                           INTERNATIONAL COURT OF JUSTICE

                             Reports of judgments,
                          ADVISORY OPINIONS AND ORDERS

                   OBLIGATIONS CONCERNING NEGOTIATIONS
                          RELATING TO CESSATION
                        OF THE NUCLEAR ARMS RACE
                       AND TO NUCLEAR DISARMAMENT
                          (MARSHALL ISLANDS v. PAKISTAN)

                               ORDER OF 10 JULY 2014

                                  2014
                           COUR INTERNATIONALE DE JUSTICE

                               RECUEIL DES ARRÊTS,
                        AVIS CONSULTATIFS ET ORDONNANCES

             OBLIGATIONS RELATIVES À DES NÉGOCIATIONS
                     CONCERNANT LA CESSATION
                DE LA COURSE AUX ARMES NUCLÉAIRES
                   ET LE DÉSARMEMENT NUCLÉAIRE
                           (ÎLES MARSHALL c. PAKISTAN)

                          ORDONNANCE DU 10 JUILLET 2014

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                                                Official citation :
                            Obligations concerning Negotiations relating to Cessation
                            of the Nuclear Arms Race and to Nuclear Disarmament
                             (Marshall Islands v. Pakistan), Order of 10 July 2014,
                                           I.C.J. Reports 2014, p. 471

                                            Mode officiel de citation :
                         Obligations relatives à des négociations concernant la cessation
                         de la course aux armes nucléaires et le désarmement nucléaire
                          (Iles Marshall c. Pakistan), ordonnance du 10 juillet 2014,
                                            C.I.J. Recueil 2014, p. 471

                                                                                1068
                                                                 Sales number
                   ISSN 0074-4441                                No de vente:
                   ISBN 978-92-1-071182-1

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                                                        10 JULY 2014

                                                          ORDER

                    OBLIGATIONS CONCERNING NEGOTIATIONS
                           RELATING TO CESSATION
                         OF THE NUCLEAR ARMS RACE
                        AND TO NUCLEAR DISARMAMENT
                        (MARSHALL ISLANDS v. PAKISTAN)

                   OBLIGATIONS RELATIVES À DES NÉGOCIATIONS
                           CONCERNANT LA CESSATION
                      DE LA COURSE AUX ARMES NUCLÉAIRES
                         ET LE DÉSARMEMENT NUCLÉAIRE
                          (ÎLES MARSHALL c. PAKISTAN)

                                                    10 JUILLET 2014

                                                    ORDONNANCE

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                                                                                471

                                COUR INTERNATIONALE DE JUSTICE

                                                                                2014
                                                ANNÉE 2014                                      10 juillet
                                                                                Rôle général
                                                                                no 159
                                                10 juillet 2014

            OBLIGATIONS RELATIVES À DES NÉGOCIATIONS
                    CONCERNANT LA CESSATION
               DE LA COURSE AUX ARMES NUCLÉAIRES
                  ET LE DÉSARMEMENT NUCLÉAIRE
                                    (ÎLES MARSHALL c. PAKISTAN)

                                              ORDONNANCE

                     Le président de la Cour internationale de Justice,
                    Vu l’article 48 du Statut de la Cour et les articles 44, paragraphes 1
                 et 4, 48 et 79, paragraphes 2 et 3, de son Règlement,
                    Vu la requête enregistrée au Greffe de la Cour le 24 avril 2014, par
                 laquelle la République des Iles Marshall a introduit une instance contre la
                 République islamique du Pakistan à raison de manquements allégués aux
                 obligations concernant la cessation de la course aux armes nucléaires à
                 une date rapprochée et le désarmement nucléaire ;
                    Considérant que, le jour même du dépôt de la requête, un exemplaire
                 original de celle‑ci a été transmis au Pakistan ;
                    Considérant que, dans leur requête, les Iles Marshall entendent fonder
                 la compétence de la Cour sur les déclarations faites par les deux Parties
                 conformément à l’article 36, paragraphe 2, du Statut ;
                    Considérant que, dans leur requête, les Iles Marshall ont désigné
                 comme coagents aux fins de l’affaire S. Exc. M. Tony A. deBrum et
                 M. Phon van den Biesen ; et que le Pakistan a désigné comme coagents
                 S. Exc. M. Moazzam Ahmad Khan et M. Ahmer Bilal Soofi ;
                    Considérant que, par une note verbale datée du 10 juin 2014 et reçue au

                                                                                4

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                       armes nucléaires et désarmement (ordonnance 10 VII 14)               472

                 Greffe le même jour, l’ambassade du Pakistan au Royaume des Pays‑Bas
                 a expliqué que, « en raison de certains événements survenus au Pakistan,
                 [elle] n’a[vait] pu recevoir les dernières instructions » aux fins de la réu-
                 nion que le président de la Cour avait prévu de tenir avec les représen-
                 tants des Parties le 11 juin 2014, et a demandé à celui‑ci de reporter cette
                 réunion « à une date ultérieure, en juillet 2014 ou après » ; et que le pré-
                 sident a reporté ladite réunion au 9 juillet 2014 ;
                    Considérant que, par une lettre datée du 9 juillet 2014 et reçue au
                 Greffe le même jour, S. Exc. M. Moazzam Ahmad Khan, coagent du
                 Pakistan, a transmis à la Cour une note verbale, également datée du
                 9 juillet 2014, par laquelle le Gouvernement pakistanais indiquait notam-
                 ment que, « [a]près mûre réflexion, le Pakistan [était] d’avis que la Cour
                 internationale de Justice n’[avait] pas compétence … et consid[érait] la
                 requête [susmentionnée] comme irrecevable », et priait la Cour de « rejeter
                 in limine ladite requête » ; et que cette communication a immédiatement
                 été transmise aux Iles Marshall par le greffier ;
                    Considérant que, au cours de la réunion que le président de la Cour a
                 tenue, conformément à l’article 31 du Règlement, avec les représentants
                 des Parties, plus tard dans la journée du 9 juillet 2014, ceux‑ci ont exposé
                 les vues de leurs gouvernements respectifs quant aux questions de procé-
                 dure en l’espèce, à la lumière, en particulier, de la note verbale susmen-
                 tionnée en date du 9 juillet 2014 ;
                    Considérant que, en application de l’article 79, paragraphe 2, du Règle-
                 ment, il appert que, compte tenu des vues exprimées par les Parties, il
                 est nécessaire de régler en premier lieu les questions de la compétence
                 de la Cour et de la recevabilité de la requête, et qu’en conséquence il
                 doit être statué séparément, avant toute procédure sur le fond, sur ces
                 questions ;
                    Considérant qu’il échet à la Cour d’être informée de tous les moyens de
                 fait et de droit sur lesquels les Parties se fondent en ce qui concerne sa
                 compétence et la recevabilité de la requête ;
                    Décide que les pièces de la procédure écrite porteront d’abord sur les
                 questions de la compétence de la Cour et de la recevabilité de la requête ;

                   Fixe comme suit les dates d’expiration des délais pour le dépôt de ces
                 pièces :
                   Pour le mémoire de la République des Iles Marshall, le 12 janvier 2015 ;

                   Pour le contre‑mémoire de la République islamique du Pakistan, le
                 17 juillet 2015 ;
                   Réserve la suite de la procédure.

                   Fait en anglais et en français, le texte anglais faisant foi, au Palais de la
                 Paix, à La Haye, le dix juillet deux mille quatorze, en trois exemplaires,

                                                                                5

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                       armes nucléaires et désarmement (ordonnance 10 VII 14)            473

                 dont l’un restera déposé aux archives de la Cour et les autres seront trans-
                 mis respectivement au Gouvernement de la République des Iles Marshall
                 et au Gouvernement de la République islamique du Pakistan.

                                                                        Le président,
                                                                 (Signé) Peter Tomka.
                                                                          Le greffier,
                                                             (Signé) Philippe Couvreur.

                                                                                6

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3 CIJ1068.indb 143   16/04/15 13:28


DISSENTING OPINION OF JUDGE GROS
[Translation ]

In my view, the documents by which New Zealand and Australia
instituted proceedings in the Nuclear Tests cases are drawn up in similar
terms, the same considerations of fact and law are relied on therein, and
the submissions are directed to an identical object. In his opening address
on 24 May 1973, counsel for New Zealand stated that:

“New Zealand’s case arises out of the same set of circumstances as
that of Australia, and has comparable objectives.”

The claims by these two Governments should have been joined, from the
outset of the proceedings, their object being the same. It is artificial to
keep up the appearance of there being two cases, and while a joinder
might raise drafting problems for subsequent decisions of the Court, this
could not constitute a serious obstacle to a joinder. In the South West
Africa cases, the Court joined the two claims at the time when the two
Applicants nominated the same judge ad hoc, which is what New Zealand
and Australia have also done in the present cases. Since the Court has
decided not to effect a joinder of the two claims from the outset of the
cases, and to reserve its decision on the question, I have nothing further
to say at present on the problem of joinder. But since the request made by
New Zealand for interim measures of protection has been made the
subject of a separate Order, I should state the reasons which have led me
to dissent from that Order. In the circumstances referred to above, these
reasons are the same as those set out in my dissenting opinion appended
to the Order of the same date concerning the request made by Australia.

* *

The declaration of acceptance of the Court’s jurisdiction made by the
French Government on 20 May 1966 excludes from that jurisdiction:
“.., disputes concerning activities connected with national defence.” In a
communication made to the Court on 16 May 1973 by the French
Government that reservation was formally invoked. The bounds placed
by that Government on its acceptance have been deemed by the Order
not to create an impediment to the exercise of the Court’s power to grant
provisional measures in application of Article 41 of the Statute, since the
Court considered that the title invoked by the Applicant to found the
jurisdiction of the Court, namely the General Act of 1928, seemed

18
NUCLEAR TESTS (DISS. OP. GROS) 150

sufficient, prima facie, both to justify its competence provisionally and to
rule out the application of the 1966 reservation in the interim measures
phase, without prejudging its later decison on these questions. I have
therefore nothing to say on the substance of the problems of jurisdiction
and admissibility, since every question, without exception, concerning the
Court’s power to take jurisdiction in the case as presented in the Applica-
tion of New Zealand has been deferred to the next phase of the proceed-
ings, instituted in the operative part of the Order.

But the decision of the Court indicating provisional measures con-
stitutes an application which I cannot approve of two Articles of the
Statute of the Court, Articles 53 and 41, and it is therefore proper that
I should give the reasons for my dissent, successively on these two
points which relate to the one phase of provisional measures.

*

When the Court was seised on 9 May 1973 of the Application instituting
proceedings and indicating the French Republic as respondent, and then
on 14 May 1973 of a request for the indication of interim measures of
protection, the fact was signified forthwith to the Government of the
French Republic, which replied on 16 May 1973 by a document formally
contesting the jurisdiction of the Court and submitting that the case
should be removed from the list. This was a document of 20 pages which
constitutes a reply to the communications of the Court. The Court,
before the first hearing, examined as in every case the question of the
communication to the public of the documents in the proceedings, in
accordance with Article 48 of the Rules of Court; in a letter to the Court
dated 23 May 1973 the Agent of the Applicant made express reservations
to the communication of the French document of 16 May 1973. On 24
May 1973, at the first hearing, counsel for the Government of New
Zealand stated:

“I recall and adopt the proposition put forward by Australian
counsel that this document was not submitted in accordance with the
Rules of the Court.”

The proposition thus adopted was as follows:

‘““Neither the Court nor Australia should have to deal with conten-
tions advanced by a party if not made in Court but irregularly or
outside the Court. We submit that strict adherence should be had to
the requirements that parties must put their case regularly before the
Court and that, if they fail to appear, then the Court should not take
notice of any statement they may make outside the framework of the
Court’s established process. This rule has been a fundamental one
throughout the ages for maintaining the integrity of the judicial
process at every level. We trust that the Court will make clear that
it will not take such statements into account.”

19
NUCLEAR TESTS (DISS, OP. GROS) 151

And still, on the date of the present Order, the French document has not
been communicated to the public, whereas the New Zealand Application
and the records of the oral arguments of New Zealand were made public
as from 24 May 1973.

The foundation for such an attitude can only be found in a certain
interpretation of Article 53 of the Statute or of the procedure of the Court
in preliminary matters.

Article 53 of the Statute of the Court deals with the situation of States
which contest the jurisdiction of the Court by failing to appear or to
present submissions. Such deliberate non-participation is an act recog-
nized in the procedure of the Court, being dealt with by an article which
is contained in Chapter II of the Statute, entitled “Procedure”, and
nowhere in the intentions of the authors of the Statute would one be able
to find any will to penalize the State which does not appear. The contrary
proposition has been pleaded without the support of any authority and
should be dismissed. Certainly, the absence of a State ought not to
prejudice the action instituted by another State, and may not be allowed
to interrupt the course of justice. But non-appearance is regulated by
Article 53, which lays down what its consequences must be and, when
non-appearance is noted, that Article must be applied. But that is what
the Court did not do; the Order notes failure to appear, in paragraph 12,
but takes into account the submissions of the document addressed to the
Court by the French Government for the purpose of requesting that the
case be removed from the list. Now, if there exist submissions of the
Government cited as respondent in the case, there is no default for want
of submissions. By pronouncing neither in one sense nor in the other,
and by deferring to a later date its decision on the submissions of the
French Government, the Court is giving an interpretation of Article 53
which I find erroneous.

That is not a minor problem and I regret that the Court should have
deferred it to a later phase. By indicating at the opening of the first hearing
that the French Government’s request for the removal of the case from
the list, which had “‘been duly noted”, would be dealt with ‘“‘in due
course”, the President was only settling an immediate problem, but the
Order has postponed the moment of decision still further. And that
postponement implies that the Court considers it possible to treat the
French Government both as a party to the main proceedings (cf. paras.
33 and 34 of the Order and the fixing of a time-limit for a French Counter-
Memorial) and as being in default in the present phase, because its
failure to appear is noted in paragraphs 12 and 35. But if the French
Government has failed to appear and formally indicated its intention to
remain outside the main proceedings, in a way which leaves no room for
doubt, it was necessary to apply Article 53, which lays down the effects of
default, and to apply it immediately.

It does not seem to me to be in accordance with the rules of procedure
to suspend the application of Article 53 provisionally in the present case
on the ground that this is an interim measures phase. Thus right from the

20
NUCLEAR TESTS (DISS. OP. GROS) 152

outset an error in interpretation has been made with regard to Article 53.
I need not recall the consistent jurisprudence of the Court as to the inter-
pretation of its Statute: “The Court itself, and not the parties, must be
the guardian of the Court’s judicial integrity” (Northern Cameroons,
Judgment, I.C.J. Reports 1963, p. 29). It was therefore for the Court to
decide, on the basis of its own reasons, whether its Statute and Rules lay
down formalities which are indispensable, so that submissions made in
any other way are to be treated as inadmissible, and whether, on that
hypothesis, Article 53 should be applied to a twofold default, absence
from the proceedings and failure to make submissions. Nothing of the
kind was done, and the status of the French document remains uncertain.
Objection to it, on the level of its very existence, has been taken by the
Applicant, the decision on the submissions made in it has been postponed ;
it is impossible to deduce from the Order whether this document is or is
not a pleading in the case which should have been taken into account on
a footing of equality with the observations of the Applicant. For if the
Statute and Rules of Court do not forbid the making of ‘‘submissions”’
in the way which was selected in this case, the French document should
have been admitted as the observations of the respondent; and on the
opposite assumption, it should have been rejected, and Article 53 applied
as it was in the Judgment of 2 February 1973 (Fisheries Jurisdiction
(United Kingdom v. Iceland), Jurisdiction of the Court, Judgment, I.C.J.
Reports 1973, para. 12).

The Court’s postponement of the application of the effects of Article 53
until the later stages of the case is thus an implicit decision to refuse to
apply Article 53 to an interim measures phase. This is a position which
merits examination. Shortly expressed, the argument is that default does
not necessarily have the same consequences in all phases of a case, and
that while Article 53 does, in paragraph 2, lay down certain effects, those
effects may be set aside when dealing with a request for interim measures
of protection, despite the manifest intention of the State which is absent
from the proceedings.

It could also be maintained that while Article 53 provides the party
interested in note being taken of default with the right to have that done,
it does not do more, and the Court cannot take note of it proprio motu.
It will be sufficient to observe in this respect that even if this were so,
which in my view it is not, the Applicant has in the present case implicitly
invoked Article 53 in the circumstances mentioned above, by making
reference to the applicable provisions of the Statute and Rules of Court.
But the French Government has indicated in a letter of 21 May 1973 that
it is “not a party to this case”; it would appear difficult not to see in its
statements of 16 and 21 May a formal intention to fail to appear. The
Court surely could not overlook both the position taken up by the
Applicant and that of the absent State, when they were at one in seeking
that it take note of a failure to appear.

It should be added that it would be a sort of abuse of procedure to seek
to make use of a failure to appear as a breach of the rules of procedure

21
NUCLEAR TESTS (DISS. OP. GROS) 153

incurring the loss of the right to be heard by the Court, and thus create a
penalty which the Statute itself formally forbids in Article 53, the main
effect of which is that, when a failure to appear has been noted, the Court
“must... satisfy itself, not only that it has jurisdiction in accordance
with Articles 36 and 37, but also that the claim is well founded in fact and
law”. It is not usual to advance at one and the same time an argument
and its opposite; faced with a failure to appear, the Court, by postponing
any decision on the effects of the failure to appear, has allowed some
infringement of the equality which States must enjoy before a court.

The jurisdiction of the Court is limited on the one hand to the States
which have accepted it, and on the other to commitments freely entered
into. As a court of specific jurisdiction, the Court must above all take care
not to exceed the competence it derives from its Statute and from the
voluntary acceptance of its jurisdiction by States, each of which freely
determines the scope of the jurisdiction it confers upon the Court.

A State either is or is not subject to a tribunal. If it is not, it cannot be
treated as a “party” to a dispute, which would be non-justiciable. The
position which the Court has taken is that a State which regards itself as
not concerned in a case, which fails to appear, and affirms its refusal to
accept the jurisdiction of the Court, cannot obtain from the Court any-
thing more than a postponement of the consideration of its rights. This is
not what Article 53 says. Failure to appear is a means of denying juris-
diction which is recognized in the procedure of the Court, and to oblige a
State to defend its position otherwise than by failure to appear would be
to create an obligation not provided for in the Statute. It has been argued
that the only way of challenging the jurisdiction of the Court is to
employ a preliminary objection. The way in which States challenge the
Court’s jurisdiction is not imposed upon them by a formalism which is
unknown in the procedure of the Court; when they consider that such
jurisdiction does not exist, they may choose to keep out of what, for them,
is an unreal dispute. Article 53 is the proof of this, and the Court must
then satisfy itself of its own jurisdiction, and of the reality of the dispute
brought before it. A State which fails to appear does of course run a risk,
that of not supplying the Court with all possible material for the con-
sideration of its application for dismissal of the case. But that is a risk
which the State, and it alone, is free to choose to take, and to compare
with the risk which it would run as the result of a long drawn-out proce-
dure in which it does not wish to participate, with regard to a matter
which it considers to be wholly outside the Court’s jurisdiction. Certain
indications given in connection with the Order of 22 June 1973 show that
the possibility of successive deferments is not ruled out.

The Permanent Court of International Justice gave a warning against
the notion that an Application is sufficient to create a justiciable dispute:
“... the Court’s jurisdiction cannot depend solely on the wording of the
Application.” (Certain German Interests in Polish Upper Silesia, Jurisdic-
tion, Judgment No. 6, 1925, P.C.I.J., Series A, No. 6, p. 15.)

If, as I think, failure to appear as provided for in Article 53 is not in

22
NUCLEAR TESTS (DISS. OP. GROS) 154

itself subject to any sanction, it becomes evident that the reasons for such
failure to appear, when they have been clearly stated, must be examined
fully by the Court, and above all they must be formally accepted or
rejected, and that without delay. The idea that a failure to appear is not
opposable to the Court and to the Applicant because it is a case of a
request for interim measures of protection is therefore, in my view, beside
the point.

In the first place, no-one disputes ‘‘the connection which must
exist under Article 61, paragraph |, [now Art. 66, para. 1] of the Rules
between a request for interim measures of protection and the original
Application filed with the Court” (Fisheries Jurisdiction (United Kingdom
v. Iceland), Interim Protection, Order of 17 August 1972, IL.C.J. Reports
1972, para. 12). A request for interim measures of protection is thus a
particular phase, but one which is not independent of the original
Application; there is no magic in words, and it is impossible to believe
that problems of jurisdiction, admissibility and reality of the principal
Application can be conjured away simply by stating that these points,
which are essential for a court of specific jurisdiction like this Court, are
just being taken for granted provisionally, prima facie, without their
being prejudged. It is in each individual case by reference to the juris-
dictional problems in the widest sense, to the circumstances, and to the
“respective rights of either party” (Art. 41, emphasis added) that a decision
should be taken as to whether it is possible to indicate interim measures,
and the forms of words used must correspond to reality.

Such was not the analysis of the power instituted in Article 41 of the
Statute which was carried out in the present instance. The Court, by
putting off the decision on the effects of non-appearance, embraced the
proposition that a request for provisional measures is utterly independent
in relation to the case which is the subject of the Application.

It is no use referring to certain domestic systems of law which feature
such independence, because the Court has its own rules of procedure and
must apply them in its jurisdictional system, which, as a corollary of a
certain kind of international society, has been established on the basis of
the voluntary acceptance of jurisdiction. It is a fact of international life
that recourse to adjudication is not compulsory; the Court has to take
care lest, by the indirect method of requests for provisional measures, such
compulsion be introduced vis-a-vis States whose patent and proclaimed
conviction is that they have not accepted any bond with the Court,
whether in a general way or with regard to a specified subject-matter.

If it were a question of a State whose non-appearance was due to the
total absence of the Court’s jurisdiction, whether for want of a valid
jurisdictional clause or by reason of the inadmissible character of the
principal claim, the immediate decision of lack of jurisdiction in regard
to the Application instituting proceedings itself would be taken without
delay; the decision of the Court in the present case is that, despite the
affirmation that a certain subject-matter has been formally excluded from
the jurisdiction of the Court, and the fact that the State which made that

23
NUCLEAR TESTS (DISS. OP. GROS) 155

affirmation considers itself to be outside the jurisdiction of the Court in
regard to everything connected with that subject-matter, it is possible to
indicate provisional measures without prejudging the rights of that State.

In the decision which the Court has to take on any request for pro-
visional measures, urgency is not a dominant and exclusive consideration;
one has to seek, between the two notions of jurisdiction and urgency, a
balance which varies with the facts of each case. If the jurisdiction is
evident and the urgency also, then there is no difficulty, but that is an
exceptional hypothesis. When the jurisdiction is not evident, whether
there is urgency or not, the Court must take the time needed for such an
examination of the problems arising as will enable it to decide one way or
the other, and that is something which it could have done without undue
delay in the present instance with regard to various objections to its power
to judge the case as described in the principal Application.

There is no presumption of the Court’s jurisdiction in favour of the
applicant, nor any presumption of its lack of jurisdiction in favour of the
respondent; there is only the right of each of them to a proper and serious
examination of its position.

A State does not have to wait two years or more for the Court to
vindicate its claim that no justiciable dispute exists, for if that is the case
there is nothing to be argued over; the other State, which has submitted
the claim whose reality is contested, evidently has an equal right to have
the Court acknowledge the existence of the dispute it invokes. But the
equality between these claims is upset if, by the indirect means of the
allegedly urgent necessity for the indication of provisional measures, a
presumption operates in favour of the applicant without the Court’s
carrying out any serious appraisal of the objection. On behalf of the
Applicant it has been pleaded that argument on all these problems will be
presented later; that in itself is a negation of the claim of the other State
to be immediately relieved of a dispute which it alleges not to exist. Thus,
to maintain equality between the parties, in a case where objections
relating to the very stuff of the dispute are raised, the priority treatment
of these objections is a necessity. In their joint dissenting opinion, Judges
McNair, Basdevant, Klaestad and Read wrote, with reference to the
question of the obligation to submit to arbitration:

“Since there is nothing in the Declaration of 1926 to indicate an
intention that prima facie considerations should be regarded as
sufficient, it is our opinion, based on the principle referred to above
and the way in which this principle has been invariably applied, that
the United Kingdom can only be held to be under an obligation to
accept the arbitral procedure by application of the Declaration of
1926 if it can be established to the satisfaction of the Court that the
difference as to the validity of the Ambatielos claim falls within the
category of differences in respect of which the United Kingdom
consented to arbitration in the Declaration of 1926.” (Ambatielos,
Merits, LC.J. Reports 1953, p. 29.)

24
NUCLEAR TESTS (DISS. OP. GROS) 156

President Winiarski also expressed himself in favour of the priority of
certain questions of admissibility over questions of jurisdiction (Certain
Expenses of the United Nations (Article 17, paragraph 2, of the Charter),
1.C.J. Reports 1962, p. 449). Sir Gerald Fitzmaurice likewise, in a separate
opinion, said: |

“There are however other objections, not in the nature of objec-
tions to the competence of the Court, which can and strictly should
be taken in advance of any question of competence. Thus a plea that
the Application did not disclose the existence, properly speaking, of
any legal dispute between the parties, must precede competence, for
if there is no dispute, there is nothing in relation to which the Court
can consider whether it is competent or not. It is for this reason that
such a plea would be rather one of admissibility or receivability than
of competence.”

“In the general international legal field there is nothing corres-
ponding to the procedures found under most national systems of
law, for eliminating at a relatively early stage, before they reach the
court which would otherwise hear and decide them, claims that are
considered to be objectionable or not entertainable on some a priori
ground. The absence of any corresponding ‘filter’ procedures in the
Court’s jurisdictional field makes it necessary to regard a right to
take similar action, on similar grounds, as being part of the inherent
powers or jurisdiction of the Court as an international tribunal.”
(Northern Cameroons, I.C.J. Reports 1963, pp. 105 and 106 f)

It is this nexus of questions of jurisdiction and of admissibility which
has been deferred by the Court to the next phase; it will then be for the
Court, and then alone, to decide the fate of these questions in its judg-
ment.

A certain tendency has arisen to consider that the Orders of 17 August
1972 in the Fisheries Jurisdiction cases have, as it were, consolidated the
law concerning provisional measures. But each case must be examined
according to its own merits and, as Article 41 says, according to “the
circumstances”. Now the case of Iceland was entirely different in cir-
cumstances. The Court had developed an awareness of the existence of
its own jurisdiction, the urgency was admitted, the reality and the precise
definition of the dispute were not contested; finally, the right of the
Applicant States which was protected by the Orders was recognized as
being a right currently exercized, whereas the claim of Iceland constituted
a modification of existing law. It suffices to enumerate these points to
show that the situation is entirely different today; so far as the last point
is concerned, the situation is now even the reverse, since the Applicants
stand upon a claim to the modification of existing positive law when

25
NUCLEAR TESTS (DISS. OP. GROS) 157

they ask the Court to recognize the existence of a rule forbidding the
overstepping of a threshold of atomic. pollution.

*
* *

Such was the situation with which the Court found itself confronted
when the application of Article 41 of the Statute in the present case was
to be considered. The objections which were made or could be made to
the jurisdiction of the Court and the admissibility of the claim have a
character of absolute priority. Article 41 does not give the Court a
discretionary power but a competence bound by the conditions laid
down in that text; it is necessary that “‘circumstances so require” and that
the measures should be necessary to preserve “the respective rights of
either party”, which covers the same examination of fact and of law that
Article 53, paragraph 2, imposes on the Court, in addition to the general
obligation upon every judge, including a judge of urgent cases, to satisfy
himself that he has jurisdiction; that is what Article 36, paragraph 6,
recalls. Now, the examination of fact and of law which is the condition
of any decision on provisional measures cannot be systematically put off
until later with the indication that the Court’s power under Article 41
of the Statute “‘presupposes that irreparable prejudice should not be
caused to rights which are the subject of dispute in judicial proceedings
and that the Court’s judgment should not be anticipated by reason of
any initiative regarding the matters in issue before the Court” (Order,
para. 21). That is to solve by a mere assertion the problem of the existence
of the “circumstances” to which Article 41 refers. Article 41 obliges the
Court to see whether the circumstances require it to use the power of
indicating measures and, even if circumstances so require, it can only
exercise that power if its decision will be able to preserve the respective
rights of either party. But if the State cited as respondent invokes the
Court’s total absence of power, and if the subject of the claim is really
non-existent, what rights would there be to preserve?

What has been said above with regard to the character of absolute
priority attaching to certain objections shows that it is impossible to
escape from the necessity of settling such objections before indicating
measures of protection; if there are no rights, there is nothing to protect.
If the claim has no subject, the principal application falls to the ground,
and with it the request for provisional measures. The objection 1s of so
fundamental a nature in regard to the very bases of the Court’s juris-
diction that it seems to me to be a misuse of language to say that a jus
standi to act in such circumstances could exist prime facie.

When the Court declares on the basis of Article 41 that a decision
indicating provisional measures prejudges neither the jurisdiction nor
the merits, that is not a finding which is likely to reassure States as to the
temporary and circumstantial nature of that decision; it is an assertion
that the examination of the case by the Court in accordance with the
criteria of Article 41 of the Statute enables it, in the circumstances of this

26
NUCLEAR TESTS (DISS. OP. GROS) 158

case, to consider that its decision cannot in fact prejudge either its juris-
.diction or the question of jus standi. It is not just a kind of ritual formula,
but a warranty that the Court is satisfied that Article 41 has been correctly
interpreted and applied to a certain case. But if in reality an indication of
provisional measures prejudges the jurisdiction or the existence of jus
standi, the Court does not have the power to grant these measures,
because the condition laid down by Article 41 of the Statute will not have
been respected. These conditions not having been fulfilled in the present
case, the application of Article 4] in the Order of 22 June 1973 indicating
provisional measures constitutes an action ultra vires.

*
* *

In the present case, on a point of great importance, the Court has
ignored one of the conditions for the acceptance of a request for provi-
sional measures. In the case concerning the Factory at Chorzow, the
Permanent Court of International Justice refused to indicate provisional
measures because the request could be regarded as designed to obtain an
interim judgment in favour of a part of the claim formulated in the
Application and that, consequently, ‘‘the request [was] not covered by
the terms of the provisions of the Statute and Rules” (P.C.1.J., Series A,
No. 12, p. 10). Here we have a condition of general scope for the inter-
pretation of Article 4i of the Statute of the Permanent Court of Inter-
national Justice, which was identical to the present Article 41, and the
recognition of a procedural requirement operating in regard to inter-
locutory jurisdiction. For it would indeed, by definition, be contrary to
the nature of interlocutory proceedings if they enabled the dispute of
which they were only an accessory element to be disposed of.

Comparison between the principal claim (Application, para. 28,
submissions of the Applicant) and of the request for provisional measures
(Request, paras. 2 f, and 51) shows that the latter was indeed designed to
obtain an interim judgment. The request for provisional measures ought
therefore to have been rejected on that ground also.

(Signed) André Gros.

27


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

INTERPRETATION OF THE AGREEMENT

OF 25 MARCH 1951 BETWEEN
THE WHO AND EGYPT

(REQUEST FOR ADVISORY OPINION)

ORDER OF 6 JUNE 1980

1980

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

INTERPRETATION DE L’ACCORD
DU 25 MARS 1951
ENTRE L’OMS ET L’EGYPTE

(REQUETE POUR AVIS CONSULTATIF)

ORDONNANCE DU 6 JUIN 1980
Official citation :

Interpretation of the Agreement of 25 March 1951 between the
WHO and Egypt, Order of 6 June 1980, I.C.J. Reports 1980, p. 67.

Mode officiel de citation :

Interprétation de l'accord du 25 mars 1951 entre TOMS et l'Egypte,
ordonnance du 6 juin 1980, C.I.J. Recueil 1980, p. 67.

Sales number 45 2
No de vente :

6 JUNE 1980
ORDER

INTERPRETATION OF THE AGREEMENT
OF 25 MARCH 1951 BETWEEN
THE WHO AND EGYPT

(REQUEST FOR ADVISORY OPINION)

INTERPRETATION DE L’ACCORD
DU 25 MARS 1951
ENTRE L’OMS ET L’EGYPTE

(REQUETE POUR AVIS CONSULTATIF)

6 JUIN 1980

ORDONNANCE

67

INTERNATIONAL COURT OF JUSTICE

1980 YEAR 1980
6 June
General List
No. 65 6 June 1980

INTERPRETATION OF THE AGREEMENT
OF 25 MARCH 1951 BETWEEN
THE WHO AND EGYPT

(REQUEST FOR ADVISORY OPINION)

ORDER

The President of the International Court of Justice,

Having regard to Article 66, paragraph 2, of the Statute of the
Court ;

Whereas the World Health Assembly on 20 May 1980 adopted, pur-
suant to Article 76 of the Constitution of the World Health Organization
and Article X of the Agreement between that Organization and the United
Nations, a resolution by which it decided to submit to the International
Court of Justice a request for an advisory opinion on the following ques-
tions :

“|. Are the negotiation and notice provisions of Section 37 of the
Agreement of 25 March 1951 between the World Health Organization
and Egypt applicable in the event that either party to the Agreement
wishes to have the Regional Office transferred from the territory of
Egypt ?

2. If so, what would be the legal responsibilities of both the World
Health Organization and Egypt, with regard to the Regional Office in
Alexandria, during the two-year period between notice and termina-
tion of the Agreement ?”

Whereas, in accordance with Article 96, paragraph 2, of the Charter of
the United Nations and by virtue of the aforesaid Article X of the Agree-
ment between the United Nations and the World Health Organization,

4
68 INTERPRETATION OF AGREEMENT (ORDER 6 VI 80)

which came into force on 10 July 1948, the World Health Assembly is
authorized to request advisory opinions of the Court on legal questions
arising within the scope of the competence of the World Health Organi-
zation ;

Whereas certified true copies of the English and French texts of the
aforesaid resolution of 20 May 1980 were transmitted to the Court by a
letter from the Director-General of the World Health Organization, dated
21 May 1980 and filed in the Registry on 28 May 1980 ;

Whereas in his letter the Director-General of the World Health Orga-
nization, taking into account the fact that the Executive Board of the
Organization will meet in January 1981 to prepare the work of the next
World Health Assembly, informed the Court that the request necessitated
an urgent answer and requested that all necessary steps be taken in order to
enable the advisory opinion to be rendered before then ;

Having regard to Article 103 of the Rules of Court ;

Fixes 1 September 1980 as the time-limit within which written state-
ments may be submitted in accordance with Article 66, paragraph 2, of the
Statute of the Court ;

Reserves the subsequent procedure for further decision.

Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this sixth day of June, one thousand nine
hundred and eighty.

(Signed) Humphrey WALDOCK,
President.
(Signed) S. AQUARONE,
Registrar.