                                                                                156

                        SEPARATE OPINION OF JUDGE AD HOC DAUDET

                 [Translation]

                   I voted in favour of all the points of the operative clause of the Judg-
                 ment without, however, subscribing to all of the Court’s reasoning, and I
                 consider it necessary, therefore, to set out here my own opinion on certain
                 of its elements.
                   My reservations focus on the manner in which the Court has dealt with
                 the delimitation of the frontier between the Tao astronomic marker and
                 the River Sirba at Bossébangou, and the delimitation in the area of Bossé
                 bangou with respect to the River Sirba.

                     I. The Course of the Frontier between the Tao Astronomic
                            Marker and the River Sirba at Bossébangou

                   The Court decides that this portion of the frontier follows the line
                 shown on the 1960 IGN map. While I agree with the Court’s decision, I
                 do so on the basis of different reasoning.

                    In this portion of the frontier, Niger’s position is in part rejected by the
                 Court on the ground that, in a certain section, it is not consistent with the
                 1927 Arrêté ; I agree with this view. Burkina Faso, for its part, argued
                 that, in the absence of any precise information regarding the course of the
                 line between the Tao marker and the River Sirba at Bossébangou, the line
                 should be straight. The Court, whose position I share, rejects Burkina
                 Faso’s claim on the basis of three arguments, in respect of which I have
                 some reservations : the first argument is based on the wording itself of the
                 Arrêté ; the second arises from the context of the Decree of the President
                 of the French Republic, which formed the basis of the Arrêté ; and, finally,
                 the third proceeds from the location of the village of Bangaré.
                    The first argument of the Court, set out in paragraph 88 of the Judg-
                 ment, relies on the following a contrario reasoning : since the 1927 Arrêté
                 twice uses the term “straight line” (“ligne droite” and “direction rectili
                 gne”) to describe portions of the boundary other than that with which we
                 are at present concerned, why is the same wording not used for the line
                 running from the Tao astronomic marker to the River Sirba at Bosséban-
                 gou, if this too is straight ? If this line is indeed straight, why was this not
                 made explicit here, as it is in other parts of the text ? According to the
                 Court, the fact that this was not done weakens Burkina Faso’s case in
                 favour of a straight‑line configuration.
                    The argument is assuredly sound, albeit within the limits of the a con
                 trario reasoning. In general, however, I think that the Court could have

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                 adopted a more nuanced position on this subject. The strength of the
                 Court’s argument seems to me to be somewhat undermined, above all by
                 the fact that the text of the Arrêté is by and large poorly drafted, alternat-
                 ing between a scarcity and an abundance of details, mixing clumsy style
                 with unclear content so as to make it impossible to be certain of the per-
                 tinence of an analysis of its terms. The fact remains that, while at first
                 sight one might be surprised to find that a line stretching over a distance
                 as great as that between the Tao marker and the River Sirba at Bossé
                 bangou is not described in any detail, it is not, however, inconceivable
                 that the author of the Arrêté, having just drawn a straight line for the first
                 section from Tong‑Tong to Tao, considered it logical that that line would
                 continue in the same way, i.e., in a straight line, in the second section as
                 far as the River Sirba, without having to state so expressly, especially
                 since the use of the straight line was common in colonial practice. The
                 fact that the Court, following the lead of the Parties, examines those two
                 sections separately has the effect of breaking up the reading of the Arrêté :
                 one first reads the passage relating to the course of the line between
                 Tong‑Tong and Tao, which is the subject of precise details (“this line then
                 turns towards the south‑east, cutting the Téra‑Dori motor road at the
                 Tao astronomic marker located to the west of the Ossolo Pool”), provid-
                 ing all the information on the basis of which a line is easily established.
                 This is followed by the section running from Tao to Bossébangou, in
                 respect of which the Arrêté merely states that the line “reach[es] the River
                 Sirba at Bossébangou”, which, in contrast, does not therefore appear to
                 be at all sufficient to identify its course. However, if the break at Tao had
                 been disregarded and the Arrêté read as a continuous text instead, as the
                 line itself is continuous, it would appear then that the text is describing an
                 uninterrupted movement between Tong‑Tong and Bossébangou, via Tao.
                 The line, which the Court accepts as starting as a straight line at
                 Tong‑Tong, then continues after Tao in the same way, i.e., in a straight
                 line as previously and in the absence of any indication to the contrary,
                 until it “reach[es]” the Sirba at Bossébangou. Thus, if the Arrêté is read
                 as a continuous description, a straight line becomes more plausible. The
                 situation is different, however, and further precision is required for the
                 other sections which the Arrêté categorically describes as being “straight” or
                 “straight lines”. In effect, those sections are preceded either by meander-
                 ing passages, where the course of the River Sirba is followed, or by
                 numerous changes of direction, and are not marked by the same continu-
                 ity or similarity such as exists in the section between Tong‑Tong and the
                 River Sirba at Bossébangou. The need to make it clear that the line is
                 straight is thus more pressing in those instances.
                    Finally, this straight line is by no means inconceivable, since it was
                 adopted in 1988 as the “consensual line” by the Joint Technical Commis-
                 sion on Demarcation and later confirmed at a meeting held on 14 and
                 15 May 1991 by the Ministers of the two States, who recorded their agree-
                 ment on such a course, shown on a sketch‑map annexed to the joint com-
                 muniqué they signed. That line would be challenged by Niger in 1994.

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                 That challenge has no effect other than rendering the agreement hence-
                 forth inapplicable between the Parties and thus precluding, on that basis
                 alone, the possibility of a straight line now being adopted. But that chal-
                 lenge does not mean that, for that reason and in itself, a straight line is
                 now an objectively inappropriate means of joining the two points identi-
                 fied in the Arrêté.
                    Nevertheless, while both the above reading of the Arrêté and the refer-
                 ence to the consensual line, which is the illustration of that reading, give
                 plausibility to the straight‑line course, the problem remains that neither
                 of these elements precludes a different interpretation of the Arrêté, in the
                 absence of any detail in the text regarding the course of the line from the
                 Tao marker to the River Sirba at Bossébangou. In other words, a
                 straight‑line course appears plausible, but it is not established on the basis
                 of the text of the Arrêté or the interpretation which can be given of it.
                 Hence, the Arrêté does not suffice and must be replaced by the 1960 IGN
                 map. Not because the line shown on the map might appear better or more
                 appropriate, but simply because the Arrêté does not allow for the course
                 of the boundary to be determined. This distinction clearly brings to light
                 the notion that the Arrêté does “not suffice” when it cannot be used to
                 carry out the delimitation of the frontier. The Arrêté does “not suffice”
                 when there is not enough information, or enough established informa-
                 tion, in its terms, or in the interpretation thereof, to enable the desired
                 solution to be achieved. In this connection, it should be pointed out that
                 the 1927 Arrêté must be the first point of reference and all possibilities
                 contained therein must be explored before it can be concluded that it does
                 not suffice, which automatically calls for recourse to the 1960 IGN map.
                 One might have expected the Court to seek a more suitable delimitation
                 on other bases offered by international law ; but, in this case, unfortu-
                 nately, it is precluded from so doing by the Special Agreement.

                    The Court could have stopped there, with the observation that the
                 Arrêté does not suffice, and could have decided on that basis alone that it
                 was necessary to use the line shown on the 1960 IGN map. However, it
                 wished to add further supporting evidence, allowing for a more in‑depth
                 interpretation of the text of the Arrêté.
                    The Court’s second argument for rejecting Burkina Faso’s position
                 derives from the importance accorded to the Decree of the President of
                 the French Republic of 28 December 1926, which attributed certain terri
                 tories of Upper Volta to the Colony of Niger. The Court points out
                 that, since the Decree was the “legal basis” (para. 85) of the Arrêté, the
                 latter was supposed to “[respect] the pre‑existing boundaries of the dis-
                 tricts, to the extent that they could be determined” (para. 91). In other
                 words, in the eyes of the Court, the Governor‑General’s power was lim-
                 ited to issuing an Arrêté which therefore had only declaratory value.
                    I disagree with this analysis and for my part believe that, although the
                 Arrêté must of course respect the Decree, this legal requirement does not,
                 however, prevent the Arrêté itself from having a true constitutive value,

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                 not simply a declaratory value, resulting from the Governor‑General
                 being granted broader powers than those which are recognized by the
                 Court. In effect, the Arrêté provides that the Governor‑General “shall
                 determine” the course of the boundary. It does not say “shall state” the
                 course, which it should have done had the Governor‑General been con-
                 strained by existing boundaries, which, moreover, could have been
                 referred to in the Decree had they existed. Contrary to what is noted by
                 the Court in paragraph 91, the Governor‑General’s task is not to deter-
                 mine a “new” inter‑colonial boundary (which would mean that there had
                 already been one), but, according to the text of the Decree, to “determine
                 the course of the boundary” (thus demonstrating that there was no known
                 boundary). This view also seems to me to correspond to that described by
                 the Chamber of the Court in the case concerning the Frontier Dispute
                 (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, p. 569,
                 with respect to the Governor‑General’s power over the basic administra-
                 tive divisions, the cercles, “the creation and abolition [of which] were the
                 sole prerogative of the governor‑general, who decided their overall extent”
                 (emphasis added). In conclusion, therefore, the fact that, without being
                 restricted simply to an implementing power, the Governor‑General was
                 careful to pay attention to any existing boundaries he found is, in my
                 view, a matter of course and of normal administrative conduct. Neverthe-
                 less, that in no way prevents him from looking for more accurate bound-
                 aries, which he clearly did, as the Court observes in paragraph 92, but in
                 a legal context which seems to me to be different to that set out by the
                 Court.
                    In practical terms, the difference is of little importance. The fact is that,
                 whatever the scope of his powers, the Governor‑General did not succeed
                 in fixing the boundaries, for which there is clearly no indication, as the
                 Court states, “that they followed a straight line in the sector in question”
                 (para. 93). If such had been the case, that straight line could have been
                 quickly determined, without the need for the numerous, complex and ulti-
                 mately fruitless inquiries carried out by the colonial administrators and,
                 as the Court notes, “it would have been easy to plot [that] line on a map”
                 (ibid.).
                    Finally, I have some reservations about the third argument, based on
                 the location of Bangaré, which is said to be situated in Niger, but which
                 would be located in Burkina Faso if the boundary line were straight. I
                 understand the reasoning of the Court, which states that, in respect of
                 this village, “account should be taken of the practice followed by the
                 colonial authorities concerning the implementation of the Arrêté”
                 (para. 94), thus keeping its argument firmly and exclusively within the
                 framework of the Arrêté and confirming that the Arrêté cannot therefore
                 be interpreted as having intended to establish a straight‑line delimitation.
                 However, in the case of this village, as in the case of all the other villages
                 situated on either side of the frontier with nomadic or semi‑nomadic popu
                 lations, it is not always clearly established on which side of the frontier
                 these populations belong. It is also clear that the period during which

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                 Upper Volta was dissolved in favour of Niger could have caused habits to
                 form. In conclusion, therefore, while the Court is of the view that the case
                 of Bangaré is different from that of Petelkolé or Oussaltane, to my mind,
                 they all (and not simply the last two) entail uncertainties that one could
                 try to eliminate by recourse to the colonial effectivités. However, they
                 must be excluded since, as the Court recalls, “the 1987 Agreement requires
                 the Court to apply the line shown on the 1960 IGN map, instead of refer-
                 ring to the effectivités” (para. 98). For that reason, since, unlike the
                 Court, I believe that the case of Bangaré requires recourse to effectivités,
                 I would not have invoked this third argument, which, moreover, I do not
                 think is necessary to justify the recourse to the 1960 IGN map.

                     II. The Course of the Frontier in the Area of Bossébangou

                    I voted in favour of point 4 of the operative clause, despite the Court’s
                 position on the course of the boundary as it turns back up along the
                 River Sirba, which, to my mind, raises a number of problems that I would
                 like to set out.

                                      A. The Endpoint of the Frontier
                                     at the River Sirba at Bossébangou
                    In paragraph 101 of its Judgment, the Court opts for a frontier situated
                 in the middle of the River Sirba, as that solution “better me[ets]” “the
                 requirement concerning access to water resources of all the people living
                 in the riparian villages”. That choice is fully justified from the point of
                 view of equity and corresponds to a modern vision of international law,
                 which favours co‑operation and sharing over private appropriation and
                 exclusive benefit, such as that which would arise in respect of the river
                 from delimitation along the river bank.
                    However, the Court is not called upon to draw an equitable frontier,
                 but a frontier based on the 1927 Arrêté or, should the latter not suffice,
                 the 1960 IGN map. Consequently, without completely dismissing such
                 considerations of equity, the Court has tried, although not entirely suc-
                 cessfully, to keep its reasoning within the framework of the Arrêté.

                    In this respect, I have some reservations regarding the Court’s interpre-
                 tation of the terms of the Arrêté and the approach underpinning it.

                 1. The interpretation of the terms of the 1927 Arrêté
                    Whereas the 1927 Arrêté provides that the line continues from the Tao
                 marker to “[reach] the River Sirba at Bossébangou”, the Court, consider-
                 ing that “[t]he use of the verb ‘reach’ (‘atteindre’) in the Arrêté does not
                 suggest that the frontier line crosses the Sirba completely, meeting its
                 right bank” (para. 101), decides that the endpoint of the frontier is situ-

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                 ated on the median line of the river. In fact, I do not see any reason why
                 that meaning should be attributed to the verb “reach” in this context and
                 I think that, if this was what the author of the Arrêté had intended, he
                 would have made this clear.
                    Given the wording of the text of the 1927 Arrêté, and recalling that the
                 line first meets the left bank of the Sirba whereas Bossébangou is situated
                 on the right bank, I cannot share the Court’s interpretation. The verb
                 “reach” clearly signifies that one arrives at a given point. If the text had
                 said that the line “reaches the Sirba”, without any further information,
                 this would have meant that the line stopped as soon as it arrived at the
                 river, thus on its left bank, without going any further and without cross-
                 ing the river. This theory can be dismissed since, as the Court recalls, the
                 text later states that the line cuts the Sirba “again”. In order to do so, it
                 must have cut it previously. Can the line have cut halfway across the
                 Sirba at Bossébangou, as the Court contends ? No, because the text states
                 that the line “reach[es] the River Sirba at Bossébangou” (not “simply” the
                 Sirba, not the Sirba “at the level of ” Bossébangou, which would have
                 been imprecise, but the Sirba “at Bossébangou”). For the line to reach the
                 Sirba at Bossébangou, it must, therefore, continue as far as the right bank
                 of the river, where that village is located. Thus, in order to reach that
                 location, the line must have crossed (and will cross again later) the river
                 completely.

                 2. The Court’s approach
                   Under the strict terms of the Special Agreement, the Court must apply
                 the 1927 Arrêté and the 1960 IGN map in accordance with the established
                 procedures. In the present case, however, the Court has introduced an
                 additional element in its approach, observing that
                     “there is no evidence before the Court that the River Sirba in the area
                     of Bossébangou was attributed entirely to one of the two colonies. In
                     this regard, the Court notes that the requirement concerning access
                     to water resources of all the people living in the riparian villages is
                     better met by a frontier situated in the river than on one bank or the
                     other.” (Para. 101.)

                    While the Court’s concern is easy to understand and the inclination to
                 share it natural, there is, however, no avoiding the fact that, by advancing
                 such a ground based on considerations of equity, in order better to justify
                 its choice of the median line of the Sirba, the Court goes beyond what is
                 asked of it, which is to apply the Arrêté or, should the latter not suffice,
                 the 1960 IGN map. This is all that is allowed under the terms of the Spe-
                 cial Agreement.
                    However, the difficulty here is that, in my eyes, the Court has not set
                 out its position clearly. By stating that “[t]he use of the verb ‘reach’
                 (‘atteindre’) . . . does not suggest that the frontier line crosses the Sirba

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                 completely” (emphasis added), it implies that some uncertainty remained
                 as to the terms of the Arrêté and the Court’s interpretation of those terms.
                 However, the Court did not consider that that uncertainty constituted a
                 situation in which the Arrêté did not suffice and, in fact, it was of the
                 opinion that, understood in that way, the 1927 Arrêté could form the
                 basis of its decision in favour of the median line, which was thus, although
                 not expressly stated, an equitable boundary.
                    The Court could also have drawn a different conclusion from that
                 uncertainty and considered that it amounted to the Arrêté “not sufficing”
                 and that recourse to the 1960 IGN map was necessary. However, the
                 solution would then have been completely different. The map would in
                 fact have indicated that the river is crossed “completely”, and not par-
                 tially, since four crosses representing the frontier cut across it from the
                 left bank to the right bank and thus categorically place the point of arrival
                 of the line on the right bank, a few hundred metres from Bossébangou.
                 The Court’s interpretation of the Arrêté therefore seems to differ from
                 that of the IGN cartographers.

                                       B. Turning Back up the Sirba
                    From the endpoint of the frontier line at the Sirba at Bossébangou, the
                 line continues upstream, following the course of the river. I readily
                 acknowledge that the Arrêté lacks any detail about this lengthy portion of
                 the line, which stretches from the vicinity of Bossébangou as far as the
                 point where the right bank of the Sirba intersects the Say parallel. Accord-
                 ing to the Arrêté, having reached the River Sirba at Bossébangou, the line
                 “almost immediately turns back up towards the north‑west, leaving to
                 Niger, on the left bank of that river, a salient which includes the villages
                 of Alfassi, Kouro, Tokalan, and Tankouro ; then, turning back to the
                 south, it again cuts the Sirba at the level of the Say parallel”.
                    With a view to reinforcing its choice of endpoint, which sees the fron-
                 tier line turn back up along the median line of the Sirba, the Court
                 observes that
                     “if the endpoint of the frontier were situated on the right bank of the
                     Sirba close to Bossébangou, the line would have to ‘cut’ the Sirba a
                     second time at an intermediate location in order, this time, to cross
                     from the right bank to the left bank before ‘cutting it again’ in the
                     other direction. But nothing of that nature is mentioned in the Arrêté.”
                     (Para. 101.)
                    In fact, with respect to the silence of the text, what the Court sees as
                 justification for the frontier crossing only as far as the median line of the
                 river (para. 102) could, in my opinion, just as easily be used to justify a
                 complete crossing from one bank to the other. In this connection, it is
                 established that, at a given point, the line must leave the Sirba, in order
                 to leave to Niger the salient which includes the four villages (which have
                 not all been identified). Even though the Arrêté does not in fact explicitly

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                 state that the Sirba is crossed, the crossing from the right bank to the left
                 bank is a logical and necessary consequence of the obligation to leave the
                 four villages in question to Niger. If the Sirba was not crossed again, the
                 villages would belong to Burkina Faso.
                    In conclusion, although the Arrêté admittedly remains silent, it is pos-
                 sible to deduce from the question of the salient and the four villages that
                 the line crosses the river. As for the nature of that crossing (partial or
                 complete), this can be deduced from the point determined at Bosséban-
                 gou (middle of the river or its right bank). What remains unknown is the
                 location of that crossing, on which subject the Arrêté is silent and thus
                 does not suffice. This calls for recourse to the 1960 IGN map. That map
                 indicates that the line crosses the river at co‑ordinates 13° 20´ 01.8˝ N and
                 01° 07´ 29.3˝ E.
                    It should be noted here that, on the 1960 IGN map, that crossing is
                 marked by three crosses, which cut across the Sirba completely, from one
                 bank to the other, in exactly the same way as at Bossébangou, where, as
                 stated above, four crosses cut the river from one bank to the other.

                   Between those two crossing points, the map shows a series of crosses
                 along the right bank of the River Sirba, which seems to suggest that
                 delimitation occurs along the right bank.
                   Such are the reasons why I believe that my interpretation of the Arrêté
                 calls for delimitation along the right bank of the Sirba.

                    My position is based solely on the terms of the Arrêté as I interpret
                 them (and my interpretation is confirmed by the indications on the
                 map) — an interpretation which is different from that of the Court — and
                 on the provisions of the Special Agreement, which require that the Arrêté
                 be applied first, and then, should this not suffice, the 1960 IGN map, and
                 nothing more. I am aware — as I have already indicated — that in terms
                 of equity this solution is not satisfactory. However, for the reasons given,
                 I think that it should have been the solution chosen by the Court, which
                 should, in my opinion, either by adding to the text of paragraph 112 of
                 the Judgment, or by drafting a separate paragraph on that subject, have
                 drawn the attention of the Parties — and the attention of Burkina Faso,
                 in particular — to the obligation to take account of the needs of the pop-
                 ulations and to co‑operate in order to mitigate the less equitable elements
                 of its decision. In any event and considering the situation in very concrete
                 and practical terms, had it been decided to delimit along the river bank in
                 this way, it is difficult to imagine Burkina Faso establishing a fence along
                 the right bank of the Sirba, preventing Niger inhabitants in the area from
                 continuing to draw water from the Sirba and from watering their herds at
                 the river, as doubtless they always have done. With respect to the inhabit-
                 ants of Bossébangou, probably the largest population in that area, they
                 would in any event have had full access to the river on the right (to the
                 east) of the frontier post installed on the right bank of the Sirba. In con-
                 clusion, therefore, it is likely that over these few dozen kilometres, the

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                 Niger populations would not have encountered any significant problems
                 had the Court opted for delimitation along the river bank rather than
                 deciding in favour of the median line.
                    The Court, however, did opt for the median line, and although I voted
                 in favour of this part of the operative clause — in spite of the arguments
                 which I have just set out — I did so mainly because the clause also covers
                 other important portions of the frontier, in respect of which I wished to
                 record my agreement. I did so as well because it seemed to me that, in the
                 case of the River Sirba, a strict application of the Arrêté, in accordance
                 with my understanding thereof, which, I have said, is based solely on the
                 Special Agreement and without any considerations of equity, would cre-
                 ate an unduly formalistic result. In my opinion, this demonstrates the
                 limits of uti possidetis, the application of which is not always in keeping
                 with present‑day situations. In this particular case, neither its object in
                 1927, nor the later stabilizing effect which it sought and was able to pro-
                 vide at the time of the two States’ accession to independence more than
                 half a century ago, is suited to today’s needs, nor were they, as far as the
                 river delimitation is concerned, at the time of independence. In effect, in
                 1927, the challenges posed by a boundary between two territories within
                 the same administrative colony were not the same. The boundary chosen
                 at that time was aimed above all at convenience (it is easier to identify a
                 boundary along the bank of a river than in the middle of a river, which
                 varies significantly according to the season) and, in all likelihood, the pos-
                 sibility of difficulties of access to the water resources was not even consid-
                 ered. Indeed, I do not think that such access could be affected by
                 delimitation at that time, since delimitation was strictly internal and not
                 intended to interfere with behaviour and customs which, moreover, dated
                 back to well before the colonial occupation, including drawing water
                 from the river for domestic purposes, taking advantage of the moisture in
                 the soil in certain seasons to grow crops and using the river to water the
                 herds of the nomadic and semi‑nomadic populations who have tradition-
                 ally roamed freely on either side of the river. On the other hand, those
                 same rights exercised today, in the context of an international frontier,
                 must be articulated and safeguarded, and pose the biggest challenge along
                 every part of the line, which is no longer a mere administrative and inter-
                 nal boundary within a single colonial territory, but an international fron-
                 tier between two independent and sovereign States. While there is no
                 established rule on this subject, it would seem, however, that those trea-
                 ties which establish delimitation along the bank, of which, moreover,
                 there are very few, were concluded a long time ago and no longer reflect
                 current practice, in which the use of either the thalweg or the median line
                 is preferred, depending on whether or not the water course is navigable.

                                                                   (Signed) Yves Daudet.

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136

JOINT DECLARATION OF JUDGES EVENSEN, TARASSOV,
GUILLAUME AND AGUILAR MAWDSLEY

[Translation]

We agree fully with the decision of the Court, but wish to make some
additional comments on it.

1. Before the Security Council became involved in the case the legal
situation was, in our view, clear. The United Kingdom and the United
States were entitled to request Libya to extradite the two Libyan nationals
charged by the American and British authorities with having contributed
to the destruction of the aeroplane lost in the Lockerbie incident. For this
purpose they could take any action consistent with international law. For
its part, Libya was entitled to refuse such an extradition and to recall in
that connection that, in common with the law of many other countries, its
domestic law prohibits the extradition of nationals.

2. In so far as general international law is concerned, extradition is a
sovereign decision of the requested State, which is never under an obliga-
tion to carry it out. Moreover, in general international law there is no obli-
gation to prosecute in default of extradition. Although since the days of
Covarruvias and Grotius such a formula has been advocated by some
legal scholars, it has never been part of positive law. This being so, every
State is at liberty to request extradition and every State is free to refuse it.
Should it refuse, a State is not obliged to prosecute.

3. Ten international conventions adopted under the aegis of the
United Nations or the specialized agencies since 1970 have nevertheless
modified the legal situation between the parties to those conventions.

The Montreal Convention of 23 September 1971 for the Suppression of
Unlawful Acts Against the Safety of Civil Aviation is one of the conven-
tions mentioned. Libya, the United Kingdom and the United States are
parties to it.

The Convention provides, in Article 7, that

“The Contracting State in the territory of which the alleged offen-
der is found shall, if it does not extradite him, be obliged, without
exception whatsoever and whether or not the offence was committed
in its territory, to submit the case to its competent authorities for the
purpose of prosecution.”

In Article 5 the Convention deals with jurisdictional questions for the pur-
pose of facilitating prosecution. In Article 8 the Convention makes extra-
dition easier, but without creating any obligation in that regard.

Thus, the Montreal Convention, which in our opinion was applicable in

26
1971 MONTREAL CONVENTION (JOINT DECL.) 137

this case, did not prohibit Libya from refusing to extradite the accused to
the United Kingdom or the United States. It implied merely that, in the
absence of extradition, Libya had to submit the case to its competent
authorities for the purpose of prosecution.

4. This situation was not, in the present case, considered satisfactory by
the Security Council, which was acting, with a view to combating inter-
national terrorism, within the framework of Chapter VIE of the
United Nations Charter. By resolution 731 (1992) of 21 January 1992
(para. 3), the Council urged “the Libyan Government immediately to pro-
vide a full and effective response” to the requests for the surrender of the
accused made by the United Kingdom and the United States. Subse-
quently, by resolution 748 (1992) of 31 March 1992, it decided “that the
Libyan Government must now comply without any further delay with
paragraph 3 of resolution 731 (1992) regarding the requests” in question.

This being so, the Court, pronouncing on a request for the indication of
provisional measures submitted by Libya in order to preserve the legal
situation existing prior to the adoption of the Security Council resolu-
tions, was fully justified in noting the changes that had occurred in that
situation and holding, accordingly, that the circumstances of the case
were not such as to require the exercise of its power to indicate such
measures.

(Signed) Jens EVENSEN.
(Signed) Nikolai TARASSOV.
(Signed) Gilbert GUILLAUME.

(Signed) Andrés AGUILAR MAWDSLEY.

27


600

DISSENTING OPINION OF JUDGE SHI

To my regret, I am unable to concur with the findings of the Court
that, given the limitation ratione temporis contained in the declaration of
acceptance of compulsory jurisdiction made by the Federal Republic of
Yugoslavia (hereinafter Yugoslavia), the Court lacked prima facie juris-
diction under Article 36, paragraph 2, of the Statute, to which both the
Applicant and the Respondent are parties. This conclusion prevented the
Court from exercising its power under Article 41, paragraph 1, of the
Statute to indicate provisional measures to the Parties.

Yugoslavia signed the declaration of acceptance of the compulsory
jurisdiction of the Court on 25 April 1999. By that declaration, Yugosla-
via recognized compulsory jurisdiction “in all disputes arising or which
may arise after the signature of the present Declaration, with regard to
the situations or facts subsequent to this signature . . .”.

This limitation ratione temporis of recognition of the Court’s jurisdic-
tion belongs to the category of the so-called “double exclusion formula”.
In cases where the Court is confronted with this “double exclusion for-
mula”, it has to ascertain both the date of the dispute and the situations
or facts with regard to which the dispute has arisen.

Regarding the first aspect of the limitation ratione temporis in the
present case, that is to say, whether the date on which the dispute arose is
before or after the signature by Yugoslavia of the declaration of accept-
ance, the Court has, in this connection, to consider what is the subject of
the dispute, as it did in a similar situation in the Right of Passage case,
where the Court stated:

“In order to form a judgment as to the Court’s jurisdiction it is
necessary to consider what is the subject of the dispute.” (Right of
Passage over Indian Territory, Merits, Judgment, LC.J. Reports
1960, p. 33).

In the present case, the Application of Yugoslavia contains a sec-
tion bearing the title “Subject of the Dispute”, which indicates the subject
as acts of the Respondent

“by which it has violated its international obligation banning the use
of force against another State, the obligation not to intervene in the
internal affairs of another State, the obligation not to violate the
sovereignty of another State, the obligation to protect the civilian

62
601 LEGALITY OF USE OF FORCE (DISS. OP. SHI)

population and civilian objects in wartime, the obligation to protect
the environment, the obligation relating to free navigation on inter-
national rivers, the obligation regarding fundamental human rights
and freedoms, the obligation not to use prohibited weapons, the
obligation not to deliberately inflict conditions of life calculated to
cause the physical destruction of a national group”.

As in the Right of Passage case, the legal dispute before the Court, as
shown above, consists of a number of constituent elements. Prior to the
coming into existence of all the constituent elements, the dispute cannot
be said to arise. None of the above elements existed before the critical
date of 25 April 1999. It is true that the aerial bombing of the territory of
Yugoslavia began some weeks before this critical date of signature of the
declaration. But aerial bombing and its effects are merely facts or situa-
tions and as such do not constitute a legal dispute. The constituent ele-
ments of the present dispute are not present before the critical date and
only exist at and from the date of Yugoslavia’s Application on 29 April
1999. It is true that, prior to the critical date, Yugoslavia had accused
NATO (Security Council Meetings of 24 and 26 March 1999, S/PV.3988
and 3989) of illegal use of force against it. However, this complaint con-
stitutes at the most one of the many constituent elements of the dispute.
Besides, in no way could NATO be identified with the Respondent, and
NATO cannot be the Respondent in the present case ratione personae.
The legal dispute only arose at the date of the Application, which is sub-
sequent to the signature of the declaration of acceptance. Therefore, the
time condition in order for the present dispute to be within the scope of
acceptance of compulsory jurisdiction ratione temporis, as contained in
Yugoslavia’s declaration, has been satisfied.

With respect to the second aspect of Yugoslavia’s double exclusion for-
mula, the situations or facts which the Court has to consider are those
with regard to which the dispute has arisen, i.e., those situations or facts
which are the source of the present legal dispute.

Article 25, paragraph |, of the Draft Articles on State Responsibility,
adopted at first reading by the International Law Commission, provides:

“1, The breach of an international obligation by an act of the
State having a continuing character occurs at the moment when that
act begins. Nevertheless, the time of commission of the breach
extends over the entire period during which the act continues and
remains not in conformity with the international obligation.” (LC
Yearbook, 1978, Vol. II, Part Two, p. 89.)

63
602 LEGALITY OF USE OF FORCE (DISS. OP. SHI)

This concept of the duration of a “continuing” wrongful act is com-
monly accepted by international tribunals and legal scholars.

In the present case, the dispute relates to the alleged breach of various
international obligations by acts of force, in the form of aerial bombing
of the territories of Yugoslavia, which are attributed by the Applicant to
the respondent State. It is obvious that the alleged breach of obligations
by such a “continuing” act first occurred at the moment when the act
began, weeks before the critical date of 25 April 1999. Given that the acts
of aerial bombing continued well beyond the critical date and still con-
tinue, the time of commission of the breach extends over the whole
period during which the acts continue and ends only when the acts of the
respondent State cease or when the international obligations alleged to be
breached by the acts of that State cease to exist or are no longer in force
for it.

The conclusion may be drawn from the above analysis that the limita-
tion ratione temporis in the double exclusion formula contained in Yugo-
slavia’s declaration of acceptance of the compulsory jurisdiction in
no way constitutes a bar to founding prima facie jurisdiction upon
Article 36, paragraph 2, of the Statute for the purpose of indication of
provisional measures in the present case.

It is regrettable that, as a result of its mistaken findings on this point,
the Court was not in a position to indicate provisional measures to the
Parties in the urgent situation of human tragedy with loss of life and
human suffering in the territories of Yugoslavia arising from the use of
force in and against that country.

Moreover, I am of the opinion that, confronted with that urgent situa-
tion, the Court ought to have contributed to the maintenance of interna-
tional peace and security in so far as its judicial functions permit. The
Court would have been fully justified in point of law if, immediately upon
receipt of the request by the Applicant for the indication of provisional
measures, and regardless of what might be its conclusion on prima facie
jurisdiction pending its final decision, it had issued a general statement
appealing to the Parties to act in compliance with their obligations under
the Charter of the United Nations and all other rules of international law
relevant to the situation, including international humanitarian law, and
at least not to aggravate or extend their dispute. In my view, nothing in
the Statute or Rules of Court prohibits the Court from so acting. Accord-
ing to the Charter of the United Nations, the Court is after all the prin-
cipal judicial organ of the United Nations, with its Statute as an integral
part of the Charter; and by virtue of the purposes and principles of the
Charter, including Chapter VI (Pacific Settlement of Disputes), the Court
has been assigned a role within the general framework of the United

64
603 LEGALITY OF USE OF FORCE (DISS. OP. SHI)

Nations for the maintenance of international peace and security. There is
no doubt that to issue such a general statement of appeal is within the
implied powers of the Court in the exercise of its judicial functions. It is
deplorable that the Court has failed to take an opportunity to make its
due contribution to the maintenance of international peace and security
when that is most needed.

Furthermore, in his letter addressed to the President and the Members
of the Court, the Agent of Yugoslavia stated:

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

In the recent LaGrand case, the Court, at the request of the applicant
State and despite the objection of the respondent State, decided to make
use of its above-mentioned power under Article 75, paragraph 1, of the
Rules of Court without hearing the respondent State in either written or
oral form (LaGrand (Germany v. United States of America), Order of
3 March 1999, LC.J. Reports 1999, pp. 13 and 14, paras. 12 and 21). By
contrast, in the present case the Court failed to take any positive action
in response to the similar request made by the Agent of Yugoslavia in a
situation far more urgent even than that in the former case.

It is for these reasons that I felt compelled to vote against the operative
paragraph 51 (1) of the present Order.

(Signed) Sui Jiuyong.

65


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

AEGEAN SEA
CONTINENTAL SHELF CASE

(GREECE v. TURKEY)

ORDER OF 18 APRIL 1977

1977

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DU PLATEAU CONTINENTAL
DE LA MER EGEE
(GRECE c. TURQUIE)

ORDONNANCE DU 18 AVRIL 1977
Official citation:

Aegean Sea Continental Shelf,
Order of 18 April 1977, I.C.J. Reports 1977, p. 3.

Mode officiel de citation:

Plateau continental de la mer Egée,
ordonnance du 18 avril 1977, C.I.J. Recueil 1977, p. 3.

Sales number 4 3 1
N° de vente:

COUR INTERNATIONALE DE JUSTICE

ANNÉE 1977
1977

18 avril
Rôle général

18 avril 1977 n° 62

AFFAIRE DU PLATEAU CONTINENTAL
DE LA MER ÉGÉE
(GRÈCE c. TURQUIE)

ORDONNANCE

Présents: M. JIMÉNEZ DE ARÉCHAGA, Président; M. NAGENDRA SINGH,
Vice-Président; MM. FORSTER, Gros, LACHS, DILLARD, DE
Castro, Morozov, sir Humphrey WaLtpock, MM. Rupa,
MOSLER, ELIAS, TARAZI, juges; M. AQUARONE, Greffier.

La Cour internationale de Justice,

Ainsi composée,

Après délibéré en chambre du conseil,

Vu Particle 48 du Statut de la Cour et l’article 40 du Règlement de la
Cour,

Vu l’ordonnance du 14 octobre 1976 fixant la date d’expiration des
délais pour le dépôt du mémoire du Gouvernement grec et du contre-
mémoire du Gouvernement turc sur la compétence de la Cour pour
connaître du différend,

Rend l’ordonnance suivante:

Considérant que, par lettre du 17 mars 1977, l’agent de la Grèce a
demandé que le délai fixé pour le dépôt du mémoire soit prorogé de trois
mois, pour faciliter dans toute la mesure du possible les négociations en

4
MER ÉGÉE (ORDONNANCE 18 IV 77) 4

cours avec la Turquie au sujet de la délimitation du plateau continental
entre les deux pays;

Considérant qu’une copie de cette communication a été transmise au
Gouvernement turc qui a été invité à faire connaître son opinion à la
Cour; .

Considérant que, par une communication verbale du 30 mars 1977,
Pambassadeur de Turquie aux Pays-Bas a fait savoir au Greffier de la
Cour que, vu l’accord signé par la Grèce et la Turquie le 11 novembre
1976 sur la procédure à suivre pendant les négociations et les efforts
déployés pour mettre en œuvre cet accord et amorcer de véritables négo-
ciations, le Gouvernement turc n’objectait pas à la demande de proroga-
tion formulée par le Gouvernement grec, en indiquant que sa réponse
n’impliquait aucun engagement de la part de son gouvernement;

Tenant compte des négociations signalées par la Gréce et la Turquie
dans les communications susmentionnées,

La Cour

Reporte au 18 juillet 1977 la date d’expiration du délai pour le dépôt
du mémoire du Gouvernement grec;

Reporte au 24 avril 1978 la date d’expiration du délai pour le dépôt
du contre-mémoire du Gouvernement turc;

Réserve la suite de la procédure.

Fait en anglais et en français, le texte anglais faisant foi, au palais de la
Paix, à La Haye, le dix-huit avril mil neuf cent soixante-dix-sept, en trois
exemplaires, dont l’un restera déposé aux archives de la Cour et les autres
seront transmis respectivement au Gouvernement grec et au Gouverne-
ment turc.

Le Président,

(Signé) E. JIMENEZ DE ARECHAGA.

Le Greffier,
(Signé) S. AQUARONE.


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING MILITARY AND
PARAMILITARY ACTIVITIES IN AND
AGAINST NICARAGUA

(NICARAGUA v. UNITED STATES OF AMERICA)

ORDER OF 14 MAY 1984

1984

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DES ACTIVITES MILITAIRES
ET PARAMILITAIRES AU NICARAGUA
ET CONTRE CELUI-CI

(NICARAGUA c. ETATS-UNIS D’AMERIQUE)

ORDONNANCE DU 14 MAI 1984
Official citation :

Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), Order of 14 May 1984,
LCJ. Reports 1984, p. 209.

Mode officiel de citation :

Activités militaires et paramilitaires au Nicaragua et contre celui-ci
(Nicaragua c. Etats-Unis d'Amérique), ordonnance du 14 mai 1984,
CIJ. Recueil 1984, p. 209.

Sales number 500
Ne de vente :

1984
14 May
General List
No. 70

209

INTERNATIONAL COURT OF JUSTICE
YEAR 1984

14 May 1984

CASE CONCERNING MILITARY AND
PARAMILITARY ACTIVITIES IN AND
AGAINST NICARAGUA

(NICARAGUA v. UNITED STATES OF AMERICA)

ORDER

The President of the International Court of Justice,

Having regard to Article 48 of the Statute of the Court,

Having regard to Articles 31 and 44 of the Rules of Court,

Having regard to the Application filed in the Registry of the Court on
9 April 1984 by the Republic of Nicaragua, instituting proceedings against
the United States of America in respect of a dispute concerning respon-
sibility for military and paramilitary activities in and against Nicara-
gua ;

Having regard to the Order made by the Court on 10 May 1984, by which
the Court indicated provisional measures pending the final decision in the
case, and decided that the written proceedings should first be addressed to
the questions of the jurisdiction of the Court to entertain the dispute and of
the admissibility of the Application ;

Having ascertained the views of the Parties,

Fixes as follows the time-limits for the written proceedings on the
questions of jurisdiction and admissibility :

30 June 1984 for the Memorial of the Government of the Republic of
Nicaragua ; |

17 August 1984 for the Counter-Memorial of the Government of the
United States of America ;

And reserves the subsequent procedure for further decision.
210 MILITARY AND PARAMILITARY ACTIVITIES (ORDER 14 V 84)

Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this fourteenth day of May, one thousand
nine hundred and eighty-four, in three copies, one of which will be placed
in the archives of the Court and the others transmitted to the Government
of the Republic of Nicaragua and the Government of the United States of
America, respectively.

(Signed) T. O. ELtas,
President.

(Signed) Santiago TORRES BERNARDEZ,
Registrar.


75

DECLARATION OF VICE-PRESIDENT RANJEVA

{Translation }

Rejection of distinction between burden of proof and burden of evidence —
Factual analysis of the production of evidence — Non-application of the maxim
nemo contra se edere tenetur — Article 62 of Rules of Court — Corfu Channel
case and refusal to produce evidence — Justification of the factual analysis.

Diplomatic protection — Individual rights — Vienna Convention on Consular
Relatians — interrelationship of such rights — Article 36 and identification
of holders of the rights there defined — Interrelationship of rights under the
Article 36 system: combination of sending State’s right of initiative and non-
refusal by its national.

1. Whilst agreeing with the Court’s findings and reasoning, I wish to
make my own proposed interpretation clear in regard to the issue of evi-
dence and the relationship between diplomatic protection and individual
rights.

2. The Judgment declines to adopt the distinction proposed by the
United States, between the burden of proof and the burden of evidence
(para. 56), retaining solely the classic concept of burden of proof. Whilst
that decision merits approval, the Judgment fails to give an appropriate
explanation on this point. The distinction proposed by the Respondent is
somewhat subtle and perhaps arises from specific concepts of United
States law; the fact remains that those are institutions of domestic law,
whereas the Court is bound to apply international law and its categories.
It is sufficient to recall a basic truth, namely that the categories of
domestic law have their inherent limitations; they are too directly
dependent on the legal and institutional history of a given system to have
universal value and to be directly valid in international law.

3, The reasoning of the Judgment in paragraph 57 is well fashioned,
consisting simply in a factual review of the Parties’ propositions and con-
duct, and producing a conclusion which is thus self-evident. The demon-
stration would have been more convincing had the factual analysis been
linked with the issue of the production of evidence in cases before the
Court. The Court responds to the Respondent’s complaints of lack of
co-operation on the part of the Applicant by indicating the conduct it
expected of the latter.

4. On reflection, it is apparent that the United States objection raises a
question of principle. Can a complaint be made that the other party has
failed to produce evidence if the Court has not previously requested it to
do so? Traditionally, in the context of procedural law, the basic principle
was enshrined in the maxim nemo contra se edere tenetur (no one is

67

AVENA AND OTHERS (DECL. RANJEVA) 76

bound to give evidence against himself. However, in terms of the Rules
of Court, this principle does not appear to have been construed strictly.
Article 62, paragraph 1, of the Rules confers on the Court full discretion-
ary powers in respect of evidence gathering. If the Court decides to grant
a respondent’s request, it may order the other party to produce evidence.
The following precedent provides support for this interpretation:

“the PCI responded favourably to an Agent who requested the
Court to ask the other party to produce an administrative document
in support of the interpretation of a certain conception of adminis-
trative law which he had expounded before the Court. The Court,
after deliberation, decided to comply with this request.” (Geneviéve
Guyomar, Commentaire du Règlement de la Cour internationale de
Justice, 1983, p. 411, referring to P. CUS, Series E, No. &, p. 268.)

5. It should be noted, however, that the Court cannot impose any
sanction for failure to produce evidence, other than the inferences it may
draw from such abstention or refusal. In the Corfu Channel case, the evi-
dence requested by the Court was refused by the party in question:

“It is not therefore possible to know the real content of these
naval orders. The Court cannot, however, draw from this refusal to
produce the orders any conclusions differing from those to which the
actual events gave rise.” (Merits, Judgment, LC J. Reports 1949,
p. 32.)

6. In the absence of any obligation capable of impugning the freedom
of action of the parties in relation to the production of evidence, the
Court’s only means of establishing the truth is its own power of determi-
nation. That limitation explains the purely factual nature of the analysis
in paragraphs 56 and 57.

7. With respect to paragraph 40, I would like to give my interpreta-
tion. The problem arises out of Mexico’s wholesale espousal of Ger-
many’s argument in the LaGrand (Germany v. United States of America)
case, as set out in paragraph 75 of the 2001 Judgment; that strategy by
Mexico is explicable: it was secking to obtain the benefit of the LaGrand
jurisprudence pertaining to the protection of the “individual rights” of its
nationals. On closer examination, however, the two claims — German
and Mexican — appear quite different in terms of their subject-matter.
Germany joined together its claims in its own right and those concerning
the protection of the individual rights of the LaGrand brothers. In the
present case, the Mexican claim is a complex one: the Applicant first acts
in its own name; secondly, it acts in the exercise of its right to ensure the
protection of its nationals; and lastly — a point that should be empha-
sized — implementation of the individual rights of the Mexican nationals
is situated in the context of the United States judicial system. Both Ger-

68

AVENA AND OTHERS (DECL. RANJEVA) 77

many and Mexico sailed their entire forensic strategy under the flag of
diplomatic protection.

8, In terms of legal characterization, the reference to diplomatic pro-
tection is misconceived. Traditionally, diplomatic protection is essentially
an institution of general or customary international law:

“Tt is an elementary principle of international law that a State is
entitled to protect its subjects, when injured by acts contrary to
international law committed by another State, from whom they have
been unable to obtain satisfaction through the ordinary channels. By
taking up the case of one of its subjects and by resorting to diplo-
matic action or international judicial proceedings on his behalf, a
State is in reality asserting its own rights — its right to ensure, in the
person of its subjects, respect for the rules of international law.”
(Mavrommatis Palestine Concessions, Judgment No. 2, 1924,
PCI, Series A, No. 2, p. 12)

9. In other words, the protection consists in the right of a State
to bring an international claim against another State when one of its
nationals has been injured by an internationally wrongful act. In
light of the terms used by the Permanent Court of International Justice,
there is one clear conclusion: diplomatic protection is a right belonging
to the State. Hence, in matters concerning the protection of individual
tights of nationals, the question is whether there is a place for diplo-
matic protection. .

10. From a purely practical standpoint, reliance on the notion of dip-
lomatic protection and the rule of the exhaustion of local remedies may
have perverse effects: the procedural default rule can make compliance
with the procedural obligation to exhaust local remedies a Futile exercise;
no one has yet found a way of bringing an executed prisoner back to life.

11. On a theoretical level, reading the provisions of the Vienna Con-
vention in conjunction with the reasoning in the LaGrand Judgment
prompts the following observations: first, the 1963 Convention enumer-
ates the rights that it seeks to protect for the purpose of facilitating the
exercise of the consular function, for the benefit both of the sending State
and of its nationals; secondly, the LaGrand Judgment describes the com-
ponents of the consular protection system as being interrelated (LC J.
Reports 2001, p. 492, para. 74); and lastly, according to paragraph 77 of
that Judgment:

“the Court concludes that Article 36, paragraph 1, creates individual
rights, which, by virtue of Article 1 of the Optional Protocol, may be
invoked in this Court by the national State of the detained person”
(LC. Reports 2001, p. 494, para. 77).

12. If I have understood them correctly, those propositions contem-
plate the direct grant of individual rights but de not impose any prior

69

AVENA AND OTHERS (DECL. RANJEVA} 78

condition for States seeking to invoke violations of the rights of their
nationals. Thus, looking beyond the scope of diplomatic protection and
the obligation to exhaust local remedies, the question to be determined is
the significance of the interrelationship between the components of the
consular protection system.

13. The notion of interrelationship was used by the Court in 2001 to
characterize the interdependence of the rights enumerated in Article 36,
paragraph 1, The raison d’étre or focus of that relationship is to seek to
facilitate consular protection. However, the manner in which the various
rights are defined consists in stating their content and how they are to be
apportioned as between the sending State and the detainee; in other
words, the 1963 Convention sought to identify the holders of the rights
that it created, with individual rights being those belonging to the detained
nationals. In these circumstances, the interrelationship contemplated by
the 2001 Judgment concerns neither the nature nor the scope of the rights
in question; it pertains to the effective implementation of the protection
system. The effective exercise by a State of its right to provide for the
protection of its nationals, who derive their rights from Article 36, para-
graph 1 (4), is only possible if the detained national does not refuse such
an initiative, The discretionary power of the sending State is thus con-
fined to a right of initiative to activate the protection mechanism. And
that night of mitiative effectively arises “as soon as it is realized that the
person is a foreign national, or once there are grounds to think that the
person is probably a foreign national” Judgment, para. 88).

(Signed) Raymond RANIEvA.

70


         DISSENTING OPINION OF JUDGE BUERGENTHAL

  1. I agreed with and voted in favour of the Court’s Judgment in the
Avena case (Avena and Other Mexican Nationals (Mexico v. United
States of America)). In that case, the Court held that the United States
had violated the Vienna Convention on Consular Relations with regard
 o various Mexican nationals incarcerated in the United States. I found
 hat Judgment sound as a matter of law and policy, and I continue to
support it without any reservations. The same is not true of the present
Order. Although I consider that the United States has an obligation to
ensure, in accordance with this Court’s determination in Avena, that the
Mexican nationals mentioned in that case not be executed without being
accorded the review and reconsideration of their convictions and sen-
 ences, I believe that the Court lacks the jurisdiction necessary to adopt
 he Order it issues today. At the same time, of course, I would expect the
United States to comply fully with its obligations under the Avena
Judgment.

     2. In the Avena case, the Court ordered the United States :
       “to provide, by means of its own choosing, review and reconsidera-
       tion of the convictions and sentences of the Mexican nationals
       referred to in [the Judgment], by taking account both of the viola-
       tion of the rights set forth in Article 36 of the Convention and para-
       graphs 138 to 141 of this Judgment” (Avena and Other Mexican
       Nationals (Mexico v. United States of America), Judgment, I.C.J.
       Reports 2004 (I), p. 72, para. 153 (9)).

  3. Today the Court orders that :
         “The United States of America shall take all measures necessary
       to ensure that Messrs. José Ernesto Medellín Rojas, César Roberto
       Fierro Reyna, Rubén Ramírez Cárdenas, Humberto Leal García,
       and Roberto Moreno Ramos are not executed pending judgment on
       the Request for interpretation submitted by the United Mexican
       States, unless and until these five Mexican nationals receive review
       and reconsideration consistent with paragraphs 138 to 141 of the
       Court’s Judgment delivered on 31 March 2004 in the case concern-
       ing Avena and Other Mexican Nationals (Mexico v. United States
       of America).” (Order, para. 80 II (a).)
  4. Of course, I agree that the above-mentioned individuals must not be
executed unless they are granted the review and reconsideration of their

26

convictions and sentences to which they are entitled under the Avena
Judgment. But that precisely is what the Avena Judgment ordered, in
addition to making it clear that the obligation set out in that Judgment
extended not only to the five individuals identified in today’s Order, but
 o all Mexican nationals listed in the Avena Judgment.

   5. The soundness or continuing binding character of the Avena Judg-
ment is not in issue in the present case. What is in issue here is the right
of Mexico to the Order granting provisional measures and the power of
 he Court to issue that Order. I believe that the Court lacks that power
and that, by adopting it on the basis of Mexico’s unfounded jurisdic-
 ional allegations, the Court establishes a dangerous precedent as far as
concerns its jurisdiction under Article 60.

   6. In the Avena case, we held that the United States had violated the
Vienna Convention on Consular Relations with regard to the 51 Mexican
 ndividuals on death row in various states of the United States. We also
held that the United States was under an obligation to provide these indi-
viduals with “review and reconsideration” of their convictions and sen-
 ences in the appropriate courts of the United States. It follows from the
holding in the Avena case, and that is not disputed by either Party to the
present case, that the United States would be in breach of its interna-
 ional obligations as set forth in the Avena case, if any one of the named
Mexicans, including Mr. Medellín, were to be executed without having
been provided with the review and reconsideration mandated by this
Court in Avena. That obligation is unreservedly acknowledged by the
United States, which has demonstrated before the Court that it is fully
committed to and actively engaged in seeking to bring about the enforce-
ment of the Avena Judgment.
   7. The principal issue in the present case is whether Mexico, by invok-
 ng Article 60 of the Statute of the Court, has provided the Court with
 he requisite jurisdiction to issue the requested provisional measures.
That jurisdiction depends upon the admissibility of Mexico’s Request for
 he interpretation of the Avena Judgment. This is so because the regret-
 able withdrawal of the United States from the Protocol to the Vienna
Convention for Consular Relations has deprived the Court in the present
case of the jurisdiction it had when it decided the Avena case. But since
Article 60 provides the Court with an independent or special jurisdic-
 ional basis for the interpretation of its judgments, Mexico relies on that
 urisdiction to sustain its request for provisional measures. This approach
can, however succeed only if Mexico shows that its Request for the inter-
pretation of the Avena Judgment under Article 60 is not manifestly un-
 ounded. But if the Request is manifestly unfounded, it would have to be
dismissed, leaving the Court without jurisdiction to deal with Mexico’s
request for provisional measures.

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  8. Article 60 of the Statute of the Court reads as follows :
        “The judgment is final and without appeal. In the event of dispute
     as to the meaning or scope of the judgment, the Court shall construe
     it upon the request of any party.”
   9. Given the language of Article 60, Mexico must show that there is a
dispute between it and the United States regarding “the meaning or
scope” of the Avena Judgment. To this end Mexico seeks an interpreta-
 ion of paragraph 153 (9) of the Avena Judgment by claiming that such a
dispute exists regarding the meaning or scope of that paragraph (for the
 ext, see para. 2, above). Mexico considers that the paragraph establishes
an obligation of result, whereas it asserts that the United States views the
obligation as one of means only.
   10. The United States denies that a dispute within the meaning of
Article 60 exists in the present case. It agrees with Mexico that the Avena
Judgment imposes an obligation of result. It claims that it recognizes that
 he United States has an obligation under Avena to ensure that the indi-
viduals covered by the Avena Judgment are provided “review and recon-
sideration” of their convictions and sentences. In support of this asser-
 ion, the United States points to the President’s Proclamation, the position
 he United States took before the United States Supreme Court in the
Medellín case, the decision of the Supreme Court itself, the letter written
by the Secretary of State and Attorney General to the Governor of
Texas, the efforts of the Executive Branch before the Texas courts, and
 he correspondence between the United States and Mexico, which were
all steps taken to bring about full compliance with the Avena Judgment.

   11. At this preliminary stage of the proceedings, it is sufficient for
Mexico to establish that its claim regarding the existence of the dispute
relating to the meaning or scope of paragraph 153 (9) of the Avena Judg-
ment is not manifestly unfounded. This means that Mexico must provide
at least some minimal evidence to support its contention. That it has
 ailed to do.
   12. While Mexico does not deny that the steps listed in paragraph 10
above were taken by the United States, it points to the pending execution
order issued by a Texas judge in the case of Mr. Medellín and to the
earlier Texas court decisions relating to Medellín, which refused to give
effect to the Avena Judgment. Mexico also makes reference to similar
positions taken by Texas courts in other cases involving the Mexicans
named in the Avena Judgment. According to Mexico, the position of the
Texas courts is imputable to the United States and indicates that these
courts, by refusing to give effect to the Avena Judgment, do not agree
with Mexico that that Judgment requires the United States to provide the
requisite review and reconsideration. Mexico also relies on the failure of
 he United States Executive Branch to seek legislation from the United
States Congress to give effect to the Avena Judgment. Mexico argues
 urther that the imminent execution of Mr. Medellín demonstrates that

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not all United States governmental authorities agree that Avena imposes
obligations of result.

   13. None of the arguments advanced by Mexico meets the minimal
requirements necessary to demonstrate the existence of a dispute that
would make Mexico’s request for interpretation under Article 60 admis-
sible. First, Mexico has not been able to provide any evidence that the
United States claims that its obligation under the Avena Judgment is one
of means rather than result. True, the Texas courts have failed to comply
with the Avena Judgment because they do not believe that they are
required to do so. But Texas does not speak for the United States on the
 nternational plane. The United States would, of course, be liable under
 nternational law for the failure of Texas or, for that matter, any other
state of the United States to comply with the Avena Judgment, but only
 he United States Government is authorized under domestic law and
 nternational law to speak for the United States on the international
plane. It follows that the position of Texas regarding the meaning, scope
or nature of the obligations of the United States under the Avena Judg-
ment is not imputable to the United States. What Texas does or thinks is,
 herefore, irrelevant to the determination of the existence of a dispute
under Article 60.
   14. Second, the fact that the Executive Branch of the United States has
 hus far not asked the United States Congress to adopt legislation imple-
menting the Avena Judgment, does not prove that the Executive Branch
considers that it has no obligation to give effect to that Judgment or that
 he Congress does not share the views of the Executive Branch that the
United States has that obligation. Instead of seeking legislation, the
President of the United States issued the Proclamation of 28 February
2005, ordering all the states of the United States holding any of the Mexi-
cans named in the Avena Judgment to be provided with review and
reconsideration. Until the Supreme Court rendered the Medellín decision
on 25 March 2008, ruling that the President lacked the power to issue
 hat order, the Executive Branch could reasonably assume that the
Supreme Court would uphold the President’s Proclamation ; that would
have made congressional implementing of legislation unnecessary. The
Proclamation route, moreover, had the advantage of speed over the leg-
 slative route, which tends to be slow and cumbersome in the United
States. Once the Supreme Court declined to uphold the President’s Proc-
 amation and failed to give direct effect to the Avena Judgment, the
Executive Branch focused its efforts on dealing with the Texas courts by
 rying, first, to get them to delay the execution order of Mr. Medellín
and, second, seeking to make it possible for him to obtain the review and
reconsideration to which he is entitled. These were and continue to be the
most urgent steps that need to be taken to avoid an imminent breach by
 he United States of its obligations under the Avena Judgment.

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  15. Third, Mexico points to the President’s Proclamation in which he
orders the state courts to “give effect to the [Avena] decision in accord-
ance with general principles of comity”. It argues that the reference to
“general principles of comity” indicates that the United States does not
believe that it has any international law obligations to give effect to the
Avena Judgment. This argument overlooks the express wording of the
Proclamation in which the President makes the formal declaration that “I
have determined . . . that the United States will discharge its international
obligations under the decision of the International Court of Justice” in
 he Avena case. That language amounts to a clear recognition by the
United States that it has an international legal obligation to comply with
 he Avena Judgment.

   16. Fourth, Mexico also asserts that the judgment of the United States
Supreme Court in the Medellín case indicates that it does not consider
 hat the Avena Judgment imposes an obligation of result on the United
States. In support of that contention, Mexico points to the determination
of the Supreme Court that the Avena Judgment is not directly enforce-
able in the United States without implementing legislation and that the
President lacked the constitutional authority to order the states to com-
ply with the Judgment. Mexico’s argument fails to take account of the
 act that the Supreme Court expressly recognized in the Medellín decision
 hat “the ICJ’s Judgment in Avena creates an international law obligation
on the part of the United States” (Medellín v. Texas, 128 S. Ct. 1346
 2008), slip op., at 57). It should not be forgotten, moreover, that the
Avena Judgment allows the United States to give effect to the Judgment
by “means of its own choosing”. That language was chosen by this Court
 o indicate that the United States was free to comply with its obligations
under the Avena Judgment either by giving it automatic or direct effect,
or by means of implementing legislation or whatever other measures that
would produce the review and reconsideration to which the Mexicans
named in the Avena Judgment are entitled. The finding of the Supreme
Court that the Executive Branch, when acting without Congressional
support, lacks the power under the Constitution of the United States to
 ssue the order the President sought to promulgate in his Proclamation
 hus in no way denied the international obligation of the United States to
give full effect to the Avena Judgment.

  17. The various arguments advanced by Mexico thus do not permit
 he conclusion, even on a preliminary basis, that there is a dispute
between the Parties, as that term is understood by Article 60, regarding
 he meaning or scope of the Avena Judgment. Mexico has failed to
present the minimal evidence required to show that the United States has
denied or acted in a manner inconsistent with its obligation under the
Avena Judgment to provide the review and reconsideration to which the

30

Mexicans named in that Judgment are entitled. Accordingly, Mexico’s
Request for the interpretation it seeks under Article 60 of the Court’s
Statute is manifestly unfounded and should be dismissed as inadmissible.
That being the case, the Court lacks jurisdiction to deal with Mexico’s
provisional measures request under Article 41 of the Court’s Statute. But
as I have already emphasized, the dismissal of that request would not
affect or weaken the obligation the United States has to fully comply
with the Avena Judgment, nor would granting it strengthen that obli-
gation.

   18. To find the requisite jurisdiction for its Order in the present case,
 he Court points out that the English text of Article 60 speaks of “dis-
pute”, whereas “contestation” is used in the French text of that provi-
sion. The Court also notes that in two other provisions of the Statute —
Article 36, paragraph 2, and Article 38 —– the English “disputes” is ren-
dered as “différends” in French. This difference in the uses of the term
“dispute” prompted the Permanent Court of International Justice to con-
clude that, given the wording of Article 60,

     “[the Court] cannot require that the dispute should have manifested
     itself in a formal way . . . it should be sufficient if the two Govern-
     ments have in fact shown themselves as holding opposite views in
     regard to the meaning or scope of a judgment of the Court” (Inter-
     pretation of Judgments Nos. 7 and 8 (Factory at Chorzów), Judg-
     ment No. 11, 1927, P.C.I.J., Series A, No. 13, p. 11).
   19. I agree with the conclusion of the Permanent Court of Interna-
 ional Justice on which this Court relies, that the “disputes” referred to in
Articles 36 and 38 of the Statute call for a greater degree of formality to
establish the existence of a dispute than is required under Article 60. This
does not mean, however, that the unsubstantiated claim by one party
regarding the existence of a dispute, which is what we have here, will sat-
 sfy the requirements of Article 60, whether or not we rely on its French
or English text. That very point was emphasized by this Court as far back
as 1950, when it declared :
        “Obviously, one cannot treat as a dispute, in the sense of that pro-
     vision [Article 60], the mere fact that one Party finds the judgment
     obscure when the other considers it to be perfectly clear. A dispute
     requires a divergence of views between the parties on definite
     points . . .” (Request for Interpretation of the Judgment of 20 Novem-
     ber 1950 in the Asylum Case (Colombia/Peru), Judgment, I.C.J.
     Reports 1950, p. 403.)
  20. I have already shown above that Mexico has presented no evi-
dence to support the conclusion, even on a preliminary basis, that one or
more federal authorities of the United States do not share the view of the

31

Executive Branch that paragraph 153 (9) imposes an obligation of result
on the United States. The finding by the Supreme Court that the Avena
Judgment is not directly applicable law without implementing legislation
and that the President lacks the authority without Congressional action
 o order the States to comply with the Avena Judgment concerns princi-
ples of United States constitutional law relating to the allocation of
power between the three branches of the United States. They have no
bearing as such on the compliance or non-compliance by the United
States with its international obligations. In the Avena Judgment, more-
over, the Supreme Court expressly declared that Judgment to be an obli-
gation of the United States under international law.

  21. The fact that the United States Congress has not yet been asked by
 he Executive Branch to adopt legislation for the reasons spelled out in
paragraph 16 above, does not prove even on a preliminary basis that this
body does not share the view of the Executive Branch that the Avena
Judgment requires the United States to comply with that Judgment.

   22. In short, Mexico has presented not a scintilla of evidence showing
 hat the federal authorities of the United States do not share the view of
 he Executive Branch regarding the obligation imposed on the United
States by the Avena Judgment.
   23. It is true, of course, that Texas courts have thus far failed to give
effect to the Avena Judgment and that Texas authorities do not believe
 hat they are bound to do so. But while local authorities of unitary or
 ederal states that violate international law can by their conduct subject
 he national authorities to breaches of international law, they do not
speak for their national authorities on the international plane, nor can
 heir views, if they conflict with those of the national authorities, have
any bearing on the existence or non-existence of a dispute between the
Parties within the meaning of Article 60.

     24. Hence, when the Court declares that the Parties
       “apparently hold different views as to the meaning and scope of that
       obligation of result, namely, whether that understanding is shared
       by all United States federal and state authorities and whether that
       obligation falls upon those authorities” (Order, para. 55),

 he Court reaches two conclusions that have no valid basis in law or fact.
The first conclusion is based on the erroneous assumption that one or
more United States federal authorities do not share the view of the
Executive Branch regarding the nature of the obligation Avena imposes.
No evidence whatsoever is before the Court to support that claim. The
second conclusion flows from the Court’s decision that the views of

32

Texas, a state of the United States which does not and cannot speak for
 he United States on the international plane, are relevant in determining
whether there exists a dispute between the United States and Mexico
within the meaning of Article 60. The latter conclusion has no basis in
 nternational law and appears to establish a novel and dangerous prec-
edent regarding the legal consequences of positions espoused by local
governmental entities that conflict with the views of national authorities
concerning the nation’s international obligations and policies.

   25. No showing has been made in the present case to support the con-
clusion, even on a preliminary basis, that there exists a difference of
opinion between the Parties as to the meaning or scope of the Court’s
finding in paragraph 153 (9) of the Avena Judgment. What we have here
 nstead is a claim by only one of the Parties regarding the existence of a
dispute that is not supported by any relevant evidence before the Court.
Mexico’s Request for interpretation under Article 60 should therefore be
dismissed, leaving the Court without the prima facie jurisdiction it needs
 o adopt the present Order. By nevertheless issuing this Order, the Court
also opens itself up to the future misuse for jurisdictional purposes of the
Article 60 interpretation route which, it should be noted, imposes no
 ime-limits for the introduction of Requests for interpretation.

  26. To reiterate, my conclusion that the Court lacks the requisite juris-
diction to issue this Order does not affect the continuing obligation of the
United States under the Avena Judgment to ensure that the Mexican
nationals identified in that case not be executed unless they have been
accorded the review and reconsideration mandated by that Judgment.

                                      (Signed) Thomas BUERGENTHAL.

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