119

SEPARATE OPINION OF JUDGE SHAHABUDDEEN

The case touches on important principles of contemporary interna-
tional law — principles which have changed the shape of the interna-
tional community, altered the composition of its leading institutions,
affected their orientation, and influenced their outlook. But, the mandate
of the Court being limited by the consensual nature of its jurisdiction, its
decision has turned on the preliminary question how far it may adjudi-
cate where the outcome would have consequences for the legal position
of a third party. In support of the Judgment, I would add the following
observations.

J. THE PRINCIPLE THAT THE COURT CANNOT EXERCISE JURISDICTION
OVER A STATE WITHOUT ITs CONSENT

Reflecting a view generally held in municipal law, Article 59 of the
Statute of the Court provides that “[t]he decision of the Court has no
binding force except between the parties and in respect of that particular
case”. But it does not follow that the Court is free to determine a dispute
between parties in entire disregard of the implications of the decision for
the legal position of a non-party. Under one form or another of an
“indispensable parties” rule, the problem involved is solved in domestic
legal systems through an appropriate exercise of the power of joinder.
The Court lacks that power; and the right of intervention, or to institute
separate legal proceedings where possible, is not always a sufficient safe-
guard. Hence, when situations arise in which the requested judgment
would in fact, even though not in law, amount to a determination of the
rights and obligations of a non-party, the Court is being asked to exercise
jurisdiction over a State without its consent. Monetary Gold Removed
from Rome in 1943 says it cannot do that.

That precedent has given rise to questions!. In a fundamental sense the
questions stem from the fact that, as was remarked by Judge Jessup,
“Law is constantly balancing conflicting interests” (Barcelona Traction,
Light and Power Company, Limited, Second Phase, Judgment, I.C_J.

! Some were considered in D. H. N. Johnson, “The Case of the Monetary Gold
Removed from Rome in 1943”, International and Comparative Law Quarterly, 1955,
Vol. 4, p. 93. The Court had that article before it in 1984. See Memorial of Nicaragua,
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), Jurisdiction and Admissibility, dated 30 June 1984, para. 257.

33
120 EAST TIMOR (SEP. OP. SHAHABUDDEEN)

Reports 1970, p. 206, para. 81, separate opinion). The interests which
are in conflict here, and which need to be balanced against each other if
collision is to be avoided, are those of Portugal in having its case deter-
mined by the Court notwithstanding possible effects of the decision on
Indonesia, and those of Indonesia in not having its rights and obliga-
tions determined by the Court without its consent. Problems of this kind
are apt to arise from the fact that, in the increasingly complex character
of international relations, legal disputes between States are rarely purely
bilateral. The argument follows that, as it was put to the Court in
another case, if

“the Court could not adjudicate without the presence of all such
States, even where the parties before it had consented fully to its
jurisdiction, the result would be a severe and unwarranted constric-
tion of the Court’s ability to carry out its functions” !.

It is difficult to think of any point at which a balance may be struck
between these competing considerations without the Court having some-
times to assume jurisdiction notwithstanding that the interests of a non-
party State would to some extent be affected, as has happened in some
cases. A fair interpretation is that what the Court has been doing was to
identify some limit beyond which the degree to which the non-party State
would be affected would exceed what is judicially tolerable. That limit is
reached where, to follow the language of the Court, the legal interests of
the non-party would not merely be affected by the judgment, but would
constitute its very subject-matter.

Possibly another formulation might have been invented; but the test
adopted is not in substance new to legal thought. The juridical problem
to be solved has recognizable parallels in other areas of the law: it con-
cerns the extent to which a given course of action could be regarded as
lying within a permissible field although it produces effects within a for-
bidden one. No doubt with the constitutional jurisprudence of some
countries in mind, in the case of the Application of the Convention of
1902 Governing the Guardianship of Infants Judge Sir Percy Spender
remarked that a “law may produce an effect in relation to a subject-
matter without being a law on that subject matter” (Z C.J. Reports 1958,
p. 118). That approach could be redirected to the problem before the
Court: would the requested judgment produce an effect in relation to
the legal interests of Indonesia without being a judgment on those
interests?

Obviously, there could be argument concerning marginal situations;

but there is a dividing line, and it is often practicable to say that a given
situation falls on one side or the other of it. Monetary Gold represents

' Memorial of Nicaragua, cited in the preceding note, para. 248.

34
121 EAST TIMOR (SEP. OP. SHAHABUDDEEN)

that line. Whatever the academic criticisms, the essential principle of the
case has not been challenged. The case may be distinguished, but the
cases distinguishing it have also affirmed it. Nor would it be correct to
say, without important qualification, that since 1954 the principle of
the case has in no sense been applied; it is possible to attribute the shape
of the judgments given in some of the cases to the need to take account
of it!. Certainly, where a case cannot be distinguished, the principle
applies. In this case, the effort of Portugal was to distinguish and not
to attack Monetary Gold; its counsel rejected what he understood to be
an Australian attempt to “imply that Portugal is questioning the sound-
ness of the Monetary Gold case” (CR 95/6, p. 11, Professor Dupuy). It
is not necessary to examine ali the cases, real or hypothetical, which may
be thought supportive of an attempt to distinguish Monetary Gold. The
case concerning Certain Phosphate Lands in Nauru (Nauru v. Australia)
has been considered in the Judgment. I shall limit myself to one other
case.

Corfu Channel, Merits, comes closest to the view that the Court is not
necessarily prevented from acting by the circumstance that the lawful-
ness of the conduct of a third State may seem to be involved. In that
case, the argument of Albania, as correctly recalled in Judge Weera-
mantry’s dissenting opinion to the present Judgment, should have been
enough to alert the Court to the question whether it could properly find
against Albania if it could not do so without making a determination as
to Yugoslavia’s international responsibility in its absence”. However, it
does not appear to me that the evidence was examined with a view to
making a finding of international responsibility against Yugoslavia in
respect of its alleged conduct; it was examined as a method of proof, or
disproof, of the British allegation that the mines had been laid with the
connivance of Albania. Assuming that the minelaying operation had
been carried out by two Yugoslav warships, the United Kingdom argued
that this

“would imply collusion between the Albanian and the Yugoslav
Governments, consisting either of a request by the Albanian Gov-

! Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application for Permission to
Intervene, Judgment, I.C.J. Reports 1981, p. 20, para. 35; Continental Shelf (Tunisia/
Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982, pp. 61-62, para. 75, and p. 94,
para. 133, subpara. C (3), last sentence; Continental Shelf (Libyan Arab Jamahiriya/
Malta), Application for Permission to Intervene, Judgment, I.C.J. Reports 1984, pp. 25-
27, paras. 40-43; and Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment,
LC.J. Reports 1985, pp. 25-28, paras. 21-23.

2 See also, C.J. Pleadings, Corfu Channel, Vol. IV, pp. 609-610, duplique de M. Joe
Nordmann, conseil du Gouvernement albanais.

35
122 EAST TIMOR (SEP. OP. SHAHABUDDEEN)

ernment to the Yugoslav Government for assistance, or of acquies-
cence by the Albanian authorities in the laying of the mines” (Z C.J.
Reports 1949, p. 16; and CJ. Pleadings, Corfu Channel, Vol. IV,
p. 495, Sir Frank Soskice).

By its suggested request or acquiescence, Albania would make Yugosla-
via’s acts its own; it would be by making Yugoslavia’s acts its own that
it would engage international responsibility. In effect, proof of the mines
having been laid by Yugoslavia would be part of the factual material evi-
dencing the commission of acts by Albania which independently engaged
its international responsibility. A determination by the Court that Yugo-
slavia engaged international responsibility by reason of its alleged con-
duct in laying the mines would not have to be made for the purpose of
making a finding of international responsibility against Albania. The
Court did not have before it the type of issue later raised in Monetary
Gold, in which a determination that the absent State had engaged inter-
national responsibility would have had to be made as a precondition to
its admitted ownership of the gold being legally set aside by the Court
and passed on by it to others. Corfu Channel is not at variance with
Monetary Gold; nor does it show that the latter is inapplicable to the
circumstances of the instant case.

In 1984 the Court observed that the “circumstances of the Monetary
Gold case probably represent the limit of the power of the Court to refuse
to exercise its jurisdiction” (Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America), Jurisdiction
and Admissibility, Judgment, 1. C.J. Reports 1984, p. 431, para. 88). True,
too, outside of the prohibited area, “it must be open to the Court, and
indeed its duty, to give the fullest decision it may in the circumstances of
each case” (Continental Shelf (Libyan Arab Jamahiriya/Malta), Appli-
cation for Permission to Intervene, Judgment, 1. C.J. Reports 1984, p. 25,
para. 40). But these remarks also recognized that the principle of the case
remains intact, being directly founded on the consensual nature of the
Court’s contentious jurisdiction. Would it apply to prevent the Court
from adjudicating on the merits of Portugal’s case?

IJ. WHETHER THE REQUESTED JUDGMENT WOULD REQUIRE
THE COURT TO DETERMINE INDONESIA’S LEGAL INTERESTS

The premise of Portugal’s claim is that, whatever may be the basis, it
possesses the exclusive power to enter into treaties on behalf of East
Timor in respect of the resources of its continental shelf; Australia con-
tends that it is Indonesia which possesses the power. The premise of Por-
tugal’s claim is thus in dispute.

36
123 EAST TIMOR (SEP. OP. SHAHABUDDEEN)

The Court must first resolve this dispute relating to Portugal’s premise,
by determining that the treaty-making power belonged to Portugal and
therefore of necessity that it did not belong to Indonesia, before it could
go on to determine whether Australia engaged international responsibil-
ity by negotiating and concluding the 1989 Treaty with Indonesia and by
commencing to implement it. In effect, a prerequisite to a decision
against Australia is a determination that Indonesia did not possess the
treaty-making power. In the ordinary way, the Court could not make
that determination without considering whether the circumstances of
Indonesia’s entry into and continuing presence in East Timor disqualified
it from acquiring the power under general international law. That would
involve the determination of a question of Indonesia’s responsibility in
the absence of its consent. The Court cannot do that.

*

That would seem to end the case, but for an argument by Portugal that
the resolutions of the General Assembly and the Security Council con-
clusively established its status as the administering Authority; that that
status carried with it the exclusive power to enter into treaties on behalf
of East Timor in respect of the resources of its continental shelf; that the
resolutions should in these respects be treated by the Court as données;
and that in consequence a decision by the Court on Indonesia’s legal
interests would not be required.

However, this way of putting the matter does not efface the fact that
what Portugal is asking the Court to accept as données is not the mere
text of the resolutions, but the text of the resolutions as interpreted by
Portugal. The various resolutions would constitute the basis of the Court’s
decision; they would not remove the need for a decision to be taken by
the Court as to what they meant. As the Parties accept, the Court has
power to interpret the resolutions.

Portugal’s interpretation of the resolutions is closely contested by Aus-
tralia. The issue so raised by Australia is not frivolous; the Court would
have to decide it. The Court has done so. On the conclusion which it has
reached, the resolutions do not suffice to settle the question whether the
treaty-making power lay with Portugal, as Portugal claims, or with Indo-
nesia, as Australia claims. Other matters would have to be investigated
before that question could be answered. Such other matters would include
the question whether, by reason of its alleged conduct, Indonesia engaged
international responsibility which disqualified it from acquiring that
power under general international law. Portugal accepts that the Court
cannot act if the international responsibility of Indonesia would have to
be passed upon.

37
124 EAST TIMOR (SEP. OP. SHAHABUDDEEN)

However, even if Portugal’s interpretation of the resolutions is correct,
the result need not be affected. The prerequisite of which the Court must
ultimately be satisfied is that, whatever may be the basis, the treaty-
making power lay with Portugal and not with Indonesia. If the Court
were to accept Portugal’s interpretation of the resolutions as correct,
what it would be deciding, without hearing Indonesia on a substantial
question of interpretation, is that it was Portugal and not Indonesia
which possessed the treaty-making power; acceptance of Portugal’s inter-
pretation as correct would merely shorten the proof of Portugal’s claim
to the power. Indonesia’s legal interests would nonetheless be determined
in its absence. In effect, the question is not merely whether Portugal’s
interpretation is correct, but whether, in reaching the conclusion that it is
correct, the Court would be passing on Indonesia’s legal interests.

There is a further point. As the Court would be barred by the Mon-
etary Gold principle from acting even if Portugal’s interpretation of the
resolutions were correct, it is possible to dispose of Portugal’s Applica-
tion without the necessity for the Court to determine whether or not the
resolutions do indeed bear the interpretation proposed by it; the Court
could arrive at its judgment assuming, but without deciding, that Portu-
gal’s interpretation is correct.

*

The matter may also be considered from the point of view of the effects
of the requested judgment on the rights of Indonesia under the 1989
Treaty and on the validity of the Treaty itself.

First, as to Indonesia’s rights under the Treaty. Submission 5 (b) of
the requested judgment would require Australia to abstain from imple-
menting the Treaty; Indonesia would thus lose the benefit of implementa-
tion of the Treaty by Australia. That is not a matter of theoretical inter-
est; Indonesia would be deprived of concrete benefits to which it is
entitled under the Treaty, including possible financial benefits, in much
the same way as the judgment requested in Monetary Gold would have
deprived Albania of its right to the property involved in that case.
Article 59 of the Statute of the Court would not protect Indonesia
against these effects.

In El Salvador v. Nicaragua, El Salvador asked that “the Government
of Nicaragua be enjoined to abstain from fulfilling the . . . Bryan-
Chamorro Treaty .. .”'. The Central American Court of Justice replied:

“The Court is without competence to declare the Bryan-Chamorro
Treaty to be null and void, as in effect, the high party complainant
requests it to do when it prays that the Government of Nicaragua be

! American Journal of International Law, 1917, Vol. 11, p. 683.

38
125 EAST TIMOR (SEP. OP. SHAHABUDDEEN)

enjoined ‘to abstain from fulfilling the said Bryan-Chamorro Treaty’.
On this point the Court refrains from pronouncing decision, because,
as it has already declared, its jurisdictional power extends only to
establishing the legal relations among the high parties litigant and to
issuing orders affecting them, and them exclusively, as sovereign
entities subject to its judicial power. To declare absolutely the nullity
of the Bryan-Chamorro Treaty, or to grant the lesser prayer for the
injunction of abstention, would be equivalent to adjudging and
deciding respecting the rights of the other party signatory to the
treaty, without having heard that other party and without its having
submitted to the jurisdiction of the Court.”!

Although El Salvador had not asked for an order declaring the Bryan-
Chamorro Treaty to be invalid’, in the view of the Central American
Court of Justice its prayer for an order enjoining Nicaragua “to abstain
from fulfilling” the Treaty was “in effect” a request that the Court should
“declare the .. . Treaty to be null and void”, which of course it could not
do in the absence of the other party to the Treaty. Thus, to grant “the
lesser prayer for the injunction of abstention” would have the same effect
as a declaration of invalidity; they would both “be equivalent to adjudg-
ing and deciding respecting the rights of the other party signatory to the
treaty, without having heard that other party and without its having sub-
mitted to the jurisdiction of the Court”. The injunction was refused.

Second, as to the validity of the 1989 Treaty. There are situations in
which the Court may determine that an international obligation has been
breached by the act of negotiating and concluding an inconsistent treaty,
without the decision being considered as passing on the validity of the
treaty’. But a situation of that kind is distinguishable from one in which
the essential ground of the alleged breach and of any relief sought neces-
sarily implies that a State which is a party to a bilateral treaty with the
respondent but not a party to the case lacked the capacity in interna-
tional law to enter into the treaty. Where this would be the true ground
of decision, as it would be here, it is difficult to avoid the conclusion that
the validity of the treaty was being passed upon in the absence of the
State concerned. Further, as pointed out above, an order enjoining Aus-
tralia from implementing the Treaty would itself presuppose a finding of
invalidity.

' American Journal of International Law, 1917, Vol. 11, p. 729.

2 Cf. the third prayer of Costa Rica in Costa Rica v. Nicaragua (American Journal of
International Law, 1917, Vol. 11, p. 202), where the Central American Court of Justice
was asked to “declare and adjudge said treaty to be null and void and without effect”. The
prayer was refused.

3 See the Vienna Convention on the Law of Treaties 1969, Art. 30, para. 5, and the
decisions of the Central American Court of Justice in Costa Rica v. Nicaragua (American
Journal of International Law, 1917, Vol. 11, p. 181), and &/ Salvador v. Nicaragua (ibid.,
p. 674); and consider Judge Schiicking’s understanding of the judgment in Oscar Chinn
(P.C.LJ., Series A/B, No. 63, p. 148, third paragraph).

39
126 EAST TIMOR (SEP. OP. SHAHABUDDEEN)

In El Salvador v. Nicaragua, the Central American Court of Justice
made it clear, and rightly so, that it would not decline to act on “the
trivial argument that a third nation . . . possesses interests connected with
the matters or questions in controversy” !. But the Court obviously did
not consider that the argument was “trivial” in so far as the requested
judgment would require it to determine the rights of a non-party State,
inclusive of the question of the validity of a treaty entered into between
that State and the respondent. It was on the clear basis that it could not
and would not determine these matters, either directly or indirectly, that
it found it possible to declare that the respondent “is under the obligation
— availing itself of all possible means provided by international law — to
re-establish and maintain the legal status that existed prior to the”
treaty”. In effect, the Court was able to assume competence to act in rela-
tion to some of the reliefs claimed by El Salvador, but not in relation to
all. Here, by contrast, none of the reliefs requested by Portugal could be
granted without passing on the legal interests of an absent State.

In an interesting and careful argument, counsel for Portugal submitted
that

“other courts ... have ruled on the violation of obligations derived
from a treaty, in cases where there was a conflict of obligations,
without ruling on the resolution of the conflict, despite the absence
of the other party to the treaty from which the other incompatible
obligation derived” (CR 95/13, p. 55, Professor Galväo Teles).

Counsel cited Soering v. United Kingdom (EHRR, Vol. 11, p. 439),
The Netherlands v. Short (ILM, 1990, Vol. 29-II, pp. 1375 et seg.) and
Ng v. Canada (CC PR/C/49/D.469/1991), adding that the judicial func-
tion of the adjudicating bodies in those cases obliged them “to answer the
question that was put to them. They were not, for example, required to
decide on the rights of the United States, which was a party to the treaty
and absent from the proceedings.” As this argument of counsel seems to
recognize, the dividing line is set by asking whether the requested judg-
ment would be deciding not merely the rights of the parties, but those of
the absent State as well. In my opinion, the judgment requested in this
case would decide the rights of an absent State. Institutional and struc-
tural differences apart, this is a point on which the three cited cases are
distinguishable.

l'American Journal of International Law, 1917, Vol. 11, p. 699.
2 Ibid., p. 730, fifth paragraph of the dispositif.

40
127 EAST TIMOR (SEP. OP. SHAHABUDDEEN)

It was also argued for Portugal that, by virtue of Article 59 of the Stat-
ute of the Court, a judgment of the Court in favour of it would be bind-
ing only as between itself and Australia; Indonesia, as a non-party to the
case, would not be bound. But the problem involved is more fundamental
than that to which that provision is directed. The provision applies to a
judgment duly given as between the litigating parties; until such a judg-
ment has been given, the provision does not begin to speak (see, on this
point, Monetary Gold Removed from Rome in 1943, Judgment, LC J.
Reports 1954, p. 33, first paragraph). For the reasons set out above, the
judgment requested by Portugal would not be a judgment duly given
even as between the litigating Parties. The fact that, by virtue of Ar-
ticle 59 of the Statute, Indonesia would not be bound is not a reason why
the Court should attempt to do what it cannot legally do: the provision
does not operate as a standing reservation in law subject to which the
Court is at liberty to pronounce on the legal interests of a State in the
absence of its consent.

III. PorTUGAL’s FIRST SUBMISSION

A word may be said on the question whether the grounds on which the
Judgment rests prevented the Court from granting the first of Portugal’s
five submissions, in which the Court was asked

“[tlo adjudge and declare that, first, the rights of the people of East
Timor to self-determination, to territorial integrity and unity and to
permanent sovereignty over its wealth and natural resources and,
secondly, the duties, powers and rights of Portugal as the adminis-
tering Power of the Territory of East Timor are opposable to Aus-
tralia, which is under an obligation not to disregard them, but to
respect them”.

There is no need to dwell on the distinction between arguments and
conclusions !. Portugal recognizes the distinction; it does not suggest that
the Court can grant its first submission considered as an argument
intended to support the requested judgment but not in itself constituting
part of the decision. It is necessary then to see what is the sense in which
Portugal’s first submission could be regarded as part of the requested
decision.

Portugal’s first submission can only be considered as part of the
requested decision if, as the wording of the submission itself implies, a
judicial declaration that the claimed rights are opposable to Australia is
required to ensure that Australia recognizes that it “is under an obliga-
tion not to disregard them, but to respect them”. The implication is that

! See the discussion of the cases in Sir Gerald Fitzmaurice, The Law and Procedure of
the International Court of Justice, 1986, Vol. 2, pp. 578 ff.

41
128 EAST TIMOR (SEP. OP. SHAHABUDDEEN)

Australia has been disregarding them, and not respecting them. But, if it
is asked why it should be thought that Australia has been disregarding
them and not respecting them, the answer can only be that Australia has
negotiated and concluded the 1989 Treaty with Indonesia and has com-
menced to implement it.

Thus, the fundamental issue raised by Portugal’s first submission is the
same as the question whether the treaty-making power is held in law by
Portugal or by Indonesia. As the Court cannot determine that question
in the absence of Indonesia, it cannot competently grant the submission.
A submission, however worded, can only be granted if the granting of it
is necessary for the resolution of the dispute between the parties to the
case. If the Court cannot determine the dispute, it cannot grant any of
the submissions sought.

TV. CONCLUSION

International law places the emphasis on substance rather than on
form. When the matter is thus regarded, it is apparent that Portugal’s
Application would require the Court, in the absence of Indonesia, to
determine Indonesia’s legal interests, inclusive of its claim to the treaty-
making power in respect of East Timor and a question of its international
responsibility, as a prerequisite to a determination of Portugal’s claim
that Australia engaged international responsibility to Portugal by nego-
tiating and concluding the 1989 Treaty with Indonesia and by commen-
cing to implement it. I agree that the Court cannot act.

(Signed) Mohamed SHAHABUDDEEN.

42


          INTERNATIONAL COURT OF JUSTICE

           REPORTS OF JUDGMENTS,
        ADVISORY OPINIONS AND ORDERS

  APPLICATION OF THE INTERNATIONAL
   CONVENTION FOR THE SUPPRESSION
   OF THE FINANCING OF TERRORISM
AND OF THE INTERNATIONAL CONVENTION
  ON THE ELIMINATION OF ALL FORMS
      OF RACIAL DISCRIMINATION
       (UKRAINE v. RUSSIAN FEDERATION)

             ORDER OF 12 MAY 2017

                 2017
          COUR INTERNATIONALE DE JUSTICE

             RECUEIL DES ARRÊTS,
      AVIS CONSULTATIFS ET ORDONNANCES

     APPLICATION DE LA CONVENTION
  INTERNATIONALE POUR LA RÉPRESSION
    DU FINANCEMENT DU TERRORISME
 ET DE LA CONVENTION INTERNATIONALE
SUR L’ÉLIMINATION DE TOUTES LES FORMES
       DE DISCRIMINATION RACIALE
       (UKRAINE c. FÉDÉRATION DE RUSSIE)

          ORDONNANCE DU 12 MAI 2017

                                                 Official citation:
                         Application of the International Convention for the Suppression
                        of the Financing of Terrorism and of the International Convention
                             on the Elimination of All Forms of Racial Discrimination
                             (Ukraine v. Russian Federation), Order of 12 May 2017,
                                           I.C.J. Reports 2017, p. 228

                                            Mode officiel de citation :
                          Application de la convention internationale pour la répression
                         du financement du terrorisme et de la convention internationale
                          sur l’élimination de toutes les formes de discrimination raciale
                         (Ukraine c. Fédération de Russie), ordonnance du 12 mai 2017,
                                            C.I.J. Recueil 2017, p. 228

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                   ISBN 978-92-1-157320-6

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                                  12 MAY 2017

                                       ORDER

  APPLICATION OF THE INTERNATIONAL
   CONVENTION FOR THE SUPPRESSION
   OF THE FINANCING OF TERRORISM
AND OF THE INTERNATIONAL CONVENTION
  ON THE ELIMINATION OF ALL FORMS
      OF RACIAL DISCRIMINATION
   (UKRAINE v. RUSSIAN FEDERATION)

     APPLICATION DE LA CONVENTION
  INTERNATIONALE POUR LA RÉPRESSION
    DU FINANCEMENT DU TERRORISME
 ET DE LA CONVENTION INTERNATIONALE
SUR L’ÉLIMINATION DE TOUTES LES FORMES
       DE DISCRIMINATION RACIALE
   (UKRAINE c. FÉDÉRATION DE RUSSIE)

                                  12 MAI 2017

                                ORDONNANCE

                                                                           228

               COUR INTERNATIONALE DE JUSTICE

                               ANNÉE 2017                                            2017
                                                                                12 mai
                                 12 mai 2017                                      Rôle général
                                                                                no 166

     APPLICATION DE LA CONVENTION
  INTERNATIONALE POUR LA RÉPRESSION
    DU FINANCEMENT DU TERRORISME
 ET DE LA CONVENTION INTERNATIONALE
SUR L’ÉLIMINATION DE TOUTES LES FORMES
       DE DISCRIMINATION RACIALE
              (UKRAINE c. FÉDÉRATION DE RUSSIE)

                             ORDONNANCE

  Le président de la Cour internationale de Justice,
   Vu l’article 48 du Statut de la Cour et les articles 44 et 45, paragraphe 1,
de son Règlement,
   Vu la requête enregistrée au Greﬀe de la Cour le 16 janvier 2017, par
laquelle l’Ukraine a introduit une instance contre la Fédération de Russie
pour violations alléguées de la convention internationale du 9 décembre
1999 pour la répression du ﬁnancement du terrorisme et de la convention
internationale du 21 décembre 1965 sur l’élimination de toutes les formes
de discrimination raciale,
   Vu la demande en indication de mesures conservatoires présentée par
l’Ukraine le 16 janvier 2017 et l’ordonnance par laquelle la Cour a indi-
qué des mesures conservatoires le 19 avril 2017 ;
   Considérant que, au cours d’une réunion que le président de la Cour a
tenue avec les agents des Parties le 12 mai 2017, en application de l’ar-
ticle 31 du Règlement, l’agent de l’Ukraine a sollicité un délai de
douze mois pour la préparation du mémoire de son gouvernement ; et que
l’agent de la Fédération de Russie a indiqué qu’un délai de quatorze mois

                                                                             4

         application de la cirft et de la ciedr (ord. 12 V 17)             229

à compter du dépôt du mémoire serait nécessaire pour la préparation du
contre-mémoire de son gouvernement ;
  Compte tenu des vues des Parties,
  Fixe comme suit les dates d’expiration des délais pour le dépôt des
pièces de la procédure écrite :
  Pour le mémoire de l’Ukraine, le 12 juin 2018 ;
  Pour le contre-mémoire de la Fédération de Russie, le 12 juillet 2019 ;
  Réserve la suite de la procédure.

  Fait en anglais et en français, le texte anglais faisant foi, au Palais de la
Paix, à La Haye, le douze mai deux mille dix-sept, en trois exemplaires,
dont l’un restera déposé aux archives de la Cour et les autres seront trans-
mis respectivement au Gouvernement de l’Ukraine et au Gouvernement
de la Fédération de Russie.

                                                        Le président,
                                               (Signé) Ronny Abraham.
                                                          Le greﬃer,
                                             (Signé) Philippe Couvreur.

                                                                             5


115

DISSENTING OPINION BY Dr. ECER.
[Translaiion.| |
Part I of the Special Agreement.

I.
Criminal character of the incident on October 22nd, 1946.

Both the Parties have stigmatized the incident of October 22nd,
1946, as a crime. However, the International Court is not a
criminal court. The Special Agreement did not ask it to decide
whether Albania had committed this crime, or had participated
in its commissicn as an accomplice. The Special Agreement
requires the Court to give judgment as to Albania’s responsibility
in international law, that is to say without describing it either as
a criminal or as a non-criminal (civil) responsibility. But Great
Britain has founded her submissions in regard to Albania’s respon-
sibility primarily on the allegation that Albania laid the mines or
took part as an accomplice in laying them, i.e., on an accusation
of a definitely criminal character.

I regard the incident of October 22nd, 1946, as an abominable
international crime, very close to an act of terrorism as defined by
the Convention for the Prevention and Punishment of Terrorism,
dated November 16th, 1937, a convention which has unfortunately
never been ratified.

In my view there is no doubt that this action was prepared,
organized and carried out with a view to disturbing the peace in
the Adriatic and the peaceful relations between Great Britain and
Albania.

It is a fact that has been established during the proceedings
that Albania and Great Britain were desirous in 1946, before
the incident of October 22nd, of establishing diplomatic relations.
I refer to the Albanian note of May 21st, 1946, and to the British
Admiralty's telegram to the Commander-in-Chief of the Mediter-
ranean Fleet dated September 21st, 1946. The two States were
negotiating for the establishment of diplomatic relations. The
negotiations were not secret. I am convinced that the Albanian
statesmen could not have been intending to effect an establish-
ment of diplomatic relations with Great Britain by an attack upon
the British ships, either by participating in the commission of such
an attack or by failing to prevent it, by warning the ships. The
logical conclusion must be that there was somebody—perhaps a
State, or perhaps a group of militarist adventurers having ships
at their disposal and acting on their own behalf, who were resolved,

115
DISSENTING OPINION BY Dr. ECER 116

at any price, to prevent the establishment of diplomatic relations
between Albania and Great Britain—who wished to prevent
the attainment by that means of peace in that disturbed region.
History, even in the twentieth century, has furnished examples
of such lawless acts.

The perpetrator of this crime directed his attempt primarily
against the four British ships, but, in my opinion, he also wished
to strike against Albania.

II.
The laying of mines by Albania.

Great Britain has virtually abandoned the charge that Albania
herself laid the mines and now alleges that two Yugoslav ships
laid them. Nevertheless, Great Britain formally maintained that
charge in No. 2 of her final submissions. Albania submitted a
conclusion (also numbered 2) definitely contrary to the British
submission.

The Court has stated in its Judgment :

“Although the suggestion that the minefield was laid by Albania
was repeated in the United Kingdom statement in Court on
January 18th, 1949, and in the final submissions read in Court
on the same day, this suggestion was in fact hardly put forward
at that time except pro memoriae and no evidence in support was
furnished.

In these circumstances, the Court need pay no further attention
to this matter.”

By this declaration, the Court has, in my opinion, rejected
the accusation to the effect that Albania had herself laid the
mines ; but, in view of the fact that Great Britain has definitely
maintained and repeated this extremely grave accusation in her
final submissions, I consider that Albania was entitled to have
this British submission explicitly contradicted.

III.

Participation of Albania in the minelaying (collusion, complicity).

The alternative accusation (and submission) presented by Great
Britain is that of complicity. Great Britain employed that term
in paragraphs 77 (complicity) and 94 of her Memorial (direct
complicity). The facts adduced by Great Britain in support of
this second accusation for the most part constitute complicity.
The Judgment has preferred the notion of “collusion”. I am not
particularly concerned with the terminology.

116
DISSENTING OPINION BY Dr. ECER 117

In any case, what is meant is participation in the laying of the
mines, i.e., in a crime, having regard to the circumstances of the
incident of October 22nd, 1946. But this participation (collusion)
of Albania in the minelaying has not been proved. The Judgment
states that the facts alleged by Great Britain as evidence of collusion
between Albania and Yugoslavia, even so far as they are established,
lead to no firm conclusion, and it continues: ‘‘the origin of the
mines laid in Albanian territorial waters remains a matter for
conjecture. It is clear that the existence of such a treaty .... however
close may be the bonds uniting its signatories, in no way leads to
the conclusion that they participated in a criminal act.” I agree.
But that statement is merely a partial rejection of the second
British theory (submission). That submission is not limited to
Albano-Yugoslav complicity. It does not even mention Yugo-
slavia. It concludes in favour of the complicity (collusion) of
Albania with the author of the minelaying, whoever he may be.
It is true that Great Britain has never in her pleadings or speeches
alleged any other collusion (complicity) than that between Albania
and Yugoslavia. But in her final submissions, she chose a more
general form, which implies the participation of Albania in the
laying of the mines, by whatever agency. Albania replied to this
British submission by her own conclusions Nos. 3 and 4, in which
she asked the Court to find that ne complicity (collusion) on the
part of Albania had been established, without making mention of
any particular author. And so both Parties have asked the Court
to decide whether the participation (complicity or collusion) of
Albania in the minelaving has been proved, no matter by whom
they were laid.

But the Court’s Judgment confines itself to Albano-Yugoslav
collusion (complicity). Consequently, it has given no answer to
the conclusions of the two Parties in regard to the collusion (com-
plicity) of Albania with some other author of the minelaying. A
reply by the Court on this point was all the more called for because
--apart from the fact that both Parties had asked for it---the Court
itself has stated in the Judgment that ‘in the light of the
information now available, the authors of the minelaving remain
unknown’. The fact that the Judgment keeps silence as to this
complicity (collusion) between Albania and the unknown author
of the crime leads one to conclude that the Court did not consider
this complicity (collusion) to have been proved. But, in view of
the clear and precise submissions of the two Parties, I consider that
the Court was bound to state, in express terms, that the complicity
or participation of Albania in the laving of the mines, by whatever
agency effected, has not heen established

lly
DISSENTING OPINION BY Dr. ECER 118

IV.

The Albanian cognizance of the laying of the mines.

1. The problem.

The third legal basis of Aibanian responsibility alleged by Great
Britain is Albania’s failure to notify the existence of a minefield
(since she could not remove the mines) or to warn the four British
ships on October 22nd, 1946, although at that time she was aware
of the existence of the minefield.

The juridical basis of Albania’s responsibility in this matter is
not her actual cognizance, but her failure to take action. Such a
failure naturally implies cognizance.

To establish Albamia’s responsibility on that basis, it would have
been necessary to prove :

(a) that Albania was cognizant of the existence of the mine-
field ;

(b) that it was possible for Albania to have taken action (to
notify the existence of the mines, or at any rate to have warned
the ships).

No direct evidence has been produced that Albania knew about
the minefield. Here again, we are in the sphere of indirect evidence,
indications and presumptions. The conclusions of the Experts
themselves are based on indications, presumptions and conjectures.

The question therefore arose whether it was possible, after
examining the evidence, to become convinced that it was really
impossible for Albania to have been unaware of the existence of
the minefield, with the result that Albania’s cognizance of the
matter was judicially established.

2. General observations concerning indirect evidence (by presump-
tions and indications).

I would recall the wise advice given to international judges by
Sandiffer, Evidence before International Tribunals, Chicago, 1939,
page 3. He emphasizes the peculiar character of international
procedure and the grave consequences which may follow from a
judicial error, and he concludes: ‘‘The vital interests of States,
directly concerning the welfare of thousands of people, may be
adversely affected by a decision based upon a misconception of
facts.” And because the illegal act of October 22nd, 1946, was
in reality a criminal act, it is useful to quote per analogiam another
wise piece of advice, on this occasion given by a British jurist.

18
DISSENTING OPINION BY Dr. ECER 119

Taylor writes in-his Tveatise on the Law of Evidence as admimis-
tered in England and Ireland, 1920, page 115: ‘‘But to affix on
any person a stigma of crime requires a higher degree of assurance,
and juries will not be justified in taking such a step, except on
evidence which excludes from their mind all reasonable doubts.”
This advice is all the more cogent in the case of States.

(a) Proofs by presumptions.

The question arises whether there is really, in international law,
a presumptio juris applicable to the present case. I find the reply
in two works on international law : Sandiffer in his work quoted
above, Evidence before Iniernational Tribunals, Chicago, 1939,
page 99, has quoted Ralston, who enumerates a few presumptions
which in his opinion are recognized by international courts, and
two of which are, I believe, applicable to the present case:

(i) “The uniform presumption of the regularity and validity of
all acts of public officials.”

(ii) “The legal presumption .... of the regularity and necessity of
governmental acts.”

Schwarzenberger, International Law, 1945, page 396, writes:
“Still stronger is the presumption that States are acting in accord-
ance with international law...”

The author bases this opinion on the decision of the Permanent
Court of International Justice in the case known as ‘‘German
Interests in Upper Silesia’, 1926.

In this decision the Permanent Court was dealing with the
question ‘‘whether or not there had been an abuse of right by
Germany’, and stated that ‘‘such an abuse cannot be presumed”’.

I consider therefore that in international law there is a presump-
tion in favour of every State, corresponding very nearly to the
presumption in favour of the innocence of every individual in
municipal law. There is a presumptio juris that a State behaves
in conformity with international law. Therefore, a State which
alleges a violation of international law by another State must prove
that this presumption is not applicable in some special case ; but

119
DISSENTING OPINION BY Dr. ECER 120

it is not possible to combat a presumption of legal conduct by
another presumption.

(b) Proofs by indication.

The Counsel of the two Parties differed as to the degree of
certainty attainable by a proof based on indications. Great
Britain alleged that it suffices if the conclusion is beyond all
reasonable doubt, though that would not absolutely exclude a
different conclusion.

The Albanians contended that the conclusion drawn from the
indications must be the only possible one, in view of the circum-
stances.

I think that one cause of this disagreement was the confusion
made by the Parties between conclusions and hypotheses. A con-
clusion is not a hypothesis. Obviously, the number of hypotheses
will be greater than the number of conclusions.

In my opinion, therefore, it suffices if a conclusion drawn from
the indications is the only rational conclusion, having in view the
concrete circumstances of the case. If two or more rational con-
clusions are possible, we must choose between them according to
the general principle of law: in dubio pro reo.

In regard to the probative value of indications, we must bear
in mind: (a) the danger of an indirect proof: this danger arises
because the conclusion is reached by reasoning, and this, as
experience teaches, is a frequent source of errors; (6) the nature
of the indirect proof: this is well described by Taylor, who writes
on page 74 of his work, already quoted, A Treatise on the Law
of Evidence as administered in England and Ireland, 1920:

“They [the jury] must decide, not whether these facts [indica-
tions] are consistent with the prisoner’s guilt, but whether they are
inconsistent with any other rational conclusion.”

Georges Vidal, in his Cours de Droit criminel et de Science péniten-
tiaire, 1935, discussing conclusions drawn from indications (he calls
them presumptions), writes :

“Juries and judges should only accept presumptions with extreme
prudence and with considerable reserve in order to avoid judicial
errors which are too easily made.”

After these preliminary remarks, and with the reserve which is
proper for a judge when considering indirect evidence, I shall
now examine the proofs of Albania’s responsibility, on the basis
of cognizance.

120
DISSENTING OPINION BY Dr. ECER 121

3. Examination of the proofs.

The conclusion reached in the Judgment that the laying of the
minefield could not have been accomplished without the knowledge
of the Albanian Government is based on:

(A) the conduct of Albania both before and after the catastrophe
of October 22nd, 1946 ;

(B) the facts concerning the possibility of observing the
minelaying from the Albanian coast.

As cognizance does not suffice by itself to constitute a Jegal basis
of responsibility, the judgment has added a third conclusion
concerning the time at which Albania became cognizant of the
minelaying.

ad A. The conduct of Albania.

The Court considers it to have been clearly established that
Albania kept a very vigilant watch over the territorial waters in
the North Corfu Channel; but the Judgment is silent regarding
another fact which was dlso clearly established by the evidence
of the Albanian witnesses, namely, that the system of vigilance and
that of the coastal defences was very inadequate. The presence
of a look-out post at Denta Point was not established. That
proves the inadequacy of the Albanian system of vigilance in
regard, precisely, to the incident which is the subject of the
proceedings.

The Judgment also omits to say that the inadequacy of the
vigilance was recognized by Great Britain. For the representative
of Great Britain admitted in his final address that the local
authorities might have been unaware of the minelaying.

The Judgment also refers to the notes of the Albanian Govern-
ment in which the latter expressed its intention of keeping a jealous
watch over its territorial waters. Those notes prove nothing except
that the Albanian Government was insisting on its right to regulate,
and even to forbid, foreign ships from entering Albanian territorial
waters without permission from the Albanian Government.

That Government was convinced that it possessed that right,
and therefore in its notes it insisted upon its right. The govern-
ment of any State would have acted in the same way, and nothing
can be deduced from such conduct, which is even a part of the duty
that every government owes towards its own people. But even
if the coastal guards had exercised strict vigilance, that fact would
not suffice to justify the conclusion that the ignorance of the
Albanian Government was a priori improbable.

The Judgment next refers to the evidence of Captain Ali Shtino.
We read in the Judgment: ‘“‘The Court also noted the reply of

I2T
DISSENTING OPINION BY Dr. ECER 122

Captain Ali Shtino to a question put by it ; this reply shows that the
witness, who had been called on to replace the Coastal Defence
Commander for a period of thirteen to fifteen days, immediately
before the events of October 22nd, had received the following
order : ‘That the look-out posts must inform me of every movement
fin the Corfu Channel], and that no action would be taken on our
part.’”’

The value which the Judgment assigns to Captain Shtino’s answer
is not clearly brought out in that quotation. A reader of the
Judgment can only guess that the Court has interpreted this answer
as indicating a change in an earlier order which might have embar-
rassed the minelayers, in other words, that a counter-order had been
given to the coastal guards with the object of preventing inter-
ference with the minelaying. But that interpretation is not justi-
fied. A perusal of Captain Shtino’s evidence shows at once that
this part of his testimony refers to the incident on May 15th, 1946.

Captain Shtino was being questioned as to the incident when the
Albanian battery fired in the direction of the British ships. In
regard to that incident, he stated that when he temporarily took
the place of the officer commanding the coast defences a few days
before October 22nd, 1946, that officer told him-that the look-out
post should report to him any movements observed in the Channel,
and that no action was to be taken. It is evident from the context
that the witness was thinking of the gunfire incident on May 15th,
1946 ; what he meant was that an order had been given not to
take any action, so as to prevent a repetition of the incident of
May 15th, 1946.

As regards the telegrams sent by Albania to the Secretary-General
of the United Nations on November 13th and 27th, 1946, the
conclusions which the Judgment draws from these two telegrams
seem to be ill-founded. If we confine ourselves to the evidence
filed with the Court, we find that Albania learned for the first time
that a minefield had been discovered from the British note of
December gth, 1946. But. in that note, Great Britain already
accused Albania of having laid the mines or of complicity in the
minelaying. Albania replied on December 21st, 1946. She
expressed her profound regret, stigmatizing the laying of the mines
as an inhuman act, but naturally she rebutted the accusation that
it was she who had laid the mines or caused them to be laid. It is
entirely natural that for Albania the first thing to do was to defend
herself against a criminal accusation. She protested to Great
Britain, and in my view that protest sufficed.

She could not protest to a State unknown, so she protested to
Great Britain, the country which had formulated the accusation.
It seems that the Judgment attributes great importance to the
fact that Albania omitted to notify the existence of the minefield
after it had been discovered by the British on November 13th, 1946.

122
DISSENTING OPINION BY Dr. ECER 123

The reader might gain the impression that the failure to do this,
after November 13th, 1946, was an additional indication of Albania’s
cognizance of the minefield: that interpretation is not justified.
The following fact must be taken into consideration : Great Britain
had sent a note to Albania on November Ioth, 1946, informing the
Albanian Government that the sweep would be carried out on
November rath, 1946, and that the operation had been unanimously
recommended by the Central Mine Clearance Board on Novem-
ber Ist.

The functions of this agency, which had been created by the
Great Powers under the Agreement of November 22nd, 1945, are
described in Annex 3 of the British Memorial. In paragraph 6
of that Annex one of the functions of the central agency was
described as follows :

(i) to promulgate reports on experience gained in the course

of operations.

There had thus been created for this task a special bureau, the
duties of which are set forth in paragraphs 13 to 16 of Annex 3 of
the British Memorial ; from all these provisions it 1s apparent that
the responsibility for notifying minefields discovered in the course
of sweeps rested on the Central Board in London and on its sub-
ordinate bodies. Hence we may conclude that Albania, who was
acquainted with the functions of this central agency from the
documents which she received between October 1945 and October
1946 (see paragraph ro of the British Memorial), did not consider
it to be her duty to notify the discovery of the minefield, seeing
that that was the duty of the Central Board in London. This
omission cannot therefore be interpreted as an additional indication
of Albania’s cognizance of the minelaying.

Apart from the fact that Albania only learned by the British note
of December oth, 1946, that a minefield had been discovered on
November 13th, 1946, the indications mentioned in the Judgment
in regard to Albania’s conduct would be quite consistent with
Albania’s ignorance of the minelaying. But the Judgment keeps
silence in regard to other indications, which were established by the
procedure, and which lead to an opposite conclusion, that is to the
conclusion that Albania was not cognizant of the minefield.

The Judgment omits to mention that Albania gave her consent,
in principle, to the sweep announced by Great Britain in her note of
November roth, 1946, and that she proposed a mixed commission
to determine the area to be swept (Great Britain gave no answer
to this proposal), and finally that Great Britain herself has admitted
that the Albanian local authorities may not have known about the
minelaying. Therefore, if the Judgment reaches the conclusion
that the conduct of Albania before and after the catastrophe is
evidence (of course, indirect) of Albania’s cognizance, it does so by
a line of reasoning which is in contradiction with the general rule

123
DISSENTING OPINION BY Dr. ECER 124

of law concerning the evaluation of indications. I have in mind
the rule which I referred to above (p. 119, Taylor).

In my opinion, the indications regarding Albania’s conduct
which are set forth in the Judgment in no way prove that Albania
was aware of the existence of the minefield. But even if, per
inconcessum, it were admitted that these indications justify that
conclusion, it ought to be added that they also justify an opposite
conclusion. In a case where several rational conclusions are
possible, a choice must be made between them in accordance with
the general principle of law 1m dubio pro veo. But the indications
which the Judgment has omitted to mention, and to which I have
referred above, tilt the balance in favour of the conclusion that
Albania was not cognizant of the existence of the minefield.

ad B. The possibility of observation.

The second series of facts mentioned in the Judgment as leading
to the conclusion in favour of Albania’s cognizance relate to the
possibility of observing the minelaying from the Albanian coast.
The Judgment begins by mentioning three considerations which
the Court had in view, and then goes on to analyse the Experts’
report.

(a) The Court's three considerations :

(aa) The geographical configuration of the Bay of Saranda and
of the Channel prove, according to the Judgment, that the laying
of the mines could not have escaped the vigilance of the Albanian
coast defence commander. However, from a geographical point
of view, the best position for observing anything that happened in
the waters with which we are concerned in this case was Denta
Point : it was off Denta Point that the mines had been laid. But
there was no look-out post on Denta Point ; that is admitted by the
Judgment. Consequently, in the absence of any look-out at the
point which is of chief geographical importance, the geographical
configuration does not justify the conclusion referred to above.

(bb) The time availabie for the minelaying operation was
sufficient, according to the Judgment, for the attention of the look-
out posts at Cape Kiephali and San Giorgio Monastery to have been
drawn toit. Thatis sheer conjecture. Ifthe minelaying had been
effected under favourable conditions, it could perhaps have been
observed, but if it was effected by night, under unfavourable
conditions (cloudy and rainy weather, etc., as indicated in the
Mediterranean Pilot for October 1946), it would certainly not have
been observed. The hour at which the mines were laid was not
established, and could not be established, during the debates ;
nothing is known about the weather conditions when the mines
were laid, and the conclusion of the Judgment on that point is
based upon simple conjectures.

124
DISSENTING OPINION BY Dr. ECER 125

(cc) As the Judgment refers, in support of its conclusion, to
the distance from the coast at which the minelaying ships must have
passed, it must be borne in mind that there was no observation post
at Denta Point. Besides, even if the minelaying ships had been
seen, it does not follow that the operation itself would have been
observed! A distinction must be drawn between the passage of
the minelaying ships and the minelaying operation.

(b) The Experts’ opinion.

Lastly, the Court has analyzed the report of the Experts in which
it finds confirmation for the conclusion that Albania was cognizant
of the minelaying.

In their first report, the Experts dealt with the visibility and
the audibility of the minelaying. In their second report, they
confined themselves solely to the question of the visibility of the
passage of the minelaying ships and of the minelaying operation
itself.

As regards the audibility of the minelaying operation, the con-
clusion at which the Experts arrived in their first report is subject
to strict reservations. They said that in less favourable circum-
stances it would nevertheless be impossible to hear the operation,
and they even added a sentence which is of great importance for
the whole question of observation : ‘“We are not in possession of
sufficient information as to the conditions when the mines were
laid to give a more definite statement.” But even during their
enquiry on the spot they were not able to obtain any fuller infor-
mation.

The Experts’ enquiries were therefore concentrated on the
problem of visibility. In their first report their conclusion regard-
ing visibility lacked precision. In their second report the Experts
were more categorical. Their conclusion is quoted in the Judgment.
If one reads it carefully, it is evident that the reply is only cate-
goricalin appearance. In reality, the reply of the Experts, in spite
of its categorical form, is just as conditional as that in the first
report. Their conclusions are based on five facts, two of which—
the existence of a look-out post at Denta Point and the prevalence
of normal weather conditions at the time of the minelaying—have
not been established. These two facts, or conditions, in conjunc-
tion with three others, constitute the sole basis of the Experts’
conclusions. If one of these conditions is not established, the whole
basis collapses. The Judgment admits that the existence of a
look-out post at Denta Point has not been established. The
weather conditions have only been ascertained for October ; in
that month they were unfavourable. If the mines were laid before
October—a point which the Court has not succeeded in establishing
—-the conditions under which the mines were laid, at an unknown
time, are also unknown. It follows that the conclusions of the

125
DISSENTING OPINION BY Dr. ECER 126

Experts in regard to visibility do not afford any judicial evidence
proving that it was impossible for Albania to have been ignorant
of the minele ying.

(c) The time at which cognizance was acquired.

Even if we accept the conclusion of the Judgment that the
coastguards must necessarily have noticed the minelaying, that
is still not enough to establish Albania’s responsibility. And so
the Judgment—quite rightly—considers the question of the time
at which the Albanian authorities became-cognizant of the mine-
laying. It is, as I have said, quite impossible to determine that
time in any manner which could be called probative, in a judicial
sense. The Court has based its conclusion concerning the time at
which Albania became cognizant of the minelaying upon a conjec-
ture.

The Judgment accepts as the last possible moment the night of
October 21st-22nd, 1946. In that case, as the Judgment admits,
it would have been impossible for Albania to notify the minefield
to the shipping of all States, but—still according to the Judgment—
it would have been possible to warn the British ships whose approach
was reported to the coast defence command about I p.m. on
October 22nd. We are therefore to suppose that the coast defence
command was cognizant of the minefield at 1 p.m. on October 22nd,
1946. The commander, who at that time was Captain Shtino,
has deposed before the Court that he knew nothing of any mine-
field in the Corfu Channel. The Judgment says nothing whatever
about this testimony, though it has not tried to show that he was
unworthy of credence. It simply assumes that the coast defence
command was cognizant of the minefield at that time, a simple
conjecture which is uncorroborated by any evidence.

4. Summary.

For the foregoing reasons, I am unable to accept the conclusion
of the Judgment that the laying of the minefield which caused
the explosions on October 22nd, 1946, could not have escaped the
knowledge of the Albanian Government.

I consider that that conclusion, so far from being based on
well-established evidence, is only supported by presumptions and
even by conjectures.

I have accordingly reached the following conclusions :

(A) The Albanian Government’s knowledge of the minelaying
has not been judicially established.

In support of this conclusion, I invoke the following additional
reasons :

(a) Great Britain admitted, in Sir Frank Soskice’s speech,
that the local authorities might not have known of the minelaying.

(6) If Albania had really known of the presence of the mine-
field, she could have removed the mines; she had almost three

126
DISSENTING OPINION BY Dr. ECER 127

weeks, from October 22nd to November 13th, to get rid of the
traces of this crime of which, according to Great Britain’s allegation,
she was cognizant.

(c) It is an established fact that, in 1946, before the incident
of October 22nd, Albania was desirous of establishing diplomatic
relations with Great Britain. Negotiations were proceeding. The
incident on October 22nd, 1946, naturally put an end to these
efforts. But I am convinced that if the Albanian Government
had known about the laying of the mines (the evident purpose
of which was to provoke an incident and so wreck the negotiations),
it would have done everything in its power to prevent the mine-
laying, or if that had been found impossible, to notify it or at
any rate to warn the ships.

(d) The conclusion that Albania was cognizant of the mine-
laying is in reality a presumption of fact. It is not sufficient to
annul the legal presumption of international law according to
which States act in conformity with international law.

(B) Even if one admitted the conclusion that Albania had known
of the minelaying, it would still be necessary to establish the facts
determining her duty to take action: in the first place, the time
at which Albania acquired this cognizance and, hence, the fact that
the coastal guards informed their superior officers, and through
those superior officers the Albanian Government, in sufficient time
to enable that Government to issue a notification, or for the superior
officers to order the removal of the mines, or to give warning to
the British ships on October 22nd, 1946.

Those are facts which were not discussed during the proceedings
and have not been established.

V.
The rules of law.

In general, I agree with the Judgment on the question of law.
But in view of the tendency shown in the opening address of British
Counsel to draw certain legal conclusions (which as a fact were
rejected by the Judgment) from the fact that the minefield was
laid in Albanian territorial waters, I think it would perhaps be
desirable to state in express terms in the Judgment that the respon-
sibility of a State assumes either dolus or culpa on its part. On
that point I would refer to Oppenheim-Lauterpacht, The Inter-
national Law, 1948, p. 311:

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“An act of a State injurious to another State is nevertheless not
an international delinquency if committed neither wilfully and
. maliciously nor with culpable negligence.”

VI.

The competence of the Court to assess the amount of compensation.

My reply to this question is as follows :

(a) We must keep strictly to the terms of the Special Agreement,
because that agreement constitutes the fetita of the Parties.

(6) In this Special Agreement, the Parties have asked the Court
to decide whether Albania is or is not bound to pay compensation.
The two Parties did not ask the Court to assess the amount of the
compensation.

(c) The Parties have submitted to the Court a request for a
declaratory judgment. They did not ask the Court to condemn
a Party to make a certain payment. Their request is analogous
to a declaratory action in municipal law.

In consequence, I consider that the Court does not possess this
competence.

Second Part of the Special Agreement.
I.
Operations by the British fleet on October 22nd, 1946.

1. The right of passage of warships through straits.

The Judgment expresses the opinion that the coastal State
has not the right to prohibit innocent passage through straits
in peace time and that, consequently, owing to the exceptional
circumstances in the North Corfu Channel, Albania would have
been justified in regulating the passage of warships through the
strait without, however, prohibiting it or subjecting it to special
permission.

I doubt whether this argument is well founded. In any case,
in 1946 there was no definite rule on the subject. The practice of
States was so varied that no proof of the existence of such a
rule was to be found. Doctrine itself was completely divided.
Nothing was therefore certain. Great Britain might put forward
good reasons to justify her position in law; but Albania also
could invoke sufficient reasons to justify her position, naturally
apart from the argument contained’ in the Albanian General

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Staff's communication of May 17th, 1946, concerning all foreign
ships, including merchant ships. At the time of the incident of
October 22nd, 1946, the situation as regards the law was very
confused on the subject of the right of passage. In such a case,
I think that the general rule in dubio pro reo must be applied by
analogy.

2. The operations by the British fleet.

In my opinion, two standards of judgment can be applied to the
passage of the British fleet on October 22nd : a subjective standard
(intention) and an objective standard (the methods used).

(a) Subjective standard,

As regards the subjective standard, we have one important
indication, the existence of an Order XCU for the passage of the
four British vessels on October 22nd, 1946. Great Britain refused
to produce this Order for security reasons. The Court is entitled
to draw conclusions from this refusal. An endeavour was made
to give a natural explanation: the purpose of the Order was
only to prevent the incident of May 15th, 1946. But if that
was the only purpose of Order XCU, why conceal it? It was
a quite legitimate purpose. There was no reason for hiding from
the Court a quite legitimate purpose. Therefore, in my opinion,
this refusal is an indication against Great Britain and might
justify a presumption or a conclusion that Great Britain had,
on October 22nd, other intentions than merely a test of her right
of passage.

But this conclusion is faced with the presumptio juris of inter-
national law mentioned on pages 120 and 121: presumption of
the legality of a State’s conduct.

This is a strong presumption; it cannot be countered by a
single indication like that of Great Britain’s refusal to communicate
Order XCU to the Court.

Great Britain’s refusal to produce Order XCU gives rise to
suspicions as to her intentions in regard to the passage on
October 22nd; but this is only an indication, and no proof, and
it cannot rebut the presumption that Great Britain had quite
legitimate intentions.

(b) Objective standard.

I admit that the number of vessels was excessive. Great Britain
might make a test with one or two ships ; but four warships made
the passage appear like a naval demonstration, involving an element
of intimidation and even of misuse of the right of passage.

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3. Conclusions.

(a) In 1946, there was no clear rule of customary international
law concerning the right of passage for a warship through straits.
The juridical situation was doubtful ; each of the two Parties could
put forward good arguments in support of his claim.

(db) I do not think it has been judicially established that the
passage of the four British vessels on October 22nd, 1946, was
offensive, from the subjective standpoint (intention). It involved
an element of intimidation and of misuse of a right from the objec-
tive standpoint. It might appear to the Albanian authorities and
people as a demonstration of force. But even if this be admitted,
the passage on October 22nd was not of an offensive character such
as would amount to a violation of Albanian sovereignty, in the
absence of judicial proof of an offensive intention.

Il.
Operation ‘ Retail”, November 12th-13th, 1946.

I agree with the decision in the Judgment. But I will add
that, in my opinion, Operation Retail was an intervention, if notin
the political, at least in the police or legal sense. In reality, the
British Navy substituted itself for the Albanian police or judicial
authorities in performing an act which was a quasi-judicial or
police enquiry in Albanian territorial waters—i.e., an act strictly
prohibited by international law.

I think further that the Judgment should mention, amongst
the arguments for its decision, the provisions of the United Nations
Charter, in particular, Article 2, paragraph 4, and Article 42.

The International Court’s task as the juridical instrument of
the United Nations is more far-reaching than that of a domestic
court. A national court is called upon strictly to apply the
law, and nothing more. The cohesion of the national community
is provided for by other means. The decisions of national courts
have not the same importance for the cohesion of the national
community as international justice has for the cohesion of the
international community. The International Court’s task is
therefore to help to strengthen the cohesion of the international
community. The instrument of cohesion of the international
community is the United Nations Charter. It is true international
law, with its source in the new requirements of international life
and the juridical conscience of the peoples. The authority of
the Judgment, and that of the Court as judicial organ of the

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United Nations, would be strengthened by a reference to the
provisions of the Charter.

In referring to the Charter, the Judgment would emphasize
that the supreme task of the International Court of Justice is:

That its jurisdiction should contribute to the technical develop-
ment of international law, and also promote peaceful relations
between the States of the world, and thus help to maintain peace.

(Signed) Dr. B. Ecer.

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