              SEPARATE OPINION OF JUDGE KEITH

   1. The Court, in my view, should have exercised its discretion to refuse
 o answer the question which the General Assembly submitted to it on
8 October 2008 in resolution 63/3. In this opinion I give my reasons for
 hat conclusion.
   2. While the terms of the French text of Article 14 of the Covenant of
 he League of Nations may have been read as denying the Permanent
Court of International Justice a discretion to refuse (the Court “donnera
aussi des avis consultatifs” on matters submitted to it by the Council or
Assembly) and the English text may have been read as an enabling rather
 han a discretionary provision (“The Court may also give an advisory
opinion . . .”), the Court made it clear, very early in its life, that it had a
discretion to refuse a request. In 1923, in the Status of Eastern Carelia,
Advisory Opinion, 1923, P.C.I.J., Series B, No. 5, the Court, having
decided that it was “impossible” for it to give the opinion on the dispute
before it, continued “that there are other cogent reasons which render it
very inexpedient that [it] should attempt to deal with the present ques-
 ion” (p. 28). Those reasons related to the availability of evidence about
a factual issue at the heart of the dispute. It was very doubtful, said the
Court, that there would be available to the Court materials sufficient to
enable it to arrive at any judicial conclusion upon the question of fact :
what did the parties agree to ? While that particular reason for refusing to
give an opinion does not arise in this case, what is significant, in addition
 o the Court’s recognition that it had a discretion to refuse a request, is
 ts broader statement of principle : “The Court, being a Court of Justice,
cannot, even in giving advisory opinions, depart from the essential rules
guiding [its] activity as a Court.” (Ibid., p. 29.)

   3. At that early stage the Court was taking care to underline that, in its
advisory jurisdiction, it was not simply an adviser to the political organs
of the League of Nations and, as such, obliged to respond at their beck
and call. It was a court and had to maintain its judicial integrity in the
exercise of that jurisdiction just as in its contentious jurisdiction. It con-
 inued to underline that essential character in its practice and rules relat-
 ng to its advisory jurisdiction. Those rules were moved in 1936 to the
Statute of the Permanent Court and were in turn included in the Statute
of this Court. Notable among them is Article 68 : “In the exercise of its
advisory functions the Court shall further be guided by the provisions of
 he present Statute which apply in contentious cases to the extent to

83

which it recognizes them to be applicable.” Article 65 (1), in the only
addition to the Chapter on Advisory Opinions included in the Statute of
 his Court, expressly recognizes that the Court has discretion whether to
reply to a request : “The Court may give an advisory opinion on any legal
question . . .”.

  4. That discretion exists for good reason. The Court, in exercising it,
considers both its character as a principal organ of the United Nations
and its character as a judicial body. In terms of the former, the Court
early declared that its exercise of its advisory jurisdiction represents its
participation in the activities of the Organization and, in principle, should
not be refused (Interpretation of Peace Treaties with Bulgaria, Hungary
and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, pp. 71-
72). That indication of a strong inclination to reply is also reflected in the
Court’s later statement that “compelling reasons” would be required to
 ustify a refusal (Judgments of the Administrative Tribunal of the ILO
upon Complaints Made against Unesco, Advisory Opinion, I.C.J. Reports
1956, p. 86). While maintaining its integrity as a judicial body has so far
been the reason for refusal which the Court has emphasized, it has not
ever identified it as the only factor which might lead it to refuse. So too
may other considerations, including the interest of the requesting organ
and the relative interests of other United Nations organs, discussed later.

  5. That discussion of the law highlights the link between the interest of
 he requesting organ and the strong inclination or the duty, as it is some-
 imes put, of the Court to reply. Accordingly, I consider in some detail
 he facts relating to this particular request and the relative interests of the
General Assembly and Security Council. The exercise of the discretion,
recognized by Article 65 (1) of the Statute, should not, in a case such as
 his, be unduly hampered by a label such as “compelling reasons”.

   6. The issue which for me is decisive is whether the request in this case
should have come from the Security Council rather than from the Gen-
eral Assembly and whether for that reason the Court should refuse to
answer the question. That statement of the issue raises the question
whether the Court may properly raise such a contention in terms of its
participation as a principal organ of the United Nations within the wider
United Nations system or for the purpose of protecting the integrity of its
 udicial function. To make my position clear, I add that I would have
been able to see no possible reason for the Court refusing to answer the
question in this case had it been put by the Security Council. My concern
relates only to the propriety of the Court replying to the General Assem-
bly in the circumstances of this case. I consider that the Court should
address that issue of the appropriateness of an organ requesting an
opinion if the request is essentially concerned with the actual exercise of

84

special powers by another organ under the Charter, in relation to the
matter which is the subject of the request. As will appear, this exact issue
has not arisen in respect of any earlier request for an advisory opinion.

                                    * *
   7. While my focus is primarily on Security Council resolution 1244
adopted on 10 June 1999 and on the actions taken after that date by the
Security Council and the General Assembly, some earlier actions are also
relevant to an assessment of their relative roles since that date and in par-
 icular in late 2008 when the Assembly made its request to the Court. In
 he 1990s, both bodies had substantial roles in respect of the developing
crises and armed conflicts in the territory of the Socialist Federal Repub-
 ic of Yugoslavia and the new States formed from it. The Security Coun-
cil’s concern was primarily with the issues of international peace and
security arising there and, in that context, with the introduction of sanc-
 ions, the establishment and functioning of peacekeeping forces, and the
setting up of the International Criminal Tribunal for the former Yugo-
slavia. Between 31 March 1998 and 14 May 1999 the Council also
adopted four resolutions relating specifically to Kosovo. All were adopted
under Chapter VII of the Charter and, as the “crisis” developed into a
“humanitarian catastrophe”, made various calls and demands on the
Federal Republic of Yugoslavia, the Kosovo Albanian leadership and
others. (See also resolution 1367 (2001) ending the prohibition on the sale
and supply of arms imposed in the first of those resolutions.)

   8. The General Assembly’s involvement in that earlier period was
principally with the situation of human rights, at first in the territory of
 he former Yugoslavia in general (e.g., General Assembly resolution 48/
153 (1993), para. 17, which is concerned with Kosovo), and, from 1995,
 n Kosovo specifically. The last resolution in that annual series (General
Assembly resolution 54/183) was adopted on 17 December 1999. In it, the
Assembly gives major place to resolution 1244 and the role of the newly
established United Nations Mission in Kosovo (operative paragraphs 1,
2, 3 and 5). While between 2000 and 2006 the Assembly adopted resolu-
 ions relating to the “Maintenance of international security — good
neighbourliness, stability and development in South-Eastern Europe”, its
references to Kosovo were essentially limited to resolution 1244 and the
processes under it (e.g., General Assembly resolution 61/53). Since 1999,
 he only resolutions adopted by the Assembly relating particularly to
Kosovo have been those, adopted under Article 17 (1) of the Charter,
approving the budget of UNMIK for the following year, and, of course,
 he resolution requesting the opinion in this case, a request which,

85

uniquely in the practice of the Assembly and the Council, did not arise
 rom a more general agenda item.

   9. Two features of those budget resolutions are significant. The first is
 hat the sums approved year by year for the Mission until 2008 were
between US$200 and US$400 million, with between 5,000 and 10,000
personnel ; but for the years since they have been substantially reduced to
about US$50 million, with 500 personnel. That reduction reflects the
major role exercised since December 2008 by EULEX, with a budget of
over US$300 million and over 2000 staff, with a target of 3000. The
second feature of the resolutions is that the Assembly’s consideration
of them does not involve it or its Fifth Committee in any substantive
consideration of the situation in Kosovo, including political developments
 here ; rather, the Secretary-General and the ACABQ submit relevant
reports and proposals to the Fifth Committee and the resulting resolu-
 ions focus on the financing of the Mission, including the obligations of
States to pay their assessed contributions and those which are outstand-
 ng. To the extent that the resolutions go beyond the funding of the Mis-
sion, they are concerned with the financing of peacekeeping operations
elsewhere in the world and with the safety and security of the members of
 he Mission (e.g., paragraphs 4-7 and 24 of General Assembly resolu-
 ion 63/295). The limited role of the Assembly in respect of this budget
matter is not unusual. For one thing, some parts of the budget adopted
by the General Assembly are included to meet existing financial obliga-
 ions of the United Nations, which cannot be denied, as the Court made
clear in its Opinion relating to the Effect of Awards of Compensation
Made by the United Nations Administrative Tribunal, Advisory Opinion,
I.C.J. Reports 1954, pp. 47 ff.

   10. The introduction of EULEX along with the related scaling down
of the role of UNMIK and the reduction of its budget were the subject of
discussions in the Security Council in November 2008 and in the Fifth
Committee and the General Assembly in June 2009. The first resulted in
a Presidential Statement which welcomed the intentions of Belgrade and
Pristina to co-operate with the international community (see paragraph 13
below). When on 3 June 2009 the much reduced UNMIK budget for the
 ollowing year was being considered in the Fifth Committee, the Serbian
representative expressed concern and stated that the reduction contra-
vened resolution 1244 as it went beyond what had been welcomed by the
Security Council and was unacceptably based on the unilateral declara-
 ion of independence, “thereby contradicting the status-neutral position
of UNMIK” (A/C.5/63/SR 51, para. 16). The Serbian proposal for the
creation of three professional posts in the Office of the Special Repre-

86

sentative for co-ordination and co-operation between UNMIK and
EULEX was included in the budget, with the Serbian representative in
 he plenary expressing his country’s satisfaction at that development “as
part of the status-neutral framework of the Council’s resolution 1244
 1999)” (A/63/PV.93, p. 6).

   11. Against that background of a very limited General Assembly
 nvolvement with the situation in Kosovo since 1999, I turn to the
sharply contrasting role of the Security Council and UNMIK established
under resolution 1244. The Council, in that resolution, “acting for [the
purposes set out in the preamble] under Chapter VII of the Charter of the
United Nations”, authorizes certain actions, makes a number of deci-
sions and associated requests, and makes certain demands. The Council
authorizes both an international security presence and an international
civil presence. In respect of the first, it authorizes Member States and rel-
evant international organizations to establish the international security
presence in Kosovo with all necessary means to fulfil its responsibilities
which are set out in some detail in a non-exhaustive list which includes in
paragraph 9 :
     “(c) Establishing a secure environment in which refugees and dis-
          placed persons can return home in safety, the international
          civil presence can operate, a transitional administration can be
          established, and humanitarian aid can be delivered ;

      (d) Ensuring public safety and order until the international civil
          presence can take responsibility for this task ;
          . . . . . . . . . . . . . . . . . . . . . . . . . . .
      (f) Supporting, as appropriate, and co-ordinating closely with the
          work of the international civil presence”.
In the second, the Council authorizes the Secretary-General,
     “with the assistance of relevant international organizations, to estab-
     lish an international civil presence in Kosovo in order to provide an
     interim administration for Kosovo under which the people of Kos-
     ovo can enjoy substantial autonomy within the Federal Republic of
     Yugoslavia, and which will provide transitional administration while
     establishing and overseeing the development of provisional demo-
     cratic self-governing institutions to ensure conditions for a peaceful
     and normal life for all inhabitants of Kosovo”.

Among the main responsibilities of the international civil presence, stated
n paragraph 11, are :
     “(a) Promoting the establishment, pending a final settlement, of sub-
          stantial autonomy and self-government in Kosovo . . . ;

87

      (b) Performing basic civilian administrative functions where and
          as long as required ;
      (c) Organizing and overseeing the development of provisional
          institutions for democratic and autonomous self-government
          pending a political settlement, including the holding of elec-
          tions ;
      (d) Transferring, as these institutions are established, its adminis-
          trative responsibilities while overseeing and supporting the
          consolidation of Kosovo’s local provisional institutions and
          other peace-building activities ;

          . . . . . . . . . . . . . . . . . . . . . . . . . . .
      (i) Maintaining civil law and order, including establishing local
          police forces and meanwhile through the deployment of inter-
          national police personnel to serve in Kosovo ;
      (j) Protecting and promoting human rights ;
      (k) Assuring the safe and unimpeded return of all refugees and
          displaced persons to their homes in Kosovo”.
Those two international presences (one civil, one security) were estab-
 ished for an initial period of 12 months and were to continue thereafter
unless the Security Council should decide otherwise. The Council
requested the Secretary-General, in consultation with it, to appoint a
Special Representative to control the implementation of the international
civil presence and to ensure that both international presences operated
 owards the same goals and in a mutually supportive manner.

   12. While the Council “[r]eaffirm[ed] the commitment of all Member
States to the sovereignty and territorial integrity of the Federal Republic
of Yugoslavia”, the effect of the resolution, as long as it remained in
effect, was to displace the administrative and related functions of the
Federal Republic of Yugoslavia which it would otherwise have exercised
 hrough its institutions as the sovereign over the territory of Kosovo. The
plenary character of the authority of UNMIK and of the Special Repre-
sentative over the territory of Kosovo was manifested at the outset in the
first UNMIK regulation adopted by the Special Representative. Under it
“[a]ll legislative and executive authority with respect to Kosovo, includ-
 ng the administration of the judiciary, is vested in UNMIK and is exer-
cised by the Special Representative”.
   13. Resolution 1244 requested the Secretary-General to report to the
Council at regular intervals on the implementation of the resolution
 ncluding reports from the leaderships of both presences. Those reports,
submitted on average every three months, are the subject of debate in
which the members of the Council and other participants address devel-
opments as they see them. Because of the political divisions within the
Council (which explain its lack of comment on the Assembly request in
 his case) it has only once been able, since it adopted the resolution, to

88

 ormulate an agreed position relating to the situation in Kosovo. It did
 hat in the Presidential Statement of 26 November 2008 (S/PRST/2008/
44) in which it welcomed the intentions of Belgrade and Pristina to
co-operate with the international community and continued as follows :

        “The Security Council welcomes the co-operation between the
     UN and other international actors, within the framework of Security
     Council Resolution 1244 (1999), and also welcomes the continuing
     efforts of the European Union to advance the European perspective
     of the whole of the Western Balkans, thereby making a decisive con-
     tribution to regional stability and prosperity.”
It follows, as indeed is generally accepted including by the authorities in
Kosovo, that the resolution continues to be in effect along with the pres-
ences established under it.
   14. What is to be concluded from the above account, in terms of the
relative and absolute interests of the General Assembly and the Security
Council in the matter submitted to the Court by the Assembly? Resolu-
 ion 1244 adopted by the Security Council, the Council’s role under it
and the role of its subsidiary organ, UNMIK, are the very subject of the
 nquiry into the conformity of the declaration of independence with the
 ex specialis in this case — the resolution and the actions taken under it.
The resolution, adopted under Chapter VII of the Charter and having
binding force, established an interim international territorial administra-
 ion with full internal powers which superseded for the time being the
authority of the Federal Republic of Yugoslavia which remained sover-
eign. By contrast, the Assembly’s only dispositive role since June 1999
and the introduction of that régime has been to approve the budget of the
Mission.

                                    * *
   15. I return to the case law of the Court and in particular to the critical
reason for its recognition that, as a principal organ of the United Nations,
 t should in principle respond to requests for opinions. The Court regu-
 arly couples that recognition with an indication of the interest which the
requesting organ has in seeking an opinion from the Court : Inter-
pretation of Peace Treaties with Bulgaria, Hungary and Romania, First
Phase, Advisory Opinion, I.C.J. Reports 1950, pp. 65, 70-72 ; Reserva-
 ions to the Convention on the Prevention and Punishment of the Crime of
Genocide, Advisory Opinion, I.C.J. Reports 1951, pp. 15, 19-20 ;
Certain Expenses of the United Nations (Article 17, paragraph 2, of the
Charter), Advisory Opinion, I.C.J. Reports 1962, pp. 151, 155, 156 ;
Legal Consequences for States of the Continued Presence of South
Africa in Namibia (South West Africa) notwithstanding Security Council

89

Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 16,
para. 32 ; Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 20,
paras. 20 and pp. 36-37, para. 72 ; Legality of the Threat or Use of
Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 226,
paras. 11, 12 ; and Legal Consequences of the Construction of a Wall in
 he Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports
2004 (I), p. 145, paras. 16-17 and pp. 162-163, para. 60. Further, in the
case of every one of the other requests made by the General Assembly or
 he Security Council, their interest has been manifest and did not need to
be expressly stated in the request or discussed by participants in the pro-
ceedings or by the Court. In the Wall Opinion, referring to several of the
cases mentioned above, the Court stated this proposition :

       “As is clear from the Court’s jurisprudence, advisory opinions
     have the purpose of furnishing to the requesting organ the elements
     of law necessary for them in their action.” (Para. 60 ; emphasis
     added.)
While the Court has made it clear that it will not evaluate the motives of
 he requesting organ (Conditions of Admission of a State to Membership
 n the United Nations (Article 4 of the Charter), Advisory Opinion, 1948,
I.C.J. Reports 1947-1948, p. 61 ; and the Wall Opinion, para. 62), it does
 n practice determine, if the issue arises, whether the requesting organ has
or claims to have a sufficient interest in the subject-matter of the request.

  16. In the absence of such an interest, the purpose of furnishing to the
requesting organ the elements of law necessary for it in its action is not
present. Consequently, the reason for the Court to co-operate does not
exist and what is sometimes referred to as its duty to answer disappears.

   17. In this case the Court, in my opinion, has no basis on which to
reach the conclusion that the General Assembly, which has not itself
made such a claim, has the necessary interest. Also very significant for me
 s the almost exclusive role of the Security Council on this matter. Given
 he centrality of that role for the substantive question asked (as appears
 rom Part IV B of the Court’s Opinion) and the apparent lack of an
Assembly interest, I conclude that the Court should exercise its discretion
and refuse to answer the question put to it by the General Assembly.

  18. I add that I do not see the Admissions, Certain Expenses, Namibia
and Wall Opinions, on which the Court relies in this context, as affecting
 his conclusion. In all of those cases, both the General Assembly and the
Security Council had a real interest. In the one case in which a Security
Council resolution was expressly at the centre of the request, Namibia, it
was the Council that made the request. In the Admissions case, in which
 he General Assembly in its request had referred to the exchange of views
which had taken place in meetings of the Security Council, the Court

90

determined that the abstract form in which the question was stated pre-
cluded the interpretation that it should say whether the views referred to
were well founded or not (I.C.J. Reports 1947-1948, p. 61). While, in the
Certain Expenses case, the Court, in replying to a request from the Gen-
eral Assembly, did consider a sequence of Security Council resolutions,
one building on the other, it did not face issues of interpretation of those
resolutions of the kind involved in this case (I.C.J. Reports 1962, pp. 175-
177). Further, none of those cases involved anything comparable to the
régime of international territorial administration introduced by Security
Council resolution 1244.

 19. As is indicated by my vote, I agree with the substantive ruling
made by the Court, essentially for the reasons it gives.

                                             (Signed) Kenneth KEITH.

91


634

SEPARATE OPINION OF JUDGE KOOIJMANS

Reason for adding separate opinion to joint declaration — Issue of prima
facie jurisdiction in 1999 Orders on provisional measures — Position of Yugo-
Slavia in period 1992-2000 not substantiated in Judgment — Implication for
other pending cases in which Applicant is party — Consistency with earlier case
law ignored by the Court.

Options open to the Court — Dismissal in limine litis — Inconsistency of
Applicant’s behaviour with regard to jurisdictional grounds — Application no
longer meets requirement of Article 38, paragraph 2, of Rules of Court —
Inherent powers of the Court to strike case from General List — Judicial policy
and sound administration of justice.

1. With full conviction, I have subscribed to the joint declaration of
seven members of the Court. I strongly feel that the Court, in the present
Judgment, has failed to meet the criteria for a sound judicial policy, as
spelled out in paragraph 3 of the joint declaration, by basing itself on the
argument that Serbia and Montenegro has no access to the Court, and
that the Court consequently lacks jurisdiction ratione personae.

2. My present point of view may seem slightly surprising to those who
remember the separate opinion I appended to the Court’s Orders of
2 June 1999 on provisional measures in the same cases. There, I said that
the Court’s reasoning in basing itself on prima facie lack of jurisdiction
ratione temporis was flawed from a logical point of view (Legality of Use
of Force ( Yugoslavia v. Belgium), Provisional Measures, I.C.J. Reports
1999 (T), p. 173, para. 2).

I was of the view that the decisions taken in 1992 by the competent
organs of the United Nations, with regard to the continued membership
of the Federal Republic of Yugoslavia and the events which had taken
place thereafter, had raised serious doubts as to whether the Federal
Republic of Yugoslavia was capable of accepting the compulsory juris-
diction of the Court as a party to the Statute, and that such doubts as a
matter of logic take precedence over other controversies with regard to
the Court’s jurisdiction. I therefore felt that, in respect of its finding that
it had no prima facie jurisdiction, the Court should have based itself on
the argument that the Applicant had doubtful locus standi, and thus that
there was a lack of jurisdiction ratione personae, rather than on the
ground of lack of jurisdiction ratione temporis. (I agreed with the Court’s
finding that with regard to the Genocide Convention it had no prima

63
635 LEGALITY OF USE OF FORCE (SEP. OP. KOOIJMANS)
facie jurisdiction ratione materiae.)

3. The Court took an approach different to the one I had suggested. It
opted for an approach that, in my view, was defensible and legally sound,
even if I preferred another approach from a logical point of view (para-
graph 30 of my opinion). The approach taken by the Court in 1999 has
now been abandoned in favour of the one suggested by me at the time
(see Judgment, para. 45). Far from being elated by this change of
approach, however, I feel concerned for a number of reasons, which are
mentioned in the joint declaration and elaborated upon in the following
paragraphs.

4. First, in 1999, I certainly did not assume that the issue of the
Court’s jurisdiction ratione personae was an open and shut case. I expli-
citly stated: “[nJot for a moment do I contend that the Court already at
the present stage of the proceedings should have taken a definitive stand
on what I called earlier a thorny question” (Legality of Use of Force
( Yugoslavia v. Belgium), Provisional Measures, I.C.J. Reports 1999 (I),
p. 178, para. 21). I went on to refer to the dossier on the Federal Repub-
lic of Yugoslavia’s continued membership of the United Nations as being
full of legal complications, and was of the opinion that a thorough analy-
sis and careful evaluation of the Federal Republic of Yugoslavia’s status
was required at a later stage of the proceedings (ibid, p. 178, paras. 21
and 22). I am, however, not persuaded by the Court’s conclusion in the
present Judgment that this analysis and evaluation have convincingly
demonstrated that the events of 2000 have “clarified the thus far amor-
phous legal situation concerning the status of the Federal Republic of
Yugoslavia vis-a-vis the United Nations” (para. 78). Although this find-
ing is undoubtedly correct as far as the situation after the admission of
the Federal Republic of Yugoslavia to the United Nations is concerned
(this admission did indeed bring to an end its sui generis position vis-a-vis
the United Nations), the Judgment does not make clear what the legal
effects of this “amorphous” situation were in the period 1992-2000. The
reader is left with the statement — in itself not uncontroversial — that
the sui generis position of the Federal Republic of Yugoslavia cannot
have amounted to its membership in the Organization (para. 77).

5. The Court’s finding does not seem to be based on a thorough analy-
sis and careful evaluation of, inter alia, the legal effects of the statements
made and positions taken by the Federal Republic of Yugoslavia before
2000, in particular its note of 27 April 1992 to the United Nations, in
which it — admittedly on the presumption of the continuity of the “inter-
national personality of Yugoslavia” — unilaterally committed itself to

64
636 LEGALITY OF USE OF FORCE (SEP. OP. KOOIJMANS)

fulfil all the rights conferred on, and obligations assumed by, the Socialist
Federal Republic of Yugoslavia in its international relations, including
its membership in all international organizations and participation in
international treaties ratified or acceded to by Yugoslavia. Have these
commitments become meaningless (at least partially), merely as a result
of its admission to the United Nations as a new Member and the nega-
tion of the presumption of continuity implicit therein; and if so, on what
grounds? Have the “thick clouds which have packed around Yugosla-
via’s membership in the United Nations” (an expression I used in my
1999 opinion, para. 27) been fully dissipated by the Federal Republic of
Yugoslavia’s belated decision to act as a successor State to the Socialist
Federal Republic of Yugoslavia, leaving it in a legal vacuum for the
period 1992-2000 as far as its relationship vis-a-vis the United Nations
and thus its participation in certain treaties — in particular the Genocide
Convention — is concerned? In this respect, the Judgment does not give
the reader much by way of clarification.

6. Second, as regards the potential impact of the 1999 Orders on other
cases before the Court, in particular the 1993 case concerning the Appli-
cation of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), it
deserves mention that in 1999 both the Applicant and the Respondents
(with the possible exception of Portugal) considered themselves to be
party to the Genocide Convention, which had been found by the Court in
1996 to be the only basis of jurisdiction in the Genocide Convention case.
An impact of the orders on provisional measures in the instant cases on
the Genocide Convention case was therefore not foreseeable and — to say
the least — not very probable.

7. All this changed, however, when in 2000 a new Government came
into power in Belgrade. This Government no longer considered the Fed-
eral Republic of Yugoslavia to be the continuation of the former Socialist
Federal Republic of Yugoslavia, and it decided to apply for membership
of the United Nations as a successor State. Moreover, it was of the view
that the Federal Republic of Yugoslavia, at the time of its inception in
1992, had not been a party to the Genocide Convention, but only became
a party after its accession to the Convention on 6 March 2001.

8. These new perceptions in Belgrade led the Government to submit
an Application to the Court containing a Request for Revision of the
1996 Judgment on preliminary objections in the Genocide Convention

65
637 LEGALITY OF USE OF FORCE (SEP. OP. KOOIJMANS)

case on the basis of the “newly discovered facts” mentioned in the
previous paragraph.

The Court gave its decision rejecting the Federal Republic of Yugosla-
via’s Application for Revision in a Judgment dated 3 February 2003, in
which I did not participate. As recalled in paragraph 10 of the joint dec-
laration, the Court found that “resolution 47/1 did not inter alia affect
the Federal Republic of Yugoslavia’s right to appear before the Court...
under the conditions laid down by the Statute”, and that the Federal
Republic of Yugoslavia’s sui generis position vis-a-vis the United Nations
during the period 1992-2000 cannot have been changed retroactively by
its admission to the United Nations in 2000 (Application for Revision of
the Judgment of 11 July 1996 in the Case concerning Application of the
Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections ( Yugo-
Slavia v. Bosnia and Herzegovina}, I.C.J. Reports 2003, p. 31, paras. 70
and 71).

9. The arguments made by Serbia and Montenegro in the Application
for Revision case and in the present cases are virtually identical, and thus
establish a close link between the Genocide Convention case and the
present cases. Such a link did not exist in previous phases of the proceed-
ings in these cases. It is, therefore, all the more remarkable that, in spite
of the fact that this link is now undeniable, the Court, in its present Judg-
ment, has chosen an approach which is not in line with the approach
taken in 1999 and 2003 and which inevitably has implications for the
Genocide Convention case.

The Court’s statement that it “cannot decline to entertain a case
simply . . . because its judgment may have implications in another case”
(Judgment, para. 39) may be correct in general terms, but must be
deemed to lack the prudence and care which are called for in situations
where a variety of options exists.

10. Third, the decisions taken by the Court in the 1999 Orders on pro-
visional measures and in the 2003 Judgment in the Application for Revi-
sion case and its reasoning therein are part of the Court’s case law. As we
say in the joint declaration: “[cJonsistency is the essence of legal reason-
ing”. In my view, this consistency in reasoning in the Court’s case law is
of paramount importance and dwarfs any misgivings I personally may
have or may have had with regard to each and every argument used, as
long as I do not consider them legally untenable.

11. Although I do not consider the Court’s reasoning in the instant
cases legally untenable, I have, in some respects, serious doubts as to its
correctness; moreover, I find it judicially unsound for the reasons given
in the joint declaration and in the preceding paragraphs. What seemed to
me to be a logical ground for determining lack of prima facie jurisdiction

66
638 LEGALITY OF USE OF FORCE (SEP. OP. KOOIJMANS)

does not automatically qualify as a proper ground for the definitive deter-
mination of the issue of jurisdiction.

« Ÿ +

12. The views expressed in my separate opinion appended to the 1999
Orders on provisional measures and my perception of them in the light of
today’s circumstances are, however, not the only reason why I deemed it
necessary to add a separate opinion to the joint declaration. I also wish
to indicate which of the options open to the Court and referred to in
paragraph 2 of the joint declaration would, in my view, have been the
better one.

13. These options were three in number. The first is the one chosen by
the Court in its Judgment and is based on its jurisdictional considerations
ratione personae. The second is the approach followed by the Court in
1999, which was founded on a lack of prima facie jurisdiction ratione
temporis and ratione materiae.

The third option would have been dismissal of the case in limine litis.
This option is explicitly rejected in the Judgment, but it would have
been my preference. I therefore find it useful to set out my views; they
are not necessarily shared by other colleagues who have signed the joint
declaration and who might have chosen the second option, which is
also plausible and conceivable for good reasons but with regard to
which the Court has not explicitly expressed itself.

14. The option of dismissal in limine litis logically precedes the other
two and it is therefore with good reason that the Court has dealt with it
first. Similarly, the relevant question has correctly been defined as

“whether in the light of the assertions by the Applicant . . . coupled
with the contentions of each of the respondent States, the Court
should take a decision to dismiss the case in limine litis, without
further entering into the examination of the question whether
the Court has jurisdiction under the circumstances” (Judgment,
para. 29).

15. I do not intend to deal with all the arguments given by the Court
in the relevant part of the Judgment (paras. 27-43), which contain mainly
a reply to the contentions of the Respondents. In a number of respects, I
agree with what is said by the Court; that is true particularly when it
states: “in certain circumstances the Court may of its own motion put an
end to proceedings in a case” (para. 32). I am, however, of the view that
the Court has refrained from exercising this proprio motu competence in
a well-considered way, and regrettably has confined itself first and fore-
most to responding to the arguments of the Parties in order to ultimately

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639 LEGALITY OF USE OF FORCE (SEP. OP. KOOIJMANS)

conclude that “[flor all these reasons, [it] cannot remove the cases...
from the [General] List, or take any decision putting an end to those
cases in limine litis” (para. 43). Though the Court explicitly stated that,
apart from the arguments of the Parties, it would also consider “any
other legal issue which it deems relevant” (para. 26), there is hardly any
evidence that it has done so. In the following, I will try to demonstrate
that such an approach would nevertheless have been the most appro-
priate one.

16. In its final submissions, Serbia and Montenegro asked the Court to
“adjudge and declare on its jurisdiction ratione personae in the present
cases” (CR 2004/23, p. 38). Such a request is highly unusual. Normally,
the applicant asks the Court to find that it has jurisdiction, not whether it
has jurisdiction.

17. The first time that Serbia and Montenegro asked the Court to
decide on its jurisdiction was when it submitted its Written Observations
on the preliminary objections of the Respondents on 20 December 2002.
In its Observations, Serbia and Montenegro summarily stated that, at the
time of the filing of its Applications in 1999, it had neither been a party to
the Statute nor to the Genocide Convention, thereby implying that the
Court could not base its jurisdiction on either Article 36, paragraph 2, of
the Statute or Article IX of the Genocide Convention, which were the
bases of jurisdiction it had invoked in its 1999 Applications.

18. Serbia and Montenegro explicitly stated in a letter to the Court,
dated 28 February 2003, that its Written Observations did not represent
a notice of discontinuance, and reiterated its request to decide on the
Court’s jurisdiction “considering the pleadings formulated in the Written
Observations”. What is striking — although perhaps not surprising in
view of the litigation tactics of Serbia and Montenegro with regard to the
various cases before the Court in which it is a party, as either applicant or
respondent — is that these Observations did not in any way refer to an
alternative basis of jurisdiction replacing the ones presented in 1999 but
no longer maintained by the Applicant.

19. It was only during the oral pleadings that the Applicant raised the
“key question” whether the sui generis position vis-a-vis the United
Nations (mentioned by the Court in the Judgment in the Application for
Revision case of 3 February 2003 and thus three weeks before the sending
of the letter to the Court) could have provided the link between the new
State and international treaties, in particular the Statute of the Court and
the Genocide Convention. In this respect, it is noteworthy that the Agent
for Serbia and Montenegro did not give any suggestion as to how this
could have happened. He merely stated that the question required a
definitive answer and that only a decision of the Court could bring
clarity. “A judgment on jurisdiction based on the elucidation of the
position of the Federal Republic of Yugoslavia between 1992 and 2000
could create an anchor point of orientation.” (CR 2004/14, pp. 26-27,

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640 LEGALITY OF USE OF FORCE (SEP. OP. KOOIJMANS)
paras. 63-64; emphasis added.)

20. Article 38, paragraph 2, of the Rules of Court states, inter alia,
that “[t]he application shall specify as far as possible the legal grounds
upon which the jurisdiction of the Court is said to be based” (emphasis
added). The Applications of 29 April 1999 met this requirement by
explicitly mentioning Article 36, paragraph 2, of the Statute and
Article IX of the Genocide Convention (supplemented in the cases
against Belgium and the Netherlands by letter of 12 May 1999, referring
to compromissory clauses in two bilateral conventions of 1930 and
1931 respectively).

In its Written Observations, filed on 20 December 2002, the Applicant
abandoned these jurisdictional grounds as being pertinent at the date the
Applications were filed without replacing them by another basis for the
Court’s jurisdiction (the Observations were silent as regards the two
bilateral treaties).

21. Therefore, Serbia and Montenegro’s Applications, as supplemented
by its Written Observations of 20 December 2002, no longer meet the
first requirement of Article 38, paragraph 2, of the Rules of Court. That
fact in itself, however, does not provide the Court with a ground to
remove the cases from the List. The provision that the Application shall
specify the legal grounds of jurisdiction was included in 1936; in order to
distinguish the requirements of paragraph 2 from those of paragraph 1,
which were prescribed by the Statute itself, the words “as far as possible”
were used (see G. Guyomar, Commentaire du Réglement de la Cour
internationale de Justice, 1983, pp. 234 et seq.). In contrast to the require-
ments of paragraph 1, non-compliance with those of paragraph 2 does
not lead eo ipso to non-admissibility. These requirements “were imposed
on the Parties by the Court simply because they were helpful to it, but
represented a mere recommendation” (ibid., p. 235 {translation by the
Registry ]). Likewise, Rosenne is of the view that “an application will not
be rejected in limine only because such specification [of the jurisdictional
grounds] is omitted” (The Law and Practice of the International Court
1920-1996, 1997, p. 705).

22. Serbia and Montenegro’s contention that only discontinuance in
conformity with Articles 88 and 89 of the Rules of Court may yield a
removal of a case from the List without a judgment on jurisdiction or on
the merits (CR 2004/14, p. 18, para. 29) is, however, not correct. The fact
that the Rules only speak of removing a case from the List by unilateral
action of the applicant (Art. 89) or joint action by the parties (Art. 88)
cannot deprive the Court of its inherent power, as master of its own pro-
cedure, to strike proprio motu a case from the List. This is also recog-
nized by Rosenne who, in this respect, refers to the general powers of the
Court under Articles 36 and 48 of the Statute (op. cit., p. 1478). This

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641 LEGALITY OF USE OF FORCE (SEP. OP. KOOIJMANS)

power is not related to the intention of the parties but to the judicial task
of the Court. This is borne out by the Court’s reasoning in the Orders in
the cases brought by the Federal Republic of Yugoslavia against Spain
and the United States of America, where it said that

“within a system of consensual jurisdiction, to maintain on the
General List a case upon which it appears certain that the Court
will not be able to adjudicate on the merits would most assuredly
not contribute to the sound administration of justice” (Legality of
Use of Force ( Yugoslavia v. Spain), Provisional Measures, I.C.J.
Reports 1999 (II), p. 773, para. 35; emphasis added).

Such power has to be used sparingly and only as an instrument of judicial
policy to safeguard the integrity of the Court’s procedure. The present
cases, however, are without precedent and can truly be called excep-
tional.

23. The Court was, in my opinion, perfectly entitled to issue such an
order in the instant cases on the basis of the fact that the Applicant has
not provided the Court with any plausible information as to the basis of
its jurisdiction. It is not for the Court to ascertain in the preliminary
phase of a case whether it has jurisdiction if the applicant fails to sub-
stantiate in any persuasive manner what the basis for that jurisdiction
could be, and after it has explicitly admitted that the initial grounds it
invoked are no longer valid. Nor is it the Court’s task to provide a party,
which asks for the elucidation of an observation made by the Court in a
judgment in another case to which it was also a party, with “an anchor
point of orientation”, as this would be tantamount to rendering an advi-
sory opinion or giving an interpretation of a judgment in circumstances
and under conditions not warranted by the Statute.

24. It is incompatible with the respect due to the Court for a party not
to provide it with any substantive argument for the speculation that it
might have jurisdiction while explicitly withdrawing the previously
adduced jurisdictional grounds. It is not in conformity with judicial pro-
priety and a sound judicial policy to render a fully reasoned judgment on
jurisdiction when the Applicant bases its request to do so on grounds
which can only be called inadequate. The Applicant can, therefore, be
held to its statement that there are no recognized or generally accepted
grounds of jurisdiction.

25. In the second round of the oral pleadings, the Agent for France
stated that

“the party against whom the application is brought is not required
to prove that there is no basis for jurisdiction, which would require
it — and it would be absurd to ask this of it — as a matter of course
to examine all possible bases” (CR 2004/21, p. 13, para. 22).

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642 LEGALITY OF USE OF FORCE (SEP. OP. KOOIJMANS)

What is true for the Respondent is also true for the Court and even more
so. The fact that the Court has the duty under certain circumstances to
ascertain proprio motu that it has jurisdiction cannot, by a contrario
reasoning, be turned into an obligation to explore grounds for its juris-
diction which have not been invoked by the Applicant. As Rosenne
states:

“There can be no doubt that the choice of a title of jurisdiction is
as much a political act as a decision to institute proceedings, and the
Court is following its usual attitude when faced with political ques-
tions of that character not to substitute itself for the party con-
cerned. It is for this reason that a principle such as curia jura novit
cannot appropriately be applied by the Court proprio motu to sub-
stitute a title of jurisdiction which has not been invoked for
another .. .” (Op. cit., p. 956.)

Neither does the Court have to rule on a title of jurisdiction which has
not been claimed.

26. In view of the fact that the Applicant has failed to demonstrate,
and has not even made an effort to demonstrate, that the Court has juris-
diction, I am of the opinion that the Court should have decided in limine
litis to remove the eight cases from the General List.

(Signed) Pieter H. KOOIMANS.

71


59 NAMIBIA (S.W. AFRICA) (DECL. ZAFRULLA KHAN)

President Sir Muhammad ZAFRULLA KHAN makes the following
declaration:

I am in entire agreement with the Opinion of the Court but would
wish to add some observations on two or three aspects of the presenta-
tion made to the Court on behalf of South Africa.

It was contended that under the supervisory system as devised in the
Covenant of the League and the different mandate agreements, the
mandatory could, in the last resort, flout the wishes of the Council of
the League by casting its vote in opposition to the directions which
the Council might propose to give to the mandatory. The argument
runs that this system was deliberately so devised, with open eyes, as to
leave the Council powerless in face of the veto of the mandatory if the
latter chose to exercise it. In support of this contention reliance was
placed on paragraph 5 of Article 4 of the Covenant of the League by
virtue of which any Member of the League not represented on the
Council was to be invited to send a representative to sit as a member
at any meeting of the Council during the consideration of matters
specially affecting the interests of that Member. This entitled the manda-
tory to sit as a member at any meeting of the Council in which a matter
affecting its interests as a mandatory came under consideration. Under
paragraph | of Article 5 of the Covenant decisions of the Council
required the agreement of all the Members of the League represented
at the meeting. This is known as the unanimity rule and by virtue thereof
it was claimed that a mandatory possessed a right of veto when attend-
ing a meeting of the Council in pursuance of paragraph 5 of Article 4
and consequently the last word on the manner and method of the
administration of the mandate rested with the mandatory. This conten-
tion is untenable. Were it well founded it would reduce the whole system
of mandates to mockery. As the Court, in its Judgment of 1966, observed:

“In practice, the unanimity rule was frequently not insisted upon,
or its impact was mitigated by a process of give-and-take, and by
various procedural devices to which both the Council and the
mandatories lent themselves. So far as the Court’s information
goes, there never occurred any case in which a mandatory ‘vetoed’
what would otherwise have been a Council decision. Equally, how-
ever, much trouble was taken to avoid situations in which the
mandatory would have been forced to acquiesce in the views of
the rest of the Council short of casting an adverse vote. The occa-
sional deliberate absence of the mandatory from a meeting, enabled
decisions to be taken that the mandatory might have felt obliged
to vote against if it had been present. This was part of the above-
mentioned process for arriving at generally acceptable conclusions.”
(C.J. Reports 1966, pp. 44-45.)

47
60 NAMIBIA (S.W. AFRICA) (DECL. ZAFRULLA KHAN)

The representative of South Africa, in answer to a question by a
Member of the Court, confessed that there was not a single case on
record in which the representative of a mandatory Power ever cast a
negative vote in a meeting of the Council so as to block a decision of
the Council. It is thus established that in practice the last word always
rested with the Council of the League and not with the mandatory.

The Covenant of the League made ample provision to secure the
effectiveness of the-Covenant and conformity to its provisions in respect
of the obligations entailed by membership of the League. A Member
of the League which had violated any covenant of the League could
be declared to be no longer a Member of the League by a vote of the
Council concurred in by the representatives of all the other Members of
the League represented thereon (para. 4, Art. 16, of the Covenant).

The representative of South Africa conceded that:

“_..if a conflict between a mandatory and the Council occurred
and if all the Members of the Council were of the opinion that the
mandatory had violated a covenant of the League, it would have
been legally possible for the Council to expel the mandatory from
the League and thereafter decisions of the Council could no longer
be thwarted by the particular mandatory—for instance, a decision
to revoke the mandate. The mandatory would then no longer be a
Member of the League and would then accordingly no longer be
entitled to attend and vote in Council meetings.

... We agree that by expelling a mandatory the Council could have
overcome the practical or mechanical difficulties created by the
unanimity requirement.” (Hearing of 15 March 1971.)

It was no doubt the consciousness of this position which prompted
the deliberate absence of a mandatory from a meeting of the Council
of the League which enabled the Council to take decisions that the
mandatory might have felt obliged to vote against if it had been present.

If a mandatory ceased to be a Member of the League and the Council
felt that the presence of its representative in a meeting of the Council
dealing with matters affecting the mandate would be helpful, it could
still be invited to attend as happened in the case of Japan after it ceased
to be a Member of the League. But it could not attend as of right under
paragraph 5 of Article 4 of the Covenant.

In addition, if need arose the Covenant could be amended under
Article 26 of the Covenant. In fact no such need arose but the authority
was provided in the Covenant. It would thus be idle to contend that the
mandates system was deliberately devised, with open eyes, so as to leave
the Council of the League powerless against the veto of the mandatory
if the latter chose to exercise it.

Those responsible for the Covenant were anxious and worked hard

48
61 NAMIBIA (S.W. AFRICA) (DECL. ZAFRULLA KHAN)

to institute a system which would be effective in carrying out to the
full the sacred trust of civilization. Had they deliberately devised a
framework which might enable a mandatory so inclined to defy the
system with impunity, they would have been guilty of defeating the
declared purpose of the mandates system and this is not to be thought of;
nor is it to be imagined that these wise statesmen, despite all the care
that they took and the reasoning and persuasion that they brought into
play, were finally persuaded into accepting as reality that which could
so easily be turned into a fiction.

*
* *

In my view the supervisory authority of the General Assembly of the
United Nations in respect of the mandated territory, being derived from
the Covenant of the League and the Mandate Agreement, is not restricted
by any provision of the Charter of the United Nations. The extent of
that authority must be determined by reference to the relevant provisions
of the Covenant of the League and the Mandate Agreement. The Generai
Assembly was entitled to exercise the same authority in respect of the
administration of the Territory by the Mandatory as was possessed by
the Council of the League and its decisions and determinations in that
respect had the same force and effect as the decisions and determinations
of the Council of the League. This was well illustrated in the case of
General Assembly resolution 289 (IV), adopted on 21 November 1949
recommending that Libya shall become independent as soon as possible
and in any case not later than I January 1952. A detailed procedure
for the achievement of this objective was laid down, including the
appointment by the General Assembly of a United Nations Commis-
sioner in Libya and a Council to aid and advise him, etc. All the recom-
mendations contained in this resolution constituted binding decisions;
decisions which had been adopted in accordance with the provisions of
the Charter but whose binding character was derived from Annex XI
to the Treaty of Peace with Italy.

Pa
* *

The representative of South Africa, during the course of his oral sub-
mission, refrained from using the expression “apartheid” but urged:

“,..South Africa is in the position that its conduct would be
unlawful if the differentiation which it admittedly practises should
be directed at, and have the result of subordinating the interests
of one or certain groups on a racial or ethnic basis to those of
others,...If that can be established in fact, then South Africa
would be guilty of violation of its obligations in that respect, other-
wise not.” (Hearing of 17 March 1971.)

49
62 NAMIBIA (S.W. AFRICA) (DECL. ZAFRULLA KHAN)

The policy of apartheid was initiated by Prime Minister Malan and
was then vigorously put into effect by his successors, Strijdom and
Verwoerd. It has been continuously proclaimed that the purpose and
object of the policy are the maintenance of White domination. Speaking
to the South African House of Assembly, as late as 1963, Dr. Verwoerd
said:

“Reduced to its simplest form the problem is nothing else than
this: We want to keep South Africa White ... Keeping it White can
only mean one thing, namely, White domination, not leadership, not
guidance, but control, supremacy. If we are agreed that it is the
desire of the people that the White man should be able to continue
to protect himself by White domination . . . we say that it can be
achieved by separate development.” (/.C./.. Pleadings, South West
Africa, Vol. IV, p. 264.)

South Africa’s reply to this in its Rejoinder in the 1966 cases was in effect
that these and other similar pronouncements were qualified by ‘the
promise to provide separate homelands for the Bantu groups”’ wherein the
Bantu would be free to develop his capacities to the same degree as the
White could do in the rest of the country. But this promise itself was
always subject to the qualification that the Bantu homelands would
develop under the guardianship of the White. In this connection it was
urged that in 1961 the “Prime Minister spoke of a greater degree of
ultimate independence for Bantu homelands than he had mentioned a
decade earlier’. This makes little difference in respect of the main purpose
of the policy which continued to be the domination of the White.

It needs to be remembered, however, that the Court is not concerned
in these proceedings with conditions in South Africa. The Court is
concerned with the administration of South West Africa as carried on
by the Mandatory in discharge of his obligations under the Mandate
which prescribed that the well-being and development of people who were
not yet able to stand by themselves under the strenuous conditions of the
modern world constituted a sacred trust of civilization and that the best
method of giving effect to this principle was that the tutelage of such
peoples should be entrusted to advanced nations who, by reason of their
resources, their experience and their geographical position could best
undertake this responsibility (Art. 22, paras. 1 and 2, of the Covenant of
the League of Nations).

The administration was to be carried on “in the interests of the indi-
genous population” (para. 6, Art. 22). For the discharge of this obligation
it is not enough that the administration should believe in good faith that
the policy it proposes to follow is in the best interests of all sections of the
population. The supervisory authority must be satisfied that it is in the

50
63 NAMIBIA (S.W. AFRICA) (DECL. ZAFRULLA KHAN)

best interests of the indigenous population of the Territory. This follows
from Article 6 of the Mandate Agreement for South West Africa, read
with paragraph 6 of Article 22 of the Covenant.

The representative of South Africa, while admitting the right of the
people of South West Africa to self-determination, urged in his oral
statement that the exercise of that right must take into full account the
limitations imposed, according to him, on such exercise by the tribal and
cultural divisions in the Territory. He concluded that in the case of South
West Africa self-determination “may well find itself practically restricted
to some kind of autonomy and local self-government within a larger
arrangement of co-operation” (hearing of 17 March 1971). This in effect
means a denial of self-determination as envisaged in the Charter of the
United Nations.

Whatever may have been the conditions in South Africa calling for
special measures, those conditions did not exist in the case of South West
Africa at the time when South Africa assumed the obligation of a manda-
tory in respect of the Territory, nor have they come into existence since.
In South West Africa the small White element was not and is not indi-
genous to the Territory. There can be no excuse in the case of South West
Africa for the application of the policy of apartheid so far as the interests
of the White population are concerned. It is claimed, however, that the
various indigenous groups of the population have reached different stages
of development and that there are serious ethnic considerations which call
for the application of the policy of separate development of each group.
The following observations of the Director of the Institute of Race
Relations, London, are apposite in this context:

“... White South African arguments are based on the different
stages of development reached by various groups of people. It is
undisputed fact that groups have developed at different paces in
respect of the control of environment (although understanding of
other aspects of life has not always grown at the same pace). But
the aspect of South African thought which is widely questioned
elsewhere is the assumption that an individual is permanently limited
by the limitations of his group. His ties with it may be strong; indeed,
when considering politics and national survival, the assumption that
they will be strong is altogether reasonable. Again, as a matter of
choice, people may prefer to mix socially with those of their own
group, but to say that by law people of one group must mix with no
others can really only proceed from a conviction not only that the
other groups are inferior but that every member of each of the other
groups is permanently and irremediably inferior. It is this that
rankles. ‘Separate but equal’ is possible so long as it is a matter of
choice by both parties; legally imposed by one, it must be regarded
by the other as a humiliation, and far more so if it applies not only

51
64

NAMIBIA (S.W. AFRICA) (DECL. ZAFRULLA KHAN)

to the group as a whole but to individuals. In fact, of course, what
separate development has meant has been anything but equal.

These are some reasons why it will be hard to find natives of
Africa who believe that to extend the policy of separate development
to South West Africa even more completely than at present is in the
interest of any but the White inhabitants.” (Quoted in /.C.J. Pleadings,
South West Africa, Vol. IV, p. 339.)

*
* ok

Towards the close of his oral presentation the representative of South
Africa made a plea to the Court in the following terms:

“In our submission, the general requirement placed by the
Charter on all United Nations activities is that they must further
peace, friendly relations, and co-operation between nations, and
especially between member States. South Africa, as a member
State, is under a duty to contribute towards those ends, and she
desires to do so, although she has no intention of abdicating what she
regards as her responsibilities on the sub-continent of southern
Africa.

If there are to be genuine efforts at achieving a peaceful solution,
they will have to satisfy certain criteria. They will have to respect
the will of the self-determining peoples of South West Africa. They
will have to take into account the facts of geography, of economics,
of budgetary requirements, of the ethnic conditions and of the state
of development.

If this Court, even in an opinion on legal questions, could indicate
the road towards a peaceful and constructive solution along these
lines, then the Court would have made a great contribution, in our
respectful submission, to the cause of international peace and security
and, more, to the cause of friendly relations amongst not only the
nations but amongst all men.” (Hearing of 5 March 1971.)

The representative of the United States of America, in his oral presenta-
tion, observed that:

52

‘,.. the question of holding a free and proper plebiscite under
appropriate auspices and with conditions and arrangements which
would ensure a fair and informed expression of the will of the
people of Namibia deserves study. It is a matter which might be
properly submitted to the competent political organs of the United
Nations, which have consistently manifested their concern that the
65 NAMIBIA (S.W. AFRICA) (DECL. ZAFRULLA KHAN)

Namibians achieve self-determination. The Court may wish to so
indicate in its opinion to the Security Council.” (Hearing of 9 March
1971.)

The Court having arrived at the conclusion that the Mandate has been
terminated and that the presence of South Africa in South West Africa is
illegal, I would, in response to the plea made by the representative of
South Africa, suggest that South Africa should offer to withdraw its
administration from South West Africa in consultation with the United
Nations so that a process of withdrawal and substitution in its place of
United Nations’ control may be agreed upon and carried into effect with
the minimum disturbance of present administrative arrangements. It
should also be agreed upon that, after the expiry of a certain period but
not later than a reasonable time-limit thereafter, a plebiscite may be held
under the supervision of the United Nations, which should ensure the
freedom and impartiality of the plebiscite, to ascertain the wishes of the
inhabitants of the Territory with regard to their political future. If the
result of the plebiscite should reveal a clear preponderance of views in
support of a particular course and objective, that course should be adop-
ted so that the desired objective may be achieved as early as possible.

South Africa’s insistence upon giving effect to the will of the peoples
of South West Africa proceeds presumably from the conviction that an
overwhelming majority of the peoples of the Territory desire closer
political integration with the Republic of South Africa. Should that
prove in fact to be the case the United Nations, being wholly committed
to the principle of self-determination of peoples, would be expected to
readily give effect to the clearly expressed wishes of the peoples of the
Territory. Should the result of the plebiscite disclose their preference for
a different solution, South Africa should equally readily accept and
respect such manifestation of the will of the peoples concerned and should
co-operate with the United Nations in giving effect to it.

The Government of South Africa, being convinced that an overwhelming
majority of the peoples of South West Africa truly desire incorporation
with the Republic, would run little risk of a contrary decision through the
adoption of the procedure here suggested. If some such procedure is
adopted and the conclusion that may emerge therefrom, whatever it may
prove to be, is put into effect, South Africa would have vindicated itself
in the eyes of the world and in the estimation of the peoples of South
West Africa, whose freely expressed wishes must be supreme. There would
still remain the possibility, and, if South Africa’s estimation of the situa-
tion is close enough to reality, the strong probability, that once the
peoples of South West Africa have been put in a position to manage their
own affairs without any outside influence or control and they have had
greater experience of the difficulties and problems with which they would
be confronted, they may freely decide, in the exercise of their sovereignty,
to establish a closer political relationship with South Africa. The adoption

53
66 NAMIBIA (S.W. AFRICA) (DECL. ZAFRULLA KHAN)

of the course here suggested would indeed make a great contribution “to
the cause of international peace and security and, more, to the cause of
friendly relations amongst not only the nations but amongst all men”.

Vice-President AMMouNand Judges PADILLA NERVO, PETREN, ONYEAMA,
DILLARD and DE CASTRO append separate opinions to the Opinion of
the Court.

Judges Sir Gerald FITZMAURICE and Gros append dissenting opinions
to the Opinion of the Court.

(Initialled) Z.K.
(Initialled) S.A.

54


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DE LA BARCELONA
TRACTION, LIGHT AND POWER

COMPANY, LIMITED
(NOUVELLE REQUETE: 1962)
(BELGIQUE c. ESPAGNE)

ORDONNANCE DU 16 MARS 1963

1963

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING
THE BARCELONA TRACTION, LIGHT

AND POWER COMPANY, LIMITED
(NEW APPLICATION: 1962)
(BELGIUM v. SPAIN)

ORDER OF 16 MARCH 1963
La présente ordonnance doit étre citée comme suit:

« Affaire de la Barcelona Traction, Light and Power Company,
Limited (nouvelle requête : 1962) (Belgique c. Espagne),
Ordonnance du 16 mars 1963: C. I. J. Recueil 1963, p. 9.»

This Order should be cited as follows:
“Case concerning the Barcelona Traction, Light and Power Company,
Limited (new Application: 1962) (Belgium v. Spain),
Order of 16 March 1963: I.C.]. Reports 1963, p. 9.”

Ne de vente : 975
Sales number

INTERNATIONAL COURT OF JUSTICE

YEAR 1963

16 March 1963

CASE CONCERNING
THE BARCELONA TRACTION, LIGHT

AND POWER COMPANY, LIMITED

: 1962
NEW APPLICATION: 196
(BELGIUM ». SPAIN)

ORDER

The President of the International Court of Justice,

having regard to Article 48 of the Statute of the Court and to
Article 62 of the Rules of Court;

having regard to the Order of 7 August 1962 fixing 15 March
‘1963 as the time-limit for the filing of the Counter-Memorial of the
Spanish Government ;

Whereas, within the time-limit so fixed, the Spanish Government
filed certain Preliminary Objections and asked the Court to adjudge
and declare that it has no jurisdiction to entertain or decide the
claims advanced in the Application and the Memorial of the Belgian
Government, and that the Application is inadmissible;

Whereas, accordingly, by virtue of the provisions of Article 62,
paragraph 3, of the Rules of Court, the proceedings on the merits
are suspended and a time-limit has to be fixed for the presentation

4

1963
16 March
General List
No. 50
BARCELONA TRACTION (ORDER OF 16 It 63) Io

by the other Party of a written statement of its Observations and
Submissions on the Preliminary Objections;

Having ascertained the views of the Parties,

Fixes 15 August 1963 as the time-limit within which the Belgian
Government may present a written statement of its Observations
and Submissions on the Objections raised by the Spanish
Government.

Done in French and in English, the French text being authori-
tative, at the Peace Palace, The Hague, this sixteenth day of March,
one thousand nine hundred and sixty-three, in three copies, one of
which will be placed in the archives of the Court and the others
transmitted to the Belgian Government and to the Spanish Govern-
ment, respectively.

(Signed) B. WINIARSKI,
President.

(Signed) GARNIER-COIGNET,
Registrar.