583

DISSENTING OPINION OF JUDGE HIGGINS

1. I agree with all that the Court has to say as to why it must render
this Opinion and much that it has to say on the substance of the question
put to it. I have also voted in favour of paragraphs 2A, 2B, 2C, 2D and
2F of the dispositif. The first four of these findings are in a sense stepping
stones to the heart of the matter, which is to be found in paragraph 2 E.
I have, with regret, been unable to vote for what the Court there deter-
mines.

2. In the first part of its Opinion the Court has rejected suggestions
that it should in its discretion decline to give the Opinion on the grounds
that the question is not legal, or is too vague, or would require the Court
to make scenarios, or would require it to “legislate”. But at paragraph 97
of its Opinion, and in paragraph 2E of its dispositif, the Court effectively
pronounces a non liquet on the key issue on the grounds of uncertainty in
the present state of the law, and of facts. I find this approach inconsistent.

3. I agree with most of the legal reasoning that sustains para-
graphs 2A, 2B, 2C and 2D. Although paragraph 2C is negatively for-
mulated, it is clear from the Court’s analysis that neither the Charter
provisions, nor customary international law, nor treaty law, make the
threat or use of nuclear weapons unlawful per se.

4. In its Judgment on Military and Paramilitary Activities the Court
confirmed the existence of a rule of proportionality in the exercise of
self-defence under customary international law. It there noted that the
Charter “does not contain any specific rule whereby self-defence would
warrant only measures which are proportional to the armed attack and
necessary to respond to it” (Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America), I.C_J.
Reports 1986, p. 94, para. 176). Importantly, in the present Opinion the
Court makes clear (paras. 40-41) that notwithstanding the absence of
specific mention of proportionality in Article 51, this requirement applies
equally to the exercise of self-defence under the Charter.

5. In the Military and Paramilitary Activities case the terms used by
the Court already made clear that the concept of proportionality in self-
defence limits a response to what is needed to reply to an attack. This is
consistent with the approach of Professor Ago (as he then was), who had
made clear in the Addendum to his Eighth Report on State Responsibil-
ity that the concept of proportionality referred to was that which was
proportionate to repelling the attack, and not a requirement of symmetry
between the mode of the initial attack and the mode of response (A/CN.4/

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318/Adds.5-7, para. 121, Yearbook of the International Law Commission,
1980, Vol. II, Part One, p. 69).

6. Paragraph 2E states in its first part that the threat or use of nuclear
weapons would generaily be contrary to the rules of international law
applicable in armed conflict, in particular the principles and rules of
humanitarian law; and in its second part that the Court cannot conclude
whether a threat or use of nuclear weapons in extremis in self-defence,
where a State’s very survival was at stake, would be lawful or unlawful.

7. I have not been able to vote for these findings for several reasons. It
is an essential requirement of the judicial process that a court should
show the steps by which it reaches its conclusions. I believe the Court has
not done so in respect of the first part of paragraph 2E. The findings in
a judicial dispositif should be clear. I believe paragraph 2E is unclear in
its meaning (and one may suspect that this lack of clarity is perhaps
regarded as a virtue). I greatly regret the non liquet offered in the second
part of paragraph 2E. And I believe that in that second sentence the
Court is declining to answer a question that was in fact never put to it.

8. After finding that the threat or use of nuclear weapons is not pro-
hibited per se by reference to the Charter or treaty law, the Court moves
to see if it is prohibited per se by reference to the law of armed conflict
(and especially humanitarian law).

9. It is not sufficient, to answer the question put to it, for the Court
merely briefly to state the requirements of the law of armed conflict
(including humanitarian law) and then simply to move to the conclusion
that the threat or use of nuclear weapons is generally unlawful by refer-
ence to these principles and norms. The Court limits itself to affirming
that the principles and rules of humanitarian law apply to nuclear weap-
ons. It finds in paragraph 95, by reference to “the unique characteristics
of nuclear weapons” that their use is “scarcely reconcilable” with the
requirements of humanitarian law and “would generally be contrary” to
humanitarian law (dispositif, para. 2E). At no point in its Opinion does
the Court engage in the task that is surely at the heart of the question
asked: the systematic application of the relevant law to the use or threat
of nuclear weapons. It reaches its conclusions without the benefit of
detailed analysis. An essential step in the judicial process — that of legal
reasoning — has been omitted.

10. What in my view the Court should have done is to explain, elabo-
rate and apply the key elements of humanitarian law that it identifies.
J agree with the Court that certain general principles emanating from the
treaties on the law of armed conflict and on humanitarian law are bind-
ing, either as continuing treaty obligations or as prescriptions of custom-
ary international law. These principles stem from a variety of uncon-
tested sources (by which I mean they are in no way dependent upon the
provisions of Additional Protocol I to the Geneva Conventions of 1949

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nor upon any views held as to the application of those provisions to
nuclear weapons). Particular reference may be made to the St. Petersburg
Declaration of 11 December 1868 and to the Regulations, annexed to the
Hague Convention IV, 1907, Articles 22 and 23 fe). The Court recalls
that the Regulations annexed to Hague Convention IV were in 1946 held
by the Nuremberg Military Tribunal to have become part of customary
international law by 1939. (Opinion, para. 80.)

11. The legal principle by which parties to an armed conflict do not
have an unlimited choice of weapons or of methods of warfare cannot of
itself give the answer to the question before the Court. Its purpose is to
ensure that weapons, both in the context of their use, and in the methods
of warfare, must comply with the other substantive rules.

12. It is not permitted in the choice of weapons to cause unnecessary
suffering to enemy combatants, nor to render their death inevitable, nor
to aggravate their sufferings when disabled. Equally, the Report of the
International Military Commission in St. Petersburg of 1868 made clear
that harm to civilians as a means of securing victory over the enemy was
not a legitimate right of war; and that even in seeking to disable the mili-
tary not every method was lawful. There has been, in many of the written
and oral submissions made to the Court, a conflation of these two ele-
ments. But the Court itself makes clear, in paragraph 78 of its Opinion,
that the prohibitions against means of conflict that cause unnecessary
suffering is directed towards the fulfilment of the second, progressive,
limb — namely, that even in seeking to disable the military forces of the
enemy, there is a limitation upon the means that may be employed. These
provisions are not directed at the protection of civilians — other provi-
sions serve that purpose. It is in any event absolutely prohibited to attack
civilians, whether by nuclear or other weapons. Attack upon civilians
does not depend for its illegality upon a prohibition against “superfluous
injury” or aggravating the sufferings of men already disabled.

13. If then the “unnecessary suffering” provision does not operate as a
generalized prohibition, but is rather directed at the protection of com-
batants, we must ask whether it still does not follow that the appalling
primary effects of a nuclear weapon — blast waves, fires, radiation or
radioactive fallout — cause extensive unnecessary suffering? These effects
indeed cause horrendous suffering. But that is not necessarily “unneces-
sary suffering” as this term is to be understood within the context of the
1868 and 1907 law, which is directed at the limitation of means against a
legitimate target, military personnel.

14. The background to Article 23 (a) of the Hague Regulations was
the celebrated provision in Article 22 (which opens a Chapter on the
means of injuring the enemy) that the means of injuring the enemy is not
unlimited. A certain level of violence is necessarily permissible in the
exercise of self-defence; humanitarian law attempts to contain that force

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(and illegal uses of force too), by providing a “balancing” set of norms. It
is thus unlawful to cause suffering and devastation which is in excess of
what is required to achieve these legitimate aims. Application of this
proposition requires a balancing of necessity and humanity. This
approach to the proper understanding of “unnecessary suffering” has
been supported, inter alia, by the Netherlands (Advisory Opinion on the
Legality of the Use by a State of Nuclear Weapons in Armed Conflict,
Written Statement, para. 27), the United Kingdom (ibid., Written State-
ment, paras. 36 ff. and oral statement (CR 95/34)); the United States
(ibid., Written Statement, para. 25) and New Zealand (Written State-
ment, para. 69, submitted in connection with the present request for advi-
sory opinion).

15. Subsequent diplomatic practice confirms this understanding of
“unnecessary suffering” as established in the 1907 Regulations. In the
Lucerne Conference of Governmental Experts on the Use of Certain
Conventional Weapons of 1974, the Experts were agreed both what was
meant by “suffering” and by “unnecessary”. As to the latter:

“This involved some sort of equation between, on the one hand,
the degree of injury or suffering inflicted (the humanitarian aspect)
and, on the other, the degree of necessity underlying the choice of a
particular weapon (the military aspect).” (Conference Report, pub-
lished by the International Committee of the Red Cross (ICRC),
1975, para. 23.)

They were in accord that the concept entailed a “balancing” or “equa-
tion” rather than a prohibition against a significant degree or even a vast
amount of suffering. Any disagreement rather lay in whether, on the mili-
tary necessity side of the equation, all that was permitted was to put
enemy personnel hors de combat, or whether it was permitted also to
attack enemy material, lines of communication and resources (ibid.,
para. 25).

16. It is this understanding of the principle that explains why States
have been able to move to a specific prohibition of dum-dum bullets,
whereas certain weapons that cause vastly greater suffering have neither
been the subject of specific prohibitions, nor, in general State practice,
been regarded as clearly prohibited by application of the “unnecessary
suffering” principle. The status of incendiary projectiles, flamethrowers,
napalm, high velocity weapons — all especially repugnant means of con-
ducting hostilities — have thus remained contested.

17. The prohibition against unnecessary suffering and superfluous
injury is a protection for the benefit of military personnel that is to be
assessed by reference to the necessity of attacking the particular military

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target. The principle does not stipulate that a legitimate target is not to
be attacked if it would cause great suffering.

18. There remains unanswered the crucial question: what military
necessity is so great that the sort of suffering that would be inflicted on
military personnel by the use of nuclear weapons would ever be justified?
That question, in turn, requires knowing the dimensions of the suffering
of which we speak and the circumstances which occasion it. It has been
suggested that suffering could be relatively limited in the tactical theatre
of war. The Court rightly regards that evidence as uncertain. If the suf-
fering is of the sort traditionally associated with the use of nuclear weap-
ons — blast, radiation, shock, together with risk of escalation, risk of
spread through space and time — then only the most extreme circum-
stances (defence against untold suffering or the obliteration of a State or
peoples) could conceivably “balance” the equation between necessity and
humanity.

19. To show how it reached its findings in paragraph 2E of the dis-
positif, the Court should, after analysing the provisions of humanitarian
law concerning the protection of combatants, then systematically have
applied the humanitarian rules and principles as they apply to the protec-
tion of civilians. The major legal issues in this context which it might
have been expected the Court would address are these: does the prohibi-
tion against civilians being the object of attack preclude attack upon a
military target if it is realized that collateral civilian casualties will be un-
avoidable? And in the light of the answer to the above question, what
then is meant by the requirements that a weapon must be able to dis-
criminate between civilian and military targets and how will this apply to
nuclear weapons?

20. For some States making submissions to the Court, the large number
of civilian victims was said itself to show that the collateral damage is
excessive. But the law of armed conflict has been articulated in terms of a
broad prohibition — that civilians may not be the object of armed attack
— and the question of numbers or suffering (provided always that this
primary obligation is met) falls to be considered as part of the “balan-
cing” or “equation” between the necessities of war and the requirements
of humanity. Articles 23 (g), 25 and 27 of the Annex to the Fourth
Hague Convention have relevance here. The principle of proportionality,
even if finding no specific mention, is reflected in many provisions of
Additional Protocol I to the Geneva Conventions of 1949. Thus even a
legitimate target may not be attacked if the collateral civilian casualties
would be disproportionate to the specific military gain from the attack.
One is inevitably led to the question of whether, if a target is legitimate
and the use of a nuclear weapon is the only way of destroying that target,
any need can ever be so necessary as to occasion massive collateral dam-
age upon civilians.

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21. It must be that, in order to meet the legal requirement that a mili-
tary target may not be attacked if collateral civilian casualties would be
excessive In relation to the military advantage, the “military advantage”
must indeed be one related to the very survival of a State or the avoid-
ance of infliction (whether by nuclear or other weapons of mass destruc-
tion) of vast and severe suffering on its own population; and that no
other method of eliminating this military target be available.

22. It is said that collateral damage to civilians, even if proportionate
to the importance of the military target, must never be intended. “One’s
intent 1s defined by what one chooses to do, or seeks to achieve through
what one chooses to do.” (Finnis, Boyle and Grisez, Nuclear Deterrence,
Morality and Idealism, 1987, pp. 92-93.) This closely approximates to the
legal doctrine of foreseeability, by which one is assumed to intend the
consequences of one’s actions. Does it follow that knowledge that in con-
crete circumstances civilians will be killed by the use of a nuclear weapon
is tantamount to an intention to attack civilians? In law, analysis must
always be contextual and the philosophical question here put is no dif-
ferent for nuclear weapons than for other weapons. The duty not to
attack civilians as such applies to conventional weapons also. Collateral
injury in respect of these weapons has always been accepted as not con-
stituting “intent”, provided always that the requirements of proportion-
ality are met.

23. Very important also in the present context is the requirement of
humanitarian law that weapons may not be used which are incapable of
discriminating between civilian and military targets.

24. The requirement that a weapon be capable of differentiating
between military and civilian targets is not a general principle of humani-
tarian law specified in the 1899, 1907 or 1949 law, but flows from the
basic rule that civilians may not be the target of attack. There has been
considerable debate, as yet unresolved, as to whether this principle refers
to weapons which, because of the way they are commonly used, strike
civilians and combatants indiscriminately (Weapons That May Cause
Unnecessary Suffering or Have Indiscriminate Effects, Report of the
Work of Experts, published by the ICRC, 1973) or whether it refers to
whether a weapon “having regard to its} effects in time and space” can
“be employed with sufficient or with predictable accuracy against the
chosen target” (Conference of Government Experts on the Use of Cer-
tain Conventional Weapons, Lucerne, 1974, Report published by the
ICRC, 1975, pp. 10-11, para. 31; see also Kalshoven, “Arms, Armaments
and International Law”, Receuil des cours de l'Académie de droit inter-
national de La Haye, Vol. 191 (1985-IT), p. 236). For this concept to have
a separate existence, distinct from that of collateral harm (with which it
overlaps to an extent), and whichever interpretation of the term is
chosen, it may be concluded that a weapon will be unlawful per se if it is

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incapable of being targeted at a military objective only, even if collateral
harm occurs. Notwithstanding the unique and profoundly destructive
characteristics of all nuclear weapons, that very term covers a variety of
weapons which are not monolithic in all their effects. To the extent that
a specific nuclear weapon would be incapable of this distinction, its use
would be unlawful.

25. 1 do not consider it juridically meaningful to say that the use of
nuclear weapons is “generally . . . contrary to the rules of international
law applicable in armed conflict, and in particular the principles and rules
of humanitarian law” (dispositif, para. 2 E). What does the term “generally”
mean? Is it a numerical allusion, or is it a reference to different types of
nuclear weapons, or is it a suggestion that the rules of humanitarian law
cannot be met save for exceptions? If so, where is the Court’s analysis of
these rules, properly understood, and their application to nuclear weap-
ons? And what are any exceptions to be read into the term “generally”?
Are they to be linked to an exceptional ability to comply with humani-
tarian law? Or does the term “generally”, especially in the light of para-
graph 96, suggest that if a use of nuclear weapons in extreme circum-
stances of self-defence were lawful, that might of itself exceptionally
make such a use compatible with the humanitarian law? The phraseology
of paragraph 2E of the dispositif raises all these questions and answers
none of them.

26. There is a further reason why I have been unable to vote for para-
graph 2E of the dispositif. It states a negative consequence of humani-
tarian law and (unspecified) possible exceptions. The role of humanitar-
ian law (in contrast to treaties of specific weapon prohibition) is to
prescribe legal requirements of conduct rather than to give “generalized”
answers about particular weapons. I do not, however, exclude the possi-
bility that such a weapon could be unlawful by reference to the humani-
tarian law, if its use could never comply with its requirements — no
matter what specific type within that class of weapon was being used and
no matter where it might be used. We may believe that, in the present
stage of weapon development, there may be very limited prospects of a
State being able to comply with the requirements of humanitarian law.
But that is different from finding the use of nuclear weapons “generally
unlawful”.

27. The meaning of the second sentence of paragraph 2E of the dis-
positif, and thus what the two sentences of paragraph 2E of the dispositif
mean when taken together, is unclear. The second sentence is presumably
not referring to self-defence in those exceptional circumstances, implied
by the word “generally”, that might allow a threat or use of nuclear
weapons to be compatible with humanitarian law. If, as the Court has
indicated in paragraph 42 (and operative paragraph 2 C), the Charter law
does not per se make a use of nuclear weapons illegal, and if a specific use

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complied with the provisions of Article 51 and was also compatible with
humanitarian law, the Court can hardly be saying in the second sentence
of paragraph 2 E that it knows not whether such a use would be lawful or
unlawful.

28. Therefore it seems the Court is addressing the “general” cir-
cumstances that it envisages — namely that a threat or use of nuclear
weapons violates humanitarian law — and that it is addressing
whether in those circumstances a use of force in extremis and in conform-
ity with Article 51 of the Charter, might nonetheless be regarded as
lawful, or not. The Court answers that it does not know.

29. What the Court has done is reach a conclusion of “incompatibility
in general” with humanitarian law; and then effectively pronounce a non
liquet on whether a use of nuclear weapons in self-defence when the sur-
vival of a State is at issue might still be lawful, even were the particular
use to be contrary to humanitarian law. Through this formula of non-
pronouncement the Court necessarily leaves open the possibility that a
use of nuclear weapons contrary to humanitarian law might nonetheless
be lawful. This goes beyond anything that was claimed by the nuclear-
weapon States appearing before the Court, who fully accepted that any
lawful threat or use of nuclear weapons would have to comply with both
the jus ad bellum and the jus in bello (see Advisory Opinion, para. 86).

30. That the formula chosen is a non liquet cannot be doubted, because
the Court does not restrict itself to the inadequacy of facts and argument
concerning the so-called “clean” and “precise” weapons. I share the
Court’s view that it has not been persuasively explained in what circum-
stances it might be essential to use any such weaponry. Nor indeed may
it be assumed that such types of weapons (perhaps to be used against
submarines, or in deserts) can suffice to represent for a nuclear-weapon
State all that is required for an effective policy of deterrence.

31. The formula in the second part of paragraph 2E refers also to “the
current state of international law” as the basis for the Court’s non liquet.
I find it very hard to understand this reference. Paragraph F of the dis-
positif, and the final paragraphs of the Court’s Opinion, indicate that the
Court hopes for a negotiated and verified total disarmament, including
nuclear disarmament. But it cannot be the absence of this goal which
means that international law has no answer to give on the use of nuclear
weapons in self-defence. International law does not simply consist of
total prohibitions. Nor can it be that there is no substantive law of self-
defence upon which the Court may offer advice — this, all said and done,
is one of the most well-developed areas of international law.

32. Can the reference to “the current state of international law” pos-
sibly refer to humanitarian law? This is one of the many elements that is
unclear. This aspect appears to have been disposed of already in the first

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part of paragraph 2E. In any event, humanitarian law too is very well
developed. The fact that its principles are broadly stated and often raise
further questions that require a response can be no ground for a non
liquet. It is exactly the judicial function to take principles of general
application, to elaborate their meaning and to apply them to specific
situations. This is precisely the role of the International Court, whether
in contentious proceedings or in its advisory function.

33. Perhaps the reference to “the current state of international law” is
a reference to perceived tensions between the widespread acceptance of
the possession of nuclear weapons (and thus, it may be presumed, of the
legality of their use in certain circumstances) as mentioned by the Court
in paragraphs 67 and 96 on the one hand, and the requirements of
humanitarian law on the other. If so, I believe this to be a false dichotomy.
The pursuit of deterrence, the shielding under the nuclear umbrella, the
silent acceptance of reservations and declarations by the nuclear powers
to treaties prohibiting the use of nuclear weapons in certain regions, the
seeking of possible security assurances — all this points to a significant
international practice which is surely relevant not only to the law of self-
defence but also to humanitarian law. If a substantial number of States in
the international community believe that the use of nuclear weapons
might in extremis be compatible with their duties under the Charter
(whether as nuclear powers or as beneficiaries of “the umbrella” or secu-
rity assurances) they presumably also believe that they would not be vio-
lating their duties under humanitarian law.

34. Nothing in relevant statements made suggests that those States
giving nuclear assurances or receiving them believed that they would
be violating humanitarian law — but decided nonetheless to act in dis-
regard of such violation. In sum, such weight as may be given to the
State practice just referred to has a relevance for our understanding
of the complex provisions of humanitarian law as much as for the pro-
visions of the Charter law of self-defence.

35. For all of these reasons, I am unable to see why the Court resorts
to the answer it does in the second part of paragraph 2E of the dispositif.

36. It is also, I think, an important and well-established principle that
the concept of non liquet — for that is what we have here — is no part of
the Court’s jurisprudence.

37. The Court has, of course, on several occasions, declined to answer
a question even after it has established its jurisdiction. Reasons of pro-
priety (Article 65 of the Statute; and the Monetary Gold Removed from
Rome in 1943 and Northern Cameroons cases) or important defects in
procedure (the Asylum case, the Haya de la Torre case) have been given.
But “[in] none of these cases is the non-liquet due . . . to deficiencies in the
law” (Rosenne, The Law and Practice of the International Court, 2nd
rev. ed., p. 100).

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38. This unwelcome formulation ignores 65 years of proud judicial
history and also the convictions of those who went before us. Former
President of the International Court, Judge Elias, reminds us that there
are what he terms “useful devices” to assist if there are difficulties in
applying the usual sources of international law. In his view these “pre-
clude the Court from pleading non liquet in any given case” (Elias, The
International Court of Justice and Some Contemporary Problems, 1983,
p. 14).

39. The learned editors of the 9th edition of Oppenheim’s International
Law remind us:

“there is [not] always a clear and specific legal rule readily applicable
to every international situation, but that every international situa-
tion is capable of being determined as a matter of law” (Jennings
and Watts, Vol. I, p. 13).

40. Nor is the situation changed by any suggestion that the problem is
as much one as “antimony” or clashes between various elements in the
law as much as alleged “vagueness” in the law. Even were there such an
“antimony” (which, as I have indicated above, I doubt), the judge’s role
is precisely to decide which of two or more competing norms is applicable
in the particular circumstances. The corpus of international law is
frequently made up of norms that, taken in isolation, appear to pull in
different directions — for example, States may not use force/States may
use force in self-defence; pacta sunt servanda/States may terminate or
suspend treaties on specified grounds. It is the role of the judge to resolve,
in context, and on grounds that should be articulated, why the applica-
tion of one norm rather than another is to be preferred in the particular
case. As these norms indubitably exist, and the difficulties that face the
Court relate to their application, there can be no question of judicial
legislation.

41. One cannot be unaffected by the knowledge of the unbearable suf-
fering and vast destruction that nuclear weapons can cause. And one can
well understand that it is expected of those who care about such suffering
and devastation that they should declare its cause illegal. It may well be
asked of a judge whether, in engaging in legal analysis of such concepts
as “unnecessary suffering”, “collateral damage” and “entitlement to self-
defence’, one has not lost sight of the real human circumstances involved.
The judicial lodestar, whether in difficult questions of interpretation of
humanitarian law, or in resolving claimed tensions between competing
norms, must be those values that international law seeks to promote and
protect. In the present case, it is the physical survival of peoples that we
must constantly have in view. We live in a decentralized world order, in
which some States are known to possess nuclear weapons but choose to
remain outside of the non-proliferation treaty system; while other such
non-parties have declared their intention to obtain nuclear weapons; and
yet other States are believed clandestinely to possess, or to be working

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shortly to possess nuclear weapons (some of whom indeed may be party
to the NPT). It is not clear to me that either a pronouncement of illegal-
ity in all circumstances of the use of nuclear weapons or the answers
formulated by the Court in paragraph 2E best serve to protect man-
kind against that unimaginable suffering that we all fear.

(Signed) Rosalyn Hicains.

371


181

           Declaration of Vice-President Tomka

[English Original Text]

   I am largely in agreement with the Court’s Judgment and, accordingly,
I have voted in favour of its overall conclusion that the Court lacks juris-
diction to entertain Georgia’s Application. I also agree with the Court’s
conclusion that neither precondition for the seisin of the Court, contained
in Article 22 of the Convention on the Elimination of All Forms of Racial
Discrimination, has been met by Georgia. I also support the Court’s
detailed analysis showing that “no legal dispute arose between Georgia
and the Russian Federation during [the] period [between 1999 and
July 2008] with respect to the Russian Federation’s compliance with its
obligations under CERD” (Judgment, para. 105).

   I part company with my distinguished colleagues in the majority on a
particular point in the analysis of whether the dispute under CERD had
arisen in August 2008, before Georgia filed its Application. They see the
evidence that there was a dispute between the Parties about the Russian
Federation’s compliance with its obligations under CERD in various
statements, namely : the statements made by Georgia’s President during a
press conference with foreign journalists and the interview granted
to CNN, both held against the backdrop of serious military confronta-
tion which ensued after “a sustained Georgian artillery attack” (ibid.,
para. 106) ; the emotional exchanges between the representatives of the
two States during the 10 August 2008 Security Council meeting, convened
at Georgia’s request because of the on-going military confrontation ; and
the response of the Russian Federation’s Foreign Minister to a question
posed at the joint press conference held after his meeting with the Minis-
ter for Foreign Affairs of Finland. In view of the circumstances in which
these statements were made, I consider the majority’s conclusion rather
artificial.

   In the Certain Property case, the Court also had to deal with an objec-
tion to the effect that there was no dispute between the Parties. It con-
cluded that
      “Germany’s position taken in the course of bilateral consultations and
      in the letter by the Minister for Foreign Affairs . . . has evidentiary
      value in support of the proposition that Liechtenstein’s claims were
      positively opposed by Germany and that this was recognized by
      the latter” (Certain Property (Liechtenstein v. Germany), Preliminary

115

182 	     convention on racial discrimination (decl. tomka)

      Objections, Judgment, I.C.J. Reports 2005, p. 19, para. 25 ; emphasis
      added).
   I agreed.
   The late Judge Fleischhauer, sitting as judge ad hoc, in his last remarks
from the Bench, disagreed and took the view

      “that these words would reveal themselves as introducing too low a
      standard into the determination of the existence of a dispute and
      therefore have negative effects on the readiness of States to engage in
      attempts at peaceful settlements of disputes” (ibid., p. 69).
   I am afraid that in the present case the majority has further lowered the
standard. It satisfied itself with a rather formalistic juxtaposition of the
words used by the representatives of the Parties during that short period
of open military hostilities between the two countries. In my understand-
ing, the references by them to “ethnic cleansing”, in that context, were
nothing more than a part of the recent war-time rhetoric intending to put
the blame and shame on the other side. In fact, no claim was presented to
the Russian Federation with regard to its obligations under CERD, no
negotiations or consultations held. Were they held, or at least attempted,
this would have certainly assisted in properly articulating the dispute. I
am therefore unable, to my regret, to concur with the majority on this
point.

                                                  (Signed) Peter Tomka.

116


                     391

                                 DECLARATION OF JUDGE GREENWOOD

                        1. Although Guinea has brought this case in the exercise of its right of
                     diplomatic protection, the case is in substance about the human rights of
                     Mr. Diallo. The damages which the Court has ordered the Democratic
                     Republic of the Congo (“the DRC”) to pay to Guinea are calculated by
                     reference to the loss suffered by Mr. Diallo and are intended for his ben-
                     efit, not that of the State. As the Court held in its 2010 Judgment,
                     (Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the
                     Congo), Merits, Judgment, I.C.J. Report 2010 (II), p. 692), the DRC
                     committed serious violations of Mr. Diallo’s human rights. He was
                     unlawfully and arbitrarily detained and expelled from the country in
                     which he had long been resident without any semblance of due process
                     and without being given the opportunity to wind up his affairs before he
                     was forced out of the country. In accordance with long‑established legal
                     principle, there can thus be no doubt that the DRC must compensate for
                     the loss and damage which those unlawful acts caused Mr. Diallo. The
                     Parties having failed to agree upon the amount of compensation, Guinea
                     now seeks a total of more than US$11.5 million. The Court has ordered
                     the DRC to pay US$95,000, a sum amounting to less than one per cent of
                     that claim. It is important to be clear about why Guinea has recovered
                     what seems at first sight to be so little.

                        2. The first reason can be found in the Court’s two earlier Judgments
                     in 2007 and 2010. In its Judgment of 24 May 2007 (Ahmadou Sadio Diallo
                     (Republic of Guinea v. Democratic Republic of the Congo), Preliminary
                     Objections, Judgment, I.C.J. Reports 2007 (II), p. 582), the Court held
                     that Guinea lacked standing to claim in respect of alleged infringements
                     of the rights of Mr. Diallo’s two companies, Africom-Zaire and Africon-
                     tainers-Zaire (see ibid., pp. 614-616, paras. 86-94). In its Judgment of
                     30 November 2010 (Ahmadou Sadio Diallo (Republic of Guinea v. Demo‑
                     cratic Republic of the Congo), Merits, Judgment, I.C.J. Report 2010 (II),
                     p. 693), the Court rejected Guinea’s claims for violation of Mr. Diallo’s
                     rights as associé in the companies (see ibid., pp. 673-690, paras. 99‑159).
                     Both of these rulings were based on an application of the principle in
                     Barcelona Traction, Light and Power Company, Limited (Belgium v.
                     Spain) (Second Phase, Judgment, I.C.J. Reports 1970, p. 35). At the heart
                     of the Barcelona Traction principle is the elementary proposition that the
                     rights, assets and liabilities of a limited company are separate and distinct
                     from those of its shareholders and that a State exercising diplomatic pro-
                     tection of a shareholder may claim only in respect of the rights of the

                     71

6 CIJ1032.indb 138                                                                                26/11/13 09:37

                     392 	         ahmadou sadio diallo (decl. greenwood)

                     shareholder, not those of the company. In its Memorial in the present
                     phase, however, Guinea sought US$4.36 million in compensation for
                     what it claimed was the diminution of the value of Mr. Diallo’s share-
                     holding in the companies. Although couched in different language, this
                     claim is in substance the same as the claims already rejected by the Court
                     and thus has to be dismissed.

                        3. The second reason for the comparatively small sum recovered by
                     Guinea lies in the lack of evidence presented in support of the claim for
                     material damage allegedly sustained by Mr. Diallo. Guinea claimed in
                     excess of US$7 million for loss of earnings and loss of Mr. Diallo’s per-
                     sonal property. For Guinea to succeed in that claim, it had to produce
                     evidence which demonstrated that Mr. Diallo had sustained the loss
                     claimed and that that loss had been caused by the unlawful acts of the
                     DRC. Guinea has not, however, produced any evidence to that effect. If
                     one takes the claim for loss of earnings, there is no evidence whatsoever
                     of what Mr. Diallo was earning prior to, or following, his detention and
                     expulsion from the DRC. If, as Guinea maintains, he was being paid a
                     substantial salary as gérant of the two companies prior to his arrest, then
                     that fact would have been recorded in the accounts of the companies and,
                     presumably, have been reflected in Mr. Diallo’s bank account records and
                     tax records. Guinea has produced none of these documents. Nor has
                     Guinea suggested that they no longer exist or are not accessible to
                     Mr. Diallo, whereas Guinea has produced considerable numbers of docu-
                     ments from the two companies regarding other aspects of the case.

                        4. Indeed, as the Judgment records (at paras. 42-43), such evidence as
                     there is suggests that, at least by 1995, Mr. Diallo was not in receipt of
                     the income which Guinea now asserts he was receiving and that the two
                     companies were in no position to pay him such an income. In the pre-
                     liminary objections phase of the case, Guinea asserted, in marked con-
                     trast to the position which it now takes, that Mr. Diallo was “already
                     impoverished” before he was detained by the DRC. In particular, Guinea
                     submitted a certificate obtained by Mr. Diallo on 12 July 1995, i.e., some
                     four months before he was first detained, in which he was “declared tem-
                     porarily destitute, insolvent and lacking any means of subsistence”. In the
                     present phase of the proceedings, Guinea has sought to minimize the sig-
                     nificance of this document but I do not think it can so easily be dismissed.
                     If it was an honest and accurate statement of Mr. Diallo’s affairs, then he
                     was not receiving an income from his companies before he was detained
                     and could not, therefore, have lost that income as a consequence of his
                     detention ; if it was not an honest and accurate statement, then it would
                     appear to have been obtained by fraud, in which case it raises serious
                     questions about whether any reliance can be placed upon assertions ema-
                     nating from Mr. Diallo about his income or assets. In addition, the
                     evidence before the Court at the merits phase of the case establishes that
                      both companies had ceased trading activities several years before

                     72

6 CIJ1032.indb 140                                                                                26/11/13 09:37

                     393 	          ahmadou sadio diallo (decl. greenwood)

                     Mr. Diallo was arrested and expelled, so that it would be surprising, to
                     say the least, if they had been paying him a salary of US$300,000 a year
                     in 1995.
                        5. In these circumstances, I believe the Court had no option but to
                     dismiss Guinea’s claim for loss of earnings. It is not a case in which the
                     Court would have been justified in making an award based on equitable
                     considerations. I accept that such considerations may have a role in
                     claims for material damage where the claimant is unable to produce evi-
                     dence. However, that is not the case here. Guinea has produced evidence
                     regarding the finances of both Mr. Diallo and the two companies but it is
                     evidence which undermines, rather than sustains, its claim. Equitable
                     principles should not be used to make good the shortcomings in a clai-
                     mant’s case by being substituted for evidence which could have been pro-
                     duced if it actually existed : equity is not alchemy.

                        6. With one qualification, the same is true of the claim for the alleged
                     loss of Mr. Diallo’s personal effects. Most of this claim related to a num-
                     ber of valuable items, such as works of art or jewellery, allegedly taken
                     from Mr. Diallo’s apartment. Yet there is no evidence that Mr. Diallo
                     ever owned such items, that they were in his apartment at the time of his
                     expulsion or that they were lost as a result of that expulsion. Neverthe-
                     less, it is clear from the record that Mr. Diallo was expelled without being
                     given the opportunity to take care of his personal property and that no
                     attempt was made by the DRC to safeguard his apartment. In these cir-
                     cumstances, I accept that some loss must have been sustained and have
                     voted in favour of the award of US$10,000 in respect of that head of
                     claim.

                        7. That leaves the claim for non-material or moral damage. An award of
                     compensation is plainly required under this heading. The Judgment
                     (at para. 18) cites the opinion of the umpire in the Lusitania cases (United
                     Nations, Reports of International Arbitral Awards, Vol. VII, p. 32) that
                     injury for such damage is recoverable in international law. That opinion
                     adds that “[s]uch damages are very real, and the mere fact that they are
                     difficult to measure or estimate by money standards makes them none the
                     less real” (ibid., p. 40). The nature of such damage means that specific evi-
                     dence cannot be required and that the assessment of compensation can only
                     be based upon equitable principles. Nevertheless, just as the damages are no
                     less real because of the difficulty of estimating them, so the determination of
                     compensation should be no less principled because the task is difficult and
                     imprecise. What is required is not the selection of an arbitrary figure but the
                     application of principles which at least enable the reader of the judgment to
                     discern the factors which led the Court to fix the sum awarded. Moreover,
                     those principles must be capable of being applied in a consistent and cohe-
                     rent manner, so that the amount awarded can be regarded as just, not

                     73

6 CIJ1032.indb 142                                                                                26/11/13 09:37

                     394 	         ahmadou sadio diallo (decl. greenwood)

                     merely by reference to the facts of this case, but by comparison with other
                     cases.

                         8. As this is the first occasion on which the Court has had to assess
                      damages since the Corfu Channel case (United Kingdon v. Albania)
                      (Assessment of the Amount of Compensation, Judgment, I.C.J. Reports
                      1949, p. 171), it is entirely appropriate that the Court, recognizing that
                      there is very little in its own jurisprudence on which it can draw, has made
                      a thorough examination of the practice of other international courts and
                      tribunals, especially the main human rights jurisdictions, which have
                      extensive experience of assessing damages in cases with facts very similar
                      to those of the present case. International law is not a series of fragmented
                      specialist and self‑contained bodies of law, each of which functions in
                      isolation from the others ; it is a single, unified system of law and each
                      international court can, and should, draw on the jurisprudence of other
                      international courts and tribunals, even though it is not bound necessarily
                      to come to the same conclusions.
                         9. A study of those judgments, however, shows that the sums awarded
                      for moral damage are usually quite small. A few examples must suffice.
                      So far as detention is concerned, the European Court of Human Rights
                      in Al-Jedda v. United Kingdom (Grand Chamber, application No. 27021/08,
                     judgment No. 27021/08) considered a figure of €25,000 (equivalent to
                     approximately US$36,000 at the rate of exchange on the date of that
                     judgment) sufficient for a detention which lasted more than three years
                     (judgment of 7 July 2011, 147 International Law Reports 107). In Lupsa v.
                     Romania (application No. 10337/04, judgment of 8 June 2006), the same
                     Court considered that a sum of €15,000 (approximately US$19,000 at the
                     rate of exchange on the date of that judgment) was equitable in respect of
                     both moral and material damage in the case of a man who was unlawfully
                     expelled from the respondent State after residing there for fourteen years,
                     during which he had founded a family and established a business in the
                     country. The Inter‑American Court of Human Rights in Gutiérrez-
                     Soler v. Colombia (judgment of 12 September 2005) awarded US$100,000
                     to a man who had been tortured into signing a false confession, persecuted
                     for an offence he had not committed and separated from his family for so
                     long that he lost all contact with his child for several years. It is also
                     instructive to look at the case of M/V “Saiga” (No. 2) (Saint Vincent and
                      the Grenadines v. Guinea) (judgment of 1 July 1999, 120 International
                      Law Reports 143) before the International Tribunal for the Law of the
                      Sea. In that case, Guinea argued that compensation for moral damage in
                      relation to unlawful detention should not exceed US$100 per day. While
                      that figure seems to have been derived from arbitral awards given several
                      decades earlier, it stands in marked contrast to the sums claimed by Gui-
                      nea in the present case.

                     74

6 CIJ1032.indb 144                                                                                26/11/13 09:37

                     395 	          ahmadou sadio diallo (decl. greenwood)

                        10. I have no doubt that the treatment accorded to Mr. Diallo by the
                     DRC was a serious violation of his human rights which caused substan-
                     tial moral damage. Four factors seem to be relevant in assessing damages
                     for this violation. First, Mr. Diallo was detained for a total of 72 days,
                     without any semblance of due process or even explanation. Secondly, he
                     was arbitrarily expelled. This breach is more serious than most cases of
                     expulsion, because the DRC was the country in which Mr. Diallo had
                     made his home and his career for over thirty years — almost the whole of
                     his adult life — and in which he had a respected place in business and in
                     society. Thirdly, in its 2010 Judgment, the Court found that Mr. Diallo’s
                     expulsion was designed to prevent him from pursuing litigation on behalf
                     of his two companies (I.C.J. Reports 2010 (II), p. 669, para. 82). Although
                     I did not agree with that conclusion (see pp. 720-723, paras. 18-23 of the
                     joint declaration of Judge Keith and myself), the Court having made that
                     finding, it is plainly a factor which has to be taken into account in the
                     assessment of damages. Lastly, it seems to me appropriate that the award
                     of damages reflects the fact that there has been a considerable delay since
                     the events in question. Mr. Diallo was detained in 1995 and expelled from
                     the DRC at the beginning of 1996 ; it is now more than sixteen years later.
                     There are various explanations for that delay (including Guinea’s request
                     for an extension of time for filing its pleadings) but I accept that the delay
                     is an aggravating factor. All of these factors sustain the finding that
                     Mr. Diallo’s treatment caused him suffering, humiliation and loss of
                     reputation and justify a substantial award in respect of moral damage.

                       11. Nevertheless, the sum awarded by the Court in respect of moral
                     damage is higher than might be expected when one bears in mind the
                     sums awarded by other international courts and tribunals, especially
                     those with the most extensive experience of determining compensation for
                     violations of human rights. I would therefore have been inclined to award
                     a somewhat smaller sum than that determined by the Judgment. I have
                     not voted against paragraph 61 (1) of the Judgment, because my diffe-
                     rence with the conclusions reached by the Court is one of degree, rather
                     than principle. Nevertheless, I feel compelled to note that this case is very
                     far from being one of the gravest cases of human rights violations. If
                     US$85,000 is an appropriate sum to compensate for Mr. Diallo’s moral
                     damage, the sum which is required in a case where, for example, a person
                     has been tortured or forced to witness the murder of family members
                     would have to be several magnitudes higher.

                                                          (Signed) Christopher Greenwood.

                     75

6 CIJ1032.indb 146                                                                                26/11/13 09:37


231

                 SEPARATE OPINION OF JUDGE XUE

   1. Notwithstanding my vote on subparagraph (4) of the operative part
of the Judgment, I wish to place on record my disagreement with the
reasoning in relation to the location of the starting-point of the land
boundary between the Parties and the way in which this issue is treated in
the Maritime Delimitation case.
   2. First of all, I am of the view that, under the 1858 Treaty of Limits,
the Cleveland Award and the Alexander Awards, the starting-point of the
land boundary should be located on the north-eastern end of the Harbor
Head Lagoon rather than at the end of the sandspit of Isla Portillos at the
mouth of the San Juan River (right bank).
   3. In this joint case, identiﬁcation of the starting-point of the land
boundary is an essential issue, both for the determination of the territo-
rial sovereignty of the coast in dispute and for the maritime delimitation
between the Parties in the Caribbean Sea. The Parties do not disagree
that the 1858 Treaty of Limits, the Cleveland Award and the Alexander
Awards constitute the legal basis for the determination of the land bound-
ary between the two countries. Notwithstanding the continuous geo-
graphical changes in the Isla Portillos in the course of the last one and
half centuries, the provisions of the 1858 Treaty and the terms of the
arbitral awards remain applicable. In other words, the starting-point of
the land boundary has to be determined on the basis of these legal docu-
ments.
   4. By its Order of 31 May 2016, the Court decided to appoint
two experts to conduct site visits to the coast of the northern part of Isla
Portillos and to advise the Court regarding the state of the coast between
the point suggested by Costa Rica and the point suggested by Nicaragua
in their pleadings as the starting-point of the maritime boundary in the
Caribbean Sea. The Court put the following questions for the experts to
answer:
     “(a) What are the geographical co-ordinates of the point at which the
          right bank of the San Juan River meets the sea at the low-water
          line?
      (b) What are the geographical co-ordinates of the land point which
          most closely approximates to that identiﬁed by the ﬁrst Alexander
          Award as the starting-point of the land boundary?

      (c) Is there a bank of sand or any maritime feature between the points
          referred to in subparagraphs (a) and (b) above? If so, what are
          their physical characteristics? In particular, are these features, or

96

232    maritime delimitation and land boundary (sep. op. xue)

          some of them, permanently above water, even at high tide? Is Los
          Portillos/Harbor Head Lagoon separated from the sea?

      (d) To what extent is it possible, or probable, that the area concerned
          will undergo major physical changes in the short and long term?”
          (Maritime Delimitation in the Caribbean Sea and the Pacific Ocean
          (Costa Rica v. Nicaragua), Order of 31 May 2016, I.C.J. Reports
          2016 (I), pp. 237-238.)
   5. In their report, the Court-appointed experts located the original
starting-point of the land boundary, now submerged under the sea, in
accordance with the terms of the 1858 Treaty and the arbitral awards,
and marked the geographical co-ordinates of the land point which most
closely approximates to that identiﬁed by the ﬁrst Alexander Award as
the starting-point of the land boundary.

  6. The experts’ report demonstrates that the initial segment of the land
boundary, including its starting-point, remains identiﬁable and actually
identiﬁed. What is left of Harbor Head Lagoon and the accreted sandbar
separating the lagoon and the sea is a broken part of the land boundary,
now enclaved within Costa Rica’s territory. The experts’ answer to the
ﬁrst question in fact identiﬁed the current location of the point at which
the San Juan River reaches the sea, in other words, the place where the
original land boundary breaks.

   7. In the present Judgment, the Court considers that it has determined
the starting-point of the land boundary in its 2015 Judgment in the case
concerning Certain Activities Carried Out by Nicaragua in the Border
Area, where it interpreted the 1858 Treaty as providing that “the territory
under Costa Rica’s sovereignty extends to the right bank of the Lower
San Juan River as far as its mouth in the Caribbean Sea” (Certain Activi-
ties Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicara-
gua) and Construction of a Road in Costa Rica along the San Juan River
(Nicaragua v. Costa Rica), Judgment, I.C.J. Reports 2015 (II), p. 703,
para. 92). A closer perusal of the relevant paragraphs of the 2015 Judg-
ment shows that this interpretation of the said Judgment is questionable.

  8. In the ﬁrst place, the location of the starting-point of the land
boundary did not fall within the scope of the jurisdiction of the Court in
that case. That issue depends on the determination of the sovereignty
over the coast of the northern part of Isla Portillos. If the coast belonged
to Nicaragua, the land boundary should extend eastward to Harbor Head
Lagoon; otherwise, the boundary would start at the mouth of the river on
the western side of Isla Portillos. In the present case, the question whether
the watercourse that channelled the San Juan River and Harbor Head
Lagoon still bears on who has the sovereignty over the coast of the north-
ern part of Isla Portillos. By interpreting paragraphs 69 and 70 of the

97

233   maritime delimitation and land boundary (sep. op. xue)

2015 Judgment, the Court states that, “no decision was taken by the
Court in its 2015 Judgment on the question of sovereignty concerning the
coast of the northern part of Isla Portillos, since this question had been
expressly excluded”. This conclusion means that the status of the last seg-
ment of the land boundary including its starting-point, as determined by
General Alexander, was yet to be determined.
   9. Moreover, should the Court have determined the starting-point of
the land boundary as at the mouth of the San Juan River in the 2015 Judg-
ment, it would not have been reasonable for the Court to instruct the
experts to relocate the original starting-point of the land boundary and to
ﬁnd the geographic co-ordinates of the land point that most closely
approximates to the original starting-point identiﬁed by General Alexan-
der, because the boundary would follow the natural course of the
San Juan River to the sea and it would be pointless to identify these
points.
   10. Although the drafters of the 1858 Treaty and the arbitral awards
well anticipated that the land boundary would necessarily be aﬀected by
gradual or sudden coastal changes in the future, they did not speciﬁcally
spell out what principles of international law would apply in the event of
such changes. Although it was mentioned that “[t]he ownership of any
accretion to said Punta de Castilla is to be governed by the laws applica-
ble to that subject” (see 1888 Cleveland Award, United Nations, Reports
of International Arbitral Awards (RIAA), Vol. XXVIII, p. 209), the situ-
ation of what now stands as partial disappearance of the watercourse was
not envisaged.
   11. It is true that General Alexander made it clear that in the practical
interpretation of the 1858 Treaty, the San Juan River must be considered
a navigable river. However, if the starting-point of the boundary is to be
automatically determined by the river’s outlet to the sea, it would be dif-
ﬁcult to explain why both Parties agree that Harbor Head Lagoon belongs
to Nicaragua rather than Costa Rica; since the watercourse has now
reached the Caribbean Sea at the mouth of the San Juan River, what is
on the right bank of the River, including Harbor Head Lagoon, should
automatically be merged with Costa Rica’s territory.

   12. When the Court, on the basis of the experts’ report, determines
that there is no longer any water channel connecting the San Juan River
with Harbor Head Lagoon and therefore the coast of the northern part of
Isla Portillos belongs to Costa Rica, it virtually states that the land
boundary is disrupted at the mouth of the San Juan River by the natural
change of the coast (see sketch-map No. 2 of the Judgment, reproduced
below, p. 234).
   13. The Court’s decision that Harbor Head Lagoon and the sandbar
separating it from the Caribbean Sea are under Nicaragua’s sovereignty
(Judgment, para. 73) cannot simply be attributed to the agreement of the
Parties; the underlying reason is Costa Rica’s recognition that the line

98

234       maritime delimitation and land boundary (sep. op. xue)

around Harbor Head Lagoon still constitutes part of the land boundary,
albeit disconnected with the rest of the land boundary.

   14. Situations with water boundaries vary from case to case. There is
no established rule of customary international law governing the legal
impact of watercourse change on boundaries (e.g. Anzilotti, Bardonnet,
Bouchez, Caﬂisch) 1. In the present case, so far as the land boundary is
concerned, there are two relevant factors that should be taken into
account. First, the starting-point of the land boundary, even after being
relocated, remains in an unstable situation. As the experts pointed out in
their report,

         “the position of the mouth of the San Juan River experiences contin-
         uous variations, mainly related to changes in the spit of Isla Portillos,
         i.e., westward growth by accumulation of sand and destruction by
         erosion (. . .). The growth of the spit by sediment accretion is a pro-
         gressive process, whereas its destruction, including the opening of
         channels, may occur rapidly by strong waves (e.g., hurricanes) and
         ﬂoods of the San Juan River. Consequently, the mouth of the San Juan

     1D. Bardonnet, “Frontières terrestres et frontières maritimes”, Annuaire français de
droit international, Vol. 35, 1989, pp. 10-11, citing D. Anzilotti’s 1914 study of State prac-
tice published in the Rivista italiana di diritto internazionale; L. J. Bouchez, “The Fixing of
Boundaries in International Boundary Rivers”, International and Comparative Law Quar-
terly, Vol. 12, 1963, p. 807; L. Caﬂisch, « Règles générales du droit des cours d’eau inter-
nationaux », Recueil des cours de l’Académie de droit international de La Haye, Vol. 219,
1989, p. 82.

99

235    maritime delimitation and land boundary (sep. op. xue)

      River and its right bank are highly mobile.” (Report of the Court-
      Appointed Experts, 30 April 2017, p. 42, para. 117; emphasis added.)

To maintain stability and certainty of the boundary, more weight should
be given to its legal title than to the factual change on the ground. Sec-
ondly, the enclave resulting from the break-up of the land boundary is
not a self-standing geographical feature as such; until the Court’s present
decision on the sovereignty of the coast of the northern part of Isla Por-
tillos, it formally constituted part of the land boundary. Whether Harbor
Head Lagoon and its frontal sandbar would eventually disappear as a
result of coastal recession, as claimed by Costa Rica, the enclave, as it
currently stands, should form part of the geomorphological circumstances
of the coast for the maritime delimitation, a point I now turn to.

   15. The location of the starting-point of the land boundary is not a
hard issue. So far as the land boundary is concerned, it does not matter
where to locate its starting-point; whether it is identiﬁed at the eastern
headland of Harbor Head Lagoon, or at the mouth of the San Juan River
as a result of the disappearance of the water channel, the boundary con-
tinues to serve its purposes well despite the break-up of the initial segment
of the boundary. What matters in this case is the impact of the coastal
change on the maritime delimitation. Although the Court takes cognition
of the great instability of the coastline in the area of the mouth of the
San Juan River, it does not give suﬃcient consideration to the coastal
relationship between the Parties. With Costa Rica’s coast now situated
between Nicaragua’s territories, Harbor Head Lagoon on the eastern side
and the river mouth on the western side, it would be diﬃcult, if not
impossible, to choose a starting-point on land that would genuinely reﬂect
a median point. Either way, there would be some cut-oﬀ eﬀect to the
detriment of one Party. That is to say, to use the point suggested by Nica-
ragua as the starting-point of the maritime boundary, Costa Rica’s coast
would be cut oﬀ from the sea. To use the point suggested by Costa Rica,
on the other hand, there would also be some cut-oﬀ eﬀect on Nicaragua’s
enclave.
   16. The Court stated in the Nicaragua v. Honduras case that,
      “[n]othing in the wording of Article 15 suggests that geomorpholog-
      ical problems are per se precluded from being ‘special circumstances’
      within the meaning of the exception, nor that such ‘special circum-
      stances’ may only be used as a corrective element to a line already
      drawn” (Territorial and Maritime Dispute between Nicaragua and
      Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment,
      I.C.J. Reports 2007 (II), p. 744, para. 280).

100

236   maritime delimitation and land boundary (sep. op. xue)

In the present case, the geomorphological conditions of the coast of the
northern part of Isla Portillos and the break-up of the land boundary
constitute such special circumstances.
   17. I agree with the majority that given the prevailing circumstances of
the coast and the current location of the mouth of the San Juan River, it
is reasonable and equitable to draw the provisional median line from the
coast on the western side of Isla Portillos near the mouth of the San Juan
River. I doubt, however, the wisdom to select as the starting-point of the
maritime boundary a point on the solid land closest to the mouth of the
river, currently identiﬁed as point Pv. This is because, ﬁrst, that point is
equally unstable and secondly, little consideration is given to Nicaragua’s
access to Harbor Head Lagoon.

   18. In paragraph 105 of the Judgment, the Court recognizes that the
situation of the enclave is a special circumstance and calls for “a special
solution”. It nevertheless considers that “[s]hould territorial waters be
attributed to the enclave, they would be of little use to Nicaragua, while
breaking the continuity of Costa Rica’s territorial sea”. Therefore, the
delimitation in the territorial sea between the Parties will not take into
account any entitlement which might result from the enclave. In my opin-
ion, this is not a convincing reasoning to ignore Nicaragua’s entitlement
from the enclave, no matter how small it is.
   19. The prevailing geographical phenomenon of the coast is instability.
In considering the special circumstances in the delimitation of the territo-
rial sea, the Court does not attach much importance to the experts’ advice
that the overall coast will undergo continuous changes due to coastal ero-
sion and whether the mouth of the San Juan River would move further
westwards or eastwards is unpredictable. Indeed, the Court cannot base
its decision on the prediction of future changes, but on the factual situa-
tion of today. To treat the enclave as negligible, however, in my view,
cannot be regarded as “a special solution”.

   20. In order to overcome the diﬃculty arising from the repositioning
of the starting-point of the land boundary at the mouth of the San Juan
River as a result of the disappearance of the watercourse along the coast,
the starting-point of the maritime delimitation, in my opinion, can be
detached from the starting-point of the land boundary. To provide access
to Harbor Head Lagoon for Nicaragua, in light of the geographical situ-
ation of the coast, the maritime boundary may start from a ﬁxed point
(the same as the hinge point) on the median line at a distance of 2 nauti-
cal miles from the coast without being connected with a mobile line to a
point on land. Although with 2 nautical miles’ territorial sea undelimited,
this approach would place the Parties in a better position to manage their
coastal relations, particularly in respect of navigation. It would not be the
ﬁrst time that a delimitation begins at some distance out to the sea; the
judicial and arbitral practices support such a resolution where there is an
uncertain land boundary terminus (see, for example, Territorial and Mar-

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237   maritime delimitation and land boundary (sep. op. xue)

itime Dispute between Nicaragua and Honduras in the Caribbean Sea
(Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007 (II), p. 756,
para. 311; Case concerning the delimitation of the maritime boundary
between Guinea and Guinea-Bissau, Award of 14 February 1985,
United Nations, RIAA, Vol. XIX, pp. 149-196).

                                            (Signed) Xue Hanqin.

102