                                           22 JUILLET 2022

                                               ARRÊT

APPLICATION DE LA CONVENTION POUR LA PRÉVENTION ET
        LA RÉPRESSION DU CRIME DE GÉNOCIDE

                (GAMBIE c. MYANMAR)

                     ___________

APPLICATION OF THE CONVENTION ON THE PREVENTION AND
        PUNISHMENT OF THE CRIME OF GENOCIDE

              (THE GAMBIA v. MYANMAR)

                                            22 JULY 2022

                                            JUDGMENT

                                       TABLE OF CONTENTS

                                                                      Paragraphs

    CHRONOLOGY OF THE PROCEDURE                                          1-27

 I. INTRODUCTION                                                        28-33

II. WHETHER THE GAMBIA IS THE “REAL APPLICANT” IN THIS CASE (FIRST
    PRELIMINARY OBJECTION)                                              34-50

    A. Jurisdiction ratione personae                                    35-46

    B. Admissibility                                                    47-49

III. EXISTENCE OF A DISPUTE BETWEEN THE PARTIES (FOURTH PRELIMINARY
     OBJECTION)                                                         51-77

IV. MYANMAR’S RESERVATION TO ARTICLE VIII OF THE GENOCIDE
    CONVENTION (THIRD PRELIMINARY OBJECTION)                            78-92
V. THE GAMBIA’S STANDING TO BRING THE CASE BEFORE THE COURT
   (SECOND PRELIMINARY OBJECTION)                                       93-114

    OPERATIVE CLAUSE                                                     115

                                          ___________

                         INTERNATIONAL COURT OF JUSTICE

                                          YEAR 2022
                                                                                2022
                                                                                22 July
                                                                                General List
                                                                                No. 178
                                          22 July 2022

             APPLICATION OF THE CONVENTION ON THE PREVENTION
                 AND PUNISHMENT OF THE CRIME OF GENOCIDE

                               (THE GAMBIA v. MYANMAR)

                               PRELIMINARY OBJECTIONS

       Application filed by The Gambia  Alleged breaches by Myanmar of its obligations under the
Genocide Convention through acts against Rohingya group  Article IX of Genocide Convention
invoked as basis of jurisdiction  Both States parties to Genocide Convention, no reservations to
Article IX  Four preliminary objections by Myanmar to jurisdiction of Court and admissibility of
Application  Court not bound to follow order in which preliminary objections presented.

                                               *

      Whether The Gambia is “real applicant” (first preliminary objection).

      Jurisdiction ratione personae  Articles 34 and 35 of Statute of Court and Article 93,
paragraph 1, of Charter of United Nations  The Gambia being a Member of United Nations and
ipso facto party to Statute of Court  Allegation that The Gambia acted as organ or proxy of
Organisation of Islamic Cooperation (OIC), the “real applicant” in the case  Institution of
proceedings by The Gambia in its own name  The Gambia alleging a dispute between it and

                                                -2-

Myanmar regarding its own rights under Genocide Convention  Support from intergovernmental
organization to a State in instituting proceedings not detracting from status as applicant before the
Court  Court satisfied that The Gambia is the Applicant in the case.

       Admissibility of the Application  Allegation that attempt to bring case on behalf of OIC
constitutes abuse of process or is inadmissible on basis of other considerations  No evidence that
conduct of The Gambia amounts to abuse of process  No other grounds of inadmissibility either.

      First preliminary objection rejected.

                                                 *

      Existence of dispute between the Parties (fourth preliminary objection).

      “Dispute” being a disagreement on a point of law or fact  Two sides must hold clearly
opposite views  No requirement that respondent expressly opposes claims of applicant 
Rejection of claims may sometimes be inferred from silence of respondent.

      Statements of Parties’ representatives before United Nations General Assembly in
September 2018 and September 2019  No specific mention of Genocide Convention in
The Gambia’s statements  However, specific reference to treaty or its provisions not required 
Parties’ statements indicating opposition of views on whether treatment of Rohingya group by
Myanmar was consistent with its obligations under Genocide Convention  Note Verbale of
11 October 2019 expressing specifically and in legal terms The Gambia’s position  Rejection of
claims also inferred from Myanmar’s failure to respond to Note Verbale.

      Dispute existed on date of Application  Fourth preliminary objection rejected.

                                                 *

      Myanmar’s reservation to Article VIII of Genocide Convention (third preliminary objection).

       Whether Article VIII governs seisin of Court  Ordinary meaning of terms in Article VIII 
Article VIII addressing the prevention and suppression of genocide at the political level 
Article VIII to be interpreted in context  Article IX providing conditions for recourse to Court 
Article VIII not governing seisin of Court  No need to resort to supplementary means of
interpretation.

                                               -3-

      Myanmar’s reservation to Article VIII irrelevant  Third preliminary objection rejected.

                                                 *

      The Gambia’s standing (second preliminary objection).

       Common interest of all States parties to Genocide Convention to ensure prevention,
suppression and punishment of genocide  Any State party entitled to invoke the responsibility of
another State party for alleged breach of obligations erga omnes partes  Special interest not
required  Nationality of victims not relevant  Article IX not limiting category of States parties
entitled to bring claims for alleged breaches of obligations erga omnes partes under Convention.

       Bangladesh facing large influx of members of the Rohingya group  This fact not affecting
right of all other Contracting Parties to assert common interest in compliance with obligations erga
omnes partes under Genocide Convention or precluding The Gambia’s standing  No need to
address arguments relating to Bangladesh’s reservation to Article IX.

      The Gambia has standing to invoke responsibility of Myanmar for alleged breaches of
obligations under Articles I, III, IV and V of Convention  Second preliminary objection rejected.

                                                 *

     Court has jurisdiction on basis of Article IX of Genocide Convention  Application is
admissible.

                                          JUDGMENT

Present:   President DONOGHUE; Vice-President GEVORGIAN; Judges TOMKA, ABRAHAM,
           BENNOUNA, YUSUF, XUE, SEBUTINDE, BHANDARI, ROBINSON, SALAM, IWASAWA,
           NOLTE, CHARLESWORTH; Judges ad hoc PILLAY, KRESS; Registrar GAUTIER.

     In the case concerning application of the Convention on the Prevention and Punishment of the
Crime of Genocide,

      between

                                              -4-

the Republic of The Gambia,

represented by

      H.E. Mr. Dawda Jallow, Attorney General and Minister of Justice, Republic of The Gambia,

      as Agent;

      H.E. Mr. Mamadou Tangara, Minister for Foreign Affairs, Republic of The Gambia,

      Mr. Hussein Thomasi, Solicitor General, Ministry of Justice, Republic of The Gambia,

      as Co-Agents;

      Mr. Paul S. Reichler, Attorney at Law, Foley Hoag LLP, member of the Bars of the
        United States Supreme Court and the District of Columbia,

      Mr. Philippe Sands, QC, Professor of International Law, University College London, Barrister
        at Law, Matrix Chambers, London,

      Mr. Pierre d’Argent, professeur ordinaire, Catholic University of Louvain, member of the
        Institut de droit international, Foley Hoag LLP, member of the Bar of Brussels,

      Mr. Andrew Loewenstein, Attorney at Law, Foley Hoag LLP, member of the Bar of the
        Commonwealth of Massachusetts,

      Ms Tafadzwa Pasipanodya, Attorney at Law, Foley Hoag LLP, member of the Bars of the
        State of New York and the District of Columbia,

      Mr. M. Arsalan Suleman, Attorney at Law, Foley Hoag LLP, member of the Bars of the State
        of New York and the District of Columbia,

      as Counsel and Advocates;

      Ms Bafou Jeng, Ministry of Justice, Republic of The Gambia,

      Ms Fatou L. Njie, Ministry of Justice, Republic of The Gambia,

      Mr. Amadou Jaiteh, Permanent Mission of the Republic of The Gambia to the United Nations,

      Mr. Yuri Parkhomenko, Attorney at Law, Foley Hoag LLP,

      Ms Diem Ho, Attorney at Law, Foley Hoag LLP,

      Ms Jessica Jones, Barrister at Law, Matrix Chambers, London,

      Ms Yasmin Al Ameen, Attorney at Law, Foley Hoag LLP,

      as Counsel;

                                              -5-

      H.E. Mr. Omar G. Sallah, Ambassador and Permanent Representative of the Republic of
         The Gambia to the Organisation of Islamic Cooperation,

      as Adviser;

      Ms Nancy Lopez,

      Ms Rachel Tepper,

      Ms Amina Chaudary,

      as Assistants,

      and

the Republic of the Union of Myanmar,

represented by

      H.E. Mr. Ko Ko Hlaing, Union Minister for International Cooperation of the Republic of the
         Union of Myanmar,

      as Agent;

      H.E. Ms Thi Da Oo, Union Minister of Legal Affairs and Attorney General of the Republic of
         the Union of Myanmar,

      as Alternate Agent;

      Mr. Christopher Staker, 39 Essex Chambers, member of the Bar of England and Wales,

      as Lead Counsel and Advocate;

      Mr. Robert Kolb, Professor of Public International Law, University of Geneva,

      Mr. Stefan Talmon, Professor of International Law, University of Bonn, Barrister, Twenty
        Essex Chambers, London,

      as Counsel and Advocates;

      H.E. Mr. Soe Lynn Han, Ambassador of the Republic of the Union of Myanmar to the
         Kingdom of Belgium, the Kingdom of the Netherlands, the Grand Duchy of Luxembourg,
         the Republic of Croatia and the European Union,

      Ms Khin Oo Hlaing, member of the Advisory Board to the Chairman of the State
        Administration Council, Republic of the Union of Myanmar,

      Mr. Myo Win Aung, Deputy Judge Advocate General, Office of the Judge Advocate General,
        Republic of the Union of Myanmar,

      Mr. Kyaw Thu Nyein, Deputy Director General, International Organizations and Economic
        Department, Ministry of Foreign Affairs, Republic of the Union of Myanmar,

                                        -6-

Ms Myo Pa Pa Htun, Minister Counsellor, Embassy of the Republic of the Union of Myanmar
  in Brussels,

Mr. Kyaw Thu Hein, Director, Ministry of Legal Affairs, Republic of the Union of Myanmar,

Mr. Thwin Htet Lin, Director, Ministry of Foreign Affairs, Republic of the Union of Myanmar,

Mr. Ngwe Zaw Aung, Director, Ministry of Legal Affairs, Republic of the Union of Myanmar,

Mr. Swe Sett, Deputy Director, Ministry of Foreign Affairs, Republic of the Union of
  Myanmar,

Ms Khin Myo Myat Soe, Counsellor, Embassy of the Republic of the Union of Myanmar in
  Brussels,

Mr. Thu Rein Saw Htut Naing, Deputy Director, Ministry of Foreign Affairs, Republic of the
  Union of Myanmar,

Mr. Ye Maung Thein, Deputy Director, Ministry of Foreign Affairs, Republic of the Union of
  Myanmar,

Ms Cho Nge Nge Thein, Deputy Director, Ministry of Legal Affairs, Republic of the Union
  of Myanmar,

Mr. Thurein Naing, Judge Advocate, Office of the Judge Advocate General, Republic of the
  Union of Myanmar,

Ms Ei Thazin Maung, Assistant Director, Ministry of Foreign Affairs, Republic of the Union
  of Myanmar,

Ms May Myat Noe Naing, First Secretary, Embassy of the Republic of the Union of Myanmar
  in Brussels,

Ms Aye Chan Lynn, First Secretary, Embassy of the Republic of the Union of Myanmar in
  Brussels,

Ms M Ja Dim, Assistant Director, Ministry of Legal Affairs, Republic of the Union of
  Myanmar,

Mr. Zin Myat Thu, Head of Branch (1), Ministry of Foreign Affairs, Republic of the Union of
  Myanmar,

Mr. Wunna Kyaw, Head of Branch (2), Ministry of Foreign Affairs, Republic of the Union of
  Myanmar,

Mr. Zaw Yu Min, Third Secretary, Embassy of the Republic of the Union of Myanmar in
  Brussels,

                                                 -7-

      Ms Mary Lobo,

      Mr. Momchil Milanov, PhD student and teaching assistant, University of Geneva,

      as Members of the Delegation,

      THE COURT,

      composed as above,

      after deliberation,

      delivers the following Judgment:

      1. On 11 November 2019, the Republic of The Gambia (hereinafter “The Gambia”) filed in
the Registry of the Court an Application instituting proceedings against the Republic of the Union of
Myanmar (hereinafter “Myanmar”) concerning alleged violations of the Convention on the
Prevention and Punishment of the Crime of Genocide, adopted by the General Assembly of the
United Nations on 9 December 1948 (hereinafter the “Genocide Convention” or the “Convention”).

     2. In its Application, The Gambia seeks to found the Court’s jurisdiction on Article IX of the
Genocide Convention, in conjunction with Article 36, paragraph 1, of the Statute of the Court.

      3. The Application contained a Request for the indication of provisional measures, submitted
pursuant to Article 41 of the Statute of the Court and to Articles 73, 74 and 75 of the Rules of Court.

       4. The Registrar immediately communicated to the Government of Myanmar the Application
containing the Request for the indication of provisional measures, in accordance with Article 40,
paragraph 2, of the Statute of the Court, and Article 73, paragraph 2, of the Rules of Court. He also
notified the Secretary-General of the United Nations of the filing by The Gambia of the Application
and the Request for the indication of provisional measures.

      5. In addition, by a letter dated 11 November 2019, the Registrar informed all States entitled
to appear before the Court of the filing of the above-mentioned Application and Request.

       6. Pursuant to Article 40, paragraph 3, of the Statute of the Court, the Registrar notified the
Member States of the United Nations through the Secretary-General, and any other State which is
entitled to appear before the Court, of the filing of the Application, by transmission of the printed
bilingual text.

      7. By a letter dated 11 November 2019 accompanying its Application, The Gambia appointed
H.E. Mr. Abubacarr Marie Tambadou, then Attorney General and Minister of Justice of The Gambia,
as Agent for the purposes of the case. By a letter dated 19 June 2020, The Gambia appointed
Mr. Cherno Marenah, then Solicitor General of The Gambia, as Co-Agent. By a letter dated 28 July
2020, The Gambia informed the Court of the appointment of H.E. Mr. Dawda Jallow, new Attorney
General and Minister of Justice of The Gambia, as Agent, in place of H.E. Mr. Abubacarr Marie

                                                  -8-

Tambadou. By a letter dated 3 February 2021, The Gambia informed the Court of the appointment
of H.E. Mr. Mamadou Tangara, Minister for Foreign Affairs of The Gambia, and Mr. Hussein
Thomasi, new Solicitor General of The Gambia, as Co-Agents, and indicated that the appointment
of Mr. Cherno Marenah as Co-Agent had been terminated.

      8. By a letter dated 20 November 2019, Myanmar, for its part, appointed H.E. Ms Aung San
Suu Kyi, Union Minister for Foreign Affairs of Myanmar, as Agent for the purposes of the case, and
H.E. Mr. Kyaw Tint Swe, Union Minister for the Office of the State Counsellor of Myanmar, as
Alternate Agent. Subsequently, by a letter dated 12 April 2021, Myanmar informed the Court of the
appointment of H.E. Mr. Ko Ko Hlaing, Union Minister for International Cooperation of Myanmar,
as Agent and H.E. Ms Thi Da Oo, Union Attorney General of Myanmar, as Alternate Agent, in place
of H.E. Ms Aung San Suu Kyi and H.E. Mr. Kyaw Tint Swe.

      9. Since the Court included upon the Bench no judge of the nationality of either Party, each
Party proceeded to exercise the right conferred upon it by Article 31, paragraph 3, of the Statute of
the Court to choose a judge ad hoc to sit in the case. The Gambia chose Ms Navanethem Pillay, and
Myanmar, Mr. Claus Kress.

      10. By an Order dated 23 January 2020, the Court, having heard the Parties, indicated the
following provisional measures:

             “(1) The Republic of the Union of Myanmar shall, in accordance with its
      obligations under the Convention on the Prevention and Punishment of the Crime of
      Genocide, in relation to the members of the Rohingya group in its territory, take all
      measures within its power to prevent the commission of all acts within the scope of
      Article II of this Convention, in particular:

      (a) killing members of the group;

      (b) causing serious bodily or mental harm to the members of the group;

      (c) deliberately inflicting on the group conditions of life calculated to bring about its
          physical destruction in whole or in part; and

      (d) imposing measures intended to prevent births within the group;

             (2) The Republic of the Union of Myanmar shall, in relation to the members of
      the Rohingya group in its territory, ensure that its military, as well as any irregular armed
      units which may be directed or supported by it and any organizations and persons which
      may be subject to its control, direction or influence, do not commit any acts described
      in point (1) above, or of conspiracy to commit genocide, of direct and public incitement
      to commit genocide, of attempt to commit genocide, or of complicity in genocide;

             (3) The Republic of the Union of Myanmar shall take effective measures to
      prevent the destruction and ensure the preservation of evidence related to allegations of
      acts within the scope of Article II of the Convention on the Prevention and Punishment
      of the Crime of Genocide;

                                                 -9-

             (4) The Republic of the Union of Myanmar shall submit a report to the Court on
      all measures taken to give effect to this Order within four months, as from the date of
      this Order, and thereafter every six months, until a final decision on the case is rendered
      by the Court.”

      11. Pursuant to subparagraph (4) of the operative clause of the Order of 23 January 2020,
Myanmar submitted reports on the measures taken to give effect to that Order on 22 May 2020,
23 November 2020, 20 May 2021, 23 November 2021 and 23 May 2022. The Gambia submitted
comments on each of these reports on 8 June 2020, 7 December 2020, 16 August 2021, 7 December
2021 and 7 June 2022, respectively, within the time-limits fixed by the Court.

       12. By another Order of 23 January 2020, the Court fixed 23 July 2020 and 25 January 2021
as the respective time-limits for the filing of a Memorial by The Gambia and a Counter-Memorial by
Myanmar.

       13. In accordance with Article 43, paragraph 1, of the Rules of Court, the Registrar addressed
to States parties to the Genocide Convention the notifications provided for in Article 63, paragraph 1,
of the Statute of the Court. In addition, in accordance with Article 69, paragraph 3, of the Rules of
Court, the Registrar addressed to the United Nations, through its Secretary-General, the notification
provided for in Article 34, paragraph 3, of the Statute of the Court.

       14. By a letter dated 24 April 2020, The Gambia requested the Court to extend the time-limit
for the filing of the Memorial by at least three months, in light of problems relating to the COVID-19
pandemic. By a letter dated 28 April 2020, Myanmar indicated that, although in its view the
COVID-19 pandemic was not by itself a sufficient justification for The Gambia’s request, it took no
position on the request and considered that it was for the Court to “decide whether The Gambia has
established a sufficient justification for an extension of time”. By an Order of 18 May 2020, the Court
extended to 23 October 2020 and 23 July 2021 the respective time-limits for the filing of the
Memorial of The Gambia and the Counter-Memorial of Myanmar. The Gambia filed its Memorial
within the time-limit as extended.

       15. By a joint letter dated 11 November 2020, the Governments of the Kingdom of the
Netherlands and Canada, referring to Article 53, paragraph 1, of the Rules of Court, requested to be
furnished with copies of pleadings and documents when they are filed with the Court in the case.
After ascertaining the views of the Parties in accordance with the above-mentioned provision, the
Court decided that it would not be appropriate to grant that request. The Registrar communicated this
decision to the Governments of the Kingdom of the Netherlands and Canada and to the Parties by
letters dated 27 November 2020.

       16. On 20 January 2021, within the time-limit prescribed by Article 79bis, paragraph 1, of the
Rules of Court, Myanmar raised preliminary objections to the jurisdiction of the Court and the
admissibility of the Application. Consequently, by an Order of 28 January 2021, the Court, noting
that, by virtue of Article 79bis, paragraph 3, of the Rules of Court, the proceedings on the merits
were suspended, and taking account of Practice Direction V, fixed 20 May 2021 as the time-limit
within which The Gambia could present a written statement of its observations and submissions on
the preliminary objections raised by Myanmar. The Gambia filed its written statement on 20 April
2021, within the time-limit thus fixed.

                                                 - 10 -

      17. By letters dated 7 September 2021, the Parties were informed that hearings on the
preliminary objections raised by Myanmar would be held from 6 to 10 December 2021, and a detailed
schedule of the hearings was communicated to them.

       18. By a letter dated 24 September 2021, Myanmar requested the Court to postpone the
hearings on the preliminary objections by four months owing to the COVID-19 pandemic and issues
relating to changes in the composition of its legal team. By a letter dated 1 October 2021, The Gambia
submitted arguments against a postponement of the hearings but stated that it would leave the matter
to the discretion of the Court. By letters dated 6 October 2021, the Parties were informed that the
Court had decided to postpone the hearings to the week of 21 February 2022, and a revised schedule
of the hearings was communicated to them.

       19. By a letter dated 15 October 2021, the Registrar, acting pursuant to Article 69, paragraph 3,
of the Rules of Court, transmitted to the Secretary-General of the United Nations copies of the written
proceedings filed thus far in the case, and asked whether the Organization intended to present
observations in writing under that provision in relation to the preliminary objections raised by
Myanmar. By a letter dated 25 October 2021, the Under-Secretary-General for Legal Affairs of the
United Nations stated that the Organization did not intend to submit any observations in writing
within the meaning of Article 69, paragraph 3, of the Rules of Court.

       20. Pursuant to Article 53, paragraph 2, of its Rules, the Court, after ascertaining the views of
the Parties, decided that copies of the preliminary objections of Myanmar and the written statement
of The Gambia on those objections, and the documents annexed thereto, would be made accessible
to the public on the opening of the oral proceedings.

       21. Public hearings on the preliminary objections raised by Myanmar were held on 21, 23, 25
and 28 February 2022. The oral proceedings were conducted in a hybrid format, in accordance with
Article 59, paragraph 2, of the Rules of Court and on the basis of the Court’s Guidelines for the
parties on the organization of hearings by video link, adopted on 13 July 2020 and communicated to
the Parties on 13 December 2021. During the oral proceedings, a number of judges were present in
the Great Hall of Justice, while others joined the proceedings via video link, allowing them to view
and hear the speaker and see any demonstrative exhibits displayed. Each Party was permitted to have
up to four representatives present in the Great Hall of Justice and up to five other representatives in
an additional room in the Peace Palace equipped with the necessary facilities to follow the
proceedings remotely. The remaining members of each Party’s delegation were given the opportunity
to participate via video link from other locations of their choice.

      22. During the above-mentioned hearings, the Court heard the oral arguments and replies of:

For Myanmar:              H.E. Mr. Ko Ko Hlaing,
                          Mr. Christopher Staker,
                          Mr. Stefan Talmon,
                          Mr. Robert Kolb.

                                               - 11 -

For The Gambia:          H.E. Mr. Dawda Jallow,
                         Mr. Paul S. Reichler,
                         Mr. Andrew Loewenstein,
                         Mr. Pierre d’Argent,
                         Ms Tafadzwa Pasipanodya,
                         Mr. M. Arsalan Suleman,
                         Mr. Philippe Sands.

                                                 *

      23. In the Application, the following requests were made by The Gambia:

            “While reserving the right to revise, supplement or amend this Application, and
      subject to the presentation to the Court of the relevant evidence and legal arguments,
      The Gambia respectfully requests the Court to adjudge and declare that Myanmar:

       has breached and continues to breach its obligations under the Genocide
        Convention, in particular the obligations provided under Articles I, III (a), III (b),
        III (c), III (d), III (e), IV, V and VI;

       must cease forthwith any such ongoing internationally wrongful act and fully
        respect its obligations under the Genocide Convention, in particular the obligations
        provided under Articles I, III (a), III (b), III (c), III (d), III (e), IV, V and VI;

       must ensure that persons committing genocide are punished by a competent
        tribunal, including before an international penal tribunal, as required by Articles I
        and VI;

       must perform the obligations of reparation in the interest of the victims of genocidal
        acts who are members of the Rohingya group, including but not limited to allowing
        the safe and dignified return of forcibly displaced Rohingya and respect for their
        full citizenship and human rights and protection against discrimination, persecution,
        and other related acts, consistent with the obligation to prevent genocide under
        Article I; and

       must offer assurances and guarantees of non-repetition of violations of the Genocide
        Convention, in particular the obligations provided under Articles I, III (a), III (b),
        III (c), III (d), III (e), IV, V and VI.”

      24. In the written proceedings on the merits, the following submissions were presented on
behalf of the Government of The Gambia in its Memorial:

                                          - 12 -

      “For the reasons given in this Memorial, and reserving the right to supplement,
amplify or amend the present Submissions, the Republic of The Gambia respectfully
requests the International Court of Justice to adjudge and declare:

(1) That the Republic of the Union of Myanmar is responsible for violations of the
    Convention on the Prevention and Punishment of the Crime of Genocide:

   (a) in that members of its armed forces, police and other security forces, and also
       persons for whose conduct it is responsible, committed genocide against
       members of the Rohingya group on its territory by:

         (i) killing members of the group;

        (ii) causing deliberate bodily or mental harm to members of the group;

        (iii) deliberately inflicting on the group conditions of life calculated to bring
              about its physical destruction in whole or in part; and

        (iv) imposing measures intended to prevent births within the group;

       with the intent to destroy that group in whole or in part, contrary to Article II of
       the Convention;

   (b) in that persons for whose conduct it is responsible conspired to commit the acts
       of genocide referred to in paragraph (a), were complicit in respect of those acts,
       attempted to commit further such acts of genocide and incited others to commit
       such acts, contrary to Article III of the Convention;

   (c) in that, aware that the acts of genocide referred to in paragraph (a) were being
       or would be committed, it failed to take any steps to prevent those acts, contrary
       to Article I of the Convention;

   (d) in that it has failed to bring to trial persons within its jurisdiction who are
       suspected on probable grounds of involvement in the acts of genocide referred
       to in paragraph (a), or in the other acts referred to in paragraph (b), and is thus
       in continuing breach of Articles I and IV of the Convention;

   (e) in that it has failed to enact the necessary legislation to give effect to the
       provisions of the Convention, and, in particular, to provide effective penalties
       for persons guilty of genocide or any of the other acts enumerated in Article III,
       and is thus in continuing breach of Article V of the Convention.

(2) That, as a consequence of its responsibility for these breaches of the Convention,
    the Republic of the Union of Myanmar:

   (a) must cease forthwith any ongoing internationally wrongful act referred to in
       paragraph (1), in particular:

                                     - 13 -

     (i) take immediate and effective steps to enact the specific genocide criminal
         legislation referred to in paragraph (1) (e);

    (ii) take immediate and effective steps to submit to trial before an independent
         and effective tribunal, including before an international penal tribunal,
         those members of its armed forces, police and other security forces or any
         other persons within its jurisdiction who are suspected on probable grounds
         of having committed acts of genocide as referred to in paragraph (1) (a),
         or any of the other acts referred to in paragraph (1) (b), notably
         Senior-General Aung Min Hlaing, Vice Senior-General Soe Win,
         Lieutenant-General Aung Kyaw Zaw, Major-General Maung Maung Soe,
         Brigadier-General Aung Aung and Brigadier-General Than Oo, and to
         ensure that those persons, if convicted, are duly punished for their crimes;

    (iii) take immediate and effective steps to suppress and prevent any direct and
          public incitement to commit genocide;

(b) must perform the obligation of reparation in the interest of the victims of
    genocidal acts who are members of the Rohingya group, and must:

     (i) by way of restitution:

        (1) allow the safe and dignified return to their place of residence of
            displaced members of the Rohingya group, whether they are displaced
            within Myanmar or abroad;

        (2) return to the Rohingya their individual and collective property,
            including their land, houses, places of worship and communal life,
            fields, livestock and crops, or replace them in kind;

        (3) allow and facilitate the safe and dignified reunification of families;

        (4) provide for the rehabilitation of the physically or mentally injured
            members of the Rohingya group; such rehabilitation must include
            adequate medical and psychological care as well as legal and social
            services;

        (5) facilitate the search for the disappeared and assist in the recovery,
            identification and reburial of the bodies of those killed in accordance
            with the expressed or presumed wishes of the victims and in
            accordance with the cultural and religious practices of the Rohingya;

        (6) ensure the protection of the Rohingya against discrimination and
            persecution;

        (7) ensure the right of the Rohingya to identify as such;

        (8) ensure the liberty and freedom of movement of the Rohingya within
            Myanmar and remove any restriction on their place of residence;

                                                - 14 -

                   (9) remove any restriction or discrimination on the employment or access
                       to livelihoods of the Rohingya.

               (ii) compensate, and provide any additional forms of reparation, for any harm,
                    loss or injury suffered by the Rohingya victims that is not capable of full
                    reparation by restitution.

          (c) must offer assurances and guarantees of non-repetition by notably providing full
              and equal citizenship to all members of the Rohingya group who are present in
              Myanmar or have been displaced due to the events for which Myanmar bears
              responsibility under the Convention.

      (3) That the Republic of the Union of Myanmar has failed to fully and adequately
          implement the Provisional Measures Order and must:

          (a) by way of restitution as referred to in paragraph (2) (b) (i) above, make good
              any bodily or mental injury, including death, suffered by members of the
              Rohingya group, or any material injury caused to their property, as a result of
              Myanmar’s violations of paragraph 86 (1), (2) or (3) of the Order;

          (b) compensate, and provide any additional forms of reparation, for any harm, loss
              or injury referred to in paragraph (3) (a) above that is not capable of full
              reparation by restitution.

      (4) That, failing agreement between the Parties on the amount of compensation and any
          additional forms of reparation referred to in paragraph (2) (b) (ii) and
          paragraph (3) (b) above, the question will be decided by the Court in a subsequent
          phase of the proceedings in this case.

             The Gambia reserves the right to supplement or amend these submissions in light
      of further pleadings and as necessary.”

     25. In the preliminary objections, the following submissions were presented on behalf of the
Government of Myanmar:

             “On the basis of each of the four independent preliminary objections set out
      above, Myanmar respectfully requests the Court to adjudge and declare that the Court
      lacks jurisdiction over The Gambia’s Application of 11 November 2019, and/or that the
      Application is inadmissible.

            Myanmar reserves the right to amend and supplement this submission in
      accordance with the provisions of the Statute and the Rules of Court. Myanmar also
      reserves the right to submit further objections to the jurisdiction of the Court and to the
      admissibility of The Gambia’s claims if the case were to proceed to any subsequent
      phase.”

       26. In the written statement of its observations and submissions on the preliminary objections,
the following submissions were presented on behalf of the Government of The Gambia:

                                                  - 15 -

            “For the reasons set forth above, The Gambia respectfully requests that the Court:

      (1) Reject the Preliminary Objections presented by Myanmar;

      (2) Find that it has jurisdiction to hear the claims presented by The Gambia as set forth
          in its Application and Memorial, and that these claims are admissible; and

      (3) Proceed to hear those claims on the merits.”

      27. At the oral proceedings on the preliminary objections, the following submissions were
presented by the Parties:

On behalf of the Government of Myanmar,

at the hearing of 25 February 2022:

             “For the reasons given in Myanmar’s written preliminary objections and in its
      oral arguments at the hearing of the preliminary objections, and for any other reasons
      the Court might deem appropriate, Myanmar respectfully requests the Court to adjudge
      and declare:

      1. that the Court lacks jurisdiction to hear the case brought by The Gambia against
         Myanmar; and/or

      2. that The Gambia’s Application is inadmissible.”

On behalf of the Government of The Gambia,

at the hearing of 28 February 2022:

           “In accordance with Article 60 of the Rules of Court, for the reasons explained in
      our Written Observations of 20 April 2021 and during these hearings, the Republic of
      The Gambia respectfully asks the Court to:

      (a) Reject the Preliminary Objections presented by the Republic of the Union of
          Myanmar;

      (b) Hold that it has jurisdiction to hear the claims presented by The Gambia as set out
          in its Application and Memorial, and that those claims are admissible; and

      (c) Proceed to hear those claims on the merits.”

                                                    *

                                              *            *

                                                - 16 -

                                         I. INTRODUCTION

       28. In the Application, The Gambia alleges that Myanmar has breached and continues to
breach its obligations under the Genocide Convention through acts adopted, taken and condoned by
its Government against the members of the Rohingya group. Specifically, The Gambia asserts that
in October 2016 the Myanmar military and other Myanmar security forces began widespread and
systematic “clearance operations” against the Rohingya group, during the course of which they
committed mass murder, rape and other forms of sexual violence, and engaged in the systematic
destruction by fire of Rohingya villages, often with inhabitants locked inside burning houses, with
the intent to destroy the Rohingya as a group, in whole or in part. The Gambia further asserts that,
from August 2017 onwards, such genocidal acts continued with Myanmar’s resumption of “clearance
operations” on a more massive and wider geographical scale.

       29. The Court’s references to the “Rohingya” in this Judgment should be understood as
references to the group that is commonly called the Rohingya, self-identifies as such and claims a
long-standing connection to Rakhine State, which forms part of the Union of Myanmar (see
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(The Gambia v. Myanmar), Provisional Measures, Order of 23 January 2020, I.C.J. Reports 2020,
p. 9, paras. 14-15).

      30. The Gambia seeks to found the jurisdiction of the Court on Article IX of the Genocide
Convention, in conjunction with Article 36, paragraph 1, of the Statute of the Court. Article IX of
the Convention reads as follows:

             “Disputes between the Contracting Parties relating to the interpretation,
      application or fulfilment of the present Convention, including those relating to the
      responsibility of a State for genocide or for any of the other acts enumerated in
      article III, shall be submitted to the International Court of Justice at the request of any
      of the parties to the dispute.”

       31. The Gambia and Myanmar are parties to the Genocide Convention. Myanmar deposited
its instrument of ratification on 14 March 1956, without entering a reservation to Article IX, but
making reservations to Articles VI and VIII. The Gambia acceded to the Convention on
29 December 1978, without entering any reservation.

       32. Myanmar raises four preliminary objections to the jurisdiction of the Court and the
admissibility of the Application. In its first preliminary objection, Myanmar argues that the Court
lacks jurisdiction, or alternatively that the Application is inadmissible, on the ground that the “real
applicant” in the proceedings is the Organisation of Islamic Cooperation (hereinafter the “OIC”).
According to the second preliminary objection, the Application is inadmissible because The Gambia
lacks standing to bring this case. Myanmar asserts in its third preliminary objection that the Court
lacks jurisdiction or that the Application is inadmissible since The Gambia cannot validly seise the
Court in light of Myanmar’s reservation to Article VIII of the Genocide Convention. In its fourth
preliminary objection, Myanmar contends that the Court lacks jurisdiction, or alternatively that the
Application is inadmissible, because there was no dispute between the Parties under the Genocide
Convention on the date of filing of the Application.

                                                  - 17 -

       33. The Court notes that, when deciding on preliminary objections, it is not bound to follow
the order in which they are presented by the respondent (see, for example, Question of the
Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles
from the Nicaraguan Coast (Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J.
Reports 2016 (I), p. 110, para. 17). In the present case, the Court will start by addressing the
preliminary objection relating to the “real applicant” in the case (first preliminary objection), before
turning to the existence of a dispute (fourth preliminary objection) and Myanmar’s reservation to
Article VIII of the Genocide Convention (third preliminary objection). Finally, the Court will deal
with the preliminary objection pertaining to the standing of The Gambia (second preliminary
objection), which presents a question of admissibility only.

              II. WHETHER THE GAMBIA IS THE “REAL APPLICANT” IN THIS CASE
                            (FIRST PRELIMINARY OBJECTION)

       34. In its first preliminary objection, Myanmar argues that the Court lacks jurisdiction, or
alternatively that the Application is inadmissible, because the “real applicant” in the proceedings is
the OIC, an international organization, which cannot be a party to proceedings before the Court
pursuant to Article 34, paragraph 1, of the Statute of the Court. The Court will first examine the
question of its jurisdiction.

                                   A. Jurisdiction ratione personae

       35. According to Myanmar, this preliminary objection raises a question of law and a question
of fact. On the question of law, Myanmar argues that the determination of who is the “real applicant”
in every case is a matter of substance, not a question of form or procedure. It contends that the
approach taken by the Court to determine the existence of a dispute should be followed in cases
where the identity of the “real applicant” is at issue. According to Myanmar, the Court must look
beyond the narrow question of who is named in the proceedings as the applicant and make an
objective determination as to the identity of the “real applicant”, based on an examination of the
relevant facts and circumstances as a whole. For Myanmar, the question that arises in this case is
whether, by “appointing” or “tasking” a State to bring a case on its behalf, an entity that is not a State
can circumvent the limitations that only States may be parties in cases before the Court and that the
Court may only exercise jurisdiction in contentious cases with the consent of both parties. In the view
of Myanmar, a third party that is not a State and does not have a reciprocal acceptance of jurisdiction
with the respondent State cannot use a “proxy State” to circumvent the limits of the Court’s
jurisdiction and invoke the compromissory clause of the Genocide Convention on its behalf.

       36. On the question of fact, Myanmar submits that, whilst The Gambia is the nominal
Applicant in these proceedings, the record makes it clear that The Gambia has acted as an “organ,
agent or proxy” of the OIC, which is the “true applicant” in this case. According to Myanmar, both
the OIC and The Gambia have recognized on multiple occasions that The Gambia was “appointed”
or “tasked” by the OIC to bring the present proceedings before the Court on behalf of the OIC, in its
capacity as chair of an Ad Hoc Ministerial Committee on Accountability for Human Rights
Violations Against the Rohingyas (hereinafter the “Ad Hoc Committee”) that was established on
5-6 May 2018 by the OIC Council of Foreign Ministers. In this context, Myanmar asserts that the
proposal to bring these proceedings was recommended by the Ad Hoc Committee in February 2019,
endorsed by the OIC Council of Foreign Ministers in March 2019 and approved by the Islamic
Summit Conference in May 2019.

                                                   - 18 -

      37. Myanmar also refers to additional elements which, in its view, demonstrate that the “real
applicant” in these proceedings is the OIC. It points, in particular, to a press release issued by counsel
for The Gambia in these proceedings on 11 November 2019, in which it was stated that the case was
brought by The Gambia “acting on behalf of the 57 Member States” of the OIC and that “[t]he OIC
appointed The Gambia, an OIC member, to bring the case on its behalf”. It further claims that
The Gambia briefs the OIC on the progress of the case and that The Gambia’s legal costs in these
proceedings are funded entirely by the OIC from a special fund financed by donations of various
OIC Member States and the Islamic Solidarity Fund. According to Myanmar, control over these
funds is exercised jointly by the chair of the Ad Hoc Committee and the OIC Secretary-General.

                                                     *

        38. The Gambia submits that Myanmar’s preliminary objection must be rejected as it lacks
any basis either in law or in fact. As to the law, The Gambia contends that the relevant requirements
for jurisdiction ratione personae under the Court’s Statute and the Genocide Convention are met.
The Gambia is a State as required by Article 34, paragraph 1, of the Statute and, as a Member of the
United Nations, is ipso facto a party to the Statute, pursuant to Article 35, paragraph 1, thereof. The
Gambia and Myanmar are both parties to the Genocide Convention, and there is a dispute between
them over Myanmar’s compliance with the Convention, which has been brought to the Court
pursuant to Article IX of the Convention. For The Gambia, a State’s motivation for commencing
litigation before the Court is irrelevant to matters of jurisdiction.

        39. As to the facts, The Gambia argues that it is, by any measure, the “real applicant” in these
proceedings and this is evidenced by the letters accompanying its Application, which make clear that
the proceedings were instituted only on behalf of the Republic of The Gambia. The Gambia affirms
that it expressed its concerns in a variety of international fora. It refers, in particular, to the statement
of the President of The Gambia, Mr. Adama Barrow, before the United Nations General Assembly
on 25 September 2018, in which he declared that The Gambia had undertaken, as the upcoming chair
of the next OIC Summit, “to champion an accountability mechanism that would ensure that
perpetrators of the terrible crimes against the Rohingya Muslims are brought to book”. The Gambia
also refers to the speech of the Vice-President of The Gambia, Ms Isatou Touray, before the
United Nations General Assembly on 26 September 2019, in which she announced The Gambia’s
intention “to lead concerted efforts to take the Rohingya issue to the International Court of Justice”.

       40. Moreover, The Gambia affirms that it raised the matter bilaterally in a Note Verbale sent
to the Permanent Mission of Myanmar to the United Nations on 11 October 2019, which made clear
that The Gambia, as a State party to the Genocide Convention, was in dispute with Myanmar
concerning the latter’s obligations under the Convention and requested Myanmar to take all
necessary actions to comply with those obligations.

                                                 - 19 -

       41. The Gambia acknowledges that it sought and obtained the support of the OIC to hold
Myanmar accountable for the international crimes allegedly committed against the Rohingya, but it
maintains that this support has no bearing on the Court’s jurisdiction. The Gambia claims that it was
instrumental in the establishment of the OIC Ad Hoc Committee, the mandate of which, however,
did not include instituting or participating in international dispute settlement proceedings on behalf
of the OIC. It also affirms that the decision to initiate the proceedings before the Court under the
Convention was undertaken at the highest levels of the Gambian Government, which did not act
under the pressure, coercion or inducement of the OIC. The fact that the OIC supported this initiative
does not mean that the OIC has somehow become the applicant in substitution of The Gambia. In
this regard, The Gambia points out that neither the Islamic Summit nor the OIC Council of Foreign
Ministers has the institutional competence under the Charter of the OIC to direct or instruct The
Gambia in its litigation before the Court. It also refers to the report of the Ad Hoc Committee of
25 September 2019, which acknowledged The Gambia’s prerogative to select a legal firm to pursue
the case undertaken by The Gambia in the Court.

                                                *     *

       42. The Court establishes its jurisdiction ratione personae on the basis of the requirements laid
down in the relevant provisions of its Statute and of the Charter of the United Nations. As the Court
held in the case concerning the Legality of Use of Force (Serbia and Montenegro v. Belgium), “it is
incumbent upon it to examine first of all the question whether the Applicant meets the conditions
laid down in Articles 34 and 35 of the Statute and whether the Court is thus open to it” (Preliminary
Objections, Judgment, I.C.J. Reports 2004 (I), p. 299, para. 46). Pursuant to Article 34, paragraph 1,
of the Statute, “[o]nly States may be parties in cases before the Court”. According to Article 35,
paragraph 1, of the Statute, “[t]he Court shall be open to the States parties to the present Statute”.
Article 93, paragraph 1, of the Charter of the United Nations provides that “[a]ll Members of the
United Nations are ipso facto parties to the Statute of the International Court of Justice”. The Gambia
has been a Member of the United Nations since 21 September 1965 and is ipso facto a party to the
Statute of the Court. The Court therefore considers that The Gambia meets the above-mentioned
requirements.

       43. Myanmar submits, however, that in bringing its claims before the Court, The Gambia has
in fact acted as an “organ, agent or proxy” of the OIC, which is the “true applicant” in these
proceedings. Its main contention is that a third party, namely the OIC, which is not a State and cannot
therefore have a reciprocal acceptance of jurisdiction with the respondent State, has used The Gambia
as a “proxy” in order to circumvent the limits of the Court’s jurisdiction ratione personae and invoke
the compromissory clause of the Genocide Convention on its behalf (see paragraphs 36-37 above).

       44. The Court notes that The Gambia instituted the present proceedings in its own name, as a
State party to the Statute of the Court and to the Genocide Convention. It also notes The Gambia’s
assertion that it has a dispute with Myanmar regarding its own rights as a State party to that
Convention. The Court observes that the fact that a State may have accepted the proposal of an
intergovernmental organization of which it is a member to bring a case before the Court, or that it
may have sought and obtained financial and political support from such an organization or its
members in instituting these proceedings, does not detract from its status as the applicant before the

                                                  - 20 -

Court. Moreover, the question of what may have motivated a State such as The Gambia to commence
proceedings is not relevant for establishing the jurisdiction of the Court. As the Court held in Border
and Transborder Armed Actions (Nicaragua v. Honduras), “the Court’s judgment is a legal
pronouncement, and it cannot concern itself with the political motivation which may lead a State at
a particular time, or in particular circumstances, to choose judicial settlement” (Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1988, p. 91, para. 52).

       45. With regard to Myanmar’s argument that the approach taken by the Court to establish the
existence of a dispute should be followed in cases where the identity of the “real applicant” is at issue
(see paragraph 35 above), the Court is of the view that these are distinct legal questions. In the present
case, the Court sees no reason why it should look beyond the fact that The Gambia has instituted
proceedings against Myanmar in its own name. The Court is therefore satisfied that the Applicant in
this case is The Gambia.

      46. In light of the above, the first preliminary objection raised by Myanmar, in so far as it
concerns the jurisdiction of the Court, must be rejected.

                                           B. Admissibility

       47. In the alternative, Myanmar contends that, even if the Court were to find that it has
jurisdiction, The Gambia’s Application would in the circumstances be inadmissible. In its view, an
application would be inadmissible if, in reality, the case is brought by the named applicant on behalf
of another State or entity that could not itself have brought the proceedings as the applicant. For
Myanmar, this may be characterized as an abuse of process on the part of the nominal applicant State
that seeks to facilitate the circumvention of the limits of the Court’s jurisdiction. Myanmar also
maintains that, independently of any consideration of principles of abuse of process, the
inadmissibility of The Gambia’s Application follows from considerations of judicial propriety, the
integrity of the Court as an institution and the principle that the jurisdiction of the Court rests on the
consent of the parties.

                                                    *

        48. In The Gambia’s view, the reformulation of Myanmar’s argument on jurisdiction as a
challenge to admissibility must also fail. The Gambia observes that Myanmar has cited no authority
for its argument that the Application should be found inadmissible if it amounts to a circumvention
of a limitation to the Court’s jurisdiction, and that such an objection bears no resemblance to other
recognized grounds for declining to exercise jurisdiction. The Gambia denies the existence of any
abuse of process on its part, as it did not initiate these proceedings with an improper intent. On the
contrary, it points out that The Gambia’s efforts have been well received by the international
community, and refers to the fact that the Court’s order indicating provisional measures has been
welcomed by the Secretary-General and the General Assembly of the United Nations.

                                                *       *

                                                 - 21 -

       49. The Court has found above that the Applicant in these proceedings is The Gambia, a State
party to the Statute of the Court and a party to the Genocide Convention, which confers on the Court
jurisdiction over disputes between the Contracting Parties relating to the interpretation, application
or fulfilment of the Convention. As the Court has held previously, it is only in exceptional
circumstances that the Court should reject a claim based on a valid title of jurisdiction on the ground
of abuse of process (Certain Iranian Assets (Islamic Republic of Iran v. United States of America),
Preliminary Objections, Judgment, I.C.J. Reports 2019 (I), pp. 42-43, para. 113). The Court
observes that no evidence has been presented to it showing that the conduct of The Gambia amounts
to an abuse of process. Nor is the Court confronted in the present case with other grounds of
inadmissibility which would require it to decline the exercise of its jurisdiction. Thus, the first
preliminary objection of Myanmar, in so far as it concerns the admissibility of The Gambia’s
Application, must be rejected.

                                                   *

    50. In light of the foregoing, the Court concludes that the first preliminary objection of
Myanmar must be rejected.

                      III. EXISTENCE OF A DISPUTE BETWEEN THE PARTIES
                               (FOURTH PRELIMINARY OBJECTION)

       51. In its fourth preliminary objection, Myanmar argues that the Court lacks jurisdiction, or
alternatively that the Application is inadmissible, because there was no dispute between the Parties
on the date of filing of the Application instituting proceedings.

       52. Myanmar identifies two requirements which, in its view, must be met in order to establish
the existence of a dispute within the meaning of Article IX of the Genocide Convention. First,
Myanmar argues that the claim made by the applicant State must be articulated with a minimum
degree of particularity so that the respondent State is made aware of the facts allegedly constituting
a breach of international law, including the provisions or norms of international law said to have been
violated. The claim must be a legal one and not merely a political statement. Secondly, it contends
that the existence of a dispute at the time of the filing of the application requires “mutual awareness”
of the opposing views of the parties. For Myanmar, the applicant must have made a legal claim which
the respondent was aware of or could not have been unaware of, and the respondent must have
positively opposed that legal claim in a manner which the applicant was aware of or could not have
been unaware of. However, Myanmar states that, in certain cases, the applicant may be aware of the
respondent’s position from its silence, after a reasonable time to respond has passed.

       53. In Myanmar’s view, an examination of the facts relied upon by The Gambia does not
establish the existence of a dispute between the Parties under the Genocide Convention at the time
of the filing of the Application on 11 November 2019. In particular, Myanmar considers that neither
the resolutions previously adopted by the OIC, nor the Final Communiqué of the 14th Islamic
Summit Conference issued on 31 May 2019 may serve as evidence of the existence of a dispute
between the Parties under the Genocide Convention, as they did not emanate from the official organs
of The Gambia, they were not addressed to Myanmar, and Myanmar could not have been aware, on
the basis of these documents, of any particularized claims being made against it that it bears State
responsibility for a breach of the Genocide Convention. Myanmar contends that these documents

                                                  - 22 -

relate to the criminal accountability of individuals rather than State responsibility for acts of genocide
and are formulated as political statements rather than legal claims with sufficient particularity to
disclose the existence of a dispute within the meaning of Article IX of the Convention.

      54. With respect to the reports of the United Nations Independent International Fact-Finding
Mission on Myanmar (hereinafter the “Fact-Finding Mission”) issued in 2018 and 2019, Myanmar
considers that they too cannot serve as evidence of a dispute between the Parties under the Genocide
Convention, as they express the personal views of the three individual members addressed to the
Human Rights Council rather than the legal views of The Gambia on Myanmar’s responsibility under
the Convention. Myanmar also points out that the 2018 report of the Fact-Finding Mission did not
suggest that Myanmar bears State responsibility under international law for acts of genocide, while
the 2019 report and its “Detailed Findings” (see paragraph 66 below) were too general to satisfy the
requirement for a legal claim to have been made by The Gambia.

       55. Myanmar also discounts the relevance of the statements made by the Parties themselves
prior to the filing of the Application. In Myanmar’s view, the statement of the President of
The Gambia before the United Nations General Assembly on 25 September 2018 contains nothing
to suggest that the OIC or The Gambia were contemplating to make a claim that Myanmar was in
breach of its obligations under the Genocide Convention. Myanmar also contends that the statement
of the Vice-President of The Gambia before the United Nations General Assembly on 26 September
2019 was not directly addressed to Myanmar, made no reference to genocide or the Genocide
Convention, and was not sufficiently specific. For the same reasons, Myanmar considers that the
statement of the Union Minister for the Office of the State Counsellor of Myanmar before the
United Nations General Assembly on 29 September 2019 cannot be considered as establishing a
positive opposition of views between the two Parties on a legal issue related to genocide, let alone
the Genocide Convention.

       56. The Respondent further contends that the Note Verbale sent by The Gambia to Myanmar
on 11 October 2019 cannot, in the circumstances as a whole, be understood as advancing a legal
claim against it. Myanmar argues that the wording of the Note Verbale reads as a political statement
rather than a legal claim based on specific facts and legal grounds. According to Myanmar, the Note
Verbale did not set out The Gambia’s views with a sufficient degree of particularity to conclude that
Myanmar “could not have been unaware” that a legal claim was being made against it on the basis
of specific facts and evidence under the Convention, nor did the Note Verbale advance a legal claim
that Myanmar could meaningfully take a position on. In these circumstances, a dispute between the
Parties cannot be inferred from the lack of reaction by Myanmar. Finally, Myanmar asserts that, even
if a response was called for, it was entitled to an appropriate period of time to give a considered
reaction to that Note Verbale, and that a one-month period was not sufficient to warrant the inference
of Myanmar’s positive opposition to the broad and unparticularized claims in the Note Verbale.

                                                    *

                                                 - 23 -

       57. The Gambia requests the Court to reject Myanmar’s fourth preliminary objection as it has
no merit either in law or in fact. With respect to the applicable legal standard, The Gambia contends
that Myanmar’s attempt to set a higher bar than is required for establishing the existence of a dispute
does not find support in the jurisprudence of the Court and should therefore be rejected. In its view,
the respondent’s awareness of the applicant’s opposed views is sufficient to establish a dispute; it is
not necessary to show the applicant’s awareness of the respondent’s specific opposition to its claims.
Myanmar’s proposed standard would, according to The Gambia, create a one-way veto in which a
respondent’s silence in the face of a legal claim could prevent the finding of a dispute. Furthermore,
the Applicant considers that the very exacting standards of specificity in the assertion of a claim
suggested by Myanmar would impose a major new burden on potential applicants and significantly
restrict access to the Court by requiring States fully to develop their legal and factual claims prior to
seising the Court. The Gambia considers in any event that, even under the standards proposed by
Myanmar, the existence of a dispute between the Parties prior to the filing of the Application would
be established on the basis of the relevant evidence.

      58. With respect to the facts, The Gambia maintains that the evidence makes clear that, prior
to the filing of the Application, there was an unresolved dispute between the Parties relating to
Myanmar’s fulfilment of its obligations under the Genocide Convention. It considers that Myanmar
was aware of the fact that the Parties held opposite views regarding Myanmar’s compliance with its
obligations under the Genocide Convention and that The Gambia positively opposed Myanmar’s
denials of its acts of genocide against the Rohingya group in Myanmar.

       59. According to The Gambia, Myanmar was aware of the Applicant’s views on its
responsibility for acts of genocide against the Rohingya as of 6 May 2018, when The Gambia led an
effort at an OIC ministerial meeting to issue the Dhaka Declaration, in which the OIC Member States
expressed their serious concerns over the “systematic brutal acts perpetrated by security forces
against the Rohingya Muslim Community in Myanmar that ha[ve] reached the level of ethnic
cleansing, which constitute[s] a serious and blatant violation of international law”. Myanmar’s
awareness of this Declaration is demonstrated by the statement of its Ministry of Foreign Affairs
three days later, in which Myanmar categorically rejected the description of the events in the Rakhine
State and disclaimed any responsibility for violating applicable international obligations. The
Gambia also points to the rejection by a spokesperson of the Myanmar Government of various
resolutions adopted by OIC Member States, which demonstrates Myanmar’s awareness of the views
of OIC Members, including The Gambia as the chair of the Ad Hoc Committee responsible for these
issues.

       60. The Gambia also relies on the statements made by representatives of both Parties before
the United Nations General Assembly as further evidence of the existence of a dispute. The Gambia
notes that the report of the Fact-Finding Mission dated 12 September 2018 stated that the crimes in
Rakhine State were similar in nature, gravity and scope to those that have allowed genocidal intent
to be established in other contexts. On 25 September 2018, the President of The Gambia, Mr. Adama
Barrow, declared before the United Nations General Assembly that his Government had undertaken
“to champion an accountability mechanism that would ensure that perpetrators of the terrible crimes

                                                 - 24 -

against the Rohingya Muslims are brought to book”. Three days later, Myanmar’s Union Minister
for the Office of the State Counsellor, Mr. Kyaw Tint Swe, delivered a speech to the United Nations
General Assembly, in which he dismissed the findings of the Fact-Finding Mission as “based on
narratives and not on hard evidence”. According to The Gambia, these statements at the
United Nations General Assembly in 2018 indicate that the Parties held clearly opposed views
regarding the question whether international crimes had been committed against the Rohingya and
the need for international accountability measures.

       61. The Gambia also refers to the report issued by the Fact-Finding Mission in 2019, which
stated that “Myanmar incurs State responsibility under the prohibition against genocide” and
welcomed the efforts of The Gambia and the OIC to “encourage and pursue a case against Myanmar
before the International Court of Justice (ICJ) under the Genocide Convention”. Following the
publication of this report, the Vice-President of The Gambia, Ms Isatou Touray, announced before
the United Nations General Assembly on 26 September 2019 that it was her Government’s intention
to “lead concerted efforts to take the Rohingya issue to the International Court of Justice”. Two days
later, Myanmar’s Union Minister for the Office of the State Counsellor, Mr. Kyaw Tint Swe,
dismissed the Fact-Finding Mission’s report as “biased and flawed, based not on facts but on
narratives” and stated that his Government “reject[ed] the establishment of the new Independent
Investigative Mechanism for Myanmar, which was set up to bring Myanmar before such tribunals as
the International Criminal Court, to which [his Government] strongly object[ed]”. In view of these
exchanges, The Gambia considers that Myanmar could not possibly have been unaware that
The Gambia held views positively opposed to its own regarding the legal responsibility of Myanmar
under the Genocide Convention.

       62. In addition to these exchanges in multilateral settings, The Gambia refers to a Note Verbale
that it sent to Myanmar on 11 October 2019. In that Note Verbale, The Gambia referred to the
findings of the Fact-Finding Mission of 2019 “regarding the ongoing genocide against the Rohingya
people”, rejected Myanmar’s denial of its responsibility and its refusal to fulfil its obligations under
the Convention, and asked Myanmar to take all necessary actions to comply with the Convention.
According to The Gambia, the Note Verbale establishes that the Parties held clearly opposite views
regarding Myanmar’s fulfilment of its obligations under the Convention. The Applicant underscores
that Myanmar did not respond to the Note Verbale in the month that followed “even though the
gravity of the communication and The Gambia’s insistence on Myanmar desisting from acts of
genocide clearly called for a response”. The Gambia also rejects Myanmar’s argument that the latter
was entitled to an appropriate period of time to give a considered reaction, pointing out that Myanmar
had already received the various reports from the Fact-Finding Mission and was sufficiently aware
of their contents. Finally, The Gambia points out that Myanmar’s silence cannot be interpreted to
mean that it was unaware that The Gambia positively opposed its views on Myanmar’s responsibility
under the Convention, noting that five days after the filing of the Application a spokesperson for the
Government of Myanmar publicly admitted that his Government had expected for over a month that
it could face litigation before the Court, a factual element that has not been addressed by Myanmar
anywhere in these proceedings.

                                                *     *

                                                 - 25 -

       63. The existence of a dispute between the Parties is a requirement for the Court’s jurisdiction
under Article IX of the Genocide Convention. According to the established case law of the Court, a
dispute is “a disagreement on a point of law or fact, a conflict of legal views or of interests” between
parties (Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 11).
In order for a dispute to exist, “[i]t must be shown that the claim of one party is positively opposed
by the other” (South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary
Objections, Judgment, I.C.J. Reports 1962, p. 328). The two sides must hold clearly opposite views
concerning the question of the performance or non-performance of certain international obligations
(Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear
Disarmament (Marshall Islands v. India), Jurisdiction and Admissibility, Judgment, I.C.J. Reports
2016 (I), p. 270, para. 34; Alleged Violations of Sovereign Rights and Maritime Spaces in the
Caribbean Sea (Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2016 (I),
p. 26, para. 50).

       64. The Court’s determination of the existence of a dispute is a matter of substance and not a
question of form or procedure (Application of the International Convention on the Elimination of All
Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections,
Judgment, I.C.J. Reports 2011 (I), p. 84, para. 30). In principle, the date for determining the existence
of a dispute is the date on which the application is submitted to the Court (Alleged Violations of
Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Preliminary
Objections, Judgment, I.C.J. Reports 2016 (I), p. 27, para. 52). However, conduct of the parties
subsequent to the application may be relevant for various purposes, in particular to confirm the
existence of a dispute (Obligations concerning Negotiations relating to Cessation of the Nuclear
Arms Race and to Nuclear Disarmament (Marshall Islands v. India), Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 2016 (I), p. 272, para. 40). The Court has also previously held that, in
making such a determination, it takes into account in particular any statements or documents
exchanged between the parties (Questions relating to the Obligation to Prosecute or Extradite
(Belgium v. Senegal), Judgment, I.C.J. Reports 2012 (II), pp. 443-445, paras. 50-55), as well as any
exchanges made in multilateral settings (Application of the International Convention on the
Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary
Objections, Judgment, I.C.J. Reports 2011 (I), pp. 94-95, paras. 51 and 53). In so doing, it pays
special attention to “the author of the statement or document, their intended or actual addressee, and
their content” (ibid., p. 100, para. 63).

      65. In this regard, the Court notes that in the present case there are four relevant statements
made by representatives of the Parties before the United Nations General Assembly in
September 2018 and September 2019. These statements were made during the 2018 and 2019
general debates of the Assembly, which took place in the weeks following the publication of two
reports by the Fact-Finding Mission on Myanmar established by the Human Rights Council of the
United Nations, on 12 September 2018 and on 8 August 2019, respectively. Also relevant to the
determination of the existence of a dispute is the Note Verbale that The Gambia sent to the Permanent
Mission of Myanmar to the United Nations on 11 October 2019.

      66. In its first report, dated 12 September 2018, the Fact-Finding Mission stated that “[t]he
crimes in Rakhine State, and the manner in which they were perpetrated, are similar in nature, gravity
and scope to those that have allowed genocidal intent to be established in other contexts”
(United Nations, Report of the Independent International Fact-Finding Mission on Myanmar,

                                                - 26 -

UN doc. A/HRC/39/64, 12 September 2018, para. 85). On that basis, the Fact-Finding Mission
concluded that there was sufficient information “to warrant the investigation and prosecution of
senior officials in the Tatmadaw chain of command, so that a competent court can determine their
liability for genocide in relation to the situation in Rakhine State” and called upon the international
community, through the United Nations, to use all peaceful means “to assist Myanmar in meeting its
responsibility to protect its people from genocide” (ibid., paras. 87 and 104). The Fact-Finding
Mission reiterated these statements in the “Detailed Findings” version of the same report published
on 17 September 2018, where it noted that “the Myanmar authorities have demonstrated that they
are unable and unwilling to meaningfully engage” in the process of “investigating and prosecuting
crimes under international law” and that consequently “the impetus for accountability must come
from the international community” (United Nations, Report of the detailed findings of the
Independent International Fact-Finding Mission on Myanmar, UN doc. A/HRC/39/CRP.2,
17 September 2018, para. 1648). A copy of the report was shared with the Government of Myanmar
prior to its release (ibid., para. 3).

      67. On 25 September 2018, the President of The Gambia, Mr. Adama Barrow, stated in his
address to the General Assembly that, as the upcoming chair of the next summit of the OIC,
The Gambia “ha[d] undertaken, through a resolution, to champion an accountability mechanism that
would ensure that perpetrators of the terrible crimes against the Rohingya Muslims are brought to
book” (United Nations, Official Records of the General Assembly, UN doc. A/73/PV.7,
25 September 2018, p. 29). In a speech delivered three days later in the same session of the General
Assembly, Myanmar’s Union Minister for the Office of the State Counsellor, Mr. Kyaw Tint Swe,
expressed Myanmar’s serious concerns over the report of the Fact-Finding Mission and rejected its
findings as “based on narratives and not on hard evidence” (United Nations, Official Records of the
General Assembly, UN doc. A/73/PV.13, 28 September 2018, p. 45).

      68. In its second report published on 8 August 2019, the Fact-Finding Mission stated that it
had reasonable grounds to conclude, inter alia, that “Myanmar incurs State responsibility under the
prohibition against genocide” and

      “welcome[d] the efforts of States, in particular Bangladesh and the Gambia, and the
      Organization of Islamic Cooperation to encourage and pursue a case against Myanmar
      before the International Court of Justice under the Convention on the Prevention and
      Punishment of the Crime of Genocide” (United Nations, Report of the Independent
      International Fact-Finding Mission on Myanmar, UN doc. A/HRC/42/50, 8 August
      2019, paras. 18-19 and 107).

The Fact-Finding Mission repeated these statements in the “Detailed Findings” version of the same
report published on 16 September 2019 and added that “Myanmar is failing in its obligation to
prevent genocide, to investigate genocide and to enact effective legislation criminalizing and
punishing genocide” (United Nations, Report of the Independent International Fact-Finding Mission
on Myanmar, UN doc. A/HRC/42/CRP.5, 16 September 2019, paras. 40, 58, 213 and 220). A copy
of this report was also provided to Myanmar (ibid., para. 29).

      69. Following the publication of the second report and the “Detailed Findings” of the
Fact-Finding Mission, the Vice-President of The Gambia, Ms Isatou Touray, in an address to the
General Assembly on 26 September 2019, stated that “[a]s a global community with a conscience,

                                                   - 27 -

we cannot continue to ignore the plight of the Rohingya”, and declared her Government’s intention
to “lead concerted efforts to take the Rohingya issue to the International Court of Justice on behalf
of the Organization of Islamic Cooperation” (United Nations, Official Records of the General
Assembly, UN doc. A/74/PV.8, 26 September 2019, p. 31). Two days after the address by
The Gambia, Myanmar’s Union Minister for the Office of the State Counsellor, Mr. Kyaw Tint Swe,
stated before the General Assembly that the Fact-Finding Mission’s reports “without exception, have
been biased and flawed” and that “[t]he latest reports are even worse” (United Nations, Official
Records of the General Assembly, UN doc. A/74/PV.12, 28 September 2019, p. 24). Myanmar also
“reject[ed] the establishment of the new Independent Investigative Mechanism for Myanmar, which
was set up to bring Myanmar before such tribunals as the International Criminal Court, to which
strongly object[ed]” (ibid.).

       70. Myanmar contests the existence of a dispute between the Parties on two grounds. First,
Myanmar argues that the statements made in the General Assembly and the Note Verbale sent by
The Gambia on 11 October 2019 lacked sufficient particularity, in the sense that The Gambia did not
specifically articulate its legal claims. Secondly, Myanmar maintains that the requirement of “mutual
awareness” is not satisfied because it has never rejected specific claims by The Gambia. The Court
will now examine these two grounds advanced by Myanmar to contest the existence of a dispute
between the Parties.

       71. With regard to Myanmar’s argument that the existence of a dispute requires what Myanmar
refers to as “mutual awareness” by both parties of their respective positively opposed positions (see
paragraph 52 above), the conclusion that the parties hold clearly opposite views concerning the
performance or non-performance of legal obligations does not require that the respondent must
expressly oppose the claims of the applicant. If that were the case, a respondent could prevent a
finding that a dispute exists by remaining silent in the face of an applicant’s legal claims. Such a
consequence would be unacceptable. It is for this reason that the Court considers that, in case the
respondent has failed to reply to the applicant’s claims, it may be inferred from this silence, in certain
circumstances, that it rejects those claims and that, therefore, a dispute exists at the time of the
application. Consequently, the Court is of the view that the requirement of “mutual awareness” based
on two explicitly opposed positions, as put forward by Myanmar, has no basis in law.

       72. Turning to Myanmar’s argument that the statements made by The Gambia before the
United Nations General Assembly lacked sufficient particularity, the Court notes that those
statements did not specifically mention the Genocide Convention. The Court, however, does not
consider that a specific reference to a treaty or to its provisions is required in this regard. As the Court
has affirmed in the past,

      “[w]hile it is not necessary that a State must expressly refer to a specific treaty in its
      exchanges with the other State to enable it later to invoke that instrument before the
      Court . . . the exchanges must refer to the subject-matter of the treaty with sufficient
      clarity to enable the State against which a claim is made to identify that there is, or may
      be, a dispute with regard to that subject-matter” (Application of the International
      Convention on the Elimination of All Forms of Racial Discrimination (Georgia v.
      Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011 (I), p. 85,
      para. 30).

                                                - 28 -

In this context, the Court notes that the statements of The Gambia in September 2018 and in
September 2019 were made shortly after the publication of the Fact-Finding Mission’s reports. The
2018 report specifically alleged the perpetration of crimes in Rakhine State that were similar in
nature, gravity and scope to those that have allowed genocidal intent to be established in other
contexts, while the 2019 report specifically referred to Myanmar’s responsibility under the Genocide
Convention. The Gambia was undoubtedly referring in its statement to the findings of these reports,
which were the key United Nations reports on the situation of the Rohingya population in Myanmar
and which had been referred to in various reports that were before the General Assembly. In
particular, the second report of the Fact-Finding Mission identified The Gambia as one of those States
making efforts to pursue a case against Myanmar before the Court under the Convention. Myanmar
could not have been unaware of this fact. Similarly, Myanmar’s rejection of the findings of these
reports demonstrates that it was positively opposed to any allegations of genocide being committed
by its security forces against the Rohingya communities in Myanmar, as well as to the allegations of
its responsibility under the Genocide Convention for carrying out acts of genocide. Such allegations
were contained in the two reports and publicly taken up by The Gambia.

       73. The Court considers that the statements made by the Parties before the United Nations
General Assembly in 2018 and 2019 indicate the opposition of their views on the question whether
the treatment of the Rohingya group was consistent with Myanmar’s obligations under the Genocide
Convention. Myanmar could not have been unaware of the fact that The Gambia had expressed the
view that it would champion an accountability mechanism for the alleged crimes against the
Rohingya, following the release of the Fact-Finding Mission’s report of 2018. More importantly,
Myanmar could not have failed to know of the announcement by the Vice-President of The Gambia
before the General Assembly during the general debate in September 2019 that her Government
intended to lead concerted efforts to take the Rohingya issue to the Court. It was The Gambia, and
The Gambia alone, that had expressed such an intention before the General Assembly in 2019. The
statements made in both 2018 and 2019 before the General Assembly by Myanmar’s Union Minister
for the Office of the State Counsellor express views of his Government which are opposed to those
of The Gambia’s and clearly reject the reports and findings of the Fact-Finding Mission.

       74. Moreover, the Note Verbale sent by The Gambia to the Permanent Mission of Myanmar
to the United Nations on 11 October 2019 brought clearly into focus the positive opposition of views
between the Parties, by expressing specifically and in legal terms The Gambia’s position concerning
Myanmar’s alleged violations of its obligations under the Genocide Convention. In its Note Verbale,
The Gambia referred to the findings of the Fact-Finding Mission, especially those regarding the
“ongoing genocide against the Rohingya people of the Republic of the Union of Myanmar in
violation of Myanmar’s obligations under the Convention on the Prevention and Punishment of the
Crime of Genocide”, which it considered to be “well-supported by the evidence and highly credible”.
It also “emphatically reject[ed] Myanmar’s denial of its responsibility for the ongoing genocide
against Myanmar’s Rohingya population, and its refusal to fulfill its obligations under the Genocide
Convention”, and it asked Myanmar to comply with those obligations.

                                                  - 29 -

        75. The Court further notes that Myanmar never responded to this Note Verbale. As was
previously held by the Court, “the positive opposition of the claim of one party by the other need not
necessarily be stated expressis verbis . . . the position or the attitude of a party can be established by
inference, whatever the professed view of that party” (Land and Maritime Boundary between
Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections, Judgment, I.C.J.
Reports 1998, p. 315, para. 89). In particular, “the existence of a dispute may be inferred from the
failure of a State to respond to a claim in circumstances where a response is called for” (Application
of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v.
Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011 (I), p. 84, para. 30).
The question whether such an inference may be drawn depends on the particular circumstances of
each case.

       76. The Court recalls that Myanmar was informed, through the reports of the Fact-Finding
Mission of 2018 and 2019, of the allegations made against it concerning violations of the Genocide
Convention. It also had an indication of The Gambia’s opposition to its views on this matter, as
reflected in statements by the representatives of The Gambia and Myanmar before the United Nations
General Assembly. Thus, the Note Verbale did not constitute the first time that these allegations were
made known to Myanmar. In light of the nature and gravity of the allegations made in The Gambia’s
Note Verbale and Myanmar’s prior knowledge of their existence, the Court is of the view that
Myanmar’s rejection of the allegations made by The Gambia can also be inferred from its failure to
respond to the Note Verbale within the one-month period preceding the filing of the Application.

       77. In light of the foregoing, the Court concludes that a dispute relating to the interpretation,
application and fulfilment of the Genocide Convention existed between the Parties at the time of the
filing of the Application by The Gambia on 11 November 2019. The fourth preliminary objection of
Myanmar must therefore be rejected.

      IV. MYANMAR’S RESERVATION TO ARTICLE VIII OF THE GENOCIDE CONVENTION
                         (THIRD PRELIMINARY OBJECTION)

       78. In its third preliminary objection, Myanmar submits that the Court lacks jurisdiction, or
that The Gambia’s Application is inadmissible, because The Gambia cannot validly seise the Court
under the Genocide Convention. In Myanmar’s view, this is the effect of its reservation to
Article VIII of the Genocide Convention.

     79. Myanmar argues that the seisin of the Court is governed by Article VIII of the Genocide
Convention, which provides:

             “Any Contracting Party may call upon the competent organs of the
      United Nations to take such action under the Charter of the United Nations as they
      consider appropriate for the prevention and suppression of acts of genocide or any of
      the other acts enumerated in article III.”

As recalled above, Myanmar, then the Union of Burma, deposited its instrument of ratification of the
Convention on 14 March 1956 (see paragraph 31). That instrument of ratification contained the
following reservation: “With reference to Article VIII, the Union of Burma makes the reservation
that the said Article shall not apply to the Union” (United Nations, Treaty Series, Vol. 230, p. 435).

                                                 - 30 -

       80. Myanmar submits that the reference in Article VIII to the “competent organs of the
United Nations” includes the Court. It claims that this interpretation is supported by the plain
wording of Article VIII, which does not contain any qualifier indicating that its scope is limited to
specific organs of the United Nations. Myanmar also maintains that the terms used in the equally
authentic French and Spanish versions of Article VIII to describe the capacity of a Contracting Party
(“saisir” and “recurrir”, respectively) are typically used in relation to proceedings before the Court,
thus confirming that the Court is included among the organs envisaged therein.

       81. Myanmar argues that Article VIII would be rendered meaningless if it only applied to the
political organs of the United Nations, because the Charter of the United Nations already permits
Member States to call upon the General Assembly or the Security Council to take appropriate action
in the face of genocide. In Myanmar’s view, since the Charter governs the seisin of political organs
of the United Nations, then Article VIII must have a different purpose. Myanmar thus submits that
Article VIII is intended to govern the seisin of the Court. By contrast, Myanmar considers that
Article IX governs the Court’s jurisdiction only.

       82. In Myanmar’s view, because Article VIII governs the seisin of the Court, its reservation to
that provision precludes the valid seisin of the Court by The Gambia in the present case. Myanmar
has not entered a reservation to Article IX, but it suggests that its reservation to Article VIII must be
interpreted as barring “non-injured States” from seising the Court in a case arising under the
Genocide Convention. Emphasizing the importance of respecting the intention of States when
entering reservations, Myanmar contends that any different interpretation of its reservation would
render it devoid of legal effect.

                                                   *

      83. For The Gambia, Myanmar’s reservation to Article VIII of the Convention is irrelevant,
because that provision does not govern the seisin of the Court.

       84. The Gambia argues that, according to the ordinary meaning of Article VIII, the Court
cannot be one of the “competent” organs of the United Nations, because it may not take “action”
under the Charter of the United Nations based on what it considers “appropriate”. The Gambia
further contends that the expression to “call upon” in the equally authentic English version of the text
is not commonly employed in connection with judicial proceedings, but that such terminology is
instead routinely used to refer to appeals to the exercise of discretion. The Gambia also contests the
relevance of the argument concerning the verbs used in the French and Spanish texts of Article VIII
(“saisir” and “recurrir”, respectively). In The Gambia’s view, while these terms are sometimes used
in legal contexts, they are also employed in connection with appeals to political bodies.

      85. The Gambia offers three arguments in response to Myanmar’s contention that Article VIII
would be deprived of meaning if it did not encompass the seisin of the Court. First, in The Gambia’s
view, Article VIII clarifies that the engagement of the political organs of the United Nations in the
face of genocide is not barred by Article 2, paragraph 7, of the Charter. Second, The Gambia argues

                                                - 31 -

that Article VIII permits Contracting Parties that are not Member States of the United Nations to call
upon the Organization’s political organs to take action, including action against States that are not
Contracting Parties. Third, The Gambia maintains that, unlike Article IX, Article VIII permits
Contracting Parties to call upon the competent organs to take action even without a dispute having
crystallized under international law or against non-State actors.

                                               *      *

      86. Myanmar’s third preliminary objection raises the question of the seisin of the Court. The
Court has previously held that,

      “as an act instituting proceedings, seisin is a procedural step independent of the basis of
      jurisdiction invoked and, as such, is governed by the Statute and the Rules of Court.
      However, the Court is unable to entertain a case so long as the relevant basis
      of jurisdiction has not been supplemented by the necessary act of seisin: from this point
      of view, the question of whether the Court was validly seised appears to be a question
      of jurisdiction.” (Maritime Delimitation and Territorial Questions between Qatar
      and Bahrain (Qatar v. Bahrain), Jurisdiction and Admissibility, Judgment, I.C.J.
      Reports 1995, p. 23, para. 43.)

       87. For the purpose of ascertaining whether Article VIII governs the seisin of the Court, the
Court will have recourse to the rules of customary international law on treaty interpretation as
reflected in Articles 31 to 33 of the Vienna Convention on the Law of Treaties of 23 May 1969
(hereinafter the “Vienna Convention”) (see Application of the International Convention for the
Suppression of the Financing of Terrorism and of the International Convention on the Elimination
of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Preliminary Objections,
Judgment, I.C.J. Reports 2019 (II), p. 598, para. 106; Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia
and Montenegro), Judgment, I.C.J. Reports 2007 (I), pp. 109-110, para. 160).

       88. The Court observes that the ordinary meaning of the expression “competent organs of the
United Nations”, viewed in isolation, could appear to encompass the Court, the principal judicial
organ of the United Nations. However, reading Article VIII as a whole leads to a different
interpretation. In particular, Article VIII provides that the competent organs of the United Nations
may “take such action . . . as they consider appropriate”, which suggests that these organs exercise
discretion in determining the action that should be taken with a view to “the prevention and
suppression of acts of genocide or any of the other acts enumerated in article III”. The function of
the competent organs envisaged in this provision is thus different from that of the Court, “whose
function is to decide in accordance with international law such disputes as are submitted to it”
pursuant to Article 38, paragraph 1, of its Statute and to give advisory opinions on any legal question
pursuant to Article 65, paragraph 1, of its Statute. In this sense, Article VIII may be seen as
addressing the prevention and suppression of genocide “at the political level rather than as a matter
of legal responsibility” (Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J.
Reports 2007 (I), p. 109, para. 159).

                                                 - 32 -

       89. Furthermore, pursuant to customary international law, as reflected in Article 31 of the
Vienna Convention, the terms of Article VIII must be interpreted in their context and, in particular,
in light of other provisions of the Genocide Convention. In this regard, the Court pays specific
attention to Article IX of the Genocide Convention, which constitutes the basis of its jurisdiction
under the Convention. In the Court’s view, Articles VIII and IX of the Genocide Convention have
distinct areas of application. Article IX provides the conditions for recourse to the principal judicial
organ of the United Nations in the context of a dispute between Contracting Parties, whereas
Article VIII allows any Contracting Party to appeal to other competent organs of the United Nations,
even in the absence of a dispute with another Contracting Party.

       90. It thus follows from the ordinary meaning of the terms of Article VIII considered in their
context that that provision does not govern the seisin of the Court. In light of this finding, the Court
is of the view that there is no need to resort to supplementary means of interpretation, such as the
travaux préparatoires of the Genocide Convention.

       91. Given that Article VIII does not pertain to the seisin of the Court, Myanmar’s reservation
to that provision is irrelevant for the purposes of determining whether the Court is properly seised of
the case before it. Consequently, it is not necessary for the Court to examine the content of
Myanmar’s reservation to Article VIII.

       92. The Court therefore concludes that Myanmar’s third preliminary objection must be
rejected.

             V. THE GAMBIA’S STANDING TO BRING THE CASE BEFORE THE COURT
                           (SECOND PRELIMINARY OBJECTION)

       93. In its second preliminary objection, Myanmar submits that The Gambia’s Application is
inadmissible because The Gambia lacks standing to bring this case before the Court. In particular,
Myanmar considers that only “injured States”, which Myanmar defines as States “adversely affected
by an internationally wrongful act”, have standing to present a claim before the Court. In Myanmar’s
view, The Gambia is not an “injured State” (a term that Myanmar appears to use interchangeably
with the term “specially affected State”) and has failed to demonstrate an individual legal interest.
Therefore, according to Myanmar, The Gambia lacks standing under Article IX of the
Genocide Convention.

       94. Myanmar draws a distinction between the right to invoke State responsibility under general
international law and standing before the Court. It argues that, even if it were established that a
“non-injured” Contracting Party to the Genocide Convention has the right to invoke another State’s
responsibility for violations of the Convention, this would not necessarily entail the right to bring a
case before the Court. To this end, Myanmar contends that there exists a difference between the
common interest in the accomplishment of the purposes of the Genocide Convention and a State’s
individual legal interest that may be enforced through the institution of proceedings before the Court.
In Myanmar’s view, only States “specially affected” by an internationally wrongful act have standing
to bring a claim before the Court.

                                                 - 33 -

      95. Myanmar insists that the Judgment in the case concerning Questions relating to the
Obligation to Prosecute or Extradite (Belgium v. Senegal) did not affirm the standing of
“non-injured” States to institute proceedings because, in Myanmar’s view, that case was different
from the present one in two respects. First, according to Myanmar, Belgium considered itself a
“specially affected” State, because it had availed itself of the right under Article 5 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December
1984 (hereinafter the “Convention against Torture”) to exercise jurisdiction and to request
extradition. Second, Myanmar submits that the Convention against Torture is to be distinguished
from the Genocide Convention, in so far as the former explicitly contemplates the exercise of
universal jurisdiction. By contrast, according to Myanmar, Article VI of the Genocide Convention
only provides an obligation to exercise territorial jurisdiction and does not envisage any form of
enforcement by Contracting Parties other than those on whose territory the alleged acts of genocide
were committed.

       96. Myanmar also argues that the wording and structure of the Genocide Convention exclude
the possibility of a “non-injured” State bringing a case before the Court. In Myanmar’s view, the
omission of the terms “any” or “all” before the term “[d]isputes” in Article IX indicates that the
disputes contemplated therein only include those between Contracting Parties rather than all disputes
that could arise under the Convention. Myanmar makes a similar claim with respect to the phrase
“[a]ny Contracting Party” used in Article VIII, compared to the phrase “the Contracting Parties”
used in Article IX (emphasis added). Myanmar interprets this as meaning that Article IX does not
include all Contracting Parties within its ambit.

       97. Myanmar contends that its interpretation is supported by the drafting history of the
Genocide Convention. For Myanmar, a clear consensus existed among the negotiating States that
Article VIII could be triggered by every Contracting Party to the Convention, whereas no similar
consensus is evident with respect to the scope of Article IX. Myanmar also points to the phrase “at
the request of any of the parties to the dispute” at the end of Article IX, which was adopted instead
of the alternative proposed wording “at the request of any of the High Contracting Parties”.
According to Myanmar, the adopted wording demonstrates an intention to limit the parties that could
bring a dispute before the Court under Article IX to those “specially affected” by alleged violations
of the Convention.

      98. Myanmar further submits that The Gambia’s claims are inadmissible in so far as they are
not brought before the Court in accordance with the rule concerning the nationality of claims which,
according to Myanmar, is reflected in Article 44 (a) of the International Law Commission’s Articles
on the Responsibility of States for Internationally Wrongful Acts (hereinafter the “ILC Articles on
State Responsibility”). Myanmar asserts that the rule concerning the nationality of claims applies to
the invocation of responsibility by both “injured” and “non-injured” States and irrespective of
whether the obligation breached is an erga omnes partes or erga omnes obligation. Consequently, in
Myanmar’s view, The Gambia lacks standing to invoke Myanmar’s responsibility in the interest of
members of the Rohingya group, who are not nationals of The Gambia.

       99. Finally, Myanmar maintains that, even if Contracting Parties that are not “specially
affected” by an alleged violation of the Convention are assumed to have standing to submit a dispute
to the Court under Article IX, this standing is subsidiary to and dependent upon the standing of
States that are “specially affected”. Myanmar argues that Bangladesh would be “the most natural
State” to institute proceedings in the present case, because it borders Myanmar and has

                                                 - 34 -

received a significant number of the alleged victims of genocide. In Myanmar’s view, the reservation
by Bangladesh to Article IX of the Genocide Convention not only precludes Bangladesh from
bringing a case against Myanmar, but it also bars any “non-injured” State, such as The Gambia, from
doing so. Myanmar further argues that “non-injured” States may not override the right of a State
“specially affected” by the alleged breach to decide how to vindicate its rights in a way that would
best serve its own interests. Myanmar warns that the opposite conclusion would lead to a proliferation
of disputes and raise questions concerning the entitlement of “non-injured” States to claim reparation
on behalf of alleged victims who are not their nationals.

                                                   *

       100. The Gambia rejects Myanmar’s arguments in support of its second preliminary objection
and insists that all the conditions of Article IX of the Convention have been met. The Gambia argues
that all Contracting Parties have a common interest in compliance with the obligations under the
Genocide Convention, which The Gambia considers to be owed erga omnes partes, and that
therefore a breach of those obligations injures all Contracting Parties to the Convention. For that
reason, according to The Gambia, any State party to the Convention is entitled to invoke the
responsibility of another State party for breach of obligations erga omnes partes under the
Convention. Rejecting Myanmar’s separation of the right to invoke the responsibility of a State from
the right to institute proceedings before the Court, The Gambia contends that the right to invoke
responsibility for a breach of obligations erga omnes partes entails the right to submit a dispute
resulting from such breach to the Court.

      101. Relying on the Court’s jurisprudence, The Gambia maintains that the Court’s jurisdiction
under Article IX is not limited to cases brought by States “specially affected” (a term that
The Gambia treats as equivalent to “directly injured”) by an alleged violation of the Convention.
The Gambia points to the Court’s Judgment in Questions relating to the Obligation to Prosecute or
Extradite (Belgium v. Senegal), where, in its view, the Court affirmed Belgium’s standing solely on
the basis of the erga omnes partes character of the obligations allegedly breached. The Gambia also
disputes Myanmar’s argument distinguishing the Convention against Torture from the Genocide
Convention. It acknowledges that, unlike the Convention against Torture, the Genocide Convention
does not establish universal jurisdiction, but it contends that this has no bearing on The Gambia’s
standing in the present case.

       102. The Gambia argues that the ordinary meaning of the terms of Article IX in their context
does not support a finding that States must be, in its words, “specially injured” by an alleged breach
of the Genocide Convention in order to bring a dispute before the Court. It considers that the use of
the terms “[d]isputes” and “the Contracting Parties” in Article IX cannot be understood to limit the
scope of the Court’s jurisdiction. In The Gambia’s view, Article IX should be interpreted to
encompass any dispute between any of the Contracting Parties, provided that the dispute relates to
the interpretation, application or fulfilment of the Convention, which includes disputes relating to the
responsibility of a State for failing to fulfil its obligations under the Convention.

                                                 - 35 -

       103. According to The Gambia, the drafting history further supports its interpretation of
Article IX. The Gambia submits that, from its inception, this compromissory clause was intended to
give effect to the fact that any dispute arising under the Convention is a matter that affects all
Contracting Parties. The Gambia claims that the negotiating States embraced a broad jurisdictional
scope for the Court, on the understanding that the limitation of standing to “specially injured” States
would undermine the effectiveness of the Convention with respect to acts committed within a State’s
territory against a minority population. The Gambia refutes Myanmar’s interpretation of the phrase
“at the request of any of the parties to the dispute”, arguing that that revision was regarded by the
negotiating States as editorial in character, without substantive effect.

        104. The Gambia also contends that the rule concerning the nationality of claims, as reflected
in Article 44 (a) of the ILC Articles on State Responsibility, is inapplicable in cases such as the
present one, where its application would be contrary to the object and purpose of a treaty.
The Gambia observes that genocide is likely to be directed against nationals of the State committing
it, or against individuals who have been deprived of their nationality by the persecuting State.
According to The Gambia, the rule concerning the nationality of claims would preclude the
invocation of responsibility in relation to these individuals and would therefore be inconsistent with
the object and purpose of the Convention, rendering that treaty a “dead letter”. Recalling the drafting
history of the Genocide Convention and the circumstances of its conclusion, The Gambia argues that
the rule concerning the nationality of claims is inconsistent with the aims of the Convention and that
it is therefore inapplicable.

       105. Finally, The Gambia challenges Myanmar’s alternative argument that the standing of
States not “specially affected” by a breach of an obligation erga omnes partes is subsidiary to and
dependent upon the standing of “specially affected” States. The Gambia submits that the Court’s
jurisdiction over a dispute between two States under the Convention depends only upon the consent
of those States rather than that of any third party. The Gambia disputes the contention that its rights
under the Convention are subordinate to those of Bangladesh or that any waiver of rights by
Bangladesh would entail a valid waiver of its own rights.

                                                *      *

       106. The question to be answered by the Court is whether The Gambia is entitled to invoke
Myanmar’s responsibility before the Court for alleged breaches of Myanmar’s obligations under the
Genocide Convention. The Court notes a significant terminological variety in the arguments of both
Parties with reference to the position and rights of a Contracting Party to the Genocide Convention
in the face of an alleged breach by another Contracting Party of obligations arising thereunder.
Relying in part on the ILC Articles on State Responsibility, Myanmar uses the terms “(non-)injured
State” and “specially affected State”, whereas The Gambia refers to “specially injured State” and
“directly injured State”. The Court does not find it necessary, in the present case, to explore the legal
significance of the various terms employed by the Parties. It suffices to recall the Advisory Opinion
on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, in
which the Court explained the legal relationship established among States parties under the Genocide
Convention:

                                                 - 36 -

             “In such a convention the contracting States do not have any interests of their
      own; they merely have, one and all, a common interest, namely, the accomplishment of
      those high purposes which are the raison d’être of the convention. Consequently, in a
      convention of this type one cannot speak of individual advantages or disadvantages to
      States, or of the maintenance of a perfect contractual balance between rights and duties.
      The high ideals which inspired the Convention provide, by virtue of the common will
      of the parties, the foundation and measure of all its provisions.” (I.C.J. Reports 1951,
      p. 23.)

       107. All the States parties to the Genocide Convention thus have a common interest to ensure
the prevention, suppression and punishment of genocide, by committing themselves to fulfilling the
obligations contained in the Convention. As the Court has affirmed, such a common interest implies
that the obligations in question are owed by any State party to all the other States parties to the
relevant convention; they are obligations erga omnes partes, in the sense that each State party has an
interest in compliance with them in any given case (Questions relating to the Obligation to Prosecute
or Extradite (Belgium v. Senegal), Judgment, I.C.J. Reports 2012 (II), p. 449, para. 68; see also
Barcelona Traction, Light and Power Company, Limited (New Application: 1962) (Belgium v.
Spain), Second Phase, Judgment, I.C.J. Reports 1970, p. 32, para. 33).

       108. Having concluded, in its Judgment in the case concerning Questions relating to the
Obligation to Prosecute or Extradite (Belgium v. Senegal), that all States parties to the Convention
against Torture had a common interest in compliance with the relevant obligations under that treaty,
the Court held that there was no need to pronounce on whether Belgium, as the applicant, had a
“special interest” in respect of Senegal’s compliance with those obligations (Judgment,
I.C.J. Reports 2012 (II), pp. 449-450, paras. 68-70). The common interest in compliance with the
relevant obligations under the Genocide Convention entails that any State party, without distinction,
is entitled to invoke the responsibility of another State party for an alleged breach of its obligations
erga omnes partes. Responsibility for an alleged breach of obligations erga omnes partes under the
Genocide Convention may be invoked through the institution of proceedings before the Court,
regardless of whether a special interest can be demonstrated. If a special interest were required for
that purpose, in many situations no State would be in a position to make a claim. For these reasons,
Myanmar’s purported distinction between the entitlement to invoke responsibility under the
Genocide Convention and standing to pursue a claim for this purpose before the Court has no basis
in law.

       109. For the purpose of the institution of proceedings before the Court, a State does not need
to demonstrate that any victims of an alleged breach of obligations erga omnes partes under the
Genocide Convention are its nationals. The Court recalls that, where a State causes injury to a natural
or legal person by an internationally wrongful act, that person’s State of nationality may be entitled
to exercise diplomatic protection, which consists of the invocation of State responsibility for such
injury (Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo),
Preliminary Objections, Judgment, I.C.J. Reports 2007 (II), p. 599, para. 39). The Court further
notes that the scope of diplomatic protection has been extended to include, inter alia, alleged
violations of internationally guaranteed human rights (ibid.). However, the entitlement to invoke the
responsibility of a State party to the Genocide Convention before the Court for alleged breaches of
obligations erga omnes partes is distinct from any right that a State may have to exercise diplomatic
protection in favour of its nationals. The aforementioned entitlement derives from the common

                                                  - 37 -

interest of all States parties in compliance with these obligations, and it is therefore not limited to the
State of nationality of the alleged victims. In this connection, the Court observes that victims of
genocide are often nationals of the State allegedly in breach of its obligations erga omnes partes.

       110. The Genocide Convention does not attach additional conditions to the invocation of
responsibility or the admissibility of claims submitted to the Court. The use of the expression “the
Contracting Parties” in Article IX is explained by the fact that the Court’s jurisdiction under
Article IX requires the existence of a dispute between two or more Contracting Parties. By contrast,
“[a]ny Contracting Party” may seek recourse before the competent organs of the United Nations
under Article VIII, even in the absence of a dispute with another Contracting Party. Besides, the use
of the word “[d]isputes”, as opposed to “any dispute” or “all disputes”, in Article IX of the Genocide
Convention is not uncommon in compromissory clauses contained in multilateral treaties (see, for
example, Article I of the Optional Protocol to the Vienna Convention on Diplomatic Relations,
concerning the Compulsory Settlement of Disputes (concluded 18 April 1961; entered into force
24 April 1964), United Nations, Treaty Series, Vol. 500, p. 241). The Court notes that this
formulation appears in the first draft of the Convention prepared by the Secretary-General of the
United Nations (Article XIV of the Draft Convention on the Crime of Genocide, UN doc. E/447,
26 June 1947) and was included in the final text of the Convention without any debate.

       111. Similarly, the terms of Article IX providing that disputes are to be submitted to the Court
“at the request of any of the parties to the dispute”, as opposed to any of the Contracting Parties, do
not limit the category of Contracting Parties entitled to bring claims for alleged breaches of
obligations erga omnes partes under the Convention. This phrase clarifies that only a party to the
dispute may bring it before the Court, but it does not indicate that such a dispute may only arise
between a State party allegedly violating the Convention and a State “specially affected” by such an
alleged violation.

      112. It follows that any State party to the Genocide Convention may invoke the responsibility
of another State party, including through the institution of proceedings before the Court, with a view
to determining the alleged failure to comply with its obligations erga omnes partes under the
Convention and to bringing that failure to an end.

       113. The Court acknowledges that Bangladesh, which borders Myanmar, has faced a large
influx of members of the Rohingya group who have fled Myanmar. However, this fact does not affect
the right of all other Contracting Parties to assert the common interest in compliance with the
obligations erga omnes partes under the Convention and therefore does not preclude The Gambia’s
standing in the present case. As the Court has affirmed, the Genocide Convention “was manifestly
adopted for a purely humanitarian and civilizing purpose”, and “its object on the one hand is to
safeguard the very existence of certain human groups and on the other to confirm and endorse the
most elementary principles of morality” (Reservations to the Convention on the Prevention and
Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 23). Accordingly,
the Court does not need to address the arguments of Myanmar relating to Bangladesh’s reservation
to Article IX of the Genocide Convention.

                                                 - 38 -

       114. For these reasons, the Court concludes that The Gambia, as a State party to the
Genocide Convention, has standing to invoke the responsibility of Myanmar for the alleged breaches
of its obligations under Articles I, III, IV and V of the Convention. Therefore, Myanmar’s second
preliminary objection must be rejected.

                                                   *

                                             *            *

      115. For these reasons,

      THE COURT,

      (1) Unanimously,

      Rejects the first preliminary objection raised by the Republic of the Union of Myanmar;

      (2) Unanimously,

      Rejects the fourth preliminary objection raised by the Republic of the Union of Myanmar;

      (3) Unanimously,

      Rejects the third preliminary objection raised by the Republic of the Union of Myanmar;

      (4) By fifteen votes to one,

      Rejects the second preliminary objection raised by the Republic of the Union of Myanmar;

      IN FAVOUR:    President Donoghue; Vice-President Gevorgian; Judges Tomka, Abraham,
         Bennouna, Yusuf, Sebutinde, Bhandari, Robinson, Salam, Iwasawa, Nolte, Charlesworth;
         Judges ad hoc Pillay, Kress;

      AGAINST: Judge Xue;

      (5) By fifteen votes to one,

     Finds that it has jurisdiction, on the basis of Article IX of the Convention on the Prevention
and Punishment of the Crime of Genocide, to entertain the Application filed by the Republic of
The Gambia on 11 November 2019, and that the said Application is admissible.

      IN FAVOUR:    President Donoghue; Vice-President Gevorgian; Judges Tomka, Abraham,
         Bennouna, Yusuf, Sebutinde, Bhandari, Robinson, Salam, Iwasawa, Nolte, Charlesworth;
         Judges ad hoc Pillay, Kress;

      AGAINST: Judge Xue.

                                               - 39 -

      Done in French and in English, the French text being authoritative, at the Peace Palace,
The Hague, this twenty-second day of July, two thousand and twenty-two, in three copies, one of
which will be placed in the archives of the Court and the others transmitted to the Government of the
Republic of The Gambia and the Government of the Republic of the Union of Myanmar,
respectively.

                                                        (Signed)   Joan E. DONOGHUE,
                                                                        President.

                                                        (Signed)    Philippe GAUTIER,
                                                                         Registrar.

     Judge XUE appends a dissenting opinion to the Judgment of the Court; Judge ad hoc KRESS
appends a declaration to the Judgment of the Court.

                                                               (Initialled)   J.E.D.

                                                               (Initialled)   Ph.G.

                                           ___________