186

DISSENTING OPINION OF JUDGE J. E. READ

While I agree with the majority of the Court in accepting the
Norwegian contentions as regards the Indreleia and the Vestfjord,
I am unable to concur in parts of the judgment which relate to
other sections of the coast in question. It is, therefore, necessary
for me to state the reasons which have led me to the conclusion that
the establishment of certain of the base-lines by the Royal Norwe-
gian Decree of 1935 was not in conformity with international law.

The Government of the United Kingdom has relied upon a rule
or principle of international law, which has been referred to as the
Tide-Mark or Coast-Line Rule. The contention is that the belt of
territorial waters must be measured from the coast line in the
widest sense of that term : from the low-tide mark on the mainland
coast and on islands; and from the outer limit of internal waters.
It is conceded that the point of departure for the base-lines may
be the outer fringe of the ‘‘skjzrgaard”’.

The Government of Norway contends that the coastal State is
entitled to establish its belt or zone of territorial waters measured
from straight lines drawn between the outermost islands, rocks or
mainland points, with no restriction on the length of the lines.
Norway admits to some limitations : geographic, such as visibility
and conformation to the general direction of the coast ; and others
of a political, social or economic character, such as the needs of
the coastal population and the location of fishing banks.

Norway further contends that, even if international law recog-
nizes a Coast-Line Rule, it is not applicable to the Arctic coast of
Norway, because the rule is not and cannot be applied to broken
coast lines, and especially to the unique Norwegian coast.

Before examining the legal aspects of the dispute, it is necessary
to look at some of the facts.

Norway, by the Decree of 1935, has asserted a claim over exten-
sive areas of the seas off the coasts of Finnmark, Troms and part
of Nordland. The outer limit of these areas is shown on the Norwe-
gian charts, 3-9, by a heavy blue line, which may be referred to
as the Blue Line. It is parallel to and 4 sea miles distant from the
base-lines connecting points 1-48.

The United Kingdom concedes Norway’s right to a marginal
belt of 4 miles, measured from the coast at low-water mark and
from the closing lines of fjords and sunds and other internal waters.
The extent of the waters thus conceded is indicated by the pecked

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187 DISSENTING OPINION OF JUDGE READ

green line on these charts, which may be referred to as the Green
Line. This line would need minor modification to ensure exact
correspondence with the ‘‘pecked green line’ marked on the British
charts. It would also need substantial readjustment on charts 5-9
to take into account the decision of the Court regarding the Indre-
leia and the Vestfjord, but this can be disregarded for the time
being.

The parts of the sea between the Blue Line and the Green Line
are in dispute. They are indicated in the British charts used during
the Oral Proceedings by yellow patches. The United Kingdom
claims that they are high seas; Norway, that they are territorial
waters, It will be convenient to refer to them as Disputed Areas.

Returning to the legal aspects of the problem, I have no doubt
that the Coast-Line Rule is an established rule of international law.

The collapse of the claims to maritime domain, based on mare
clausum and similar doctrines—including those asserted by the
Kingdom of Denmark and Norway—brought about the regime of
mare liberum, the freedom of the seas; under which the seas were
open to all men of all nations for all purposes. Pressure of belli-
gerents in naval warfare destroyed the older pretensions ; but the
needs of defence and neutrality led States, even under the new
regime, to assert new exclusive rights over belts or zones based on
the coast.

The recognition of such zones by belligerents was closely linked
with the power of the coastal State to exercise effective control,
and it was, at the outset, restricted to areas within cannon range
of fortified points. in time, it was extended to cover all areas
capable of being covered by cannon shot, whether they were
fortified or not. It was an easy step from the range of cannon
to the 3-mile limit : a belt of territorial waters 1 marine league
in breadth, subject to the exclusive authority of the coastal
State and from which foreign belligerent operations were excluded.
Some countries have claimed wider zones or more extensive areas ;
but, for a very long time, none has disputed the right of a coastal
State to assert sovereignty over a belt of territorial waters measured
from the coast.

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188 DISSENTING OPINION OF JUDGE READ

In the course of the 19th century, it became necessary to give
further consideration to bays. The establishment of a belt of
territorial waters measured from the coast met most of the needs
of coastal States as regards defence and security. Such waters.
were in their very nature part of the sea. Bays, however, presented
a special problem. They penetrated into the country, and were
largely enclosed by their headlands. The application of the concept
of a belt of territorial waters of fixed breadth to larger bays would
bring the sea, both high seas and territorial sea, into the heart
of the country. It would treat waters which were in their nature
internal, as part of the open sea, and it would bring smugglers
and foreign warships and fishermen into the interior of the coastal
State, to the prejudice of its security and vital interests. The
solution of this problem developed along two different lines.

First : there was a tendency to recognize the right of the coastal
State to claim as internal waters bays which penetrated the coast,
notwithstanding that the distance between the headlands was
greater than double the breadth of the marginal belt, e.g., more
than 6 or 8 miles. The records of State practice embodied in the
documents prepared for the Hague Conference, 1930, indicated
that there was a readiness on the part of most States to recognize
such claims over bays not more than 10 miles wide.

There were, however, maritime Powers which asserted the right
to claim as internal waters bays. of greater breadth, or even to
claim all bays regardless of the distance between headlands ; but
there was no indication that such wider claims were recognized.
by the international community. Further, there were some States
which adhered to a six-mile limit.

Second: it was recognized that, regardless of breadth, the
coastal State could treat as internal waters those bays over which
they had exercised sovereignty, without challenge, for a long time.
This is the doctrine of historic waters, and it is not confined to
bays, but can be applied to the assertion of rights over historic
waters which do not possess all the characteristics of a bay. The
rights of the coastal State are, in this case, fully supported by
customary law.

As regards these three types of waters—the belt of territorial
waters, Io-mile bays and historic waters—there is no instance in
which the claim of a coastal State has been successfully challenged
since the North Atlantic Fisheries Arbitration. They can, therefore,
all be regarded as established by rules of customary international
law. Whether or not claims to bays of greater breadth can be
supported, apart from historic factors, is a question which does
not need to be considered in this case. It should also be noted

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that, in the case of all types of bays or historic waters, the marginal
belt of territorial waters is measured from the outer limit of the
internal waters.

In this case Norway is asserting the right to measure the 4-mile
belt, not from the coast line, but trom long straight base-lines.
These lines depart from the line of the coast in Eastern Finnmark,
and from the line of the outer fringe of the ‘‘skjzrgaard” between
the North Cape and the Vestfjord. The Court is concerned with
this question :

—whether customary international law recognizes the right of
a coastal State to use straight base-lines for the delimitation
of its belt of territorial waters in such a manner as to depart
from the line of the coast, and to encroach upon the high seas,
thus depriving other States of rights and privileges to which
they had previously been entitled under the rules of inter-
national law.

It has been contended that such a claim can be derived from the
sovereignty of the coastal State, but I do not see how this can be.
Here, we are not dealing with the exercise, by a State, of sovereignty
within its domain. We are dealing with State action which extends
its domain, and purports to exclude all other States from areas of
the high seas. We are dealing with expansion of the maritime domain
designed to deprive other States of rights and privileges which,
before the extension, they were entitled to enjoy and exercise, under
the rules of international law.

In these circumstances, I should have much difficulty in justifying
the Norwegian system as an exercise of powers inherent in State
sovereignty.

The question remains: whether action by a State, encroaching
on the high seas and depriving other States of their rights and
privileges, can be justified by customary international law.

The true legal character of the problem has been obscured. It
has been treated as if the issue concerned the existence or non-
existence of a rule of customary international law restricting the
exercise of sovereign power by coastal States. It has been assumed
that the United Kingdom must establish the existence of such a
restrictive rule in order to challenge the validity of the 1935 Decree.
It has been suggested that the British case must fail, unless it can
be proved that such a restrictive rule is founded on customary
international law. |

The actual legal problem with which we are concerned is dif-
ferent. By the Decree of 1935, Norway has attempted to enlarge
the Norwegian maritime domain and to encroach on extensive

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areas of the high seas, and has seized and condemned foreign ships.
Accordingly, we must consider whether such a course is justified.
Disregarding, for the time being, the historic factor, we must begin
by examining the extent of the power to delimit its maritime
domain, given to a coastal State by international law.

Here, I have no doubt about the position The power of a State
to delimit its maritime domain is the same as its power to delimit
any other part of its domain. It can extend its domain in any way
that does not impair the rights of other States or of the inter-
national community : e.g., it can occupy no man’s land, res nullius ;
or it can annex occupied territory, with the consent of the territorial
sovereign. It cannot go beyond the territorial limits of its existing
sovereignty, if such a course impairs rights or privileges conferred
on other States by international law.

No question of res nullius or annexation arises in the case of
the sea. All nations enjoy all rights and all privileges in and over
all of the sea beyond the limit of territorial waters. It follows that
the power of a coastal State to mark out its maritime domain can-
not be used so as to encroach on the high seas and impair these
rights and privileges. Its power is limited to the marking out of
areas already subject to its sovereignty.

‘Accordingly, it is necessary to examine the actual extent of
Norwegian territorial waters, as recognized by customary inter-
national law before the making of the 1935 Decree. It certainly
consisted of a belt of territorial waters 4 sea miles in breadth:
but the question is to determine the starting points from which
the belt should be measured.

Few States have marked out their maritime domains, and the
course followed by Norway, in 1869, 1881, 1889 and 1935, was
unusual. In general, the matter has been left to national courts, to
prize courts, to arbitral trivunals and to diplomatic procedures in
the innumerable cases which have arisen and which have been dealt
with in the practice of States. Over the last century-and-a-half,
there have been many hundreds of cases in which foreign ships
have been seized by the authorities of coastal States. They have
arisen in naval war, in smuggling, in fisheries protection and in other
matters. They have given rise to legal problems, national and
international. The demarcation of territorial waters or of customs
zones or the establishment of the distance from the coast has
nearly always been in issue, and has been decided by national
courts or international tribunals, or settled by diplomatic nego-
tiations. In naval war, instructions have been given to commanders,
and seizures have been dealt with by prize courts.

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IOT DISSENTING OPINION OF JUDGE READ

Customary international law is the generalization of the practice
of States. This cannot be established by citing cases where coastal
States have made extensive claims, but have not maintained their
claims by the actual assertion of sovereignty over trespassing
foreign ships. Such claims may be important as starting points,
which, if not challenged, may ripen into historic title in the course
of time.

The only convincing evidence of State practice is to be found
in seizures, where the coastal State asserts its sovereignty over the
waters in question by arresting a foreign ship and by maintaining
its position in the course of diplomatic negotiation and inter-
national arbitration.

Here, it is necessary to rule out seizures made by Norway at
and since the commencement of the dispute. They met with
immediate protest by the United Kingdom, and must, therefore,
be disregarded. Seizures made in bays need not be taken into
account, because it is common ground that coastal States may
measure the belt of territorial waters from straight base-lines
joining the headlands of bays.

Setting aside these instances which are irrelevant to the present
issue, State practice may be examined. To begin with, the Record
in this case shows that Norway has maintained a four-mile limit
for territorial waters since 1745. For part of the time this was
used only for neutrality and prize; but, for much of the time,
it was applied to fisheries. During the whole of the period since
1747 foreign fishermen have been fishing in the neighbourhood of
the Norwegian coast ; Russians in the north, and, during the last
eighty or ninety years, French and Swedish fishermen in the south.
Further, there have been many naval wars in which Norway was
neutral, and the Record shows that infringements of neutrality
and incursions of privateers were a serious menace to the country.
It is noteworthy that there is not a single instance in which Norway
asserted sovereignty in any of the Disputed Areas—or, indeed,
over waters measured from long base-lines in other parts of the
country—by seizing a foreign poaching fisherman or by action
taken against a trespassing privateer, prize or man-of-war.

The same situation obtains in the case of other coastal States.
No instance has been cited by either Party in which a coastal

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State has seized a foreign ship and justified and maintained the
seizure, on the international plane, by relying on long base-lines
departing from the direction and sinuosities of the coast. It has
been a universal practice—in diplomatic negotiations, in prize
courts, in national tribunals (in so far as they were applying inter-
national law) and in international tribunals—to rely upon the
measurement of the territorial belt from the nearest land (or
internal waters),

There have been instances in which unsuccessful attempts have
been made to justify seizures on the basis of long straight base-
lines departing from the line and direction of the coast. There are
the Moray Firth cases, in which seizures were upheld by the Courts
on the authority of the local law, but in which the position thus
asserted was abandoned on the international plane by the Govern-
ment of the United Kingdom. There are also the cases cited in
Moore (Internatinal Law Digest, ‘The ‘Headland’ Theory”, Vol. I,
pp. 785-788), where attempts to justify seizures on this basis were
frustrated, either in the course of diplomatic negotiation or by
international tribunals.

The practice of States in dealing with actual assertion and
enforcement of claims over territorial waters is clear, unequivocal
and consistent. It has been based upon the measurement of the terri-
torial belt from the nearest land. I am compelled to conclude that
“The Headland Theory”, the claim by a coastal State to a belt
of territorial waters measured from long base-lines which depart
from the line of the coast, has no support in customary inter-
national law.

I do not think that the Court is called upon to pronounce upon
the various methods by which hydrographers have worked out
the limits of territorial waters on charts. I must, however, point
out that the so-called “arcs of circles method” is nothing more
or less than a technical expression, used to describe the way in
which the coast-line rule has been applied in the international
practice of the last century-and-a-half.

In the earliest days, the cannon on the coast, when traversed,
traced arcs by the splash of their shots. Later, the imaginary
cannon traced imaginary arcs which intersected and marked out
the limit based on cannon shot. Then, as now, the imaginary
cannon, mounted in minor concavities of the coast, were wasted,
because their arcs were within the limits of the intersection of
the shots from guns mounted at minor headlands. The substitution
of the 3 or 4-mile limit made no difference. The fisherman, the
smuggler, the master of the revenue cutter and the captain of
the cruiser all fixed the limit of territorial waters by measurement
from the nearest land. Innumerable national courts, international
tribunals and prize courts settled the limits in the same way. Air

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193 DISSENTING OPINION OF JUDGE READ

patrols have followed the same course. All reached the same result ;
and it did not make any difference where the problem arose or
what was the nationality of the ships. What is more, all reached
precisely the same result aS a hydrographer gets, by drawing
circles on a chart.

Before turning to the historic aspect of the problem, I must
deal with the Norwegian contention that, even if international
law recognizes a Coast-Line Rule, it is not applicable to broken
coast lines, or, in any event, not to the unique coast in question.

It is unrealistic to suggest that the northern coast of Norway
is unique or exceptional in that it has a broken coast line in East
Finnmark, or because West Finnmark, Troms and Nordland are
bordered by a coastal archipelago, deeply indented by fjords and
sunds. In other parts of the world, different names are used, but
there are many other instances of broken coast lines and archipel-
agoes. The Court has seen the west coast of Scotland on the charts
produced at the hearings. There are coastal archipelagoes, deeply
indented bays and broken coast lines on the north, south, east
and west coasts of Canada, in the panhandle of Alaska, in South
America, and, doubtless, in other parts of the world. There could
be no greater danger to the structure of international law than
to disregard the general rules of positive law and to base a deci-
sion on the real or imaginary exceptional character or uniqueness
of the case under consideration.

I cannot overlook the fact that the rejection of ‘‘The Headland
Theory” by positive international iaw was based, to a very large
extent, on the precedents collected in Moore’s International Digest,
cited above. They arose on the coast of Nova Scotia and Prince
Edward Island, a coast line deeply indented and broken by bays
and other inlets, fringed in many places with groups of islands,
rocks and reefs, a coast to which the terms ‘exceptional’ and
“unique” could readily be applied.

J am therefore led to the conclusion that the rules of international
law which, under comparable circumstances, are applicable to other
countries in other parts of the world, must be applied to the coast
of Norway.

*
* *

Having reached the conclusion that the Norwegian claim to
measure its belt of territorial waters from long straight base-lines
which depart from the line of the coast has no support in customary

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194 . DISSENTING OPINION OF JUDGE READ

international law, it is necessary to consider the question of historic
title. This aspect of the problem has arisen in two ways, both of
which involve decisions on the same basic questions of fact. Both
are related to the existence and application of the Norwegian
System.

The Norwegian System involves the assertion, by Norway, of
sovereignty over all the fjords and sunds, and over a 4-mile belt
of territoriai waters, measured from base-lines connecting points on
the mainland, or on the outermost islands, islets or rocks not con-
tinuously submerged by the sea. The System involves appreciation
and selection of the base-points by Norway, taking into account the
social and economic needs of the local population. There is no
limitation on the length of the lines. On the other hand, it is recog-
nized that they must be reasonable and that they must conform to
the generai direction of the coast. By general direction is meant a
fictional direction related to the country as a whole, and not to the
sector of the coast under consideration. The System does not admit
of any need to conform to the real direction either of the outer
fringe of the ‘‘skjærgaard’’ or of the mainland coast.

The first way in which the historic aspect of the problem arises
concerns the doctrine of historic waters. If it can be shown that
the Norwegian System was actually applied to the Disputed Areas,
they can be regarded as historic waters, and the British case fails.

The second way in which it arises concerns the general doctrines
of international law. If it can be shown that the Norwegian System
has been recognized by the international community, it follows that
it has become the doctrine of international law applicable to Nor-
way, either as special or as regional law, and the British case fails.

In both cases the burden is upon Norway to prove the following
facts :

ist— that the Norwegian System came into being as a part of
the law of Norway ;

2nd—that it was made known to the world in such a manner
that other nations, including the United Kingdom, knew
about it or must be assumed to have had knowledge ; and

3rd—that there has been acquiescence by the international com-
munity, including the United Kingdom.

As regards the question of historic waters there is the additional
point referred to above, namely, that it must be shown that the
System was actually applied to the Disputed Areas. In the second
case, treating the System as special or regional law, it would be
enough to show that Norway had asserted competence to apply its

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195 DISSENTING OPINION OF JUDGE READ

provisions to the coasts of Norway in general, including the Dis-
puted Areas. It would, however, be necessary to show that the
1935 Decree conformed to the requirements of the System.

This case, therefore, turns on the date when the Norwegian System
came into being, as a system : part of the public law of Norway ;
applicable or applied to the coast in question ; known to the world ;
and acquiesced in by the international community.

*
* *

It will be convenient to begin by examining the question : whether
the System was actually applied to the Disputed Areas before the
commencement of the dispute. If not, the Norwegian contentions
fail, as regards the doctrine of historic waters in the strict sense.

As the judgment of the Court does not rely on historic title in
this sense, it is possible to treat it briefly. For that purpose, con-
sideration can be given to the sector of the coast where most
evidence is available—the Disputed Area between base-points 5
and 6 in East Finnmark. The question is whether the Norwegian
System was applied to this Disputed Area so that it became subject
to the doctrine of historic waters.

The highest Court in Norway decided, in the St. Just case,
that the application of the Norwegian System, on that sector,
meant the assertion of exclusive Norwegian rights over a belt
of waters four miles in breadth measured from the base-line
between points 5 and 6.

Uncontradicted evidence, presented by the Norwegian Agent,
proves that the Norwegian Foreign Ministry, when defending the
seizure of the Kanuck in 1923, relied upon the measurement of
Norwegian territorial waters from the Harbakken-Kavringen base-
line (9.4 miles) and not the Norwegian System. This is proved by
the Norwegian Note of February 11th, 1924, and confirmed by
the affidavit of Mr. Esmarch, Secretary-General of the Norwegian
Foreign Ministry (Counter-Memorial, Annex 41).

In 1930-1931, the diplomatic correspondence between Sir Charles
Wingfield and Mr. Esmarch, arising out of the seizure of the
Lord Weir, strongly confirms this position. It is not contradicted
by any evidence produced in the record. The statement made by
Sir Charles Wingfield was questioned by the Norwegian Agent,
who did not produce any evidence to the contrary. The statement
was that the ground relied upon to justify the seizure of the

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196 DISSENTING OPINION OF JUDGE READ

Lord Weir was ‘that on the night of 15th September she had
fished at a spot 3.6 nautical miles outside the line Haabrandnesset-
Klubbespiret : i.e. more than 4 nautical miles from the nearest
land”. The Norwegian Agent had access to the Court records in
Norway. The diplomatic correspondence was set forth in the
Memorial, Annex 10. He had four opportunities to produce
contradictory evidence : in the Counter-Memorial, in the Rejoinder
and at the two stages of the oral proceedings. He did not choose
to do so and in the circumstances I am compelled to accept
Sir Charles Wingfield’s statement. It proves: (1) that, in 1930-1931,
the Norwegian judicial and police authorities were measuring
territorial waters from the Haabrandnesset-Klubbespiret base-line
(the same closing lines of Syltefjord as were subsequently adopted
in the Reply at p. 248); (2) that, in 1930-1931, Norway was
not applying the Norwegian System to the East Finnmark coast ;
(3) that Sir Charles Wingfield put forward specific requests for
information as to the nature and extent of the Norwegian claims ;
(4) that Mr. Esmarch’s reply was not responsive, and, even at
that late date, he did not give any information that would enable
the British Government to appreciate the nature and extent of
the Norwegian System.

The evidence with regard to the Kanuck and Lord Weir incidents
shows, beyond all reasonable doubt, that the Norwegian System
was not being asserted and applied in the Disputed Area in 1923,
1930 or 1931. On the other hand, it is equally clear that the
Norwegian System was being applied in the year 1933. This point
is settled by uncontradicted evidence arising out of the seizure
of the St, Just on November 3rd, 1933. In that case, the St. Just
was seized, prosecuted and condemned for having fished within
a territorial belt 4 miles in breadth measured from a line connecting
base-points 5 and 6. These base-points had not then been authorized
by the 1935 Decree. It is only possible to assume that at some
time between August 11th, 1931, and the seizure, the Norwegian
Government decided to commence the assertion and enforcement
of a claim to a territorial belt measured from long base-lines
connecting the outermost mainland points, islands, etc. In other
words, during this period the Norwegian Government decided to
put the Norwegian System into force.

It is, therefore, clearly established that the Norwegian System
was not actually applied to the Disputed Areas until after
August 11th, 1931. That date was long after the dispute had
arisen, and the Norwegian contention fails, as regards historic
title in the strict sense.

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197 DISSENTING OPINION OF JUDGE READ

* * *

Having dealt with the claim to the Disputed Areas as historic
waters in the strict sense, the question remains: whether the
Norwegian System can be treated as a doctrine of special inter-
national law, asserted by Norway, and recognized by the inter-
national community.

For this purpose, it is not necessary to show that it was actually
applied in the Disputed Areas before 1933 or 1935. It would be
sufficient to prove that Norway had consistently and persistently
asserted the right to apply the System to the Norwegian coast
generally, and that there had been acquiescence in this claim by the
international community.

At the outset, I must explain that I do not regard the older
historical data as important. I think that Norway has sufficiently
proved that, at the close of the 18th century and under the inter-
national law of the time, Norway was asserting exclusive rights
ovet a belt of waters which, as regards fishing rights, was based on
the range of vision. This belt was much more extensive than that
which was marked out by the 1935 Decree. The maritime domain,
at that time and for fishing purposes, extended beyond the Blue
Lines and certainly included nearly all of the Disputed Areas.
These extensive Norwegian rights were not much different from the
rights of other countries where exclusive fishing rights based on
range of vision were recognized by the early international law.

One might ask: how and when did Norway lose these rights ?
They disintegrated or fell into desuetude in Norway in the same
manner as in other maritime countries. In Norway, as elsewhere,
it is difficult to point to a particular decree or to special govern-
mental action marking the end. It is, however, possible to point,
with reasonable certainty, to the date.

In the 18th century, the only foreigners engaged in fishing off
the northern coast were Russians. They were excluded from a belt
of waters 1 league from the coast ; but were permitted to fish in
what were then regarded as Norwegian waters beyond that limit,
on payment of dues which covered both the fishing and shore
privileges. These arrangements were based on diplomatic negotia-
tions and on the Rescript of 1747.

In the course of time, however, there was general recognition
that the fishing by the Russians beyond the 4-mile limit was
of right and not dependent on permission from the Norwegian
authorities.

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198 DISSENTING OPINION OF JUDGE READ

The Royal Commission established in 1825-1826 to examine
measures relating to the economic development of Finnmark,
looked upon the fishing beyond the 1-league limit as a special
concession granted to the Russian fishermen. The Royal Legislative
Commission took a different view and favoured the opinion that
fishing beyond the 1-league limit was in principle free from restric-
tion,

The Finnmark Commission had proposed for incorporation in
Article 40 of its draft proposal for a law relating to trade in both
East and West Finnmark specific words which would have made it
clear that the Russian fishing beyond the 1-league limit was per-
missive. These words were not included, and in Article 40 of the
Law of 1830 the expression used read as follows : “If the Russians,
by reason of such fishing as they indulge in beyond the distance of
I league from the coast, should wish to come ashore, the places
where they land must not be....”’ It is, therefore, clear that the
views of the Royal Legislative Commission prevailed. (See Rejoinder,
Annexes, pp. 31-32.)

This position is confirmed by the statement in the Report of
the Territorial Waters Boundary Commission dated February 2oth,
1912, which may be referred to as the 1912 Report, page 18:
“Whatever may have been the object of the Rescript, a legal
practice was nevertheless soon to develop whereby the dues were
paid for the sojourn on land, and fishing beyond the distance of
1 league (1 mil) was regarded as fishing on the open seas.”

‘There can, therefore, be no doubt about date. By 1830 there
was definite recognition that fishing beyond the 4-mile limit was to
be regarded as fishing on the open seas. The ancient exclusive
rights of the offshore fishing grounds beyond that limit had disap-
peared in so far as Finnmark was concerned. Whether or not this
situation obtained in other parts of Norway is not clearly established
in the Record. There is no reason to believe that there was any
difference in other parts of the country ; but, in any event, by the
year 1862 it was certain that the 4-mile limit had been established
for the whole of the coast and for all purposes including fishing.
(See Counter-Memorial, Annex No. 14.)

Accordingly, it is now necessary to consider how and when the
Norwegian System came into being as a part of the public law of
Norway.

The origin of certain elements of the Norwegian System—the
four-mile limit, and the claims regarding the fjords and sunds and
the “skjezrgaard”—are to be found in the 18th century or earlier :
but the use of long straight base-lines departing from the coast is
a modern invention.

The foundation of the base-line doctrine has been attributed to
the Royal Decree of 1691, which prohibited captures “within sight
of Our coasts, which is computed as 4 or 5 leagues from the out-

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199 DISSENTING OPINION OF JUDGE READ

lying rocks”. I am unable to accept this view, because I think that
this Decree meant what it said. “Four or five leagues from the
outlying rocks” meant a distance measured from the rocks, and
not from imaginary base-lines many miles seaward from the out-
lying rocks. “Within sight of the coast” meant range of vision.
Range of vision, from its very nature, must be measured from
something visible, a rock or the coast line. It is inconceivable that
the Decree meant measurement from imaginary base-lines, invisible
at short range, and, a fortiori, invisible at a distance of four or five
leagues. There is nothing in the language used in subsequent laws
or decrees, between 1691 and 1868, that indicates any change from
the old, traditional practice of measurement from the coast line
and outermost rocks, reefs and islands.

This view is confirmed by the fact that there is not even one
instance, arising before the commencement of the dispute and cited
in the Record of this case, in which Norwegian claims to waters
measured from straight base-lines (apart, of course, from bays) were
enforced against a poaching or trespassing foreign ship, under the
Decrees of 1691, 1745, 1747, 1756 or 1812, or under the Law of 1830.

The first suggestion of a base-line doctrine is to be found in the
Statement of Reasons by the Ministry of the Interior which led to
the Sunnmôre Decree of 1869, and in the Norwegian Note No. 4 in
the diplomatic correspondence with France, February 8th, 1870.
The Norwegian System has had many restatements, and in the
course of restatement there have been refinements and definitions
and possibly even additions, but the heart of the System is to be
found in these two documents.

Accordingly, while the matter is not free from doubt, I shall
proceed on the assumption that the Norwegian System came into
being in 1869.

It is not enough to prove that the Norwegian System came into
being in order to establish it as a special doctrine of international
law. It must be proved that it was made known to the world in
such manner that other nations, including the United Kingdom,
knew about it or must be assumed to have had knowledge.

The first attempt by Norway to rely upon this doctrine was in
the Sunnmére Decree of 1869. There is no text of this Decree
(or of the similar Decree of 1889) in the Record of this case. In
the circumstances, it is necessary to rely upon a quotation con-
tained in paragraph 59 of the Counter-Memorial which does not
purport to set forth the whole text of the Decree, but which
probably does so, and which reads as follows :

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200 DISSENTING OPINION OF JUDGE READ

“59. The Royal Decree of October 16th, 1869, provides that
‘a straight line at a distance of one geographical league, parallel
with a straight line joining the islet of Storholmen and the island
of Svindy should be considered as the limit of the sea belt off the
bailiwick of Sondmôre, within which the fishing shall be exclusively

ceed

reserved to the indigenous inhabitants’.

The text of the Decree is unequivocal. It establishes a line of
demarcation for a sector of the Norwegian coast far from the
Disputed Areas (the same is true for the 1889 Decree). It says
nothing about the coasts of Finnmark, Troms or Nordland. It
does not pretend to lay down any principles of general application.
In itself, it has no bearing on the present case. On the other hand,
it does lay down a long base-line connecting two remote islands.

The question to be decided is whether the making of one Decree,
limited in its scope and applicable only to the particular coast of
Sunnmôre in 1869, followed by a similar Decree continuing the
line and using long straight base-lines for the particular coast of
Romsdal in 1889, was enough to make known to the world the
existence of the Norwegian System.

The British concession that the waters covered by the Sunnmôüre
and Romsdal Decrees are Norwegian historic waters would justify
a finding that these Decrees were sufficiently well known, but they
did not make any claims extending beyond these two localities.

On the other hand, neither the Norwegian Note to France,
nor the Statement of Reasons was brought to the attention of
other governments and certainly not to the attention of the
British Government.

Counsel for Norway reviewed the reasons for assuming British
knowledge of the Norwegian System. He showed that the Decrees
of 1869 and 1889 had been published in a gazette called the
“Bulletin of the Ministries’ and in books like Fulton and the
Reports of the Institute of International Law. He made a good
case for the view that the Decrees were well known to the world,
but he did not point to any instance in which either the Statement
of Reasons or the Note to France, No. 4, was communicated to the
British Government, or, indeed, to any other foreign government.

In these circumstances, I am unable to conclude that the British
Government, or, indeed, any other foreign government except
France, had any reason to believe that a Norwegian System had
come into being in 1869-1889, or that these Decrees were anything
more than local ad hoc measures.

I do not intend to review all the official acts and public state-
ments of the Norwegian Government or to examine the texts of
the Laws and Decrees delimiting Norwegian waters, whether
for fishing, prize or other purposes. For my part it is enough

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201 DISSENTING OPINION OF JUDGE READ

to say that they cover a long period of time, and that they
indicate :

Ist—that there was no Norwegian System under which exclusive
rights were asserted over the fisheries in the Disputed
Areas ;

2nd—that the public acts of the Norwegian Government were,
during this period, consistent with claims to a belt of
territorial waters, four miles in breadth, measured from
the coast ;

3rd-—that there was nothing in these public acts and documents
which would lead the British, or any other foreign govern-
ment, to believe that. Norway was claiming the Disputed
Areas ; or a right, as regards the whole country, to measure
territorial waters from long base-lines departing from the
line and direction of the coast.

These circumstances greatly increase the difficulty which con-
fronts me, when I am asked to find that there has been constructive
notice to the British Government of the existence of the Norwegian
System, or of such claims by the Norwegian Government. At most,
the British Government could be assumed to have had knowledge
that there was a possibility that Norway might, at some future
time, try out a course in other parts of the coast, similar to that
which had been followed in the SunnmGre and Romsdal Decrees.

It is impossible to overlook the fact that the evidence clearly
indicates that the Government of the United Kingdom had no
actual knowledge of the Norwegian System, or of the nature and
extent of the rights claimed by Norway. Reference has already
been made to an attempt by Sir Charles Wingfield to obtain inform-
ation, and to the refusal by Mr. Esmarch to give any real indi-
cation of the nature and extent of the Norwegian claims. There
are other instances of enquiries, and the Norwegian Agent gave
an exhaustive list of the answers given (Statements in Court,
pp. 175-176). An examination of these answers shows that no
information was given to the Government of the United Kingdom,
at any time before the commencement of the dispute, that could
be regarded as actual or constructive notice that Norway was
asserting the right to establish a belt of territorial waters measured
from long base-lines departing from the line of the coast.

There is one of the ‘‘answers’’, to which the Norwegian Agent
referred, which requires special consideration, namely, the 1912
Report. This was a report of a Norwegian commission intended
for the information and guidance of the Norwegian executive and
legislative authorities. It contained extensive quotations from the

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202 DISSENTING OPINION OF JUDGE READ

Statements of Reasons for the 1869 and 1889 Decrees ; it showed
that the commissioners favoured the method of measuring terri-
torial waters from long straight base-lines ; and it put forward
concrete proposals, similar to those adopted in the 1935 Decree,
in the Annex No. 1 (supplemented by a later report by another
committee in 1913--Counter-Memonal, Annexes 36 and 37). The
Norwegian Government withheld these documents so that it was
impossible for the British Government to understand the extent
of the claims. Enough remained, however, in the body of the 1912
Report to show that Norway might be claiming the right to measure
its belt of territorial waters from long straight base-lines.

Accordingly, the question arises: whether this communication
of the 1912 Report was notice to the British Government of the
existence of the Norwegian System; and, if so, whether there
was acquiescence by that Government, so as to enable the claims
constituting that System to ripen into rules of customary inter-
national law.

Here, without going into the question whether the Report was
an adequate warning of the existence of the System, I shall consider
whether the failure of the British Government to make specific
protests on receipt of the 1912 Report and of the Norwegian Note
of November 29th, 1913, can be regarded as acceptance of the
Norwegian claims.

The circumstances attending this communication are plain
enough. Controversy regarding the extent of Norwegian waters
had arisen as a result of the seizure of the British trawler Lord
Roberts in the Varangerfjord in March 1911 (Counter-Memorial,
Annex 38). The difference between the two Governments, as under-
stood at the time, was stated in the British Minister’s Note of
August 22nd, 1913, as follows:

‘‘The points of view of the two Governments may be briefly
defined as being that, while His Majesty’s Government contend
that, in the absence of any specific agreement to the contrary,
jurisdiction cannot be exercised in waters beyond a distance of
three marine miles from low-water mark, Norway claims as within
her territorial jurisdiction all waters up to a distance of four marine
miles, together with the whole area comprised in certain fjords.’

The Minister proposed a modus vivendi, and, in his proposal,
made it clear that “.... His Majesty’s Government must insist on
leaving the question of principle intact, and cannot admit that,
failing a special understanding, the Norwegian Government are
entitled to settle the disputed point arbitrarily in their own favour.’

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203 DISSENTING OPINION OF JUDGE READ

In the Norwegian Foreign Ministry’s Note of November 29th,
1913, dealing with the proposal, reference was made to the 1912
Report :

“The reasons advanced by Norway in support of her delimitation
of her territorial waters, are set forth in the report of a Commission
appointed in 1911. A few copies of a French translation of this
report were forwarded to you unofficially at the time by my prede-
cessor Mr. Irgens. In it those principles of international law were
set forth, which, in the opinion of the Norwegian Government,
were favourable to its point of view, together with the particular
circumstances obtaining in the matter of Norwegian. territorial
waters, including the recognition accorded thereto, either explicitly
or implicitly by -foreign Powers.”

The Ministry went on to suggest modifications of the proposal.
Nothing came of these negotiations, presumably because of the
intervention of war.

The 1912 Report was transmitted and adopted by the Morwegian
Foreign Ministry as a statement of the principles of international
law supporting the Norwegian position. This was done, however,
in the course of negotiations for the establishment of a modus
vivendi. By its very nature, a modus vivendi implies the reservation
and preservation of the legal positions of both Parties to the con-
troversy. If nothing had been said, it would have been necessary
to imply an intention of both Parties to admit nothing and to
maintain their legal positions intact. In this case, however, the
negotiations proceeded on the basis of an express stipulation to
leave ‘‘the question of principle intact’’.

In these circumstances, I think that the British Government
was justified in regarding all aspects of the negotiations, including
the 1912 Report and the Note of November zoth, 1913, as covered
by the basic reservation. The omission to make a specific reservation
or objection at this stage cannot possibly be treated as proof of
acquiescence in or acceptance of the Norwegian System.

There is the further point, that from the time of the seizure of
the Lord Roberts, in 1911, until the present the Parties have been
in controversy about the extent of Norwegian waters and about
the rights of British ships in areas which were regarded by the
British Government as part of the High Seas. Parts of the con-
troversy have been settled by the British concessions with regard
to the four-mile limit, the fjords and sunds, and the recognition
of the outer fringe of the ‘‘skjzrgaard” as the coast line. Apart
from these concessions, the British Government has never admitted
the right to measure territorial waters from long base-lines depart-
ing from the line of the coast or the “skjzrgaard’’, and it has
maintained throughout the contention that the waters must be

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204 DISSENTING OPINION OF JUDGE READ

measured from the low-water mark. The transmission of the 1912
Report was made after the commencement of the dispute.

The position of the Parties regarding knowledge of the Norwegian
claims or notice of the existence of the Norwegian System may be
summed up. Shortly after the commencement of the dispute, in the
correspondence exchanged in 1913 and referred to above, the
British Government received some indication that Norway might
be making extensive claims as regards the demarcation of territorial
waters, but no definite information as to the extent of the claim ;
and, as I have already indicated, the information was received in
such circumstances that the failure to make immediate protest could
not have been regarded as acquiescence even if the extent of the
claim had been indicated. In 1923-1924 at the time of the Kanuck
incident, both the British Government and the Norwegian Foreign
Ministry were in the dark as to the nature and extent of the claims
which are now regarded as being involved in the Norwegian System.
The British Government was informed by the late Sir Francis
Lindley that the Norwegian Government was relying on the applic-
ation of the Io-mile rule for the Persfjord. The Norwegian Foreign
Ministry thought that it was relying on the Harbakken-Kavringen
closing line for the fjord, 9.4 marine miles in length. The communica-
tion by the Norwegian Foreign Ministry to the Secretary-General
of the League of Nations, March 3rd, 1927, disclosed to the world
the fact that Norway was asserting the right to mark out the belt
of territorial waters from long straight base-lines, although even at
that late date it was not yet clear that Norway was-asserting the
right to use base-lines that departed from the line and direction of
the coast or of the outer fringe of the ‘‘skjargaard’’. In the corre-
spondence arising out of the Lord Weir seizure, there was a marked
change on both sides. Sir Charles Wingfield’s Note clearly indicated
that the British Government had by that time learned that Norway
was asserting the right to use long straight base-lines, and that it
suspected that the Norwegian claim might be even more extensive
than that which was involved in the closing line for the Syltefjord
then relied on by the Norwegian authorities. The British Govern-
ment was requesting definite information as to the nature and
extent of the Norwegian claim. Mr. Esmarch’s Note shows clearly
that the Norwegian Foreign Ministry was then aware that much
more extensive claims were in the offing, but that it was still im-
possible to give any real information as to the nature and extent
of the claims. The British Memorandum to the Norwegian Govern-
ment, July 27th, 1933, set forth in the Counter-Memorial, Annex 11,
shows that even then the Government was still waiting for an
authoritative statement as to the Norwegian claim. It is clear,
therefore, that the British Government, notwithstanding repeated
requests, was unable to obtain any definite information as to the

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205 DISSENTING OPINION OF JUDGE READ

true nature and character of the Norwegian System prior to the
judgment in the St. Just case, and the publication of the Royal
Norwegian Decree of 1935.

In these circumstances, I cannot avoid reaching the conclusion
that it has not been proved that the Norwegian System was made
known to the world in time, and in such a manner that other nations,
including the United Kingdom, knew about it or must be assumed
to have had constructive knowledge.

There is perhaps one qualification regarding the foregoing con-
clusion. It appears from the record of seizures and warnings to
trawlers that Norway, in 1923, began to assert and enforce exclusive
rights in the waters in dispute. There is an isolated instance of
warning to a British trawler Caulonia in 1913, at a point outside
the Green Line ; but no other instance of either seizure or warning
at a point outside of that line before 1923. Between the years
1923-1949, there were twenty-four seizures and twenty-three warn-
ings of trawlers at points within the Disputed Areas.

There can therefore be no doubt that Norway, from 1923 on,
was vigorously asserting and enforcing extensive exclusive rights.
On the other hand, this was too late to support a claim to the
existence of the Norwegian System as a doctrine of customary
international law binding on the United Kingdom. The first of the
seizures, the Kanuck in 1923, was the subject of diplomatic nego-
tiation. While it would be entirely proper to attribute to the Govern-
ment of the United Kingdom knowledge that Norway, during the
period from 1923 to 1933, was asserting very wide claims as regards
the extent of territorial waters, this all took place after the present
dispute had come into being. It was too late to give effect toa
special or regional doctrine of international law binding on the
Government of the United Kingdom.

I do not intend to comment on the different sectors of the coast,
or to indicate, in detail, the parts of the Disputed Areas which
are open to objection as not having been delimited in conformity
with the principles of international law. In East Finnmark I
consider that the Disputed Areas between base-points 5 and 12 are
open to serious objection, and there I consider that the Green Line
fairly indicates the extent to which the Blue Line is not in conform-
ity with international law. Between base-points 12 and 35, while
there are places where the Blue Line departs from the line and
direction cf the outer fringe of the ‘‘skjærgaard”’, the Green Line

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206 DISSENTING OPINION OF JUDGE READ

is unsatisfactory for two reasons : (1) because it needs to be recti-
fied in accordance with the British alternative submission ; and
{2} because further rectification would be necessary to take into
account penetrations in the fringe of the ‘‘skjzrgaard’’ which in
reality have the characteristics of bays enclosed by groups of
islands.

Between base-points 35 and 48, while the matter is not free
from doubt, I am not inclined to question the Blue Line.

Accordingly, in view of all of the foregoing considerations, I am
led to the conclusion that the delimitation of the fisheries zone
fixed by the Norwegian Royal Decree of July 12th, 1935, is not in
conformity with the rules and principles of international law.

(Signed) J. E. Reap.

94


                                                                              73

           DE
            u CLARATION DE M. LE JUGE KOOIJMANS

[Traduction]

   Clause compromissoire du paragraphe 1 de l’article 29 de la convention sur
l’élimination de toutes les formes de discrimination à l’égard des femmes —
Condition de négociations diplomatiques préalables — Plaintes de la RDC dans
un contexte multilatéral, comme tentatives de négociation — Une référence
explicite à la convention est-elle nécessaire ? — La position de la Cour est exa-
gérément restrictive.

  1. Je souscris au prononcé de la Cour selon lequel elle n’a pas compé-
tence pour connaître de la requête de la RDC. J’éprouve cependant de
sérieux doutes quant à la pertinence d’un des éléments de la conclusion
par laquelle elle se déclare incompétente sur le fondement du paragra-
phe 1 de l’article 29 de la convention sur l’élimination de toutes les for-
mes de discrimination à l’égard des femmes. Comme la portée de cette
question dépasse à mon avis le champ de la présente affaire, je voudrais
exposer à cet égard mes préoccupations.
  2. Le paragraphe 1 de l’article 29 de la convention est libellé comme suit :
        « Tout différend entre deux ou plusieurs Etats parties concernant
     l’interprétation ou l’application de la présente convention qui n’est
     pas réglé par voie de négociation est soumis à l’arbitrage, à la
     demande de l’un d’entre eux. Si, dans les six mois qui suivent la date
     de la demande d’arbitrage, les parties ne parviennent pas à se mettre
     d’accord sur l’organisation de l’arbitrage, l’une quelconque d’entre
     elles peut soumettre le différend à la Cour internationale de Justice,
     en déposant une requête conformément au Statut de la Cour. »
   3. Dans l’arrêt, la Cour relève que la convention subordonne sa com-
pétence aux conditions suivantes : premièrement, qu’une tentative ait été
faite, sans succès, de régler le différend par la négociation ; deuxième-
ment, qu’une demande d’arbitrage ait été présentée ; et, enfin, qu’un délai
de six mois se soit écoulé à compter de la date de cette demande (arrêt,
par. 87).
   4. En ce qui concerne la première condition, la Cour conclut que
     « [l]es éléments de preuve présentés à la Cour n’ont pas permis d’éta-
     blir à sa satisfaction que la RDC ait en fait cherché à entamer des
     négociations relatives à l’interprétation ou l’application de la conven-
     tion » (arrêt, par. 91).
   5. La Cour admet manifestement la validité de l’argument de la RDC
selon lequel de telles négociations ne doivent pas nécessairement prendre
la forme de négociations bilatérales mais peuvent aussi se situer dans un
contexte multilatéral et avoir pour point de départ des protestations ou

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                   ACTIVITÉS ARMÉES (DÉCL. KOOIJMANS)                      74

des plaintes portées à l’attention d’institutions internationales. La RDC a
cité à cet égard la plainte dont elle a saisi le 24 février 1999 la Commis-
sion africaine des droits de l’homme et des peuples ainsi que les nom-
breuses plaintes, concernant notamment des violations des droits de
l’homme, qu’elle a soumises au Conseil de sécurité. La position de la
Cour sur ce point est conforme à son prononcé antérieur :
       « [D]epuis quarante ou cinquante ans, la diplomatie pratiquée au sein
    des conférences ou diplomatie parlementaire s’est fait reconnaître comme
    l’un des moyens établis de conduire des négociations internationales. »
    (Sud-Ouest africain (Ethiopie c. Afrique du Sud ; Libéria c. Afrique du
    Sud), exceptions préliminaires, C.I.J. Recueil 1962, p. 346.)
    6. Cependant, la Cour n’estime pas que ces plaintes puissent être qua-
lifiées de tentatives de règlement du différend par voie de négociation au
sens du paragraphe 1 de l’article 29 de la convention, au simple motif que
la RDC ne faisait pas explicitement référence à la convention sur la dis-
crimination à l’égard des femmes.
    7. Cette position de la Cour m’apparaît irréaliste, surtout dans le cas
d’un conflit qui, comme en l’espèce, présente de multiples aspects. Dans
les plaintes qu’elle a soumises au Conseil de sécurité, la RDC a allégué
des violations par le Rwanda de normes juridiques très diverses, touchant
à l’emploi de la force, au droit humanitaire et au droit des droits de
l’homme. Compte tenu du caractère et du mandat des institutions inter-
nationales à l’attention desquelles ces griefs ont été portés, on ne pouvait
s’attendre à ce que les plaintes détaillent traité par traité les dispositions
auxquelles les violations alléguées contrevenaient. En imposant néan-
moins au plaignant une telle exigence, la Cour, en fait, exclut pratique-
ment toute possibilité de qualifier de telles protestations, élevées dans un
contexte multilatéral, de tentative de négocier comme l’exige, notam-
ment, la clause compromissoire de la convention sur la discrimination à
l’égard des femmes.
    8. A cet égard, le fait qu’une préoccupation particulière a bien été
exprimée par la communauté internationale à propos des droits des
femmes mérite d’être mentionné. La résolution 2002/14 en date du
19 avril 2002 de la Commission des droits de l’homme de l’Organisation
des Nations Unies, par exemple, demandait instamment à toutes les
parties au conflit en République démocratique du Congo de respecter, en
particulier, les droits des femmes et des enfants.
    9. En outre, dans les Livres blancs qu’elle a publiés pendant la période
du conflit armé (1998-2002), la RDC s’était plainte régulièrement de la
violation de normes très diverses du droit international humanitaire et du
droit international de droits de l’homme. Ces plaintes citaient de nom-
breux exemples précis d’atrocités commises par les troupes rwandaises à
l’encontre des femmes. Le Rwanda, par conséquent, ne pouvait ignorer
qu’il était accusé d’infractions à de multiples normes conventionnelles
relatives aux droits de l’homme, y compris des normes concernant la pro-
tection des femmes.

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                   ACTIVITÉS ARMÉES (DÉCL. KOOIJMANS)                     75

   10. A cet égard, la présente affaire ressemble à celle des Activités mili-
taires et paramilitaires au Nicaragua et contre celui-ci, dans laquelle la
Cour, en son arrêt sur la compétence et la recevabilité, a dit qu’à son avis

    « parce qu’un Etat ne s’est pas expressément référé, dans des négo-
    ciations avec un autre Etat, à un traité particulier qui aurait été violé
    par la conduite de celui-ci, il n’en découle pas nécessairement que le
    premier ne serait pas admis à invoquer la clause compromissoire
    dudit traité. Les Etats-Unis savaient avant l’introduction de la pré-
    sente instance que le Nicaragua affirmait que leur comportement
    constituait une violation de leurs obligations internationales ; ils
    savent maintenant qu’il leur est reproché d’avoir violé des articles
    précis du traité de 1956. » (C.I.J. Recueil 1984, p. 428, par. 83.)
   11. Je ne suis donc pas d’accord avec la Cour quand elle conclut que la
RDC ne peut pas être considérée comme ayant cherché à entamer des
négociations relatives à l’interprétation ou l’application de la convention,
d’autant que les tentatives qu’elle a faites pour négocier dans ce contexte
multilatéral plus général n’ont amené aucune réaction positive de la part
de l’autre partie. J’estime que la position prise par la Cour est exagéré-
ment restrictive et s’écarte de sa jurisprudence antérieure, qui traduisait
une certaine souplesse quant à l’exigence de négociations préalables.
   12. Bien différente est la question de savoir si les violations alléguées
de la convention sur la discrimination à l’égard des femmes peuvent
entrer dans le cadre des dispositions de cet instrument et si, par consé-
quent, la Cour est compétente ratione materiae pour connaître du diffé-
rend en application du paragraphe 1 de l’article 29 de la convention. En
l’espèce, le Rwanda n’a fait valoir à cet égard aucun moyen et la Cour n’a
pas statué sur ce point.
   13. Les observations qui précèdent sont d’autant plus pertinentes que
la deuxième condition posée au paragraphe 1 de l’article 29 — la demande
d’arbitrage — aurait obligé le plaignant à spécifier le caractère du diffé-
rend. Une demande d’arbitrage au titre de l’article 29 suppose nécessai-
rement que soit précisée la disposition conventionnelle dont la violation
est alléguée.
   14. C’est cette exigence d’une tentative de règlement par arbitrage qui
est l’élément clé du paragraphe 1 de l’article 29. La Cour ne peut être
compétente que si cette condition est remplie (voir Questions d’interpré-
tation et d’application de la convention de Montréal de 1971 résultant de
l’incident aérien de Lockerbie (Jamahiriya arabe libyenne c. Royaume-
Uni), C.I.J. Recueil 1998, p. 17, par. 21). La Cour n’ayant trouvé aucun
élément établissant que la RDC ait tenté d’engager une procédure d’arbi-
trage (arrêt, par. 92), elle ne pouvait faire autrement que conclure à son
incompétence au titre du paragraphe 1 de l’article 29 de la convention.

  15. On peut regretter que le seuil à partir duquel des Etats parties
peuvent porter à l’attention de la Cour des plaintes alléguant la violation

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                   ACTIVITÉS ARMÉES (DÉCL. KOOIJMANS)                    76

par d’autres Etats parties de conventions relatives aux droits de l’homme
soit plutôt élevé, du fait de diverses conditions préalables à remplir. Cela
est particulièrement vrai quand une convention contenant une clause
compromissoire (comme celle dont il s’agit ici) ne prévoit pas de procé-
dure (parallèle) permettant aux Etats de porter leur plainte devant un
organe institué par cet instrument. Mais la Cour n’a pas d’autre choix
que de vérifier si une condition préalable explicitement posée par les Etats
contractants est remplie et, si elle ne l’est pas, de se déclarer incompé-
tente. La convention, toutefois, ne fixe pas de critère précis pour appré-
cier l’élément du « non-règlement par voie de négociation ». Elle laisse
suffisamment de latitude pour que l’on puisse prendre pleinement en
considération le contexte de la négociation (ou de la tentative de négocia-
tion). Les mots « [t]out différend concernant l’interprétation ou l’appli-
cation de la présente convention », au paragraphe 1 de l’article 29, ne
renvoient directement qu’à la condition préalable de l’arbitrage et
n’acquièrent donc de pertinence que lorsque les négociations, sous
quelque forme qu’elles aient été conduites, se sont révélées vaines.

                                             (Signé) P. H. KOOIJMANS.

                                                                         74


       DISSENTING OPINION OF JUDGE BENNOUNA

 nglish Original Text]

Link between the arrest, detention and expulsion of Mr. Diallo and the viola-
n of his direct rights as associé — Recovery of debts — Sole associé — Con-
aints on the exercise of rights — Exercising the functions assigned to the
neral meetings of the companies — Right to take part and vote in general
 etings — Right to exercise the functions of a gérant — Right to oversee and
 nitor the management of the companies — Usus and fructus of the right to
operty over the parts sociales.

 1. I voted against subparagraph (6) of the operative part of the Judg-
ent, which “[f]inds that the Democratic Republic of the Congo has not
olated Mr. Diallo’s direct rights as associé in Africom-Zaire and Afri-
ntainers-Zaire”, since I believe that the unlawful and arbitrary charac-
   of Mr. Diallo’s arrest, detention and expulsion (subparagraphs (2) to
   of the operative part) resulted in the violation of his direct rights as
socié in the two companies.
 2. In its Judgment of 24 May 2007 on preliminary objections (Ahma-
 u Sadio Diallo (Republic of Guinea v. Democratic Republic of the
  ngo), Preliminary Objections, Judgment, I.C.J. Reports 2007 (II),
  606, para. 66), the Court left it until the merits stage to assess “the
 ects on these various rights [as associé and gérant] of the action against
r. Diallo”. It has clearly emerged at the merits stage of this case that
hen Mr. Diallo was twice detained, in 1988-1989 and 1995-1996, and
en finally expelled from the DRC, it was not simply at the whim of the
 thorities of that country, but because, on each occasion, he had
 empted to recover the debts which were allegedly owed to his compa-
es by the State or by companies in which the State holds a significant
 rtion of the capital. The debts owed by the State to Africom-Zaire in
e “listing paper” affair were acknowledged by the Finance
inister, who issued bills of exchange to settle them, but payment
  s then stopped on the order of the Prime Minister on 14 January 1988,
r. Diallo having been accused of “fraud”. On 25 January 1988, he
  s detained and imprisoned on the order of the Prime Minister for
most a year, without being brought to trial and without the State
 tling its debt to Africom-Zaire.
 3. Mr. Diallo was to meet with similar difficulties when he brought
 al proceedings to recover the debts owed by oil corporations in the
RC to Africontainers-Zaire. On 13 June 1995, he obtained a judgment
om the Kinshasa Tribunal de grande instance ordering Zaire Shell to
 y the sum of US$13 million to Africontainers-Zaire, that decision
ing enforceable. However, he was never to succeed in enforcing it ;

                                                                          89

 ving been the subject of an expulsion decree issued by the Prime Min-
 er on 31 October 1995, he was arrested on 5 November and expelled
om the DRC on 31 January 1996. In the meantime, on 15 November
 95, the Zaire Fina and Zaire Mobil Oil companies wrote to the Prime
 inister concerning the “[a]ttempted fraud and destabilization of oil
 mpanies by Diallo Ahmadou Sadio”. The two companies drew the
 ime Minister’s attention to the fact that “in June 1995 Mr. Diallo
hmadou Sadio, a Guinean subject, sued Zaire Shell and was awarded
S$13,000,000” and that “[e]ncouraged by his success in these proceed-
gs, Mr. Diallo is now threatening Zaire Mobil Oil and Zaire Fina” on
 e basis of “claims [which] are fictitious and out of all proportion”. They
 ded that they “fear that Diallo’s greed may imperil their very existence,
  endangering their commercial activities and the job security of their
mployees”, concluding “[t]hat is why we seek government intervention
  warn the courts and tribunals of Mr. Diallo Ahmadou Sadio’s activi-
 s in his campaign to destabilize trading companies”.

4. This letter, sent to the Prime Minister by public corporations in the
RC in which the State holds a substantial portion of the capital, reveals
e true reason for the detention and expulsion of Mr. Diallo, namely the
 al proceedings which he brought to recover the debts owed to Afri-
ntainers-Zaire by Congolese companies. It is of little significance that
e letter is dated after the expulsion decree, since it is based on the judg-
ent given against Zaire Shell on 13 June 1995 by the Kinshasa Tribunal
 grande instance.

 5. Furthermore, the Court has itself pointed out that
   “it is difficult not to discern a link between Mr. Diallo’s expulsion
   and the fact that he had attempted to recover debts which he
   believed were owed to his companies by, amongst others, the
   Zairean State or companies in which the State holds a substantial
   portion of the capital, bringing cases for this purpose before the
   civil courts” (Judgment, para. 82).
 t the Court has not drawn the consequences in terms of the infringe-
ents of Mr. Diallo’s direct rights as associé that were to result from the
pulsion.
6. The DRC authorities therefore clearly wished to force Mr. Diallo
 t of the territory of their country, so that he could no longer exercise
  direct rights as associé and gérant of Africom-Zaire and Africontainers-
 ire. It is thus difficult to understand how the Court can find (in
bparagraph (6) of the operative part) that the DRC has not violated
ese rights, when the very purpose of the expulsion of Mr. Diallo was to
event him from taking care of his companies. This is tantamount to
knowledging that the authorities of that country were able to get rid of
r. Diallo in this way and keep him from managing his affairs — which

                                                                         90

 iftly went into decline — without committing any breach at all of inter-
 tional law, which allows Mr. Diallo’s State of nationality to raise the
 ue of the DRC’s responsibility for wrongful acts that infringed
r. Diallo’s direct rights as associé.
 7. Such is the extent to which the findings of the majority on this point
ay represent a serious precedent, if they are perceived as giving “carte
anche” for ploys designed to neutralize foreign investors by expelling
em from the territory in which they are carrying on their activities.
 situation of this kind is all the more troubling because it is accepted,
  this case, that Mr. Diallo did in fact become the sole associé of the
 o companies, and that since he was “fully in charge and in control of
 ricom-Zaire, he was also, directly or indirectly, fully in charge and in
ntrol of Africontainers-Zaire” (Judgment, para. 110).
 8. It is true that, according to the Barcelona Traction jurisprudence,
ere is a distinction between the rights of shareholders and those of the
mpany, so that an infringement of the latter does not necessarily involve
breach of the former (Barcelona Traction, Light and Power Company,
mited (Belgium v. Spain), Second Phase, Judgment, I.C.J. Reports 1970,
 36, para. 46). However, a forced separation between the sole associé
 d his company is likely to result in a violation of the rights of both. Since
at associé has been prevented from exercising his rights, the company
ll be like a ship without a rudder and will inevitably founder ; that was
 be the case with Africom-Zaire and Africontainers-Zaire.
 9. Mr. Diallo’s direct rights, as claimed by Guinea, pertain to the right
  participate and vote in general meetings, the right to be appointed
rant and to exercise that function, the right to oversee and monitor the
anagement of the companies, and the right to property over the parts
ciales (Judgment, para. 116).
 10. On the right to take part and vote in general meetings, the Court
 serves that there is no evidence of a general meeting of either company
ing held before or after the expulsion of Mr. Diallo, a necessary condi-
 n for him to participate in such a meeting. It therefore asks whether
r. Diallo was deprived of the right to convene a general meeting, which
ust be held on Congolese territory, and concludes that such was not the
se (ibid., para. 121). The Court further adds that Mr. Diallo could have
 d himself represented by a proxy.
 11. Such reasoning, based on the purely formal aspect of Mr. Diallo’s
 ect right to convene general meetings of his companies, which must be
ld in the DRC, takes no account whatsoever of the nature of his con-
ction with them. It can readily be understood that, as the sole associé,
r. Diallo himself directly exercised the powers vested in the general
eeting, for example the allocation of profits, and that in reality the issue
hich arose following his expulsion was not so much the right to convene
 general meeting as that of exercising the functions assigned to it.
early, he was the only person able to do that, and he was prevented
om doing so as a result of his expulsion.

                                                                           91

 12. The majority, noting that Mr. Diallo could appoint a proxy for
 ricom-Zaire, though not for Africontainers-Zaire, has taken the for-
alistic approach almost to the point of caricature, stating that
Mr. Diallo, acting as associé of Africontainers-Zaire, could appoint the
 presentative or agent’ of Africom-Zaire as his proxy for a general
eeting of Africontainers-Zaire” (Judgment, para. 125).
 13. On the basis of the fact that Mr. Diallo is a partner with Africom-
 ire (of which he is the sole associé) in Africontainers-Zaire, the major-
  took the view that, by appointing a proxy from the former company,
  would no longer be debarred by the provisions of Article 22 of the
 ticles of Incorporation of Africontainers-Zaire. Formal contortions of
 s kind are surprising, especially when the issue is ultimately the same,
 mely, that Mr. Diallo was prevented from genuinely exercising the
nctions assigned to the general meeting of either of the companies, in
hich he is the sole associé.
 14. If it is accepted, as the Court noted in its 2007 Judgment on
 isdiction, that “Mr. Diallo, who was associé in Africom-Zaire and
 ricontainers-Zaire, also held the position of gérant in each of them”,
ere remains the question of whether his right to exercise the functions of
at position was violated by the DRC. In its Judgment on the merits,
e Court considers that “[w]hile the performance of Mr. Diallo’s duties
 gérant may have been rendered more difficult by his presence outside
e country, Guinea has failed to demonstrate that it was impossible to
 ry out those duties” (ibid., para. 135). But how could that be demonstrated ?
as it not sufficient to look back at the context of the expulsion of
r. Diallo, who had been blacklisted by the Congolese authorities, which
 d accused him of corruption and of having “breached Zairean public
der, especially in the economic, financial and monetary areas” (expul-
 n decree of 31 October 1995), in order for the Court to conclude that
 had become impossible for him ipso facto to perform his duties as
rant, since he was no longer able to liaise with his Congolese discussion
 rtners, in particular the public services involved with the debts owed to
  companies ?
 15. The Court next turns to Mr. Diallo’s right to oversee and monitor
e actions of management, and observes that “[w]hile it may have been
e case that Mr. Diallo’s detentions and expulsion from the DRC ren-
red the business activity of the companies more difficult, they simply
uld not have interfered with his ability to oversee and monitor the
rance, wherever he may have been” (Judgment, para. 147). Here again, the
ourt goes no further than a statement of principle which has no connec-
 n with the reality at issue, especially when it is appreciated to what
tent such monitoring requires an actual presence in the country con-
rned of the person responsible for it, who in this case is the sole associé,
en if the latter succeeds in appointing local collaborators in the DRC.
 16. As regards Mr. Diallo’s right to property over his parts sociales,
cluding his right to receive any dividends or any monies payable in the
ent of the companies being liquidated, the Court confines itself to stating

                                                                           92

at “[t]here is . . . no evidence that any dividends were ever declared or
at any action was ever taken to wind up the companies” (Judgment,
 ra. 157). And yet Mr. Diallo lived well on the income from his com-
 nies while he was resident in the DRC !
 17. As for the power to decide on the dissolution of the company,
hich lies with the general meeting (Article 99 of the 1887 Decree), this is
 theory a collective act which must be voted for by the associés, but in
e present case, the decision lay with Mr. Diallo. Having been expelled,
 was impossible for him in practice to carry out the winding-up and
 uidation of his companies and to realize the remainder of their
sets, leaving aside the fact that those companies, neglected and deprived
  income from the debts owed to them by the Congolese State, had in
e meantime totally collapsed. It may be true that Mr. Diallo was not
  mally deprived of his right to property over his parts sociales, but the fact
 that he was completely deprived of the usus and fructus of that right,
  ce he could neither draw dividends from them nor actually do with
em as he wished.
 18. In this case, the hindrance to the exercise of Mr. Diallo’s rights, as
 esult of his expulsion, amounted in my view to the DRC depriving him
  his direct rights as associé, thereby committing wrongful acts which
gage its international responsibility. By distinguishing, in its Judgment
  24 May 2007 on preliminary objections, between the rights of associés
 d those of the companies, the Court sought to take into account the
  al structure of the latter ; in its Judgment of 30 November 2010 on the
erits, by refusing to take account of Mr. Diallo’s right to exercise his
 hts as associé, the Court has left those rights devoid of any real scope.

                                        (Signed) Mohamed BENNOUNA.

                                                                            93


   COUR INTERNATIONALE DE JUSTICE

       RECUEIL DES ARRE| TS,
AVIS CONSULTATIFS ET ORDONNANCES

  DIFFE
      u REND FRONTALIER
      (BURKINA FASO/NIGER)

 ORDONNANCE DU 14 SEPTEMBRE 2010

          2010
   INTERNATIONAL COURT OF JUSTICE

     REPORTS OF JUDGMENTS,
  ADVISORY OPINIONS AND ORDERS

     FRONTIER DISPUTE
      (BURKINA FASO/NIGER)

    ORDER OF 14 SEPTEMBER 2010

                     Mode officiel de citation :
            Différend frontalier (Burkina Faso/Niger),
    ordonnance du 14 septembre 2010, C.I.J. Recueil 2010, p. 631

                         Official citation :
              Frontier Dispute (Burkina Faso/Niger),
      Order of 14 September 2010, I.C.J. Reports 2010, p. 631

                                           Sales number
ISSN 0074-4441
ISBN 978-92-1-071109-8
                                           No de vente :   999

                     14 SEPTEMBRE 2010

                       ORDONNANCE

DIFFE
    u REND FRONTALIER
(BURKINA FASO/NIGER)

  FRONTIER DISPUTE
(BURKINA FASO/NIGER)

                     14 SEPTEMBER 2010

                          ORDER

                                                                     631

             INTERNATIONAL COURT OF JUSTICE

                              YEAR 2010                                         2010
                                                                            14 September
                                                                             General List
                           14 September 2010                                   No. 149

                    FRONTIER DISPUTE
                     (BURKINA FASO/NIGER)

                                ORDER

Present : President OWADA ; Vice-President TOMKA ; Judges KOROMA,
          SIMMA, ABRAHAM, KEITH, SEPÚLVEDA-AMOR, BENNOUNA,
          SKOTNIKOV, CANÇADO TRINDADE, YUSUF, GREENWOOD, XUE,
          DONOGHUE ; Registrar COUVREUR.

  The International Court of Justice,
   Composed as above,
   After deliberation,
   Having regard to Articles 40 and 48 of the Statute of the Court and to
Articles 39, 40, 44 and 46 of the Rules of Court ;
   Whereas by a joint letter dated 12 May 2010 and filed in the Registry
on 20 July 2010, the Minister for Foreign Affairs and Regional Co-op-
eration of Burkina Faso and the Minister for Foreign Affairs, Co-opera-
tion, African Integration and Nigeriens Abroad of the Republic of Niger
notified to the Registrar a Special Agreement between the two States,
which was signed at Niamey on 24 February 2009 and entered into force
on 20 November 2009, whereby the Governments of the two States have
agreed to submit to the Court the frontier dispute between them over a
section of their shared boundary ;
   Whereas in Article 2 of the Special Agreement the Parties request the
Court to :

                                                                       4

                   FRONTIER DISPUTE (ORDER 14 IX 10)                      632

    “1. determine the course of the boundary between the two countries
        in the sector from the astronomic marker of Tong-Tong
        (latitude 14° 25′ 04″ N ; longitude 00° 12´ 47″ E) to the be-
        ginning of the Botou bend (latitude 12° 36′ 18″ N ; longitude
        01° 52′ 07″ E) ;
     2. place on record the Parties’ agreement on the results of the work
        of the Joint Technical Commission on Demarcation of the
        Burkina Faso-Niger boundary with regard to the following sec-
        tors :
        (a) the sector from the heights of N’Gouma to the astronomic
               marker of Tong-Tong ;
        (b) the sector from the beginning of the Botou bend to the
               River Mekrou” ;
   Whereas by the above-mentioned joint letter the Government of
Burkina Faso informed the Court of the appointment of H.E. Mr. Zaka-
lia Kote as Agent, of Their Excellencies Messrs. Clément P. Sawadogo
and Kadré Désiré Ouedraogo as Co-Agents, and of Messrs. Dramane
Ernest Diarra, Raymond Bruno Bamouni and Vincent Zakane as Deputy
Agents ; and whereas by that same letter the Government of Niger
informed the Court of the appointment of H.E. Ms Aminata Dji-
brilla Maïga Touré as Agent, of Their Excellencies Mr. Cissé Ousmane,
Mr. Abdoulaye Djibo and Brigadier-General Mamadou Ousseini as Co-
Agents, and of Mr. Sadé Elhadj Mahamane and H.E. Mr. Abdou Abarry
as Deputy Agents ;
   Whereas in Article 3, paragraph 1, of the Special Agreement the
Parties have agreed that, without prejudice to any question as to the bur-
den of proof, the written pleadings should include :
    “(a) a Memorial filed by each Party not later than nine (9) months
         after the seising of the Court ;
     (b) a Counter-Memorial filed by each Party not later than nine
         (9) months after exchange of the Memorials ;
     (c) any other written pleading whose filing, at the request of either
         of the Parties, shall have been authorized or directed by the
         Court”,
  Fixes the following time-limits for the filing of the initial written plead-
ings in the case :
  20 April 2011 for the filing of a Memorial by each Party ;
  20 January 2012 for the filing of a Counter-Memorial by each Party ;
and
  Reserves the subsequent procedure for further decision.

  Done in French and in English, the French text being authoritative, at
the Peace Palace, The Hague, this fourteenth day of September, two thou-

                                                                            5

                  FRONTIER DISPUTE (ORDER 14 IX 10)                   633

sand and ten, in three copies, one of which will be placed in the archives
of the Court and the others transmitted to the Government of Burkina
Faso and the Government of the Republic of Niger, respectively.

(Signed) President.                       (Signed) Hisashi OWADA,
                                                      President.
                                        (Signed) Philippe COUVREUR,
                                                      Registrar.

                                                                        6


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING THE
AERIAL INCIDENT OF
JULY 27th, 1955

(UNITED KINGDOM v. BULGARIA)

ORDER OF MAY 27th, 1959

1959

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE A
L’INCIDENT AERIEN DU
27 JUILLET 1955

(ROYAUME-UNI c. BULGARIE)

ORDONNANCE DU 27 MAI 1959
This Order should be cited as follows:

“Case concerning the Aerial Incident of July 27th, 1955
(United Kingdom v. Bulgaria),
Order of May 27th, 1959: I.C.J. Reports 1959, p. 206.”

La présente ordonnance doit étre citée comme suit:
« Affaire relative à Vincident aérien du 27 juillet 1955
(Royaume-Uni c. Bulgarie),
Ordonnance du 27 mai 1959:-C.I.J. Recueil 1959, p. 206.»

Sales number 207
N° de vente :

206

COUR INTERNATIONALE DE JUSTICE

ANNÉE 1959 Le 27 mai
: Réle général
27 Mai 1959 n° 37

AFFAIRE RELATIVE A
L’'INCIDENT AERIEN DU
27 JUILLET 1955

(ROYAUME-UNI c. BULGARIE)

ORDONNANCE

Présents: M. KLAESTAD, Président; M. ZAFRULLA KHAN, Vice-
Président; MM. BASDEVANT, HACKWORTH, WINIARSKI,
BADAWI, ARMAND-Ucon, KojEvNiIKov, Sir Hersch
LAUTERPACHT, MM. Moreno QUINTANA, CORDOVA,
WELLINGTON Koo, SPIROPOULOS, Sir Percy SPENDER,
Juges; M. GARNIER-COIGNET, Greffier adjoint.

La Cour internationale de Justice,
ainsi composée,
après délibéré en chambre du conseil,

vu l’article 48 du Statut de la Cour et l’article 37 du Règlement
de la Cour,

Rend l'ordonnance suivante:

Considérant que, par ordonnance du 19 mai 1958, le délai fixé
pour le dépôt du contre-mémoire du Gouvernement de la Répu-
blique populaire de Bulgarie a été reporté au 9 juin 1959;

Considérant que, par lettre du 14 mai 1959, l’agent du Gouver-
nement de la République populaire de Bulgarie a demandé que
ce délai soit prorogé de deux mois;

4
INCIDENT AERIEN (R.-U. C. BULGARIE) (ORD. 27 V 59) 207

Considérant que, par lettre du 21 mai 1959, la lettre de l'agent
du Gouvernement bulgare a été communiquée à l’agent du Gouver-
nement du Royaume-Uni de Grande-Bretagne et d’Irlande du
Nord, lequel a été invité à faire connaître les vues de son Gouver-
nement sur la demande ainsi présentée par l'agent du Gouverne-
ment bulgare;

Considérant que, le 27 mai 1959, l’agent du Gouvernement du
Royaume-Uni a déclaré que son Gouvernement n’avait pas d’ob-
jection à cette prorogation;

La Cour

décide de reporter au 10 août 1959 la date d’expiration du délai
fixé pour le dépôt du contre-mémoire du Gouvernement de la
République populaire de Bulgarie.

Fait en anglais et en francais, le texte anglais faisant foi, au
Palais de la Paix, 4 La Haye, le vingt-sept mai mil neuf cent
cinquante-neuf, en trois exemplaires, dont l’un restera déposé aux
archives de la Cour et dont les autres seront transmis respective-
ment au Gouvernement du Royaume-Uni de Grande-Bretagne et
d'Irlande du Nord et au Gouvernement de la République populaire
de Bulgarie.

Le Président,
(Signé) Helge KLAESTAD.

Le Greffier adjoint,
(Signé) GARNIER-COIGNET.