ment of these ends “in accordance with the freely-expressed wishes
of the peoples” (Article 76 (b)) is regarded as being, if not the
whole object, at any rate the chief raison d’être of the Trusteeship
System, it seems to me difficult not to regard steps taken for that
purpose, or in the actual process of its realization (plebiscites, etc.),
as being an implied part of the whole conduct of the Trust. I would
therefore have to hold that the jurisdictional clause of the Trust
Agreement must be regarded as covering disputes about the termi-
nation of the Trust, if I regarded that clause as relating to the
conduct of the Trust at all. I have thought it right to go into this

1 Assuming, that is, for purposes of the argument, that Article 19 of the Trust
related to these provisions at all.

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119 JUDG. 2 XII 63 (SEP. OPIN. SIR GERALD FITZMAURICE)

matter, since some emphasis was laid upon it in the arguments of
the Respondent State.

*
* *

2. The question of settlement by negotiation or other means.

Article 19 required, finally, that the dispute should be one that
could not be settled ‘by negotiation or other means”, and was not.
The right to have recourse to the Court, and the competence of the
Court to entertain the claim, therefore depended on, and could not
arise unless and until, attempts to satisfy this condition had been
made and had failed.

(a) Was there any such settlement?

It has been contended that the whole matter was in fact settled
“by other means”, namely when the United Nations Assembly
adopted resolution 1608 (XV) of 21 April 1961. As will be indicated
presently (p. 123), the phrase “‘settlement ... by other means” in
Article 19, strictly denotes a settlement arrived at by the parties
themselves, by or through other means than negotiation (e.g. conci-
liation, arbitration, etc.), which they have agreed to resort to—rather
than a settlement arrived at independently by some third entity,
with or without their concurrence. Nevertheless, this contention of
the Respondent State is a material one requiring consideration. More-
over, there is a good deal in the Judgment of the Court indirectly to
warrant, or lend colour to it, although the Judgment is not based
on it, but rather on the different, if related, view that the resolution
of the Assembly, if it did not formally settle the dispute as such,
rendered it pointless, so that any decision of the Court in regard to it
would be pointless too.

But it has to be observed that the pointless character of the dis-
pute did not arise solely from the termination of the Trust under
Assembly resolution 1608. An essential ingredient was also the
absence of any claim for compensation or other reparation for
the damage supposedly caused by the form this termination took,
allegedly in consequence of the irregularities committed by the Res-
pondent State in the conduct of the Trust. Therefore, the fact that
resolution 1608 constituted one of the elements rendering the dispute
pointless or without object would not, since the resolution was only
part of what was necessary for that purpose, suffice to demonstrate
that it constituted in itself a complete and final settlement of the
dispute.

However, the Respondent State’s contention that it did, is
evidently well founded on the assumption (which was also part
of the Respondent State’s case, and accords with my own view)
that the Applicant State had no separate rights in its individual,

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statal, capacity under the conduct of the Trust provisions of the
Trust Agreement, but had rights only under the national rights
provisions. On that basis (which was the one contended for by the
Respondent State—correctly in my view), it was the United Nations
alone, as an entity, and as the sole party to the Trust Agreement
(apart from the Administering Authority) which, with the consent
of the latter, was entitled to deal with the general conduct of the
Trust, including its termination, and to “‘settle” any disputes about
such matters. On that basis, the matters here in question were
indeed settled by Assembly resolution 1608.

But equally, on that basis, it would of course become irrelevant
whether the dispute was so settled or not, since (on that basis) it
would not be a dispute to which Article 19 applied at all. The con-
tention that resolution 1608 settled the dispute for the purposes
of Article 19 is relevant only on the assumption that, under the Trust
Agreement, the separate Members of the United Nations, in their
individual capacity as such, did have rights in relation to the general
conduct of the Trust which they could assert through the medium
of Article Ig.

If that assumption had to be made, then I would find myself
unable to accept the Respondent State’s contention that resolution
1608 settled the dispute—for if the Applicant State did indeed
possess separate individual rights in relation to the conduct of the
Trust, distinct from those of the United Nations as an entity, the
Assembly could not have been empowered to deal with or settle
a dispute between the Applicant State and a third party (the
Administering Authority) relating to those rights—at least without
the consent of the Applicant State—which, by voting against
resolution 1608, did not give its consent to any settlement such
as might result from the resolution !. If, as the Respondent State
contended, the Applicant State’s dispute was with the Assembly,
this was a separate and additional dispute; for the complaint of the
Applicant State was not merely that the Assembly decided to
incorporate the Northern Cameroons in the Federation of Nigeria,
but also that it was the (allegedly) irregular course of conduct
pursued by the Respondent State in the administration of the
Trust, which had led the Assembly to do this. Otherwise, it was
contended, the Assembly would have decided differently. If reso-
lution 1608 settled any dispute, it settled the dispute between the
Applicant State and the Assembly. The arrangements made under
that resolution for terminating the Trust, with the consent of the

1 Whether the Applicant was “bound” by the resolution, in the sense that it
had to accept the fact of the termination of the Trust on the basis provided for in
the resolution is one thing, but not the same thing as whether the resolution could
debar it from pursuing any legal right of action it might have against a third party
(the Administering Authority) whose alleged wrongful conduct was said to be
responsible for this result.

Log
I21 JUDG. 2 XII 63 (SEP. OPIN. SIR GERALD FITZMAURICE)

Administering Authority, were necessarily res inter alios acta as
respects any dispute between that Authority and the Applicant
State, concerning any separate rights the latter might have in its
individual capacity, relative to the conduct of the Trust provisions
of the Trust Agreement.

The real truth is that the Applicant State did not individually
have any such rights, but had rights only in relation to the national
rights provisions of the Agreement, which were not, and never have
been, in issue in this case. The United Nations alone, as an entity,
had conduct of the Trust rights; and for that reason the Assembly
resolution settled the whole issue of the termination of the Trust.
The dispute between the Applicant State and the Respondent
State proceeded on the basis of the Applicant State’s contention
that it enjoyed personally and individually certain rights under
the Trust which, in my opinion, it did not in fact possess. But, had
it done so, they would have been separate rights and a dispute
about them would have been a separate dispute !.

1 Certain other considerations serve to bring out the separate character of the
dispute. It would seem that in the period March-April, 1961, the United Kingdom
as the Administering Authority, the United Nations Assembly as the supervisory
organ, and the Republic of Cameroon as a State geographically interested, were
all maintaining different, and in several respects divergent, attitudes about the
whole question of the termination of the Trust. The United Kingdom was willing,
but in no way specially anxious, that the Trust should be terminated at that time.
Its main preoccupation was that if the Trust was to be terminated, this should be
on a basis that was workable and, so far as possible, in accordance with, or at any
rate not contrary to, the wishes of the peoples concerned. The chief aim of the
Fourth Committee and Assembly of the United Nations was to terminate the Trust
on any terms that would give the Trust Territory independence, or voluntary in-
corporation in an independent African State. The Assembly was far more con-
cerned with terminating the Trust as soon as possible, on any reasonable basis,
than with the precise form the termination took.

The Republic of Cameroon, on the other hand, was primarily concerned with
the basis of termination. Rather than accept the form it did take, the Republic
would have preferred the Trust to continue, in so far as the Northern Cameroons
was concerned, and not to terminate.

It seems therefore that three quite distinct attitudes existed on the question of
termination: on the part of the United Kingdom, neutrality, that is willingness
either to terminate or to carry on, as the Assembly might direct: on the part
of the Assembly, a very definite desire to terminate on any reasonable and de-
fensible basis; but on the part of the Republic of Cameroon, a desire not to terminate
except on the basis that the Northern Cameroons would go to the Republic.

Moreover, the essence of what the Republic of Cameroon has contended is that,
but for certain irregularities allegedly committed by the United Kingdom in the

Iro
122 JUDG. 2 XII 63 (SEP. OPIN. SIR GERALD FITZMAURICE)

(b) Would the Parties in any case have had any authority or capacity
to settle the dispute by negotiation or other means?

The requirement that the dispute should be one that “cannot be
settled by negotiation or other means” is clearly meaningless as a
condition of the right to have recourse to the Court, and of the
competence of the Court to act if such a recourse is attempted, unless
two presuppositions are made. These are (1) that the dispute should
be one which, in its nature, is capable of being settled directly
between the parties by negotiation or other means (for if not, it
cannot be the kind of dispute contemplated by Article 19); (2) that
there shall have been at least some actual attempt at settlement
between the parties, by negotiation or other means, such as could
afford a basis for a finding by the Court that the dispute could not
be so settled, and that in consequence the Court was now competent
to settle it by means of a judicial decision. It is, or should be, obvious
that a proposal for a reference to the Court, such as was contained
in the Applicant State’s Note of 1 May 1961, addressed to the United
Kingdom Government, could not itself constitute an attempt at
settlement for the purposes of Article 19, since that Article made it
a pre-condition of any obligation to have recourse to the Court that
independent attempts at settlement should already have been made,
and have failed. It will be convenient to consider this latter question
first.

(i) Properly speaking, was any attempt at a settlement ever made,
other than proposal for a reference to the Court?

Article 19 is an absolutely common-form jurisdictional clause
such as appears, or has appeared, in scores, not to say hundreds,
of treaties and other international agreements. Its meaning is per-
fectly well understood by international lawyers the world over.
What it contemplates in the present connection is a settlement or
attempted settlement directly between the parties—by negotiation or

administration of the Trust, and in the conduct of the final plebiscite, the outcome
would have been different, and the Assembly would have decided to incorporate
the Northern Cameroons in the Republic of Cameroon. Whether this would have
been the case or not can only be speculative; but its relevance to the jurisdictional
question is that the Republic is not seeking to reverse or impugn the validity of
the Assembly resolution terminating the Trust. What the Republic says in effect,
is that this resolution never would have been adopted, but for the alleged United
Kingdom maladministration of the Trust, and misconduct of the plebiscite.

It seems clear therefore that these allegations on the part cf the Republic involve
an issue distinct from the one that was before the Assembly, and not settled by it.
The allegations made by the Applicant State involved an issue such as the Assem-
bly was not entitled to settle, if the Applicant State was entitled to make these
allegations. It was not in fact entitled to make them because it had no individual
rights under the conduct of the Trust provisions of the Agreement. Had it had any,
they would necessarily have been separate from those of the United Nations, since
it is precisely in this, that their separate character would have consisted.

III
123 JUDG. 2 XII 63 (SEP. OPIN. SIR GERALD FITZMAURICE)

other means. By ‘other means” is meant such things as conciliation,
arbitration, fact-finding enquiries, and so on. Under Article 19 of
the Trust Agreement, an attempt at settlement by negotiation,
or by one or other of these means, would have had to precede any
proposal for a reference to the International Court, before any
obligation to have recourse to the Court could arise. It is quite
clear that no such attempt at settlement, at least by any normally
envisaged ‘‘other means”, was made in the present case; and here it
may be useful to recall that in a common-form jurisdictional clause
such as Article 10, settlement by ‘‘other means” denotes a settlement
by means other than negotiation, but nevertheless by means such
as the parties have jointly agreed to resort to or employ. It does not
include means imposed by the one party on the other, or on both
of them by an outside agencv. The whole point of the ultimate
reference to the Court (to which the parties have duly agreed under
the jurisdictional clause) is that they have not been able to settle
the dispute themselves, by negotiation or agreed other means. To
meet that possibility, the parties have agreed in advance to one,
but only one, form of compulsory settlement—the ultimate reference
to the Court. They cannot (via the reference to ‘other means”) be
held to have agreed in advance to any other (necessarily unspecified)
form of compulsory settlement.

*

Was there any attempt at settlement by “negotiation”, and
what does negotiation mean? It does not, in my opinion, mean a
couple of States arguing with each other across the floor of an
international assembly, or circulating statements of their complaints
or contentions to its member States. That is disputation, not
negotiation; and in the Joint Opinion of Judge Sir Percy Spender
and myself in the South West Africa case, we gave reasons for not
regarding this kind of interchange as constituting a negotiation
within the contemplation of such a provision as Article 19 of the
Trust Agreement.

It was there equally pointed out that, even if it were possible to
regard such interchanges as constituting negotiation according to
the generally received concept of that term, it would still not be
right to hold that a dispute “cannot” be settled by negotiation,
when the most obvious means of attempting to do this, namely
by direct discussions between the parties, had not even been tried—
since it could not be assumed that these would necessarily fail because
there had been no success in what was an entirely different, and cer-
tainly not more propitious, milieu. Now the only direct interchanges
between the parties in the present case were the Notes of May 1961.

I12
124 JUDG. 2 XII 63 (SEP. OPIN. SIR GERALD FITZMAURICE)

The purpose of these Notes, however, was not negotiation on the
substance of the dispute, but to consider whether there should be
an agreed reference to the Court. These Notes did not even contain
any proposal for, or discussion of, a possible basis for settlement.
If they involved any negotiations at all, it was about the method
of adjudicating the dispute—i.e. the possibility of an agreed reference
—to the Court by means of a compromis—not about the substance of
the dispute itself.

There were also two significant admissions made on behalf of the
Applicant State. In the first place, it was conceded, and indeed
strenuously contended, that the proceedings in the United Nations
Assembly in March-April 1961, were quite separate and distinct from
the dispute between the Parties before the Court, and could in no
way constitute a settlement of that dispute. But in that case, how
could the statements and discussions in the Assembly, or made for
the purpose of those proceedings, constitute a negotiation relative
to the quite separate matter of the dispute subsequently referred
to the Court? And if they consequently did not, and if the May
interchange of Notes was not a negotiation, as clearly it was not,
what negotiation ever at any time took place? Evidently none.

The second admission made on behalf of the Applicant State—it
admission is here the correct term—is that the dispute did not
crystallize—did not even receive birth until May 1961, that is until
after the adoption of Assembly resolution 1608. If that is so, then
since it is not possible to negotiate in relation to a non-existent
dispute, nothing that took place previous to May 1961 could have
constituted a negotiation concerning the actual dispute now before
the Court; while the May interchange of Notes constituted not a
negotiation but the reverse.

(ii) Was the dispute one that was in its nature capable of settle-
ment between the parties alone, by negotiation or other means?

The really important matter, however, in relation to the question
of a possible settlement, is that arising on the first of the pre-suppo-
sitions mentioned on p. 122 above; for there is clearly no purpose in
asking whether any attempt at settlement by negotiation or other
means ever took place, if the dispute was one which the Parties in
any event never could have had the capacity or authority to settle
by their own joint action. Clearly, the type of dispute contemplated
by Article 19 must have been one which the Parties could have
settled by negotiation or other means, if they could reach agreement
on the terms of settlement ; or if they could agree on the other means
of settlement (such as arbitration, conciliation. fact-finding com-

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125 JUDG. 2 XII 63 (SEP. OPIN. SIR GERALD FITZMAURICE)

mission, etc.}, and if they agreed to abide by the result. It follows
therefore, that if the dispute was of such a character that the Parties
would not have been entitled to settle it as between themselves
by any of these methods, and without reference to, and agreement
by, some other entity, such as the United Nations, then it cannot
be a dispute of the kind contemplated by Article 10, and falls
outside the scope of that provision. In short, the dispute must
relate to matters or interests which the Parties could freely deal
with themselves, if so minded and able to reach agreement. The
moment it appears that in no circumstances could the Parties ever
have settled the matters in dispute between them by any joint
exercise of their own free wills, it becomes apparent, and follows
necessarily, that such a provision as Article 1Q can have no appli-
cation.

In the Joint Opinion in the South West Africa case, reasons were
given U.C.J. Reports 1962, pp. 551-552) for thinking that questions
relating to the conduct of any Mandate would, precisely, constitute
an order of question having implications going far beyond the scope
of any particular dispute between the mandatory Power and another
Member of the League, and therefore as being incapable of inde-
pendent settlement between them. Exactly similar considerations
apply in the case of disputes over the conduct (or termination) of
any Trust. But there are certain differences between the two cases
which cal] for consideration. These arise partly from the peculiar
position of the Republic of Cameroon in the present case, as com-
pared with that of the two Applicant States in the South West
Africa case, and partly from a certain difference of wording in the
texts of the two respective jurisdictional clauses.

Since in the South West Africa case, the two Applicant States
possessed literally no interest whatever that was not possessed by
any other Member of the United Nations (because only conduct of
the Mandate provisions were involved), it seemed impossible to
hold (as the Judgment of the Court in that case must imply) that
these two States would have, or ever could have had, the capacity
to settle with the then Respondent State (South Africa) the issues
regarding the conduct of the Mandate raised by their Applications.
In the present case, the Republic of Cameroon, racially and geo-
graphically had an interest of its own, not possessed by other
Members of the United Nations, and it might be argued that it and
the Administering Authority had the capacity to settle a dispute
regarding this individual interest. As has already been noted how-
ever, at the time when attempts to settle the dispute might have
been made, this interest was inextricably interwoven with the whole
question of the conduct and termination of the Trust, and of the
Trusteeship System in general—matters which the Parties to the
present proceedings could not possibly have been entitled to deal

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126 JUDG. 2 XII 63 (SEP. OPIN. SIR GERALD FITZMAURICE)

with or regulate iter se, whatever the strength of any personal
interest they, or either of them, might have possessed.

The type of settlement contemplated by Article 19 was of course
such a settlement as might have been arrived at, by or between the
Parties (or resulting from their joint action) previous to the date on
which the Application to the Court was made, but which was not so
arrived at. It has to be asked therefore whether, at any material
time previous to 30 May 1961, the Parties could possibly have had
any right or capacity to settle the subject-matter of the Came-
roon complaint between them. Even if the Administering Authority
had been willing to agree that the territory in question should go
to the Republic of Cameroon, what capacity or authority could it
possibly have had to do a sort of private deal with the Republic
to that effect, when the Assembly was actively exercising its corpo-
rate powers in regard to that very same matter—powers which it had
both a right and a duty to exercise under the United Nations
Charter, to which both the Republic of Cameroon and the United
Kingdom were parties? The question has only to be asked, for it to
be immediately apparent that it was not for these States to regulate
such matters, which must therefore have been quite outside the
scope of Article x9.

The other difference between the present case and the South
West Africa case is that Article 7 of the Mandate for South West
Africa spoke only of a dispute that could not be settled “by negoti-
ation’’, whereas Article 19 speaks of one that cannot be settled by
negotiation ‘or other means”. It might be contended therefore
that, even if it is the fact that this type of dispute (i.e. about the
conduct or termination of the Trust) is inherently incapable of being
settled by negotiation between the parties, still it cannot have
been inherently incapable of settlement by any means at all—for in-
stance, precisely, byactionin, or by the action of, the United Nations.
The answer to this contention has, in effect, already been given—
see pp. 11gand 123 above. It would involve an erroneous interpretation
of the notion of settlement by ‘‘other means” ina jurisdictional clause
suchas Article 19. The term “‘settlement”’, as has been seen, denotes
settlement between, or by the action of, the parties; or by methods
jointly resorted to by them. But it is clear that the Parties in the
present case would no more, by themselves, have had the right to
settle this class of dispute by these “other means”, than to do so by
private negotiation. The conclusions of a fact-finding or conciliation
commission, or arbitral tribunal, could not in any way have dealt
with the United Nations interests involved, which altogether tran-
scended those of the Parties, and which might have been quite at
variance with those conclusions. Nor could these conclusions in any
way have bound the United Nations. In short, whether by negotiation,
or by other means, there could not have been any real settlement
through the action of the Parties alone. There was no question of

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I27  JUDG. 2 xI1 63 (SEP. OPIN. SIR GERALD FITZMAURICE)

their referring the matter to the United Nations—it was already
there. But had there been any such reference, this could only have
implied a recognition of the fact that only the United Nations could
deal with the matter, which consequently exceeded the scope of
Article 19.

V
THE OBJECTION “RATIONE TEMPORIS”

Since, in my view, the Applicant State does not have the right
to invoke Article 19 of the Trust Agreement at all in respect of the
matters to which the Application relates, and the Court consequently
lacks jurisdiction to go into the merits of any part of it, it becomes
strictly unnecessary to consider any preliminary objection which
might arise on the substance of the claim, such as the objection
ratione temporis advanced by the Respondent State, to the effect
that all that part of the Applicant State’s complaint which relates
to acts or events having taken place previous to the date when it
became a Member of the United Nations-~(‘pre-membership” acts
or events) should be ruled out as inadmissible on that ground.

However, since the Parties devoted a considerable part of their
argument to this question, and it involves an important issue of
principle, I propose to say something about it.

This objection, to my mind, concerns-the admissibility of the
claim rather than the competence of the Court, and is quite in-
dependent of Article 19 of the Trust Agreement, in the sense
that even if Article 19 applied in principle to the present type of
complaint, and the Court had jurisdiction to entertain a complaint
of that type, the objection vatione femporis in respect of pre-
membership acts and events could still be advanced in order to
rule out im limine that part of the complaint. The objection was
however treated by both sides in the case as a jurisdictional one;
and by the Applicant State as depending exclusively on Article 19,
in the sense that if, as Article 19 required, the Applicant State was
a Member of the United Nations at the moment when the dispute
arose and on the date of the lodging of the Application, and if the
latter was lodged before Article 19 ceased to be in force because
of the termination of the Trust, then, seeing that Article 19 did not
in terms exclude disputes about pre-membership acts or events, the
Applicant State was automatically entitled to include complaints
about these acts and events in its Application.

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128 JUDG. 2 XII 63 (SEP. OPIN. SIR GERALD FITZMAURICE)

The view that the matter turns wholly on Article Ig is, in my
opinion, certainly incorrect. In their nature, questions of admissi-
bility relating to the substance of a claim cannot be disposed of
simply by a finding that the jurisdictional clause is in principle
applicable. Thus a plea of non-exhaustion of local remedies, or as
to the “nationality” of a claim?, could be advanced and could
operate to rule out the claim as inadmissible, even though all the
requirements of the jurisdictional clause were met (so that the
Court could proceed to the ultimate merits but for these non-
jurisdictional objections). Indeed, preliminary objections of this
kind cannot, unless the case has some exceptional feature, be heard
at all unless the Court has jurisdiction (see pp. 104-105 above).

Since the validity of admissibility objections normally depends
on considerations lying outside the jurisdictional clause as such,
it is obviously immaterial that the latter has not specifically made
the absence of any such grounds of objection a condition of the
Court being able to proceed to the ultimate merits. The silence of
the jurisdictional clause simply leaves the matter open, to depend
on general principles of law, or possibly on other provisions of the
instrument concerned. Thus in the present case it is immaterial,
and in no way conclusive, that Article 19 did not in terms exclude
pre-membership acts and events from its scope. The truth is that
Article 19 would have had expressly to include them, in order to
rule out @ priori any objection to them based on independent
grounds. The case of reservations or conditions rafione temporis
contained in Declarations made under the Optional Clause of the
Court’s Statute is quite a different one, and not in point, for reasons
to be stated in a moment.

Turning now to the substance of the particular objection ratione
temporis advanced in the present case, it is clear that it could not
apply to the whole complaint, since part of the latter concerns acts
and events taking place subsequent to the Applicant State’s
admission to the United Nations (‘“post-membership” acts or
events), e.g. in connection with the conduct of the plebiscite in the
Northern Cameroons. The objection is however advanced in respect
of the most important part of the Applicant State’s complaint,
which alleges irregularities in the conduct of the Trust (virtually

1 ie., that the claimant State is making a claim in respect of an injury to a per-
son or company not of its nationality.

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129 JUDG. 2 XII 63 (SEP. OPIN. SIR GERALD FITZMAURICE)

since its inception), but for which the result of the plebiscite would
allegedly have been different.

In my opinion, the validity of the objection ratione temporis in
respect of the pre-membership acts and events depends on whether
the Applicant State is making a separate and independent claim
in respect of these, or is only citing them in order to establish,
or as part of the process of establishing, or as relevant to its com-
plaints about, the posi-membership acts and events. In so far as the
Applicant State is not making use of the earlier matters for the
last-named purpose only, but is making them the basis of indepen-
dent complaints, the claim must, to that extent, be considered in-
admissible. The reason is, briefly, that since the Applicant State
did not exist as such at the date of these acts or events, these
could not have constituted, in relation to it, an international wrong,
nor have caused it an international injury. An act which did not,
in relation to the party complaining of it, constitute a wrong at the
time it took place, obviously cannot ex post facto become one.
Similarly, such acts or events could not in themselves have con-
stituted, or retroactively have become, violations of the Trust
in relation to the Applicant State, since the Trust confers rights
only on Members of the United Nations, and the Applicant State
was not then one, nor even, over most of the relevant period, in
existence as a State and separate international persona.

It was argued that when States make a Declaration under the
Optional Clause of the Statute, accepting the Court’s compulsory
jurisdiction, they must in terms exclude from the scope of that
acceptance disputes relating to past acts, events or situations,
if they intend that there shall be such an exclusion, or else must
expressly relate their acceptance to the future only. This however
proves nothing. These States are already in existence, and admitting
that if their Declaration does not exclude the past, this will be
regarded as covered—nevertheless it would still be the case that
this could be so owly in respect of those particular past acts, events
or situations (previous to the Declaration in question) which took
place ajter the State making it had itself come into existence, and
therefore could have rights or obligations relative to those past acts,
events or situations. In relation to anything having occurred pre-
vious to its existence as a State, there would be no right or obliga-
tion that could be invoked under an Optional Clause Declaration.
A State might indeed perhaps have worded its Declaration in such
a way that it could, technically, be taken before the Court in such
a case, but even if the Court was formally competent, so far as the
actual language of the two relevant Declarations went, the claim
itself would have to be ruled out as inadmissible so soon as it be-
came clear that it related to a period in respect of which it was im-
possible a priori for the defendant State to be under any obligation.

IIS
130 JUDG. 2 XII 63 (SEP. OPIN. SIR GERALD FITZMAURICE)

Similarly, States cannot, by accepting the Optional Clause,
create vighis for themselves in respect of a period previous to their
existence as States. If they were then in existence, they naturally
could have rights in respect of acts and events then occurring, and
could later on invoke an Optional Clause Declaration for the
purpose of asserting those rights, in any case where there had been
no express exclusion of the past under the Declaration of the other
party to the dispute. But in relation to a period in respect of which
there were no rights, none can ever arise, unless by express agree-
ment, and no express exclusion is necessary. The whole issue is not
one of the applicability as such of the jurisdictional clause or
Optional Clause Declarations involved, but of whether, a priori,
there exist, or could exist, any rights for the assertion of which
{via the Court) these provisions exist. Much more could be said on
this subject; but if the position were not as here stated, there
would be no limit to the antiquity of the matters in respect of
which claims could constantly be made, and perpetually be liable
to be re-opened.

In the present case, it comes to the same thing in practice
whether the conclusion is put in the form that the Applicant State
is precluded from making any claim in respect of pre-membership
acts or events, or in the form that complaints relative to these
must be ruled out as inadmissible, except for their probative effect
in connection with the admissible post-membership claims. Now,
according to the way in which the Republic of Cameroon framed its
submissions, both in the original Application and at the close of
the oral hearing, it was undoubtedly making various pre-member-
ship acts and events a separate and independent ground of com-
plaint. These were indeed an essential element of the claim taken
as a whole, and the Applicant State was asking the Court to pro-
nounce upon them as such. Had the Court decided to examine
the claim, I consider that these complaints would have had to be
ruled out as inadmissible. On the other hand, had the Court pro-
ceeded to the merits on the remaining (post-membership) portion
of the claim, then the earlier acts and events could, so faras relevant,
have been cited by the Applicant State in support of, or to assist
in establishing, that part of the claim which was admissible ratzone
temporis.

#
ES *

I conclude by saying that, while I have thought it desirable to
deal with the matters considered in Parts IV and V of this Opinion,
this does not affect my earlier expressed view that the Court itself
was right not to do so, for the reasons given on pp. 104-106 above.

(Signed) G. G. FITZMAURICE.

11g