                     157

                                 SEPARATE OPINION OF JUDGE KOROMA

                       1. I have voted in favour of the Court’s Judgment, which in my view
                     accurately reflects the current state of international law with respect to
                     the jurisdictional immunity of a State.
                       2. The Court has made a finding that Italy has violated the immunity
                     which Germany enjoys under international law by allowing civil claims to
                     be brought against it relating to violations of international humanitarian
                     law by Germany. It is worth emphasizing, however, that the Court’s
                     Judgment should not be read as a licence for States to commit acts of
                     torture, crimes against humanity or violations of international humani-
                     tarian law in situations of armed conflict. Rather, the Court examined the
                     facts of this case and concluded that the acts committed by Germany
                     were acta jure imperii and that no exception to immunity was applicable.
                     Therefore the Court found that Germany was entitled to immunity from
                     suit in Italian courts.

                        3. Germany has acknowledged the serious nature of the acts commit-
                     ted by its armed forces in Italy during the Second World War. The Court
                     took cognizance of this in paragraph 52 of its Judgment. The case before
                     the Court, however, is not about the legality of the conduct of Germany’s
                     armed forces during the Second World War or Germany’s international
                     responsibility for such conduct. The question in this case is limited to
                     whether Germany is legally entitled to immunity before the Italian domes-
                     tic courts with respect to the conduct of its armed forces in the course of
                     the armed conflict. The Court did not need to address the substantive
                     matter of the legality of Germany’s conduct to resolve the issue of sover-
                     eign immunity. Indeed, the Court’s jurisdiction in this case is limited to
                     addressing only the issue of jurisdictional immunity ; to examine other
                     matters related to Germany’s conduct would be ultra petita. The fact that
                     the Parties do not dispute that Germany committed illegal acts, as well as
                     the fact that the acts involved serious and grave violations of interna-
                     tional humanitarian law, does not alter the nature of the Court’s jurisdic-
                     tion. Unless Germany consents to jurisdiction, or is found to not have
                     sovereign immunity with respect to certain conduct committed by it, nei-
                     ther this Court nor a foreign domestic court has the jurisdiction to exam-
                     ine the legality of Germany’s conduct or issues of reparation arising from
                     such actions.

                       4. It is clear that the acts of the German armed forces in Italy during
                     the Second World War constitute acta jure imperii as a decision to deploy

                     62

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                     158 	 jurisdictional immunities of the state (sep. op. koroma)

                     a nation’s armed forces in an armed conflict is quintessentially a sover-
                     eign act. Acts committed by a State’s armed forces in furtherance of an
                     international armed conflict are, by definition, acts taken in exercise of
                     sovereign power. To hold that such acts were not subject to jurisdictional
                     immunity would be to deprive the concept of sovereign immunity of its
                     meaning and significance. The doctrine of sovereign immunity developed
                     to protect the sovereignty and sovereign equality of States. Sovereign
                     immunity accomplishes these aims by preventing one State from exercis-
                     ing jurisdiction over another without the latter’s consent. To preserve
                     sovereign equality among States, the doctrine holds that States are gener-
                     ally immune from suit for acts taken in exercise of their sovereign power.

                        5. It is well established that States are generally entitled to immunity
                     for acta jure imperii. The question is whether any exception to this general
                     rule exists that would deny States sovereign immunity for unlawful
                     actions committed by their armed forces on the territory of another State
                     during armed conflict or in the course of an occupation. It was argued
                     that an exception exists that permits States to deny sovereign immunity in
                     cases involving torts committed on the territory of the forum State. It was
                     also contended that this exception enables Italy to deny immunity to Ger-
                     many for those acts committed by its armed forces which could be char-
                     acterized as intentional torts.

                       6. There is no dispute that the law on sovereign immunity has evolved
                     to provide a limited exception to immunity for certain types of tortious
                     acts. This exception is codified in Article 12 of the United Nations Con-
                     vention on Jurisdictional Immunities of States and Their Property.
                     Although the Convention has not yet entered into force, Article 12 can be
                     considered to reflect the current state of customary international law.
                     That Article provides that a State cannot invoke immunity

                          “in a proceeding which relates to pecuniary compensation for death
                          or injury to the person, or damage to or loss of tangible property,
                          caused by an act or omission which is alleged to be attributable to
                          the State”,
                     and occurred on the forum State’s territory. The International Law Com-
                     mission’s commentary on the text of the Convention, however, makes it
                     clear that the drafters of the Convention intended Article 12 to apply
                     mainly to situations such as traffic accidents, to prevent insurance compa-
                     nies from evading liability to injured individuals under the cloak of State
                     immunity. The commentary states further that Article 12 does not apply
                     to situations involving armed conflicts. The distinction drawn by the
                     International Law Commission between isolated and insurable torts such
                     as traffic accidents, and acts committed by armed forces during armed

                     63

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                     159 	 jurisdictional immunities of the state (sep. op. koroma)

                     conflict, is understandable. Cases involving the former would entail lim-
                     ited liability for the tortfeasor State, whereas cases involving the latter
                     could expose a State to nearly limitless liability. The former can thus be
                     appropriately dealt with by the forum State’s judiciary, while the inevita-
                     bly political nature of the latter suggests strongly that resolution should
                     be pursued via inter‑State processes.

                        7. Under current international law, therefore, States continue to be
                     entitled to sovereign immunity for acta jure imperii committed by their
                     armed forces during armed conflict. Given that the Court’s task is to
                     apply the existing law, nothing in the Court’s Judgment today prevents
                     the continued evolution of the law on State immunity. In the past cen-
                     tury, the law on State immunity has evolved considerably in a manner
                     that has significantly circumscribed the circumstances in which a State is
                     entitled to immunity. It is possible that further exceptions to State immu-
                     nity will continue to develop in the future. The Court’s Judgment applies
                     the law as it exists today.

                                                          *
                        8. I also consider it important to acknowledge and address the argu-
                     ments made by Greece. As a non‑party intervenor in this case, Greece
                     submitted a written statement in which it emphasized, inter alia, the
                     “individual right to reparation in the event of grave violations of human-
                     itarian law” (para. 34). Greece maintains that international humanitarian
                     law confers “direct rights on individuals which are opposable to States”
                     (para. 35). In support of its argument Greece cites, among other provi-
                     sions, Article 3 of the Hague Convention (IV) of 1907 and Article 91 of
                     the 1977 Protocol Additional to the Geneva Conventions of
                     12 August 1949 (Protocol I).
                        9. Greece is correct in stating that international humanitarian law now
                     regards individuals as the ultimate beneficiaries of reparations for human
                     rights violations (see International Law Commission, draft Articles on
                     Responsibility of States for Internationally Wrongful Acts (A/56/10),
                     Art. 33, comment 3). This is a positive development that should certainly
                     be welcomed, as it reflects the increasing importance of individual human
                     rights in international law. It does not follow, however, that international
                     law provides individuals with a legal right to make claims for reparation
                     directly against a foreign State. Nothing in the Hague Convention (IV) or
                     the 1977 Protocol I supports such a proposition. The relevant Articles of
                     these two Conventions provide only that States must “pay compensa-
                     tion” if they violate the provisions of the Conventions. They do not pur-
                     port to require that States pay compensation directly to aggrieved
                     individuals. Further, the two Conventions as a whole, read in context, do
                     not provide for compensation to be made in such a manner. Indeed, a

                     64

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                     160 	 jurisdictional immunities of the state (sep. op. koroma)

                     provision requiring State payments to individuals would have been incon-
                     ceivable in 1907, when the Hague Convention IV was concluded, as inter-
                     national law at that time did not recognize the rights of individuals to the
                     extent that it does today.

                                                           *
                       10. In conclusion, the Court correctly found that Germany is entitled
                     to sovereign immunity for the acts committed by its armed forces in Italy
                     during the Second World War, since the acts committed by the German
                     armed forces constituted acta jure imperii, and no exception to this gen-
                     eral rule of immunity applies. This finding, however, does not preclude
                     the Parties from entering into negotiations to resolve issues which came
                     to the fore in the course of the present proceedings. Nor does the attain-
                     ment of justice in the factual and historical context of this case necessitate
                     the overthrow of the existing law on jurisdictional immunity, which justly
                     protects and preserves the sovereignty and sovereign equality of States.

                                                                 (Signed) Abdul G. Koroma.

                     65

6 CIJ1031.indb 126                                                                                22/11/13 12:25


72

DISSENTING OPINION OF JUDGE RANJEVA
[Translation]

1. The present request for the indication of provisional measures is, in
many respects, an unprecedented case in international adjudication.
While the Court cannot reject the request (I), it cannot pass upon it owing
to the fundamental change of circumstances following the adoption of
Security Council resolution 748 (1992) (ID, without for all that refraining,
in principle, from the proprio motu exercise of its powers under Article 41
of the Statute (IIT).

I. THE COURT’s COMPETENCE TO ORDER PROVISIONAL MEASURES

2. On the basis of general international law, confirmed by the Montreal
Convention, the Applicant enjoys the right to choose expressed in the tra-
ditional adage: aut dedere aut judicare; this right is opposable erga omnes
and creates the obligation to effectively carry through, in normal condi-
tions, proceedings for the establishment of criminal responsibility in the
Lockerbie bombing. However, the Respondent has contested this right of
the Applicant by characterizing it as “illusory”.

3. On analysis, the Respondent’s thesis appears to be contestable inas-
much as it is guilty of confusion. For either the Respondent is questioning
the efficacy of the provisions of the Convention relating to extradition, or
he is contesting the Applicant’s right to effectively exercise his compe-
tence in this sphere. If the former is the case, the result would be deplor-
able; but this would in no way weaken the binding nature of the provisions
of the Convention, being as they are binding on all the parties to the said
instrument. If the latter is the case, we would be faced with a disregard for
the “general principles of law recognized by civilized nations”, principles
founded upon the equality of States and their equal ability to ensure that
obligations under international law are fulfilled.

4. Hence the Court is not seised solely of the question of the Appli-
cant’s obligation to extradite two of its nationals suspected, on completion
of the preliminary enquiries, of being the authors of the Lockerbie bomb-
ing. No Application alleging international responsibility for an act of ter-
rorism has been filed. This Court has therefore rightly limited the subject
of its proceedings solely to the question of the Applicant’s right to oppose,
by judicial means, a possible obligation to extradite its nationals, whom it
intends to prosecute, exercising its right thereto under international law
and the Montreal Convention.

5. The case-law of the Court, referred to in the case concerning Passage
through the Great Belt (I.C.J. Reports 1991, p. 17, para. 22), justified the
indication of provisional measures in principio litis. In the particular cir-

73
1971 MONTREAL CONVENTION (DISS. OP. RANJEVA) 73

cumstances of the case, with respect to both its scope and its nature, the
Applicant’s right would have been under threat of disappearance had the
contrary claim of the Respondent been acted upon. Here, on the contrary,
under the Montreal Convention, the Respondents possess the power to
prosecute the above-mentioned suspects. This collision of opposing
rights, a clash centred upon a question of criminal responsibility, is the
cause not only of what may well be irreparable prejudice, but above all of
an aggravation of the dispute. Under Article 41 of the Statute, the Court
has the power to indicate “provisional measures. . .to preserve the respec-
tive rights of either party”. Hence it was for the Court, in the interests of
the good administration of justice, to decide, bearing in mind the equality
of rights of the Parties and the maintenance of international peace and
security, to ensure that the legal obligations of the various Parties were
respected.

6. The adoption of the recommendation which is the subject of Secu-
rity Council resolution 731 (1992) does not deprive the Applicant of its
right to institute proceedings before the Court to request the indication of
provisional measures. On examination, the operative parts of this resolu-
tion prove to be an interpretation that this principal political organ of the
United Nations gives of the application of the rules in the Lockerbie bomb-
ing. The nature of the Security Council does not confer upon its recom-
mendatory acts the legal effects of res judicata. It is from the standpoint of
international law, of which the Charter and the law of the United Nations
form an integral part, that the scope of resolution 731 (1992) must be con-
sidered with respect to the request for the indication of provisional mea-
sures. In the present case, the Applicant has used a remedy open to every
State wishing to request of the Court the legitimate protection of its right
to pass judgment. The adage una via electa does not apply when it comes to
governing two rights of action which are different in nature, namely, one
before the Court and the other in the Security Council. In the judicial
field, it is the judicial course, based upon international law, which prevails
in case of conflict.

7. For these reasons, the Court was in my view empowered to indicate
provisional measures for the protection of the rights of all the Parties,
rights which were under threat of disappearance. The duty to co-operate
and afford legal assistance laid down by the Montreal Convention pro-
vided the Court with a suitable framework for determining the object of
the appropriate measures. Hence, the request for the Court to indicate
provisional measures was well founded, Security Council resolution 731
(1992) notwithstanding.

II. THE FUNDAMENTAL CHANGE IN THE LEGAL CIRCUMSTANCES

8. The adoption of the decision to impose sanctions, which are the sub-
ject of Security Council resolution 748 (1992), is a given whose effects,
under Articles 103 and 25 of the United Nations Charter, could not be
ignored by the Court. The absence of action or objection, with respect to

74
1971 MONTREAL CONVENTION (DISS. OP. RANJEVA) 74

‘ this decision by one of the principal political organs of the United Nations,
did not prevent the Court from noting that the first paragraph-of the reso-
lution deprived of all effect the provisional measures that the Court might
have ordered with respect to all Parties to the dispute. The fundamental
change in the legal circumstances since the filing of the Application, with-
out there being any change in the factual circumstances of the case, pre-
vented the Court, the principal judicial organ, from exercising its legal
function to settle the dispute between the Parties to the full extent of its
powers.

Ill. THE Proprio Motu INDICATION OF PROVISIONAL MEASURES
IN GENERAL

9. Although there is no doubt that the adoption of resolution 748 (1992)
means that the Court can no longer indicate provisional measures on the
basis of the submissions in the request, provisional measures were a pos-
sibility under Articles 41 of the Statute and 75 of the Rules concerning the
power to indicate proprio motu provisional measures. The development of
the case-law concerning reference to the above-mentioned provisions is
bound up with the relationship between the two terms in the duality: right
of the Parties/jurisdiction of the Court. Prior to 1972, priority was
granted to questions of jurisdiction, so that the Court interpreted its
powers very restrictively. But since the Order of 17 August 1972 for provi-
sional measures the Court made in the Fisheries Jurisdiction (Federal
Republic of Germany v. Iceland) case, the terms of the problem have
altered. I quote from that Order:

“the Court need not, before indicating them [provisional measures],
finally satisfy itself that it has jurisdiction on the merits of the case...
it ought not to act under Article 41 of the Statute if the absence of
jurisdiction ... is manifest.” (L.CJ. Reports 1972, p. 33, para. 16.)

Limiting consideration of the question of jurisdiction to its prima facie
aspect at the stage of requests for provisional measures has led the Court
to pay greater attention to the circumstances of the case. The Order of
10 January 1986 for provisional measures in the Frontier Dispute (Burkina
Faso/Republic of Mali) case thus formally marks the development of a
practice of the Court described in the following terms:

“Considering that, independently of the requests submitted by the
Parties for the indication of provisional measures, the Court or,
accordingly, the chamber possesses by virtue of Article 41 of the Sta-
tute the power to indicate provisional measures with a view to pre-
venting the aggravation or extension of the dispute whenever it con-
siders that circumstances so require” (1.CJ. Reports 1986, p. 9,
para. 18).

This method of analysis embracing the totality of the circumstances was

75
1971 MONTREAL CONVENTION (DISS. OP. RANJEVA) 75

enunciated in the Order for provisional measures made on 10 May 1984 in
the case concerning Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America) as follows:

“Whereas by the terms of Article 41 of the Statute the Court may
indicate provisional measures only when it considers that circum-
stances so require to preserve the rights of either party” (CJ.
Reports 1984, p. 180, para. 27).

Since

“Whereas the Court has available to it considerable information
concerning the facts of the present case, including official statements
of United States authorities ; whereas, the Court, in the context of the
present proceedings on a request for provisional measures, has in
accordance with Article 41 of the Statute to consider the circum-
stances drawn to its attention as requiring the indication of provi-
sional measures, but cannot make definitive findings of fact, and the
right of the respondent State to dispute the facts alleged and to sub-
mit arguments in respect of the merits must remain unaffected by the
Court’s decision” (ibid., p. 182, para. 31).

The Court concluded as follows:

“Whereas in the light of the several considerations set out above,
the Court finds that the circumstances require it to indicate provi-
sional measures, as provided by Article 41 of the Statute of the Court,
in order to preserve the rights claimed (see Fisheries Jurisdiction
(United Kingdom v. Iceland), Interim Protection, Order of 17 August
1972, .C.J. Reports 1972, pp. 17-18; Fisheries Jurisdiction (Federal
Republic of Germany v. Iceland), Interim Protection, Order of
17 August 1972, ibid., pp. 35-36)” (ibid., p. 186, para. 39).

One is therefore inclined to wonder whether the appeals that the Court
addresses to the Parties henceforward can only be made in the context of
measures related to provisional measures which have been indicated.

10. However, in the light of the relevant holding in the Passage through
the Great Belt (Finland v. Denmark) case, it is clear that the reply must be
negative:

“Whereas, as the Permanent Court of International Justice
observed, and the present Court has reiterated,

‘the judicial settlement of international disputes, with a view to
which the Court has been established, is simply an alternative to
the direct and friendly settlement of such disputes between the
Parties; as consequently it is for the Court to facilitate, so far as is
compatible with its Statute, such direct and friendly settlement...’
(Free Zones of Upper Savoy and the District of Gex, P.C.I.J.,
Series A, No. 22, p. 13; see also Frontier Dispute, I.C.J. Reports 1986,
p. 577, para. 46);

76
1971 MONTREAL CONVENTION (DISS. OP. RANJEVA) 76

whereas, pending a decision of the Court on the merits, any negotia-
tion between the Parties with a view to achieving a direct and friendly
settlement is to be welcomed” (1.CJ. Reports 1991, p. 20, para. 35).

Indeed, by the Order of 29 July 1991, while rejecting provisional mea-
sures, the Court invited the parties to negotiate. The Court’s appeal to the
parties may be subject to criticisms stemming directly from a strict analy-
sis of the concept of judicial function, but the exercise of the judicial func-
tion is surely a dynamic part of a wider fundamental obligation, as the
following quotation indicates :

“Article 1
The Purposes of the United Nations are:

1. To maintain international peace and security, and to that end:
to take effective collective measures for the prevention and removal
of threats to the peace, and for the suppression of acts of aggression
or other breaches of the peace, and to bring about by peaceful means,
and in conformity with the principles of justice and international
law, adjustment or settlement of international disputes or situations
which might lead to a breach of the peace.” (Article 1 of the Charter
of the United Nations.)

In the light of these observations, the reasons for the Court’s concern to
ensure that the dispute does not become aggravated or degenerate into
conflict become clear. In the two cases referred to, it was armed actions
which constituted the factual circumstances. Hence, proprio motu, the
Court pronounced not only on the wisdom of an appeal it in fact made but
also on the extrajudicial forms that the settlement of the dispute might
take.

11. In the context of the present case, the circumstances were a source
of much greater concern, owing to the direct reference to Chapter VII of
the Charter. The question of the opinion of the Security Council was no
longer limited to a dispute between the Parties in contention, but con-
cerned the collective security of all States and all peoples. In my view, this
new dimension did not permit the Court to ignore the very object of the
proceedings to settle the disputes and limit itself to a passive approach to
its judicial function. It follows that the Order should refer to the character-
ization made by the Security Council and draw attention, even in the con-
text of resolution 748 (1992), to general obligations with respect to
conduct that tend to limit the aggravation of the dispute.

12. For these reasons, in my opinion, the Court should have pro-
nounced on the merits of the request, the object of which has disappeared
owing to the effects of resolution 748 (1992), and should also have
acknowledged its inability to rule owing to supervening circumstances
external to the dispute and subsequent to the filing of the Application, at
the same time calling on the Parties to avoid all escalation. This solution,
which although uncomfortable nevertheless accords with the description
of the development of the proceedings, seems to me a useful one. For over

77
1971 MONTREAL CONVENTION (DISS. OP, RANJEVA) 77

and above the present dispute between the Parties, what is at issue here is
the right of all States parties to the Montreal Convention and concerned
with the suppression and prevention of terrorism against aircraft and the
safety of air travel. Also, the new elements in international relations call
for greater clarification of United Nations law on the one hand as regards
the line of demarcation between the fields respectively covered by Chap-
ters VI and VII of the Charter, as indicated by the work of the Gen-
eral Assembly’s Sixth Committee (forty-fifth session) and, on the other
hand, a new characterization of situations from the standpoint of the rele-
vant provisions of the Charter. Indeed, as the Court has observed:

“The political character of an organ cannot release it from the
observance of the treaty provisions established by the Charter when
they constitute limitations on its powers or criteria for its judgment.”
(Conditions of Admission of a State to Membership in the United
Nations (Article 4 of Charter), Advisory Opinion, 1948, I.C.J. Reports
1947-1948, p. 64.)

(Signed) Raymond RANJEVA.

78


165

SEPARATE OPINION OF JUDGE SHAHABUDDEEN

Today’s Order, which is related to a small category of Orders of recent
vintage, involves legal issues the importance of which is not lessened by
reason of their not being readily apparent on the face of the document.
One such issue concerns the precise legal character of the Order. It seems
to me that there could be a serious question as to what it is in law that the
Court is doing in making the Order. On one possible interpretation I could
not support the Order, on another I could. I feel obliged, therefore, to
explain the basis on which I do support it, lest my support be understood
as implying acquiescence in an interpretation which I cannot accept.

As indicated in the Order, there is no objection by Ei Salvador to the
choice by Honduras of a replacement ad hoc judge. It being the case that
the Court itself has no objection, and there being no doubt on the matter, it
follows that no decision is called for under Article 35, paragraph 4, of the
Rules of Court. So far as any objection or doubt is concerned, therefore,
the question whether a formal Order is required does not arise.

The remaining questions which fall for consideration are (i) whether an
Order is otherwise required, and, if so, (ii) whether it is required for the
purpose of legally constituting another person as a replacement ad hoc
judge, or (iii) whether it is required for the purpose of simply record-
ing such replacement. Ordinarily, 1 would answer the first question in
the negative and thus not reach the second and the third. In the circum-
stances of this case, however, I would answer the first in the affirmative,
the second in the negative and the third in the affirmative. My reasons
follow.

As to the first question, since the Order of Court of 8 May 1987 (LC.
Reports 1987, p. 12) did formally mention the names of the two ad hoc
judges who were to be members of the ad hoc Chamber thereby formed, it
would seem to follow as a logical extension of the drafting of that Order
that the death of one of them and his replacement by another person
should be reflected in an appropriate amendment of that Order by a new
Order. That, in brief, is the ground on which I agree with the making of the
new Order.

The second and third questions involve an inquiry into the precise
juridical character of the new Order. The present state of the law being
seldom, if ever, ascertainable without recourse to the past, it appears
to me that the inquiry referred to cannot be intelligently pursued in
isolation from previous legal developments. The matter is in particular

7
166 DISPUTE (EL SALVADOR/HONDURAS) (SEP. OP. SHAHABUDDEEN)

complicated by the circumstance that it has not been customary to make a
formal Order relating specifically to the appointment of ad hoc judges (as
distinguished from entitlement to appoint), the fact of their appointment
being generally simply recited as part of the procedural history of the case
in the introductory parts of the next Order or decision of the Court in
the case. Two exceptions relate respectively to the case concerning
the Frontier Dispute (Burkina Faso/Republic of Mak)(I.C.J. Reports 1985,
p. 7) and the present case (1.C.J. Reports 1987, p. 12). The Orders
of Court in these two cases show the election of three named Members
of the Court and the addition of two named ad hoc judges (who, indeed,
had been chosen before the election of the other judges), making
a Chamber of five. That was not the course taken in the first ad hoc
Chamber case, namely, the case concerning Delimitation of the Maritime
Boundary in the Gulf of Maine Area (Canada/United States of America)
(1.C.J. Reports 1982, pp. 8-9). In that case the Order of Court constituted a
Chamber comprising five named Members of the Court elected by it
(including a Member of United States nationality), and went on to note
the fact

“that the Acting President, in the exercise of his powers under
Article 31, paragraph 4, of the Statute of the Court, has requested
Judge Ruda[one of the five elected judges] to give place in due course
to the judge ad hoc to be chosen by the Government of Canada,
and that Judge Ruda has indicated his readiness to do so”.

The choice later made by Canada was not made the subject of a specific
Order of Court; it was merely narrated as a fact in the recitals of the subse-
quent Order by which time-limits were fixed for pleadings (1.C.J. Reports
1982, p. 16).

A movement in favour of mentioning the names of ad hoc judges in the
Order of Court setting up an ad hoc Chamber seems to have occurred in
association with a movement away from the procedure observed in the
Gulf of Maine case whereby a Member of the Court, having been elected to
the Chamber, would stand down at the request of the President in favour
of an ad hocjudge to be later named by the State concerned. This standing-
down procedure was required in the case of all -ad hoc judges in all cham-
bers. It is still required by Article 31, paragraph 4, of the Statute in relation
to all chambers and by Article 17, paragraph 2, of the Rules of Court
(amended specifically in 1978 to provide for this) in relation to ad hoc
chambers in particular. The subsequent movement away from that pro-
cedure, as it was applied in the Gulf of Maine case, seemed inextricably
linked with, and to have followed as the practical consequence of, the
working of another part of Article 17, paragraph 2, of the Rules of Court
(first introduced as Article 26, paragraph 1, of the 1972 Rules) which in
substance sought to confer on the parties a right to have their views taken

8
167 DISPUTE (EL SALVADOR/HONDURAS) (SEP. OP. SHAHABUDDEEN)

into account by the Court as to the particular Members of the Court who
should be elected by the Court to an ad hoc chamber. The object seems to
have been “to accord to the parties a decisive influence in the composition
of ad hoc Chambers” (Eduardo Jiménez de Aréchaga, “The Amendments
to the Rules of Procedure of the International Court of Justice”, American
Journal of International Law, Vol. 67, 1973, p. 2).

Without examining the legal implications of these developments, but
against the background which they represent, I come now to the juridical
character of the Order made today: is it constitutive of an appointment
made by the Court of a new ad hoc judge? Or is it merely a formal judicial
record of an appointment of a new ad hoc judge made by the State con-
cerned? In short, who appoints an ad hoc judge? Is it the Court? Or is it
the State concerned?

It is, I believe, common to speak of an ad hoc judge being appointed
by the State concerned. On the other hand, the case can be made that
the admission by the Court of an ad hoc judge to the Bench constitutes
the exercise of a power of appointment by the Court granted to it by
Article 31, paragraphs 2 to 6, of the Statute (see Georg Schwarzenberger,
International Law as Applied by International Courts and Tribunals,
Vol. IV, p. 374). This view commands respect, and so I proceed to consider
some of the matters which might be opposed to the more common usage.

Article7 of the Rules of Court relating to the admission of ad hocjudges
to sit on the Bench of the Court would seem to contemplate the procedure
visualized by Article 20 of the Statute reading:

“Every Member of the Court shall, before taking up his duties,
make a solemn declaration in open court that he will exercise his
powers impartially and conscientiously.”

The requirement to make this declaration is imposed on ad hoc judges by
Article 31, paragraph 6, of the Statute. It seems reasonably clear, however,
that the requirement is directed not to appointment but only to assump-
tion of duties. The text of Article 20 of the Statute implies that the person
concerned is a judge even before he makes the declaration. The admission
procedure seems, therefore, to leave open the question by whom and as
from when is a person appointed an ad hoc judge.

Article 35, paragraph 5, of the Rules of Court states, “A judge ad hoc
who has accepted appointment but who becomes unable to sit may
be replaced”; but there seems to be no necessary implication that the
“appointment” referred to is one made by the Court. In the Namibia
case (1.C.J. Reports 1971, p. 19, para. 10) and the Western Sahara case
(LC.J. Reports 1975, p. 15, para. 8), in both of which the Court used
the word “appointment” with reference to ad hoc judges, it would appear
that the question which the Court was seeking to determine was not
whether it should appoint ad hoc judges (which would have assumed
that it had the power to do so), but whether the required conditions were
satisfied so as to entitle the States concerned to do so. This, I think,

9
168 DISPUTE (EL SALVADOR/HONDURAS) (SEP. OP. SHAHABUDDEEN)

was how Judge Fitzmaurice understood the position in the Namibia case,
in which he said (dissenting):

“The Court’s rejection of the South African request to be allowed
to appoint a judge ad hoc in the present case was embodied in the
Order of the Court of 29 January 1971...” (CJ. Reports 1971, p. 308,
para. 17.)

That understanding, that the appointment is to be made by the State
concerned, does not seem inconsistent with the case concerning the Con-
tinental Shelf (Libyan Arab Jamahiriya/Malta) (I.C.J. Reports 1984, p. 5)
where paragraph 3 of the Judgment of the Court reads:

“Since the Court did not include upon the bench a judge of Libyan
or of Maltese nationality, each of the Parties proceeded to exercise
the right conferred by Article 31, paragraph 3, of the Statute to
choose a judge ad hocto sit in the case. On 27 July 1982 the Libyan
Arab Jamahiriya designated Mr. Eduardo Jiménez de Aréchaga, and
the Parties were informed on 8 October 1982, pursuant to Article 35,
paragraph 3, of the Rules of Court, that there was no objection to
this appointment; on 26 April 1983 Malta designated Mr. Jorge
Castafieda, and on 30 May 1983 the Parties were informed that
there was no objection to this appointment.”

Though the matter could be argued both ways, I prefer the view that
the notification “that there was no objection to this appointment” could
not constitute an act of appointment by the Court itself. On the con-
trary, it presupposed the existence of an appointment made by some other
authority. The language in the quoted passage seemed to be equating
a “choosing” by the State concerned with a “designation” by it, and in
turn equating a “designation” by the State with an “appointment” by
it, all three concepts being used interchangeably.

Earlier usage of relevant terms may also be consulted. Article 27 of the
second part of the Root-Phillimore plan read: “If... there is no judge
upon the Court belonging to one of the litigating States, that State shall. . .
appoint a judge” (Permanent Court of International Justice, Advisory
Committee of Jurists, Procés-Verbaux of the Proceedings of the Committee,
June 16th-July 24th 1920, with Annexes, The Hague, 1920, p. 327). Judge
Hudson spoke similarly, using the word “chosen” interchangeably with
the word “appoint” (Manley O. Hudson, The Permanent Court of Interna-
tional Justice, 1920-1942, New York, 1943, pp. 181, 276, 361-364, and the
references therein given). So also did Fachiri (A. P. Fachiri, The Perma-
nent Court of International Justice, 2nd ed., 1932, p. 59; and see later Shab-
tai Rosenne, The Law and Practice of the International Court, 1965, Vol. 1,
pp. 205-210). Absolute consistency of usage cannot be predicated. Thus,
the records of the Washington Committee of Jurists 1945 state that “Judge
Hudson noted that under paragraph 2 of Article 26 [of the Statute] the

10
169 DISPUTE (EL SALVADOR/HONDURAS) (SEP. OP. SHAHABUDDEEN)

Court could not appoint ad hocjudges”, language which might be thought
to suggest that, in cases in which an ad hoc judge could be appointed, it is
the Court which makes the appointment (Documents of the United Nations
Conference on International Organization, San Francisco, 1945, Vol. XIV,
p. 224). Generally speaking, however, almost all of the references in the
relevant correspondence and discussions were to ad hoc judges being
appointed by the parties (see, for example, P.C_LJ., Series D, No. 2,
pp. 177,215; PCIJ., Series D, Third Addendum to No. 2, pp. 26, 31-33, 306,
386-394, 422, 478-491; the Losinger case, P.C.I.J., Series C, No. 78,
pp. 392-393; League of Nations, Committee of Jurists on the Statute of
the Permanent Court of International Justice, Minutes, Geneva, 1929, p. 53,
per M. Fromageot; and the “Report of the Informal! Inter-Allied Com-
mittee on the Future of the Permanent Court of International Justice”,
American Journal of International Law, Supplement, Vol. 39, 1945, p. 12,
para. 41). The Permanent Court of International Justice itself spoke in
terms of ad hoc judges being appointed by the parties. Thus, in the case
of the Customs Régime between Germany and Austria(P.C.LJ., Series A/B,
No. 41, p. 90), the Court formally decided that there was “no ground in
the present case for the appointment of judges ad hoc either by Austria
or Czechoslovakia” (see also P.C.IJ., Series C, No. 53, p. 189). Similar
language was used by the Court in the case of the Consistency of Certain
Danzig Legislative Decrees with the Constitution of the Free City (P.C.1.J.,
Series A/B, No. 65, pp. 70-71. And see P.C.I.J., Series E, No. 4, p. 296).

In the course of the 1922 discussions of the Permanent Court held to
prepare its first set of Rules, President Loder said “that a text would be
drafted, making it clear that”, if a judge nominated under Article 31 of the
Statute were affected by the provisions of Article 17,

“by virtue of the last paragraph of Article 31 of the Statute, the nomi-
nation of [such] a judge could, in such circumstances, be declared
null and void by the Court; in this case the right of the parties to
nominate a judge of their nationality would lapse” (P.C_LJ., Series D,
No. 2, p. 119).

I incline towards Judge Hudson’s opinion that the last sentence was not a
necessary consequence of what went before (Hudson, op. cit., p. 364. Cf.
Geneviéve Guyomar, Commentaire du Réglement de la Cour internationale
de Justice, 1983, p. 212). As to what went before, it is noteworthy that the
suggested text, if it was drafted, was never promulgated. The explanation
is not clear, but I should not be surprised if it was connected with possible
argument that Article 17, paragraph 2, of the Statute takes the form of
a prohibition directed to an existing Member of the Court against par-
ticipating in the decision of a case in certain circumstances, with the
result that, strictly speaking, a decision of the Court under Article 17,
paragraph 3, of the Statute is confined to the effect of that prohibition on

11
170 DISPUTE (EL SALVADOR/HONDURAS) (SEP. OP. SHAHABUDDEEN)

participation and does not encompass questions as to the validity of
membership itself. Be that as it may, it would not appear that the power
to declare a nomination null and void implies that it is the Court which is
vested with the power of appointment. Judge Fromageot put the matter
this way in 1932:

“The right of a party to appoint a judge ad hoc was not subject to
the Court’s authorization; but the Court could consider whether in a
particular case the conditions to which the exercise of that right was
subject were fulfilled; if they were not, the Court could deliver an
order declaring the appointment inadmissible, but not without hear-
ing arguments on the point.” (P.CLJ., Series D, Third Addendum
to No. 2, p. 18, footnote.)

Thus, the Order of the Court declaring the appointment inadmissible does
not diminish the fact that the appointment is nevertheless made by
the party concerned and is not subject to the Court’s authorization.
Paragraphs 4 and 5 of Article 35 of the Rules of Court are to be read
harmoniously with this overriding position under the Statute.

The matter is complicated by a textual change made in 1945. Article 31
of the 1920 Statute, as amended with effect from 1 February 1936,
appeared, in the English text, to be using the words “chosen”, “selected”
and “appointed” interchangeably in relation to national judges. In parti-
cular, persons “chosen” to sit as judges under Article 31, paragraph 2,
of the Statute were clearly equated with “judges specially appointed by
the parties”, as so referred to in paragraph 4 of the Article. Since the
word “appointed” was replaced by the word “chosen” in 1945, this
might be thought to indicate a change of substance supportive of the
opposite view. And the strength of that argument is recognized. But the
structure of the machinery remained the same and no change on this
aspect was made in the French text, which had used the word “désignés”
where the English text had used the word “appointed”. This being so, if
ad hoc judges were regarded as “appointed by the parties” and not by the
Permanent Court, it is difficult to see how the mere change of wording
in the English text in 1945 could imply that ad hoc judges were now to be
appointed by the present Court. Possibly the change in the English text
was attributable to considerations of style, as indeed was suggested by
Judge Hudson (Manley O. Hudson, “The Twenty-Fourth Year of the
World Court”, American Journal of International Law, Vol. 40, 1946,
p. 29). The official records of the sixth meeting of the Advisory Com-
mittee of Jurists of the San Francisco Conference, where the change was
made, offer no explanation (Documents of the United Nations Conference
on International Organization, San Francisco, 1945, Vol. XVII, p. 413).

It may be added — though here I tread with particular diffidence —

12
171 DISPUTE (EL SALVADOR/HONDURAS) (SEP. OP. SHAHABUDDEEN)

that the relevant words in the French text (which did not materially
change on these aspects) were “désigner”, “désignation” and “désignés”.
The word “désignation” has been defined to mean inter alia, “Indication
d’une personne déterminée pour occuper un poste ou remplir une
mission ...” (Vocabulaire juridique, publié sous la direction de Gérard
Cornu, Presses universitaires de France, 1987, p. 260). The key expres-
sion in Article 31, paragraph 2, in the French text of the existing Statute
reads, “toute autre partie peut désigner une personne de son choix pour
siéger en qualité de juge”. The word “désigner”, read with the word
“choix”, may mean something more than a simple choice; it would seem
to connote the full juridical act denoted by the English word “appoint”.
On the other hand, while the word “appoint” may not always mean
“choose”, it can and sometimes does (see Corpus Juris Secundum, Vol. 6,
pp. 100-101, and State of New Jersey v. Provenzano (1961) 169 A 2d 135,
34 N.J. 318). It seems to follow that the English word “choose” and the
French word “désigner” were both intended, in the particular context
in which they were used, as the juridical equivalent of the English word
“appoint”.

Against this background, Article 31 of the Statute may now be looked at
alittle further. Article 31, paragraph 2, says “any other party may choose a
person to sit as judge”. The import of that language is brought out in the
reference in Article 31, paragraph 3, to parties proceeding “to choose a
judge as provided in paragraph 2 of this Article”. Seemingly, the person
chosen under paragraph 2 is regarded as a judge once chosen. Article 31,
paragraph 4, likewise speaks of “the judges specially chosen by the parties”
(emphasis added). And Article 31, paragraph 6, states:

“Judges chosen as laid down in paragraphs 2, 3 and 4 of this Article
shall fulfil the conditions required by Articles 2, 17 (paragraph 2), 20
and 24 of the present Statute. They shall take part in the decision on
terms of complete equality with their colleagues.” (Emphasis added.)

The exercise of the power of choice seems directly constitutive of the
status of an ad hoc judge.

The right to appoint an ad hoc judge touches the composition of the
Court and consequently is directly governed by the Court’s constituent
instrument, namely, its Statute. Article 31 is the particular provision of the
Statute concerned with the process of constituting a person as an ad hoc
judge. It does not seem to offer the Court a role at any point in that pro-
cess, either directly or indirectly through the other provisions referred to
in it. The limits of the Court’s rule-making power under Article 30 of the
Statute (however generously construed) would not enable it, by making
Rules of Court, to assume a role in that process not entrusted to it by the
Statute. The Statute appears to leave the matter to the State concerned.

13
172 DISPUTE (EL SALVADOR/HONDURAS) (SEP. OP. SHAHABUDDEEN)

This would accord with the fact that the institution of ad hocjudges as part
of the composition of the Bench of the Court was effectively a limited
carry-over from arbitral experience.

In sum, it is difficult to identify any acts of the Court from which an
ad hocjudge may be said to derive his authority to act. Though recognizing
the force of arguments to the opposite effect, on balance I prefer the view
that the appointment of such a judge is constituted by the act of the State
concerned in choosing him, the role of the Court being limited to the nega-
tive one of determining whether any ground (whether or not going to the
validity of his appointment) exists for debarring him from sitting in the
case. If this is correct, it leads to the view that the Order made today is not
constitutive of an appointment made by the Court but is merely a formal
judicial record of an appointment made by the State concerned. I would
like in turn to record that it is on the basis of this understanding that I
support the Order.

(Signed) Mohamed SHAHABUDDEEN.

14


900

          DISSENTING OPINION OF JUDGE BENNOUNA

[Original English Text]

   Exercise in pure formalism — Introduction of a subjective criterion in
determining the existence of the dispute — Sound administration of justice —
Realism and flexibility of the case law of the Court — The existence of the dispute,
a question to be objectively decided.

   The Court has declared that it lacks jurisdiction in the three cases
brought by the Marshall Islands against India, Pakistan and the United
Kingdom respectively, on the same grounds: the non-existence of a dis-
pute between the Parties. Consistently, I have voted against each of the
three Judgments adopted by the Court, and for the same reasons set forth
in this opinion.
   Naturally, the Marshall Islands has invoked the 1968 Treaty on the
Non-Proliferation of Nuclear Weapons (NPT) as well as customary inter-
national law in the proceedings against the United Kingdom, these
two States being parties to the treaty. However, the Marshall Islands
has referred only to customary international law regarding India and
Pakistan, which are not parties to the NPT.
   The reasoning of the Court, however, does not address the issue of the
customary nature of Article VI of the NPT which goes to the merits of
the case. The same applies to the Court’s consideration of whether or not
the Respondents have complied with the obligation to negotiate, which is
the subject-matter of the proceedings brought by the Marshall Islands.
   Yet, with regard to the existence of a dispute, the Court has followed
the same approach to achieve a similar result in each of the three Judg-
ments.

                                          *
                                      *       *

   The Marshall Islands has brought before the Court a dispute between
itself and nine countries which hold, or are presumed to hold, nuclear
weapons, regardless of whether those countries are parties to the NPT.
The Court listed three cases against India, Pakistan and the United King-
dom, which have made declarations recognizing the jurisdiction of the
Court, pursuant to Article 36, paragraph 2, of the Statute. The Court has
found that it lacks jurisdiction in these three cases, on the grounds that no
disputes exist between each of the three States and the Marshall Islands.
   This is the ﬁrst time that the International Court of Justice has found
that it has no jurisdiction on the sole basis of the non-existence of a dispute
between the Parties. A reading of the Judgment of the Court reﬂects the
fact that the majority came to this conclusion only by an exercise in pure

71

901      nuclear arms and disarmament (diss. op. bennouna)

formalism, artiﬁcially stopping the time of law and analysis at the date of
submission of the request by the Marshall Islands. And as if that were not
enough, the majority has resorted to a “criterion” bearing no relation to the
well-established case law whereby in order for a dispute to exist, the respon-
dent must have been “aware, or could not have been unaware, that its
views were ‘positively opposed’ by the applicant” (Judgment, para. 41).
   The introduction of this criterion, linked to the subjective views of the
Respondent and of those conducting the analysis, clearly goes against the
entire case law of the ICJ and PCIJ, according to which the existence of a
dispute is determined objectively by the Court on the basis of the evidence
available to it, when it adopts its judgment. The Court has thus been able
to administer justice soundly and avoid the absurd situation in which it
now ﬁnds itself after declaring that it lacks jurisdiction in the three
Judgments on Obligations concerning Negotiations relating to Cessation of
the Nuclear Arms Race and to Nuclear Disarmament. Indeed, the Parties
have disagreed clearly before the Court on points of fact and law, thereby
demonstrating the existence of legal disputes on the questions submitted
to it.
   In other words, the disputes are indeed there — and it would be suﬃ-
cient for the Marshall Islands to ﬁle fresh applications before the Court in
order to prevent the ground of lack of jurisdiction on which it has based
itself in handing down its Judgments from being invoked again!
   The Court, when faced with such situations, has ﬁrst noted that its
jurisdiction must normally be ascertained at the time of the institution of
the proceedings. But it has gone further and recalled that “like its prede-
cessor, [it] has also shown realism and ﬂexibility in certain situations in
which the conditions governing the Court’s jurisdiction were not fully
satisﬁed when proceedings were initiated but were subsequently satisﬁed,
before the Court ruled on its jurisdiction” (Application of the Convention
on the Prevention and Punishment of the Crime of Genocide (Croatia v.
Serbia), Preliminary Objections, Judgment, I.C.J. Reports 2008, p. 438,
para. 81).
   In particular, the Court refused to declare itself incompetent when it was
suﬃcient for the Applicant to “ﬁle a new application, identical to the present
one, which would be unassailable in this respect” (Application of the Conven-
tion on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports
1996 (II), p. 614, para. 26). Many more instances could be cited in which
the PCIJ, and then the ICJ, have rejected resorting to a formalism that is
excessive and contrary to the sound administration of justice.
   In the relationship between international law and time, there is a ratio-
nal element, namely the determination of a point in time beyond which,
theoretically, one must stop the watch, and a pragmatic element in order
to take into account the particular circumstances of the situation. The
judge in exercising its art, has to strike the right balance between these
elements, so that justice is done and seen to be done.
   International judges had a duty to be even more vigilant in the present
case, which concerns a question of crucial importance for security in the

72

902      nuclear arms and disarmament (diss. op. bennouna)

world. That is another reason for the principal judicial organ of the
United Nations to undertake its role fully. Indeed, how can it shelter
behind purely formalistic considerations which both legal professionals
and ordinary citizens would ﬁnd diﬃcult to understand, rather than con-
tributing, as it should do, to peace through international law, which is the
raison d’être of the Court.
   The only issue here was the scope of the obligation to negotiate laid
down in Article VI of the NPT, an obligation that is also part of custom-
ary international law according to the Marshall Islands:
         “Each of the Parties to the Treaty undertakes to pursue negotia-
      tions in good faith on eﬀective measures relating to cessation of the
      nuclear arms race at an early date and to nuclear disarmament, and
      on a treaty on general and complete disarmament under strict and
      eﬀective international control.”
   This obligation is well known to all those who have attended the meet-
ings of States parties to the NPT, which have been held regularly for
more than 40 years or so. It is also known to the Court, which, in its
famous Advisory Opinion of 8 July 1996 on Legality of the Threat or Use
of Nuclear Weapons, pronounced clearly on the subject as follows:

        “The legal import of that obligation goes beyond that of a mere
     obligation of conduct; the obligation involved here is an obligation
     to achieve a precise result — nuclear disarmament in all its aspects —
     by adopting a particular course of conduct, namely, the pursuit of
     negotiations on the matter in good faith.” (I.C.J. Reports 1996 (I),
     p. 264, para. 99.)
   For the background to the dispute in question, its human substance,
we have to consider a small State, the Marshall Islands, whose population
of a few tens of thousands of people has suﬀered terribly from the nuclear
testing carried out in an area of its territory. This State has turned to the
principal judicial organ of the United Nations to seek justice, so that such
suﬀering does not occur again in future, through compliance with a con-
ventional and/or customary obligation under international law. That,
however, is a matter which the Court would have had to deal with when
considering this case on the merits. And we have not reached that point,
we are simply at the stage of jurisdiction.
   But what is the Court doing? Something novel, by concluding that no
dispute exists, so that it does not have to consider the merits of the case.
In a sense, the Court is setting little store by its jurisprudence, which is
nonetheless what ensures that it is both visible and credible.
   Judge Abraham referred to the well-established approach of the Court,
in his separate opinion appended to the Judgment in the Georgia v. Rus-
sian Federation case (Judgment on Preliminary Objections of 1 April 2011):
        “I shall ﬁrst observe that until the present case the Court, whenever
      required to decide on a preliminary objection based on the respond-

73

903       nuclear arms and disarmament (diss. op. bennouna)

      ent’s contention that there was no dispute, has made its decision —
      rejecting the objection — in a few short paragraphs, and has made the
      determination as of the date on which it was ruling, ﬁnding that the
      parties held clearly conﬂicting views at that date on the matters con-
      stituting the subject of the application and consequently that a dispute
      existed between them.” (I.C.J. Reports 2011 (I), p. 226, para. 8.)
   However, the Court did not change its position when dealing with that
case between Georgia and the Russian Federation in 2011. In fact, it
accepted that a dispute existed between the parties about the interpreta-
tion or application of the International Convention on the Elimination of
All Forms of Racial Discrimination (CERD), as Judge Abraham
acknowledged. But it was obliged to decline jurisdiction in the case
because the compromissory clause in the Convention on which the case
was based (Art. 22) relates to “[a]ny dispute . . . which is not settled by
negotiation or by the procedures expressly provided for in this Conven-
tion”. It was this prior condition for referral to the Court which had not
been satisﬁed, and not that of the existence of the dispute.

   We therefore do indeed have a jurisprudence which takes “a strictly
realistic and practical view, free of all hints of formalism”, as Judge Abra-
ham put it in his opinion (Application of the International Convention on
the Elimination of All Forms of Racial Discrimination (Georgia v. Russian
Federation), Judgment, I.C.J. Reports 2011 (I), p. 228, para. 14), and
which allows the Court to determine the existence of a dispute not only
on the basis of acts that took place prior to the ﬁling of the Application,
but also on that of the positions adopted by the parties in the course of
the written and oral proceedings. The important thing is to establish “a
disagreement on a point of law or fact, a conﬂict of legal views or of
interests”, to use the classic wording of the PCIJ’s Judgment in the Mav-
rommatis Concessions case in 1924 (Judgment No. 2, 1924, P.C.I.J.,
Series A, No. 2, p. 11).
   In the cases brought before the Court by the Marshall Islands, the lat-
ter has placed emphasis on the statement that it made, before the ﬁling of
its Application, at the Second Conference on the Humanitarian Impact of
Nuclear Weapons, held in Narayit (Mexico) on 13 and 14 February 2014,
when it declared:
         “Indeed we believe that States possessing nuclear arsenals are fail-
      ing to fulﬁl their legal obligations in this regard. Immediate com-
      mencement and conclusion of such negotiations is required by legal
      obligation of nuclear disarmament resting upon each and every State
      under Article VI of the Non-Proliferation Treaty and customary
      international law. It also would achieve the objective of nuclear dis-
      armament long and consistently set by the United Nations, and fulﬁl
      our responsibilities to present and future generations while honouring
      the past ones.”

74

904      nuclear arms and disarmament (diss. op. bennouna)

   The Court has recalled on numerous occasions that its determination
of the existence of a dispute “must turn on an examination of the facts”,
and that “[t]he matter is one of substance, not of form” which requires
“objective determination”. Such a dispute “may be inferred from the fail-
ure of a State to respond to a claim in circumstances where a response is
called for” (Application of the International Convention on the Elimination
of All Forms of Racial Discrimination (Georgia v. Russian Federation),
Preliminary Objections, Judgment, I.C.J. Reports 2011 (I), p. 84, para. 30).
Hence in the present case, in order for the Court to determine objectively
that the dispute exists, it is suﬃcient to establish that the Marshall Islands
has clearly accused the “nuclear” States of failing to comply with Arti-
cle VI of the NPT or the corresponding customary obligation, and that
the Respondent countries have maintained, each for its own part, that
they were fulﬁlling the obligation in question.
   In its previous case law, the Court took account of the positions
adopted by the parties during the proceedings when it sought to deter-
mine the dispute objectively. If it had not proceeded in such a way, the
Court could have arrived at an absurd conclusion by making time stand
still on the date when the Application was ﬁled; the subject of the dispute
might have changed, or even disappeared, according to the positions set
forth before the Court. Let us even suppose that the premises of a dispute
have taken shape before the ﬁling of the Application and that the oppos-
ing views have been expressed clearly during the proceedings, can the
Court then declare that it lacks jurisdiction on the basis of a question of
form and not of substance or content? At the risk, as in the present case,
of seeing the Applicant ﬁle a new application immediately after the ﬁnd-
ing of lack of jurisdiction is announced! Where is the sound administra-
tion of justice in all of that?
   The Court has in fact operated in a “realistic and practical” way, and
with pragmatism, since its function is to settle disputes when they are
established before it, and not to shelter behind some kind of formalism,
at the risk of witnessing a deterioration in the situation between the par-
ties.
   Thus, in the Judgment on preliminary objections delivered on 11 July
1996 in the case concerning Application of the Convention on the Preven-
tion and Punishment of the Crime of Genocide (Bosnia and Herzegovina v.
Yugoslavia), Yugoslavia contested the existence of a dispute with Bosnia
and Herzegovina regarding violation of the Convention on the Preven-
tion and Punishment of the Crime of Genocide. The Court found that
Yugoslavia had “wholly denied all of Bosnia and Herzegovina’s allega-
tions, whether at the stage of proceedings relating to the requests for the
indication of provisional measures, or at the stage of the . . . proceedings
relating to [preliminary] objections” (I.C.J. Reports 1996 (II), p. 614,
para. 28), i.e., after the date when the Application was ﬁled.
   In the Judgment on preliminary objections delivered on 10 February
2005 in the case concerning Certain Property (Liechtenstein v. Germany),
the Court referred to the Parties’ positions during the proceedings in

75

905      nuclear arms and disarmament (diss. op. bennouna)

order to determine the existence of a dispute. It thus found that “in the
present proceedings complaints of fact and law formulated by Liechten-
stein against Germany are denied by the latter”, concluding that “[i]n
conformity with well-established jurisprudence . . . there is a legal
dispute . . . between Liechtenstein and Germany” (I.C.J. Reports 2005,
p. 19, para. 25). The Court relied in this respect on the precedent from
the Genocide case in 1996, as cited above. For the sake of completeness, it
should be mentioned that:
      “[t]he Court further notes that Germany’s position taken in the course
      of bilateral consultations and in the letter . . . of 20 January 2000
      [before the ﬁling of the Application] has evidentiary value in support
      of the proposition that Liechtenstein’s claims were positively opposed
      by Germany” (ibid.).
   In other words, the Court took note of the positions of the parties prior
to the ﬁling of the Application only once it had determined the existence
of a dispute on the basis of the exchanges between them during the pro-
ceedings. All of this serves to reinforce the practical, realistic and prag-
matic nature of the Court’s jurisprudence, in accordance with the principle
of consent upon which its jurisdiction is founded and with the principle of
equality between the parties.
   In light of the Court’s well-established jurisprudence on the existence of
a dispute, which takes account of all the evidence available to the Court
at the point when it decides on and adopts its judgment, one might have
thought that the positive opposition between the respective views of the
Marshall Islands and each of the Respondents should logically have led
the Court to dismiss the objection of lack of jurisdiction based on the
absence of a dispute. However, the matters at stake in these cases are such
that the majority has sought to adduce another argument, of a subjective
nature, which has nothing to do with that jurisprudence. This is said to be
the “determination” that the Respondent “was aware or could not have
been unaware that its views were ‘positively opposed’ by the Applicant”.
The majority relies in this respect on the Judgment on preliminary objec-
tions delivered on 17 March 2016 in the case concerning Alleged Viola-
tions of Sovereign Rights and Maritime Spaces in the Caribbean Sea
(Nicaragua v. Colombia) (I.C.J. Reports 2016 (I), p. 3). First, however,
the Marshall Islands and the Respondent States had no knowledge of
that Judgment, since it was handed down on 17 March 2016, after the
closure of the oral proceedings in the present case, which took place from
9 to 16 March 2016. And, second, it concerned a case in which, in the face
of all the evidence, Colombia argued that it was unaware of Nicaragua’s
position with regard to the implementation of and compliance with a
judgment of the Court.
   The second Judgment invoked in support of this subjective argument
employed in order to conclude that there is no dispute is taken from the
Georgia v. Russian Federation case. In that case, however, the point at
issue was the application of a compromissory clause, Article 22 of CERD,

76

906     nuclear arms and disarmament (diss. op. bennouna)

which lays down, as a precondition for the Court’s jurisdiction, the exis-
tence of a dispute that falls within the scope of that Convention and,
above all, the holding of negotiations on the matter beforehand between
the parties.
   To my mind, the so-called determination of “being aware or having
been aware” cannot be used as a lifeline for a decision which is in no way
related to the well-established case law of the Court on this question. The
majority has tried to remove these two cases from their contexts. In the
Nicaragua v. Colombia case, the latter could not have been unaware of the
problem posed by the application of a judgment in a case to which it had
been party. In putting forward, on that basis, a new criterion for the exis-
tence of a dispute, the majority is seriously compromising the approach of
the Court in future to the question of whether a dispute exists.
   By placing itself, in this way, in a diﬃcult position which it has
attempted to justify, but without success, the majority is consequently not
allowing the Court to fulﬁl its function as the principal judicial organ of
the United Nations, whose task is to assist the parties in settling their
disputes and thereby to contribute to peace through the implementation
of international law.

                                        (Signed) Mohamed Bennouna.

77


1359

SEPARATE OPINION OF JUDGE HIGGINS

Removal from the List other than for reasons of discontinuance — Inherent
powers of the Court — Inherent powers not limited to two existing examples —
Reasons why this case should have been removed from the List — Inappropriate
for Judgment to have pronounced on Article 35, paragraph 2, of Statute.

1. The Court in its Judgment finds that the Observations of Serbia and
Montenegro have not had the legal effect of discontinuance of proceed-
ings under the Rules (para. 30). I agree. It is clear that the Applicant has
declined to “discontinue”, and that “discontinuance” as envisaged in the
Rules is dependent on the consent of the Parties.

2. The Court further observes that:

“Prior to the adoption of Article 38, paragraph 5, of the Rules of
Court, in a number of cases in which the application disclosed no
subsisting title of jurisdiction, but merely an invitation to the State
named as respondent to accept jurisdiction for the purposes of the
case, the Court removed the cases from the List by order. By Orders
of 2 June 1999, it removed from the List two cases brought by Serbia
and Montenegro concerning Legality of the Use of Force against
Spain and the United States of America, on the ground that the
Court ‘manifestly lack[ed] jurisdiction’ (Z C.J. Reports 1999, pp. 773
and 925).” (Judgment, para. 31.)

3. The Court then observes that “[t]he present case does not however
fall into either of these categories”. The Court thus appears to regard
these as a closed list of categories for the removal of cases from the List
(other than where discontinuance has occurred), and to suggest that no
removal from the List was open to the Court in the present case as the
facts do not fall within the existing two examples.

4. A case may be discontinued by the applicant alone and an order
issued to remove it from the List (Denunciation of the Treaty of 2 Novem-
ber 1865 between China and Belgium, Order of 25 May 1929, P.C.LJ.,
Series A, No. 18; Legal Status of the South-Eastern Territory of Green-
land, Order of 11 May 1933, P.C.I.J., Series AIB, No. 55, p. 157; Protec-
tion of French Nationals and Protected Persons in Egypt, Order of
29 March 1950, I. C.J. Reports 1950, p. 59; Electricité de Beyrouth Com-
pany, Order of 29 July 1954, I. C.J. Reports 1954, p. 107; Aerial Incident
of 27 July 1955 (United Kingdom v. Bulgaria), Order of 3 August 1959,

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1360 LEGALITY OF USE OF FORCE (SEP. OP. HIGGINS)

LC.J. Reports 1959, p. 264; Aerial Incident of 27 July 1955 (United
States of America v. Bulgaria), Order of 30 May 1960, I.C.J. Reports
1960, p. 146; Barcelona Traction, Light and Power Company, Limited,
Order of 10 April 1961, I.C.J. Reports 1961, p. 9; Trial of Pakistani Pris-
oners of War, Order of 15 December 1973, I.C.J. Reports 1973, p. 347;
Border and Transborder Armed Actions (Nicaragua v. Costa Rica),
Order of 19 August 1987, I.C.J. Reports 1987, p. 182; Military and Para-
military Activities in and against Nicaragua (Nicaragua v. United States
of America), Order of 26 September 1991, I C.J. Reports 1991, p. 47;
Border and Transborder Armed Actions (Nicaragua v. Honduras), Order
of 27 May 1992, L. C.J. Reports 1992, p. 222; Passage through the Great
Belt (Finland v. Denmark), Order of 10 September 1992, I. C.J. Reports
1992, p. 348; Maritime Delimitation between Guinea-Bissau and Senegal,
Order of 8 November 1995, I.C.J. Reports 1995, p. 423; Vienna Conven-
tion on Consular Relations (Paraguay v. United States of America),
Order of 10 November 1998, I.C.J. Reports 1998, p. 426; Armed Activi-
ties on the Territory of the Congo (Democratic Republic of the Congo v.
Burundi), Order of 30 January 2001, I. C.J. Reports 2001, p. 3; Armed
Activities on the Territory of the Congo (Democratic Republic of
the Congo v. Rwanda), Order of 30 January 2001, I.C.J. Reports 2001,
p. 6).

5. There is a comparable, and analogous, practice relating to discon-
tinuance upon the agreement of the parties, removal from the List being
effected by order. Among the many examples are Delimitation of the Ter-
ritorial Waters between the Island of Castellorizo and the Coasts of Ana-
tolia, Order of 26 January 1933, P.C.I.J., Series AIB, No. 51, p. 4;
Compagnie du Port, des Quais et des Entrepôts de Beyrouth and Société
Radio-Orient, Order of 31 August 1960, I.C.J. Reports 1960, p. 186; Cer-
tain Phosphate Lands in Nauru (Nauru v. Australia), Order of 13 Sep-
tember 1993, I.C.J. Reports 1993, p. 322; Questions of Interpretation and
Application of the 1971 Montreal Convention arising from the Aerial
Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom),
Order of 10 September 2003, I.C.J. Reports 2003, p. 149; Questions of
Interpretation and Application of the 1971 Montreal Convention arising
from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United
States of America), Order of 10 September 2003, I.C.J. Reports 2003,
p. 152.

6. The Court has also declined to proceed with cases in circumstances
other than discontinuance under the Rules. The Permanent Court termi-
nated interim measures proceedings in the Prince von Pless Administra-
tion case, on the grounds that the request made by Germany in its Appli-
cation had ceased to have any object (Order of 11 May 1933, P.C.LJ.,
Series AIB, No. 54, p. 150). And in the Northern Cameroons case, the
Court declined to proceed further with a case for what it saw as reasons
of judicial propriety (Preliminary Objections, Judgment, CJ.
Reports 1963, p. 29). In the Nuclear Tests cases, the Court did not
regard itself as constrained by the fact that Australia and New Zealand

57
1361 LEGALITY OF USE OF FORCE (SEP. OP. HIGGINS)

had not, after the French announcement of the conclusion of its testing,
discontinued the proceedings under Article 74 of the 1972 Rules. The
Court stated that “this does not prevent the Court from making its own
independent finding” (Nuclear Tests (Australia v. France), Judgment,
ICI. Reports 1974, p. 270, para. 54; Nuclear Tests (New Zealand v.
France), Judgment, I.C.J. Reports 1974, p. 476, para. 57) and it deter-
mined that “the object of the claim has been achieved by other means”
— i.e., means other than litigation (Nuclear Tests (Australia v. France),
Judgment, I.C.J. Reports 1974, p. 271, para. 55; Nuclear Tests (New
Zealand v. France), Judgment, I.C.J. Reports 1974, p. 476, para. 58).

7. In a pertinent dictum the Court stated that it saw:

“no reason to allow the continuance of proceedings which it knows
are bound to be fruitless. While judicial settlement may provide a
path to international harmony in circumstances of conflict, it is none
the less true that the needless continuance of litigation is an obstacle
to such harmony.” (Nuclear Tests (Australia v. France), Judgment,
C.J. Reports 1974, p. 271, para. 58; Nuclear Tests (New Zea-
land v. France), Judgment, I.C.J. Reports 1974, p. 477, para. 61.)

In both the Northern Cameroons and Nuclear Tests cases, the Court
decided not to adjudicate further and did not issue a formal order.

8. In its Orders of 2 June 1999 (Legality of Use of Force ( Yugosla-
via v. United States of America), Provisional Measures, Order of
2 June 1999, C.J. Reports 1999, p. 916; Legality of Use of Force
(Yugoslavia v. Spain), Provisional Measures, Order of 2 June 1999,
1 C.J. Reports 1999, p. 761) the Court had removed the cases from the
List after hearings on provisional measures, on the grounds that the
Court manifestly lacked jurisdiction. And, as was recognized in the Judg-
ment at paragraph 31, prior to the formulation of Article 38, para-
graph 5, of the Rules of Court, there were cases removed from the List
because the application was merely an invitation to the respondent.

9. These were actions by the Court in the exercise of its inherent
powers. The precedents on removal from the List cited by the Court
— where from the outset no subsisting title of jurisdiction has been
disclosed, or where the Court manifestly lacked jurisdiction — do not
constitute two exclusive categories within which the Court has to fall if it
wishes to exercise its inherent powers in the absence of discontinuance.
There is nothing in the case law that so suggests. Indeed, it is hard to
know what might be the legal source of a right to remove cases from the
List provided only that this would be limited to these two examples.

10. The Court’s inherent jurisdiction derives from its judicial character
and the need for powers to regulate matters connected with the adminis-

58
1362 LEGALITY OF USE OF FORCE (SEP. OP. HIGGINS)

tration of justice, not every aspect of which may have been foreseen in
the Rules. It was on such a basis that the Permanent Court had admitted
the filing of preliminary objections to jurisdiction even before this possi-
bility was regulated by the Rules of Court. The Court stated that it was
“at liberty to adopt the principle which it considers best calculated to
ensure the administration of justice” (Mavrommatis Palestine Conces-
sions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 16). The power
of the Court to identify remedies for any breach of a treaty, in a case
where jurisdiction was based solely upon the treaty concerned, has been
regarded as within the Court’s inherent powers in the Corfu Channel case
(Assessment of Amount of Compensation, Judgment, I. C.J. Reports 1949,
p. 244) and in the LaGrand (Germany v. United States of America) case
(Memorial of the Federal Republic of Germany, Vol. I, 16 Septem-
ber 1999, para. 3.60).

11. The very occasional need to exercise inherent powers may arise as
a matter in limine litis, or as a decision by the Court not to exercise a
jurisdiction it has, or in connection with the conduct or the merits of a
case. The judges who jointly dissented in the Nuclear Tests cases did not
challenge the existence of such inherent powers. They asserted that their
use “must be considered as highly exceptional and a step to be taken only
when the most cogent considerations of judicial propriety so require”
(Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974,
p. 322, para. 22, joint dissenting opinion). Understandably, these judges
were particularly concerned that the exercise of the power to decide pro-
prio motu should not be exercised without affording an applicant the
opportunity to submit counter arguments, as this was not consonant with
the due administration of justice. In the present instance, the issue of
whether the case should be removed from the List was fully canvassed
before the Court.

12. Thus the real question is not whether the Applicant has or has not
“discontinued” the case, nor whether the present circumstances are exactly
identical to the few examples where the Court itself has removed a case
from the List (examples which will, in their turn, have been “new” at the
relevant time and not falling into any previously established category).
The question is whether the circumstances are such that it is reasonable,
necessary and appropriate for the Court to strike the case off the List
as an exercise of inherent power to protect the integrity of the judicial
process.

I believe the answer is in the affirmative.

13. The starting point for discontinuance is Article 38, paragraph 2, of
the Rules of Court, whereby the applicant “shall specify as far as possible
the legal grounds upon which the jurisdiction of the Court is said to be
based”. The Court may, in certain circumstances, allow these grounds of
jurisdiction to be enlarged, and it may also occur that an applicant later
prefers to proceed on the basis of one specified ground rather than
another. Nonetheless, for all the flexibility built in to Article 38, para-

59
1363 LEGALITY OF USE OF FORCE (SEP. OP. HIGGINS)

graph 2, of the Rules, the obligation contained in it is a continuing one.
An applicant which on Monday specifies two bases of jurisdiction for the
case it wishes the Court to decide, and on Thursday informs the Court
that these are not, after all, grounds on which it relies, cannot be said on
Saturday to be in conformity with Article 38, paragraph 2. It has put
itself out of conformity with Article 38, paragraph 2, and the fact that it
at the same time declines to “discontinue” the case under Article 88 or 89
of the Rules is irrelevant to that fact.

14. No more is the position of the Applicant who resiled from speci-
fied heads of jurisdiction without proffering others rendered in compli-
ance with the Rules by virtue of asking the Court “to decide on its
jurisdiction” in the light of these changes of position (Judgment, para. 27).
Such a request is totally outside of the contemplation of the Rules. Yet
this is what has occurred in this case. On 24 April 1999 the then Federal
Republic of Yugoslavia filed its Application instituting proceedings
against various States, invoking as the basis of the Court’s jurisdiction
Article 36, paragraph 2, of the Statute of the Court, as well as Article IX
of the Convention on the Prevention and Punishment of the Crime of
Genocide. On 20 December 2002, Serbia and Montenegro formally stipu-
lated that it was not a party to the Statute of the Court before 1 Novem-
ber 2000 — and that at the time of its initial Application, it was not
bound by the Genocide Convention.

15. Having thus put itself in a position incompatible with Article 38,
paragraph 2, of the Rules, Serbia and Montenegro did not inform the
Court it was discontinuing the case under Article 89 of the Rules, but
rather “asked the Court to decide on its jurisdiction”. It was in fact in no
position to make such a request of the Court, and these events alone are
sufficient, in my view, for the Court to have used its inherent powers to
ensure orderly conduct of its judicial function, and to have removed the
cases from the List.

16. In the event, the disorderly nature of the course now being fol-
lowed by Serbia and Montenegro was compounded. In response to its
initial claims on the merits against the various respondent States, in the
eight cases allowed to proceed by the Court beyond the initial hearings
on provisional measures, preliminary objections were lodged. For the
ensuing three years no response was made to these objections — and
indeed, when extremely brief Written Observations were eventually made,
they did not even attempt to counter or otherwise respond to the sub-
stantive arguments contained in the preliminary objections of the Respon-
dents. Instead, the Applicant resiled from its previously stated grounds of
jurisdiction and simply suggested that “the Court decide”. This incoher-
ent manner of proceeding is not, in my view, compatible with sound judi-
cial procedures, which are designed to be fair to all parties concerned,
and it provided further grounds for which the appropriate response of
the Court would have been to remove the cases from the List.

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1364 LEGALITY OF USE OF FORCE (SEP. OP. HIGGINS)

17. The regrettable history of events in this case falls within the
circumstances described by the Court in the Northern Cameroons
(Cameroon v. United Kingdom) case:

“There are inherent limitations on the exercise of the judicial func-
tion which the Court, as a court of justice, can never ignore. There
may thus be an incompatibility between the desires of an applicant,
or, indeed, of both parties to a case, on the one hand, and on the
other hand the duty of the Court to maintain its judicial character.
The Court itself, and not the parties, must be the guardian of the
Court’s judicial integrity.” (Preliminary Objections, Judgment, I. C.J.
Reports 1963, p. 29.)

x * +

18. In paragraph 38 of the Judgment, the Court states that it “cannot
decline to entertain a case simply because of a suggestion as to the
motives of one of the parties or because its judgment may have implica-
tions in another case”. Some observations in response to this statement
have been made in paragraph 12 of the joint declaration of seven judges.
In that context it is also necessary to make some observations on the
remarkable attention given by the Court to Article 35, paragraph 2, of
the Statute. This provision had, of course, never been invoked by the
Applicant during the period when it relied on its original grounds of
jurisdiction. The Applicant’s irregular request of 20 December 2002 to
the Court was “to decide on its jurisdiction considering the pleadings
formulated in these Written Observations”. These Written Observations
contained no invocation of Article 35, paragraph 2, as an alternative
ground of jurisdiction — yet, going beyond what the Applicant requested
in the present case, the Court has devoted some 23 paragraphs to laying
the grounds for a finding that Article 35, paragraph 2, of the Statute
could not have been an alternative basis for allowing access to the Court
in respect of the Genocide Convention so far as Serbia and Montenegro
is concerned. This exercise was clearly unnecessary for the present case.
Its relevance can lie, and only lie, in another pending case. I believe the
Court should not have entered at all upon this ground in the present case.

x * +

19. Because I am of the firm view that grounds ratione personae
should not have been chosen for the disposition of this case (for reasons
elaborated in the joint declaration of seven judges), it is not my intention
here to offer my own views as to the arguments that the Court advances
to support its findings on this ground. It suffices to say that, while
General Assembly resolution 55/12 of 1 November 2000, admitting the

61
1365 LEGALITY OF USE OF FORCE (SEP. OP. HIGGINS)

Federal Republic of Yugoslavia as a new State, necessarily clarifies the
legal situation thereafter, it remains debatable whether “from the van-
tage point from which the Court now looks at the legal situation”, the
“new development in 2000 . . . has clarified the thus far amorphous legal
situation concerning the status of the Federal Republic of Yugoslavia
vis-a-vis the United Nations” at the relevant time (Judgment, para. 77).

20. It was said by Judge Lachs in 1992 that, while the various major
organs of the United Nations do each have their various roles to play in
a situation or dispute, they should act

“in harmony — though not, of course, in concert — and that each
should perform its functions with respect to a situation or dispute,
different aspects of which appear on the agenda of each, without
prejudicing the exercise of the other’s powers” (Questions of Inter-
pretation and Application of the 1971 Montreal Convention arising
from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v.
United Kingdom), Provisional Measures, Order of 14 April 1992,
LC.J. Reports 1992, p. 27, separate opinion of Judge Lachs).

The Court, in purporting to find an ex post facto clarification of the
situation as it was in 1992-2000, notwithstanding that the General Assem-
bly and Security Council had in all deliberation felt the objectives of the
United Nations were best met by legal ambiguity, seems to have ignored
that wise dictum.

(Signed) Rosalyn HIGGINS.

62