DISSENTING OPINION BY JUDGE BADAWI PASHA.
(Translation. |

After defining or making clear the meaning of the terms ‘‘agent”’
and ‘‘international claim”, the Court goes on to show that the
United Nations has international personality. Then, before dealing
with the concrete cases envisaged in the Request for an Opinion, it
reaches the conclusion that, on this ground, and apart from the
object of the claim, the Organization has the capacity to bring
international claims in so far as may be required in the perfor-
mance of its duties.

Evidently, this conclusion cannot be disputed. Long before
the Organization, international persons had existed; and again
quite recently a number of institutions have been set up, both
before and after the Organization itself, which have this personality.
The Charter of the International Trade Organization (the last
of these institutions) expressly provides that it shall have inter-
national legal personality. It goes without saying that the United
Nations, as the main Organization and the most important of all,
must have international legal personality, just as much as one of
its branches.

But, as the Court itself observes, a juridical system is not bound
to admit that all persons to whom it accords rights are identical
in their nature or as regards the extent of their rights.

In stating that the Organization has international personality,
we shall therefore merely have defined its capacity as a subject of
law in regard-to an international claim ; but we shall not yet have
shown that it has a particular right.

There is in fact no common law for international persons. There
are, on the one hand, States that have common characteristics,
tights and obligations, recognized in international law ; and, on
the other hand, a number of persons of different nature and different
rank: unions, commissions, international groups, with various
names ; Specialized Agencies, such as I.L.0., W.H.O., F.A.O.,
I.R.O., IT.O., the Monetary Fund, the International Bank,
U.N.E.S.C.O. and lastly U.N. In spite of a certain resemblance one
to another, each of these persons depends, as regards its objects,
principles, organization, competence, rights and obligations, on
the terms of its constitution, and is deemed to exist only for
the benefit of States which have signed and ratified, or which have
acceded to that instrument.

35
DISSENTING OPINION BY JUDGE BADAWI PASHA 206

The Request for an Opinion relates to the Organization’s right
to claim reparation for damage caused (a) to itself, and (b) to the
victim, when he is an agent of the United Nations, or to persons
entitled through him.

International law recognizes that a State has the right to claim
reparation for damage caused to itself and to the victim or to
persons entitled through him, when he is a national of that State,
and has not been able to obtain satisfaction through ordinary
channels (right known as diplomatic protection of nationals abroad).

The first right belongs to the State as an attribute of its existence
as a State, and as a consequence of its international personality ;
the second is the fruit of a process of laborious crystallization that
has been completed since the end of the nineteenth century. In spite
of certain abuses that have accompanied its exercise, this right is
universally recognized. But its conception and its justification
have constantly been discussed. In fact, the right to claim repara-
tion for injuries suffered by the victim or persons entitled through
him arises in the person of the victim, or in that of the persons
entitled, and as a general rule belongs only to other persons in so
far as they represent the victim or the persons entitled through him.

International law recognizes that the State has the right to claim
reparation in respect of this damage, not because it considers that
the State is a legal representative of the victim, but because it
holds that the State, in asserting its own right, the right which it
has to ensure, in the person of its subjects, respect for the rules of
international law (Judgment No. 2 of the P.C.1.J., Series A., No. 2,
p. 12). In the absence of a special agreement, it is the bond of
nationality between the State and the individual which alone confers
upon the State the right of diplomatic protection (Judgment of
the P.C.I.J., February 28th, 1930, Series A./B., Fasc. 76, p. 16) 1.

1 The bond of nationality is an essential condition of the exercise by a State
of the right to bring an international claim on behalf of the victim ; but the Court's
Opinion states (p. 181) that there are important exceptions to this rule, and that
there exist classes of cases in which protection may be exercised by a State on behalf
of persons not having its nationality. Now the Permanent Court of International
Justice, in reply to a similar objection, stated, in the above-mentioned Judgment
of February 28th, 1939, that :

“The Estonian agent both in the written pleadings and in the oral arguments
has endeavoured to discredit this rule of international law, if not to deny its
existence. He cited a certain number of precedents, but when these prece-
dents are examined, it will be seen that they are cases where the governments
concerned had agreed to waive the strict application of the rule, cases where
the two governments had agreed to establish an international tribunal with
jurisdiction to adjudicate on claims even if this condition as to nationality were
not fulfilled.”

On the other hand, the classes of cases envisaged in the Opinion seem to relate
to the protection of the flag and of armed forces, in which case protection extends

36
DISSENTING OPINION BY JUDGE BADAWI PASHA 207

It is thus by juridically identifying the national and his national
State, that the latter is deemed to have the right to bring an
international claim for reparation due to the victim or to persons
entitled through him.

According to this theory, the State does not act as representative
of its national, although it claims reparation for the damage
suffered by him. But the reparation that it claims for this injury
possesses the international character of reparation due from one
State to another. In Judgment No. 13 of the P.C.I.J. (Series A.,
No. 17, pp. 27-28), we find a remarkable statement of this
juridical theory in the following terms:

“Tt is a principle of international law that the reparation of a
wrong may consist in an indemnity corresponding to the damage
which the nationals of the injured State have suffered as a result
of the act which is contrary to international law. This is even the
most usual form of reparation ; it is the form selected by Germany
in this case and the admissibility of it has not been disputed. The
reparation due by one State to another does not however change
its character by reason of the fact that it takes the form of an
indemnity for the calculation of which the damage suffered by a
private person is taken as the measure. The rules of law governing
the reparation are the rules of international law in force between
the two States concerned, and not the Jaw governing relations
between the State which has committed a wrongful act and the
individual who has suffered damage. Rights or interests of an
individual the violation of which rights causes damage are always
in a different plane to rights belonging to a State, which rights
may also be infringed by the same act. The damage suffered by
an individual is never therefore identical in kind with that which
will be suffered by a State ; it can only afford a convenient scale for
the calculation of the reparation due to the State.’’

The question, therefore, is whether, as regards injuries suffered
by one of its agents in the performance of his duties, the Organ-
ization has a right to make an international claim at any rate
of the same scope, if not of the same nature, as a claim made
by a State.

In the preliminary part of the Opinion, devoted to a considera-
tion of the question, the Court stated that:

“(d) As this question relates to a case of injury suffered in such
circumstances as to involve a State’s responsibility, it must be
supposed, for the purpose of the examination, that the damage
results from a failure by the State to perform obligations of which
the purpose is to protect the agents of the United Nations Organ-
ization in the performance of their duty.”

to everyone in the ship or in the forces, independent of nationality. But
it must be pointed out that as the condition of nationality is satisfied as regards
the flag or the forces, its absence, in the case of one or more units or persons of a
national entity, may be held to be covered by a principle of the indivisibility of
the flag or of the armed forces.

37
DISSENTING OPINION BY JUDGE BADAWI PASHA 208

The Court therefore admits as a postulate the existence of an
obligation in favour of the United Nations and incumbent on
any Member State whose responsibility might be involved. But
there is nothing in the terms of the question to authorize the
admission of such a postulate; the clause “‘in circumstances
involving the responsibility of a State’’ seems to refer only to
the traditional conditions of diplomatic protection, namely the
exhaustion of local remedies and the existence of a denial of
justice (see debate in Committee VI of the United Nations General
Assembly).

Has the Court in view the obligation of Members, under Article 2
paragraph 5, of the Charter, to give the United Nations every
assistance in any action it takes in accordance with the Charter ;
or has it in view the obligations derived from Article 105 of the
Charter, and from the Convention on Privileges and Immunities ?
A passage from the Opinion (p. 183) seems to refer to both of
these obligations.

But, all the same, the Court has not endeavoured to discover
the source of this obligation, although it is evident that the
disregard by a State of an obligation, and the consequences
that may follow, are closely dependent on the actual terms of
the obligation.

But even whether the source of the supposed obligation be
one or other of the above-mentioned provisions, it would still
have to be shown that a breach of the obligation would give
rise to a right of the United Nations to make an international
claim for reparation of the damage caused by (8) of the first
question ; the right to claim reparation of the damage under (a)
gives rise to no difficulty. If the existence of an obligation ts
assumed, this right would only be the direct result of this obligation.

Both the written statements of the governments (except that
of the United States Government) and the statements made in
Court recognized that the United Nations had the right to bring
an international claim in respect of the damage referred to under
(2), and they endeavoured to give reasons for this. Each represen-
tative had his own argument.

They founded this right on one or more of the following
grounds :

(1) The analogy between the position of the United Nations
and that of States, because the general principles underlying the
position of States would be equally applicable to the United
Nations.

(2) Creation of a new situation, owing to the development of
international organization; in this situation, the international

38
DISSENTING OPINION BY JUDGE BADAWI PASHA 209

community requires that a step forward should be taken towards
the protection of its agents.

(3) The rule that the reparation of damage suffered by the
victim would habitually and principally be the measure of repara-
tion due to the State, and consequently to the United Nations.

(4) Weakening of the bond of national allegiance implied in
Article 100 of the Charter on the one hand, and by considerations
of expediency on the other hand, there being no national protection
for stateless persons, refugees and displaced persons, or such pro-
tection being illusory if, for any reason, the national State does
not endeavour to exercise it.

(5) An international obligation to ensure protection of a
foreign public service; this is confirmed by several precedents
derived from the application of Articles 88 and 362 of the Treaty
of Versailles, from the diplomatic history of the concert of
European Powers in the Cretan question, and from the Corfu
affair of 1923 (Tellini Affair).

(6) Article Ioo of the Charter.

*
* *

Apart from the actual value of each of these arguments, their
diversity gives rise to contradictions and inconsistency as regards
the justification of the United Nations’ right. Those who uphold
certain arguments consider others inadequate or insufficient.

The Court was right to set aside the argument drawn from
Article 100 (p. 182). Such an argument only justified the making
of an international claim for the Secretary-General and the staff of
the Secretariat, so that other grounds had to be found for the
protection of agents other than the staff of the Secretariat.

It must be added that this Article, and especially paragraph 1,
is only a rule of conduct or discipline for the Secretary-General
and the staff of the Secretariat. It is a rule which would have
been more in place in the Staff Regulations of the Secretariat,
if it had not been desired to link it up to the second paragraph,
which imposes an obligation on States, and if it had not also
been required to justify the privileges and immunities provided
in their favour by Article 105.

An official of the Organization who is a national of a particular
State may, in one way or another, have to take part in discussions
or decisions of the Organization, where actions and interests of
the particular State are involved. This official might consequently
find that his national feelings and his duties were in conflict in a
particular case. It was therefore necessary to reassure States
Members of the Secretariat’s impartiality, and to define what
would be the situation of the staff in such cases of conflict, and
determine their duties. For this reason, in the first paragraph

39
DISSENTING OPINION BY JUDGE BADAWI PASHA 210

of this Article, the staff are enjoined not to seek or recéive
instructions from any government or from any other authority
external to the Organization. The following provision is a
repetition of the same rule in a more extended form; it also
relates to the dignity of an international official position. The
reference to the exclusive responsibility towards the Organization
is a consequence and a necessary confirmation of the preceding
rules.

The second paragraph of this Article only repeats the ideas under-
lying the first paragraph, as looked at from the viewpoint of the
State of which the official is a national.

In these specific conditions of the nature of the Organization,
its duties and powers, the provision implies nothing more than the
relations between employer and employed in an international body.
So much so that a similar provision is found in :

(1) the Agreement relating to the International Monetary Fund,
September 27th, 1945 (Article 12, Section 4 (c)} ;

(2) the Agreement relating to the International Bank for
Reconstruction and Development of the same date (Article 5,
Section 5 (c));

(3) the U.N.E.S.C.O. Charter, November 16th, 1945 (Article VI,
Section 5) ;

(4) the constitution of the International Labour Organization
(Article 9, Sections 4 and 5) ;

(5) the constitution of the World Health Organization (Article

(6) the constitution of the Food and Agriculture Organization
of the United Nations (Article 8, Section 2) ;

(7) the constitution of the International Refugee Organization
(Article 9, Section 3) ; |

(8) the Convention on International Civil Aviation (Article 59) ;

(9) the constitution of the International Trade Organization
{Article 88, Sections I, 2, 3).

In these circumstances, would it be conceivable that the con-
stitutions of all these Specialized Agencies can have created somany
allegiances involving a right of protection for their staff similar
to that accorded by States to their nationals ?

*
* *

What is to be said of the other arguments ?

The Court rejects in general any argument by analogy from the
traditional rule of international law as to the diplomatic protection
of nationals abroad (p. 182). In this way, it rejects the alleged
allegiance resulting from Article 100, which would take the place
of nationality for the purpose of the exercise of the right above

40
DISSENTING OPINION BY JUDGE BADAWI PASHA 2II

mentioned. But surely the following reasoning of the Court is
only an argument by analogy, namely :

1° that if one goes back to the principle contained in the rule
of the nationality of the claim, one observes that, for an inter-
national claim on behalf of an individual to be made by a State, a
breach by the State claimed to be responsible of an obligation
incurred towards the claimant State must be alleged, and

2° that this principle leads to recognizing that the Organization
has the capacity to bring an international claim for injuries suffered
by its agent, if the Organization gives as a ground for its claim a
breach of an obligation incurred towards it (pp. 181 and 182).

It is true that when the Court relies on the principle mentioned
above and implied in the rule of the nationality of the claim, and
when it secondly relies on the existence of important exceptions
to that rule, and when it lastly relies on the new situation created
by the coming into existence of the United Nations, it only draws
the conclusion that a negative reply to Question I (0) cannot be
deduced from that rule. But that conclusion is only a part of the
Court’s argument in favour of the Organization’s right to make
an international claim for the damage referred to inI (6). Whether
this argument be considered as preliminary or auxiliary, or whether
it be given a greater importance, it isin any case only an argument
by analogy in favour of an affirmative reply, and draws its elements
from the new situation, from the identity of the basic principle of
the situations compared, and from the relative and in no way
rigid character of the rule of nationality.

But in international law, recourse to analogy should only be
had with reserve and circumspection. Contrary to what is the
case in municipal law, and precisely owing to the principle of
State sovereignty, the use of analogy has never been a customary
technique in international law.

*
* *

In any case, this argument by the Court brings us to the inter-
national obligation which the Court regards as involved in this
question, and which seems to be the foundation for the above-
mentioned argument by analogy.

It has been asked whether this obligation was derived from
Article 2, paragraph 5, of the Charter, or from Article 105. But it is
evident that the first of these two provisions, which creates a defi-
nitely political obligation, could not, if that obligation were infringed,
serve to found a right to make a claim for reparation due to
the victim. This right presupposes a definite relation between the

41.
DISSENTING OPINION BY JUDGE BADAWI PASHA 212

victim and the Organization, which cannot be deduced from this
general political obligation.

Nor can a foundation be discovered in Article 105. For it is
a rule that in so far as diplomatic privileges and immunities impose
on a State a duty of special diligence, they only authorize and
justify a claim for reparation for damage caused to the State which
accredited the victim. So much so that in the case of a consul who
was not a national of the claimant State, the right of that State
would be limited to direct damage. On the other hand, in the
case of a diplomatic representative, a combination of his rights
as representative and as national enables reparation due to the
victim to be included in the international claim.

On the other hand, it must be observed that :

(1) Article 105 accords privileges and immunities only to off-
cials of the Organization ; this term does not necessarily coincide
with that of agent, as the Court has pointed out ; i.e., it has not
the same meaning or scope ;

(2) Article 105 does not apply exclusively to the Organization.
All the constitutions of the Specialized Agencies contain provisions
declaring it to be applicable, or provisions in the same terms.

By connecting up the right to claim reparation due to victims
with an obligation derived from provisions of such a nature, situa-
tions would be arrived at that are contrary to those admitted by
international law in regard to master and servant. The result
would also be a generalization, in the interest of all the Specialized .
Agencies, of a right which has hitherto belonged only to States ;
the history of this right is closely connected with the notion of
nationality, and it draws from that notion a fictitious identifica-
tion between State and national.

The political character of the Organization and its importance
in the hierarchy of international bodies cannot be pertinent in this
case, nor can it justify the granting to the Organization, to the
exclusion of other bodies, of a right not derived from a provision
common to all.

This argument that the right to make an international claim is
based on the recognition by a State of its obligation to respect the
public services of another State, was upheld by the French Govern-
ment’s representative, who considered that ‘a State’s international
responsibility is involved if the protection prescribed by inter-
national law for diplomatic and consular services is not provided.
The person of a diplomatic agent must be the subject of special
vigilance on the part of the State that receives the agent. If
this vigilance is lacking, and damage results, the State whose
diplomatic service is concerned can make an international claim.”
It would further seem that damage referred to in Question I (a)

42
DISSENTING OPINION BY JUDGE BADAWI PASHA 213

and that in (6) are both included in this claim. The French
representative mentioned several precedents in support of this
argument ; but in truth none of them is conclusive.

On the other hand, the United Kingdom representative thought
that the bond of service, as opposed to that of nationality, only
gives the State the right to make an international claim for
the damage directly suffered by it, i.e., damage referred to in
Question I (a); and he maintained that it was the insufficiency of
this argument to justify a claim for reparation referred to in
Question I (b) which led to the search for another argument. He
claimed to find this in Article 100, which the Court thought was
not pertinent.

*
* *

I have enquired into all the details of this obligation of protec-
tion, as found in the arguments of the representatives of govern-
ments and of the Secretary-General, because it was adopted by the
Court itself at the beginning as a hypothesis. Then the Court
found itself faced with a new situation—that the Charter did not
expressly say that the Organization was entitled to include in its
claim reparation for injury suffered by the victim or persons entitled
through him. The Court then invoked a principle of international
law said to have been applied by the P.C.I.J. to the International
Labour Organization, to the effect that “the Organization must
be deemed to have those powers which, though not expressly
provided in the Charter, are conferred upon it by necessary implica-
tion as being essential to the performance of its duties’.

In application of this principle, the Court states that in order to
ensure the éfficacious and independent exercise of its duties and
to secure effective support for its agents, the Organization must
give them suitable protection, and after asserting that it is essential
that the agent shall be able to count on this protection without
having to count on other protection (particularly that of his own
State), the Court concludes that it is evident that the capacity of
the Organization to exercise a certain measure of functional protec-
tion arises by intendment out of the Charter.

As this measure is not fixed, the Court adopts the juridical
construction given by the Permanent Court to a claim by a State
for reparation due to its national, and asserts ‘‘in claiming repara-
tion based on the injury suffered by its agent, the Organization
does not represent the agent, but is asserting its own right, the
right to secure respect for undertakings entered into towards the
Organization”.

I regret I cannot accept this conclusion.

43
DISSENTING OPINION BY JUDGE BADAWI PASHA 214

In the first place, I do not think that Opinion No. 13 of the
P.C.I.J. concerning the competence of the International Labour
Organization lays down the principle so categorically and absolutely
as a principle of international law, as the Court states. The Per-
manent Court had to give an opinion on the question whether a
certain measure recommended by the International Labour Organ-
ization was or was not within the Organization’s competence ;
and it stated that “‘the terms in which the objects committed to
the International Labour Organization are stated are so general
that language could hardly be more comprehensive”, and that
“‘while the competence .... so far as concerns the investigation and
discussion of labour questions and the formulation of proposals ....
is exceedingly broad, its competence is almost entirely limited to
that form of auxiliary activity.” The Permanent Court therefore
concluded in the following terms :

“It results from the consideration of the provisions of the Treaty
that the High Contracting Parties clearly intended to give to the
International Labour Organization a very broad power of co-operat-
ing with them in respect of measures to be taken in order to assure
humane conditions of labour and the protection of workers. It is
not conceivable that they intended to prevent the Organization
from drawing up and proposing measures essential to the accom-
plishment of that end. The Organization, however, would be so
prevented if it were incompetent to propose for the protection of
wage earners a regulative measure to the efficacious working of
which it was found to be essential to include to some extent work
done by employers.”’

This Opinion therefore laid down no general principle. It only
interprets the intention of the Parties as to Part XIII of the Treaty
of Versailles in the light of the terms generally used therein.

If we admit that the principle proclaimed by the Court is a
rule of judicial interpretation and not a recommendation of legis-
lative policy, it would still have to be shown that the suitable
protection to be afforded by the Organization to its agent is precisely
the right to claim the reparation due to him. This right is evidently
not the only suitable method of protection. We know, on the
other hand, that the protection which a State owes to its national
does not consist in a right of this nature derived from the mere
notion of protection ; thanks to the additional help of an ingenious
juridical theory, based on nationality, it has identified the State
with its national, and it considers that reparation due to the latter
forms the measure of reparation due to the State. For this reason,
the Court had to establish a link between the necessity for protec-
tion, and the right to claim the reparation due to the agent ;
namely, the capacity to exercise a certain measure of functional
protection and the obligation to ‘‘make adequate reparation”.
DISSENTING OPINION BY JUDGE BADAWI PASHA 215

But the transfer by the Court (p. 184) of the terms used by
the Permanent Court in respect of the State and its national, to
the Organization and its agents, is a mere affirmation and remains
unproved.

It must further be noted that if the Organization must afford
this protection in the same way.as a State must do for its national
(and there is no reason why this should not be so), its right of
action against the State responsible can only arise after its agent
has exhausted all municipal remedies, and has met with a denial
of justice.

But having regard to the situation of an agent of the Organization —
who is bound to it by a contract in one form or another, the most
appropriate and indeed efficacious protection is certainly the
reparation which could be granted him by the Organization,
which could recover the sum in question from the State responsible.

The only conclusion to be drawn from the foregoing considera-
tions is that the juristic interpretation cannot afford a basis in
accordance with the general principles of law, nor one affording
an acceptable or satisfactory solution.

I have noted the various suggestions made by governments.
The Court has not accepted them, or has accepted only one—
namely, the breach of obligations of which the object is to protect
agents of the Organization in the exercise of their duties, an
obligation which the Court, for that matter, has presumed to
exist. But in order to deduce a reply to question I (6), the Court
had to complete its answer by other propositions which it simply
affirmed and, in my view, never established. Inevitably, solutions
of an abstract and general character, like functional protection,
adopted by the Court, would then be the most extreme. Thus,
the Court holds that the Organization has the capacity to make
an international claim for reparation due to any agent (in the
widest sense of the term) against a State Member or not member
of the Organization. As regards this latter case, it may be asked
what are the conditions in which the obligation to protect the
agent, that the Court assumed to be contained in the Request
for the Opinion, can arise. The Organization has even the capacity
to make a claim against the national State of the victim itself.

In short, it is impossible to avcid this diversity of arguments
or the contradictory solutions arising therefrom, when a rule is
removed from the framework in which it was formed, to another
of different dimensions, to which it cannot adapt itself as easily
as it did to its proper setting. In any case, the new construction
would necessarily be artificial and, with the best will of the world,
could not entirely satisfy the new requirements.

Suitable rules must be created. A special study of the question
would no doubt reveal all the circumstances of fact and the
numerous cases in which the question may arise, and the practical

45
DISSENTING OPINION BY JUDGE BADAWI PASHA 216

solution that should be given to these various cases in different
circumstances. On these data can be built an appropriate
juridical construction.

It matters little that the interpretation of the rules of inter-
national law in force is in accordance or not with the solutions,
‘so long as the unanimous desire of the General Assembly is to
provide a maximum of protection for the agents of the Organization,
in the widest sense, and not only for members of the Secretariat.

The Court’s duty is to declare the law in the state of evolution
that it has reached ; and the Court cannot, in any case, in the
presence of new complex and varied cases and contingencies,
permit the simple and homogeneous rules, customarily recognized
as international law in force, to be the appropriate juristic expres-
sion of such situations and contingencies.

According to the rules in force, the Organization has the capacity
to make international claims, when one of its agents {in the
widest sense) has suffered injury in the performance of his duty,
for the damage referred to in Question I (a). This damage may
include the damage suffered by the victim, in so far as this was
provided for in the contract of service. But there is nothing to
prevent temporary agents, mediators or members of commissions
from entering into contracts for reparation due to them in the
event of injury sustained in the performance of their duties,
whenever the nature of their duties or missions obliges them to
expose themselves to danger in the territories of States where
they may have to perform these duties or carry out these missions.

This form of reparation will be for the interested parties more
direct, more effective and more immediate than any right of
making an international claim that might be accorded to the
Organization on their behalf.

My reply is therefore yes to Question I (a), and #0 to Question I (6).

In view of the reply to question I (a), the second Question does
not arise.

(Signed) BADAWI PasHa.

46


95

SEPARATE OPINION OF JUDGE AGO
[Translation]

1. Tentirely concur in the conclusion reached by the Court in defining as
it has the method to be applied for the delimitation of the respective areas
of continental shelf to be attributed to Tunisia and Libya. I especially
approve the Court’s endorsement, by so large a majority, of the idea that
the “area of delimitation” must be considered as composed of two distinct
sectors (para. 14), with the first being predominantly characterized by the
fundamental unity of the east-northeast direction of the Libyan and
Tunisian adjacent coasts, from Ras Tajoura to Ras Ajdir and from Ras
Ajdir to the westernmost point of the Gulf of Gabes, and the second, on the
other hand, by the quasi-opposite relationship of the coasts of the two
countries as from the point last mentioned, at which the Tunisian coast,
with the Sahel promontory, veers north-east in the direction of Ras
Kaboudia. As is only consistent, I am wholly gratified to note that the
Court has concluded from this that it must, for these two sectors, adopt two
delimitation lines at different angles, the first running perpendicular to the
coastline and notionally linking the endpoint of the land frontier with the
point where the line in question intersects the parallel passing through the
western extremity of the Gulf of Gabes (34° 10’ 30”), and the second
running seaward from that point at a bearing of 52° to the meridian. For I
feel that the delimitation resulting from the adoption of this broken line in
two segments constitutes, in the light of all the possible factors to be taken
into account in the circumstances, a good illustration of that “equitable
solution” which the final text of Article 83 of the 1981 draft convention on
the Law of the Sea indicates as the result to be attained by a delimitation
carried out between two States with adjacent or opposite coasts.

2. On the other hand, I have a few reservations with regard to the
justification given for the inclination of the line in question, in particular
where its first segment is concerned. The Judgment bases itself in the first
place, for the purposes of that justification, on a finding of fact : namely
that, up to 1974 — considering only the area within 50 miles of the coast-
line, one could say up to the present time — the two States Parties to the
dispute spontaneously adopted as the eastern limit of the Tunisian licences
and concessions for hydrocarbon exploration and exploitation, and as the
western limit of the Libyan licences and concessions, a line running from
Ras Ajdir at a bearing of 26° to the meridian and consequently more or less
perpendicular to the coastline. It is only by way of supplementary justi-
fication that reference has also been made to a historico-juridical argument
drawn from the modus vivendi — to employ the same term as the Judgment

81
CONTINENTAL SHELF (SEP. OP. AGO) 96

— which existed between the Powers responsible for the external relations
of the two countries concerned before their accession to independence and
was consecrated by the de facto observation of a boundary between the two
countries’ respective maritime jurisdictions over fishing, in particular
sponge-fishing. This boundary also followed a line perpendicular to the
coastline at the point of intersection with the land frontier.

3. Truth to tell, Iam unable to share the opinion of the majority of the
Court concerning the alleged absence of any genuine “maritime boun-
dary” between the two countries during the period preceding decoloniza-
tion. It is an established fact that in 1914 Italy, which had acquired
sovereignty over the territories of Tripolitania and Cyrenaica through their
cession to it by the Ottoman Empire under the 1912 Treaty of Lausanne,
proposed to the authorities responsible for the external relations of the
Regency of Tunisia under the French protectorate the adoption as a limit
between the maritime activities of the two countries of a line being the
“normal to the general direction of the coastline” and bearing approxi-
mately north-northeast. And it is likewise an established fact that the
Protectorate authorities, when this proposal had been submitted to them,
did not insist on the adoption of a line bearing north-east at 45° and made
no opposition to the implementation — provisional or otherwise — by the
Italian authorities of the Government of Tripolitania of the maritime
boundary they had proposed. It is not known whether, in the years which
followed, there was any exchange of diplomatic correspondence on the
subject between the two countries, but the conclusive fact appears to me to
be that on 16 April 1919 the Italian Government of Tripolitania and
Cyrenaica issued “Instructions for the surveillance of maritime fishing in
the waters of Tripolitania and Cyrenaica” and that Article 3 of these
Instructions — which the Judgment itself quotes in paragraph 93 — stated
literally as follows :

“As far as the sea border {confine di mare] between Tripolitania and
Tunisia is concerned, it was agreed /fu convenuto] to adopt as a line of
delimitation the line perpendicular /normale] to the coast at the
border point, which is, in this case, the approximate bearing north-
northeast from Ras Ajdir.”

Given the official and public character of these “Instructions”, it is
unthinkable that they should not have been known to the authorities of the
neighbouring Protectorate, which would not have failed to remonstrate
with Tripoli and Rome if the assertion as to what had been “agreed” on the
subject of the “sea border” between Tunisia and Libya had aroused any
objection or disagreement on their part. I also note that the “Instructions”
in question were not confined to recalling the existence of an “agreed” sea
border but extended the boundary for the purposes of fishing surveillance,
along a line perpendicular to the coastline, well beyond the extent of the
three-mile territorial sea. It is of no avail to object against all this that, over
a distance of eight miles on the near side of Tripolitania’s maritime bor-

82
CONTINENTAL SHELF (SEP. OP. AGO) 97

derline with Tunisia, just as in the case of that of Cyrenaica with Egypt, the
Instructions provided that foreign vessels found not to possess a fishing
licence duly issued by the Italian maritime authorities would be liable to be
ordered away but not to the graver sanction of seizure. This concession was
motivated simply by a desire to avoid disputes as to the actual position of
the vessel at the time of the infringement and therefore did not affect the
determination of the maritime border in the slightest. As the Judgment
recalls in paragraph 94, the Maritime Director for Tripolitania subse-
quently had occasion to confirm these same regulations by the Instructions
on maritime surveillance of 25 June 1931, which, once again, did not arouse’
the least reservation or objection on the part of the relevant authorities in
the Protectorate.

4. In my view, all these facts go to prove the undeniable existence at that
time, on the part of those authorities, of an acquiescence in the proper
sense of the term, connoting consent evinced by inaction or, as MacGib-
bon well expresses it, by “silence or absence of protest in circumstances
which generally call for the positive reaction signifying an objection”
(“The Scope of Acquiescence in International Law”, British Year Book of
International Law, XXXI, 1954, p. 143) or then again, as Sperduti says, by
“the passivity observed towards a situation by a person .. . who had been
entitled to object to it” (“Prescrizione, consuetudine e acquiescenza in
diritto internazionale”, Rivista di diritto internazionale, 1961). In the cir-
cumstances, there was nothing surprising in this absence of negative reac-
tion, considering that the adoption of a sea border representing “the
drawing of a perpendicular to the coast at the point of its intersection with
[the] land frontier” (C.J. Reports 1969, p. 34, para. 51) indisputably
constitutes, in relation to a coastline with the characteristics of the African
coast on either side of Ras Ajdir, the most equitable method of delimita-
tion and the one which best safeguards the equality of the rights of the two
adjacent countries. It is therefore, I conclude, difficult to deny that, up to
the time of Libya’s and Tunisia’s accession to independence, it was no mere
embryonic maritime boundary, lacking any definitive effect, that existed
between the two countries, but a genuine delimitation which first and
foremost concerned their respective territorial waters but which also
extended considerably farther, if only for the purpose of delimiting the
respective surveillance zones for maritime fishing.

5. I am accordingly convinced that the order and hierarchy of the
arguments put forward by the Court to justify adoption of the practical
method it selected for indication to the Parties, as governing the determi-
nation of the first segment of the line delimiting the areas of continental
shelf appertaining respectively to Tunisia and Libya, should have been
reversed. The existence of a delimitation extending beyond the outer limit
of the territorial waters, a delimitation which for four decades prior to the
accession of the two States to independence was respected without any
difficulty arising, should, I feel, have been considered as the basic fact

83
CONTINENTAL SHELF (SEP. OP. AGO) 98

which it was also incumbent upon the Parties to observe after indepen-
dence, by virtue of the same principles of general international law in the
succession of States, and the same principles proclaimed by the Organi-
zation of African Unity, which the Court has evoked where the land
frontier of 1910 is concerned. In saying this, I do not in any way intend to
minimize the importance of the fact that, in granting licences and con-
cessions for the exploration and exploitation of the hydrocarbon resources
of the subsoil of the sea-bed, the Parties, up to a certain date and as far as a
certain latitude, both kept to the same perpendicular to the coastline. All I
wish to say is that it is this second fact which strikes me as supplementing
and, above all, confirming the first, rather than the reverse. The continuity
noted in the conduct of the Parties concerned, throughout two distinct
successive periods, reveals to my mind that Tunisia and Libya, when
granting licences and concessions for the exploration and exploitation of
the hydrocarbon resources of the subsoil of the sea-bed, were both impli-
citly aware of the existence of a particular delimitation line which had
traditionally served as a maritime boundary between them and, logically,
could not but apply also, as duly extended out to a certain distance from
the two adjacent coastlines, to the determination of the new boundary
between the respective areas of continental shelf.

6. In other words, the existence of a roughly continuous line, following a
direction perpendicular to the coastline or, more precisely, a bearing of 26°
to the meridian, a line along which, south of the 34th parallel at least, the
licences and concessions granted by the two bordering States are juxta-
posed without overlap, acquires in my view its full proper value, for the
purpose of the desired solution to the problem of delimiting the respective
continental shelf areas of those States, if it is realized that it is simply
grafted upon the other line, already historically and legally established,
which itself constitutes the delimitation of the territorial waters and the
zones of fishing surveillance. In point of fact, it can be said that just one
and the same line is involved. This line, originally devised to serve certain
specific and limited purposes, has in fact simply been extended more
recently to serve new and more important ends ; there is therefore every
inherent justification for considering it — in the sector to which my words
relate — as the single delimitation line of the waters, sea-bed and subsoil
between the two neighbouring States. Seen from that viewpoint, I believe
that the reasoning, valid in itself, which has been put forward in support of
the Court’s decision — to which, as I have said, I entirely subscribe — will be
seen to emerge reinforced.

(Signed) Roberto AGo.

84


41

ANNEX.

DOCUMENTS SUBMITTED TO THE COURT.

I.—DocuMENTS PRODUCED ON BEHALF OF THE FRENCH GOVERNMENT.

A.—During the written proceedings.

. Letter from M. Barrére to the Italian Minister for Foreign Affairs (14

XII 1900).

. Reply from the Italian Minister for Foreign Affairs to M. Barrère (16 x1 1900).
. Letter from the Italian Minister for Foreign Affairs to M. Barrère (1 x1 02).
. Reply from M. Barrère to the Italian Minister for Foreign Affairs (1 XI 02).

Agreement concerning Lybia and Morocco (28 x 12).

. Dahir concerning the judicial organization of the Protectorate (12 VIII 13).
. Mining dahir, dated 19 1 14.
. Italy’s declaration renouncing the régime of the capitulations in Morocco

(9 III 16).

. The Vizier’s decree of 22 VII 19.

. Note by the Directorate of Public Works of the Protectorate (4 VIII 19).
. Dahir dated 27 1 20.

. Dahir dated 7 vrit 20.

. Dahir dated 21 virr 20.

. Letter from M. Combelas to Lieutenant de Féraudy (3 x11 12).

. Letter from the Intendant-General Lallier du Coudray to the Director-

General of Public Works in the Protectorate (20 xr 16).

. Report by Commandant Bursaux (30 Ix 17).
. Letter from MM. Busset and Frier Deruis to the Director-General of

Public Works (27 X 17).

. Letter from General Lyautey to M. Busset (13 xI 17).

. Letter from M. Busset to General Lyautey (6 XII 17).

. Prospecting licence No. 459 issued to M. Busset (3 XII 18).

. Prospecting licence No. 599 issued to M. Frier Deruis (29 1V 19).

. Letter from M. Busset to the Head of the Department of Mines (x XII 19).
. Aide-mémoire by the Royal Government of Italy (18 vit 21).

. Note from the Government of the Republic to the Italian Embassy (26 viti 21).

. Power of attorney granted by M. Tassara to M. Levy (27 1x 21).

. Letter from M. Busset to the Head of the Department of Mines (3 x 21),
. Letter from M. Frier Deruis to the Head of the Department of Mines (3 x 21).
. Letter from M. Bossu to the Head of the Department of Mines (14 X 21).
. Letter from MM. Bossu and Levy to the Head of the Department of Mines

(14 X 21).

. Letter from the Head of the Department of Mines to M. Bossu (17 x 21).
. Idem (17 X 21).
. Sommation interpellative addressed by M. Tassara to the Head of the

Department of Mines (20 x 21).

. Letter from M. Levy to the Head of the Department of Mines (30 xI 21).
. Receipt delivered to M. Levy by the Head of the Department of Mines

(2 XII 21).

. Letter from the Head of the Department of Mines to M. Bossu (29 x11 21).
. Letter from M. Colle to the Ministry for Foreign Affairs (19 I 22).

. Letter from M. Bossu to the Head of the Department of Mines (15 11 22).
. Letter from M. Levy to the Head of the Department of Mines (27 11 22).
. Letter from the Head of the Department of Mines to M. Levy (x 11 22).
. Idem (18 II 22).

35
A./B. 74.—PHOSPHATES IN MOROCCO 42

. Letter from M. Bossu to the Head of the Department of. Mines (22 111 22).
. Letter from the Head of the Department of Mines to M. Levy (31 v 22).
. Letter from M. Bossu to the Head of the Department of Mines (2 vi 22).
. Letter from M. Levy to the Head of the Department of Mines (7 VIII 22).
. Letter from the Head of the Department of Mines to M. Levy (16 viit 22).
. Letter from M. Levy to the Head of the Department of Mines (1 4 IX 22).
. Note from the Ministry for Foreign Affairs to the Italian Embassy (7 v 23).
. Opinion of the Conseil général des Mines de France (22 VI 23). .
. Decision of the Head of the Department of Mines rejecting M. Tassara’s

request (8 I 25).

. Letter from the Head of the Department of Mines to M. Tassara (9 1 25).
. Letter from the Head of the Department of Mines to M. Colle-Dendon

(26 III 25).

. Letter from M. Tassara to the Head of the Department of Mines (28 11 25).
. Letter from M. Vinck to the Resident-General of the Republic in Morocco

(3 Iv 25).

. Letter from the Head of the Department of Mines to M. Tassara (6 iv 25).
. Letter from M. Vinck to the Resident-General (30 Iv 25).

. Letter from M. Tassara to the Head of the Department of Mines (20 v 25).
. Letter from M. Colle-Deudon to the Minister of Justice (9 vi 25).

. Letter from M. Tassara to the Head of the Department of Mines (12 1X 25).
. Note from the Belgian Consulate at Casablanca (27 vi 27).

. Note from the General-Resident’s Office to the Belgian Consulate at Casa-

bianca (18 vit 27).

. Note drawn up by M. François Mazelie for the Resident-General (8 1 29).
. Letter from M. de Gennaro Musti to the Resident-General (16 11 29).
. Sommation interpellative delivered on behalf of M. Tassara to the Head

of the Department of Mines (2 v 29).

. Letter from M. Chapus to the Resident-General (3 v 29).

. Letter from M. Colle-Deudon to the Resident-General (20 vi 29).

. Idem (22 1X 29).

. Letter from M. de Gennaro Musti to the Ministry for Foreign Affairs (18 x 30).
. Note from the Italian Embassy to the Ministry for Foreign Affairs, with

documents attached (28 x1 30).

. Letter from M. Colle-Deudon to the Resident-General (5 III 31).

. Letter from M. de Henseler to M. Urbain Blanc (3 vi 31).

. Letter from M. Colle-Deudon to the Resident-General (23 vi 31).

. Letter from the Resident-General to M. de Henseler (26 vi 31).

. Letter from M. de Gennaro Musti to the Ministry for Foreign Affairs

(30 VI 31).

. Letter from M. de Gennaro Musti to the Director-General of Public Works

of the Protectorate (20 VIII 31).

. Note from the Italian Embassy to the Ministry for Foreign Affairs (25 XI 31).
. Letter from the Resident-General to M. de Gennaro Musti (25 x1 31).
. Sommation addressed by M. Olinto della Luccia to the Director of the

Shereefian Phosphates Office (12 VII 32).

. Note from the Italian Embassy to the Ministry for Foreign Affairs (15 vit 32).
. Minutes of the general meeting of the Miniere e Fosfati Company, and noti-

fication, dated 19 viii 32, by M. de Gennaro Musti to the Ministry for Foreign
Affairs (4 VIII 32).

. Note from the Ministry for Foreign Affairs to the Italian Embassy (22 vill 32).
. Letter from M. de Gennaro Musti to the Ministry for Foreign Affairs (7 1x 32).
. Note from the Italian Embassy to the Ministry for Foreign Affairs (22 xI 32).
. Letter from M. de Gennaro Musti to the Ministry for Foreign Affairs (25 x1 32).
. Letter from Mr. Manley to the Ministry for Foreign Affairs (18 1 33).

. Note from the Ministry for Foreign Affairs to the Italian Embassy (28 1 33).
. Letter from the Ministry for Foreign Affairs to M. de Gennaro Musti (28 1 33).
. Letter from M. de Gennaro Musti to the Ministry for Foreign Affairs (6 11 33).
. Idem (19 I 33).

36
120.
121.
122.

123.
124.
125.
126.
127.
128.

129.
130.

131.

A./B. 74.—-PHOSPHATES IN MOROCCO 43

. Aide-mémoire from the Embassy of the United States of America to the

Ministry for Foreign Affairs (21 11 33).

. Note fiom the Ministry for Foreign Affairs to the Embassy of the United

States of America (21 III 33).

. Letter from Mr. Chambers to the Shereefian Phosphates Office (28 111 33).
. Note from the Embassy of the United States of America to the Ministry for

Foreign Affairs (29 111 33).

. Letter from M. de Gennaro Musti to the Grand Vizier of H.M. the Sultan

of Morocco (30 III 33).

. Letter from M. de Gennaro Musti to the Resident-General (4 IV 33).

. Letter from the Ministry for Foreign Affairs to M. de Gennaro Musti (10 v 33).
. Note from the Italian Embassy to the Ministry for Foreign Affairs (16 VI 33).
. Note from the Ministry for Foreign Affairs to the Italian Embassy (12 VIII 33).
. Notification by Mr. Manley to the Shereefian Phosphates Office (6 X 33).
. Letter from Mr. Chambers to the Shereefian Phosphates Office (23 XI 33).
. Idem (7 XI 33). °

. Letter from the Resident-General to Mr. Chambers (22 XII 33).

. Note from the Italian Embassy to the Ministry for Foreign Affairs (2 1 34).
. Letter from Mr. Chambers to the Resident-General (16 11 34).

. Note from the Ministry for Foreign Affairs to the Italian Embassy (10 111 34).
. Aide-mémoive from the Italian Embassy to the Ministry for Foreign Affairs

(r4 Vi 35).

. Note from the Italian Embassy to the Ministry for Foreign Affairs (27 111 36).
. Judgment given by the Marrakech Tribunal and decision given by the Court

of Rabat (20 11 and 7 VII 36).

. Voyages au Maroc (1901-1907), by A. Brives (extracts).

. Proceedings of the Académie des Sciences on 14 IV 19 (extracts).

. Letter from M. Combelas to the Resident-General (22 XI 12).

. Letter from the Director-General of Public Works to M. Combelas (30 XI 12).
. Letter from M. Busset to the Director of Public Works (20 1x 13).

. Idem (20 IX 13).

. Idem (21 x 13).

. Telegram from the “Résidence Rabat” to the ‘Région Chaouia”” (7 xII 12).
. a. Letter from M. Busset to the Resident-General (12 VII 13).

b. Letter from the Resident-General to M. Busset (vir 13).

. Awards of the Arbitral Commission for Mining disputes on applications

280 F, 47 and 43, 121 to 125, etc., and 229 (extracts).

. Awards of the Arbitral Commission for Mining disputes on applications 299,

23 and 43 F (extracts).

. a. Publications du Bureau d'études géologiques et minières coloniales : “The

mineral resources of France Overseas: Phosphates’ (extracts from an

article by A. Beaugé).
b. Certificate of Captain Gourcerol (24 1 22).
c. Letter of Colonel Emanuelli to the Head of the Mines Department (10 x 37).
Letter of M. Delure to the Secretary-General of the Protectorate (29 IX 17).
Register of the Mines Department Nos. 394 and 449.
Bordereau 3442 (transmission to the Director-General of Finance of a letter
from the Director-General of Public Works) (4 x 17).
Works carried out by the Administration (1918-1920).
The Ferrier-Busset agreement (25 XI 19).
Acknowledgment by M. Frier Deruis of receipt of licence 593 (5 V 19).
Letter from M. Frier Deruis to the Mines Department (undated).
Letter from M. Lantenois to M. Frier Deruis (26 x 20).
The Despujols report on the application for recognition as discoverer made
by M. Ferrier (extracts) (24 IV 23).
Four reports of the Governing Body of the Shereefian Phosphates Office,
1921 to 1924 inclusive (extracts).
Decree of 25 111 1898 (Official Gazette of the Governor-General of Algeria,
year 1898, p. 298).
Beylical decree of 1 x11 1898 (extracts).

37
A./B. 74.—PHOSPHATES IN MOROCCO 44

132 a and b. Letters of the Directors of the Mines Department of Tunisia and
Algeria to the. Director of the Mines Department of Morocco (extracts)
(11 rx and 6 x 37).

133. Letter from M. Delure to M. Savry (16 IV Io).

134. Dahir approving the contract for the concession of the port of Safi to
the Shereefian Phosphates Office (3 VIII 32).

135. Agreement concerning the construction of the branch railway serving the
Beni Ghirane mine (extracts) (6 III 37).

136. Cours d'exploitation des mines, by H. de la Goupillière ; Traité de Métallo-
génie, by L. de Launay ; and Etat actuel des connaissances sur la géologie du
Maroc français, by J. Savornin (extracts).

137. “Note préliminaire sur les vertébrés fossiles des phosphates du Maroc”, by
Arambourg, in the Bulletin de la Société géologique de France, fasc. 67,
1935 (extracts).

138 a and b. Letter and memorandum of the Italian Ambassador in Paris to
the Secretary-General of the Ministry for Foreign Affairs (8 Iv 35).

B.—At the oval proceedings.
1. General map of Morocco (1/1.000.000) showing the phosphate basin.

2. Map showing the various phosphate basins in Morocco.
3. Map showing the area defined by M. Combelas in his statement on 3 XII 12.

4. Map showing the area originally asked for by M. Combelas on 3 x11 12.

5. Map of the Beni Meskine plateau.

6. Map showing the site of the quarry where phosphates were found by
Major Bursaux in January 1917. |

7. Three photographs of this quarry and its site.

8. Two maps showing the Busset and Frier Deruis areas.

9. Plan showing the work done in the Busset areas.

10. Map showing the works of the Shereefian Mines Department and those
carried out in the Busset areas.

11. Note of M. Arambourg, professor at the Museum of France.

12. Letter from M. Tissier, Vice-President of the Conseil d'État, to the Secretary-
General of the French Ministry for Foreign Affairs (1 IX 37).

IL.—DOCUMENTS FILED ON BEHALF OF THE ITALIAN GOVERNMENT.
A.—Documents filed during the written. proceedings +.

1. Lette: from M. Busset to the Director-General of Public Works (27 X 17).
2. General Lyautey’s reply (13 XI 17).

1 The Italian Government also filed with the Registry the works cited in
documents, namely :
Chapus, L'exploitation des phosphates au Maroc.
Mauchaussé, L'évolution du régime minier au Maroc français.
Guillemin, L'Office chérifien des Phosphates.
P.-Louis Rivière, Textes, Codes et Lois du Maroc, Il.
Girault, Principes de colonisation et de législation coloniale.
Soulmagnon, Principes du contentieux administratif tunisien.
Volume entitled: Notes ef Mémoires, n° 37. — Historique des Recherches
minières au Maroc (zone française). Des origines à 1930, by P. Despujols,
Chief Engineer of the Department of Mines. (Rabat, Offcial Printing
Press, 1936), |
and, in addition, the full texts of certain documents extracts from which had
been cited in its Memorial, namely :

me
= ct
n

Au BW

D

38
A./B. 74.—PHOSPHATES IN MOROCCO 45

3. M. Busset’s reply (undated).

4. Preamble and relevant articles of the General Act of Algeciras of 7 Iv 06.

5. Franco-German Treaty of 4 XI II.

6. Relevant articles of the French mining law of 21 Iv 1810.

7. Relevant articles of the dahir of 19 1 14 containing the Moroccan Mining
Regulations.

8. Vizier’s decree of 22 VII I9.

9. Note by the General Directorate of Public Works published in the Official
Gazette of 4 VIII I9.

10. Dahir of 27 1 20 establishing the phosphate monopoly.

11. Report by M. Calary de Lamaziére, Deputy to the French Chamber
(undated).

12. Dahir of 7 vill 20 setting up a Shereefian Phosphate Office.

12 bis. Vizier’s decree concerning the Board of the Shereefian Phosphate
Office (undated).

13. Dahir of 21 VIII 20 concerning vested rights.

14. Letter from M. Bossu to the Department of Mines transmitting M. Tassara’s
request of 14 X 21.

15. Letter from M. Tassara to the Department of Mines (14 x 21).

16 and 16 bis. Replies from the Department of Mines (17 x 21).

17. Consent of the Department of Mines to receive M. Tassara’s request (2 XII 21).

18. Decision by the Department of Mines rejecting M. Tassara’s request
(8 I 25).

19. Letter from M. Tassara to the Department of Mines (28 111 25).

20. Reply from the Department of Mines refusing to communicate the docu-
ments (5 IV 25).

21 and 22. M. Tassara’s protests (letters of 20 v and 12 1x 25).

23. Reply from the Department of Mines to a summons presented on 2 V 29
(undated).

24. Representations by M. Chapus to the Resident-General (undated).

25. Reply by the Resident-General to M. Chapus (undated).

26. Reply by the Resident-General to M. Sombsthay (26 vr 31).

26 bis. Reply by the Resident-General to M. de Gennaro Musti (25 XI 31).

27. Letter from Senator Viollette to the Director-General of Public Works
(vint 31).

28, 29, 30. Notes from the Italian Embassy to the Quai d'Orsay (28 XI 30,
25 XI 31, 15 VII 32).

31. Reply by the Quai d'Orsay (22 VIII 32).

32. Letter from the Minieve e Fosfati Company to the Quai d'Orsay (10 XI 32).

33. Note by the Royal Embassy (22 XI 32).

34. Reply by the Quai d'Orsay (28 1 33).

35. Letter from M. de Gennaro Musti requesting the Quai d'Orsay to appoint
extraordinary judges and renewing the proposal for a compromis (6 11 33).

36. Note from the Royal Embassy to the Quai d'Orsay (16 vi 33).

(1) The General Act of Algeciras (in the volume Le Maroc économique, p. 469).

(2) The French Mining Law of 21 IV 1810.

(3) Dahir of 19 1 14, containing the Mining Regulations.

(4) Dahir of 27 1 20, amending the Mining Regulations (in the above-men-

tioned volume, p. 499).

(5) Letter from M. Chapus to the French Resident-General in Morocco (3 v 29).

(6) Letter from M. de Gennaro Musti to the Directorate of Political and
Commercial Affairs in the Quai d’Orsay (6 11 33).

(7) Dahir of 12 vit 13 concerning the judicial organization of the French
Protectcrate in Morocco (in the work of M. P.-Louis Riviére, cited above,
P. 472).

(8) Dahir of 15 1x 23 containing the Moroccan Mining Regulations (in the

above-mentioned volume Le Maroc économique, p. 502).

3
4

39
A./B. 74.—PHOSPHATES IN MOROCCO 46

and 38. Notes exchanged between the Royal Embassy and the Quai d'Orsay
(2 VIN 33 and 2 I 34).

. Note from the Quai d'Orsay to the Royal Embassy (10 III 34).
. Memorandum handed to M. Laval at Rome (1 35).
. Letter from the Marquis Visconti Venosta, Italian Minister for Foreign

Affairs, to M. Barrére, French Ambassador at Rome (16 XII 1900).

. Exchange of notes between Italy and France, concerning Morocco and

Tripolitan Cyrenaica (1 XI 02).

. Declaration signed at Paris on 28 x 12 by MM. Poincaré and Tittoni.
. Declaration dated 9 11 16 by the Italian Government, renouncing the

capitulations in Morocco.

. Partnership agreement between MM. Busset and Combelas (23 111 14).
. Article 8 of the dahir of 12 VII 13 concerning the judicial organization

of the French Protectorate in Morocco.

. Dahir of 1 Ix 28, providing means of recourse for officials against deci-

sions ultva vires.

. Article 44 of the dahir of 15 1x 25, containing the Moroccan Mining

Regulations.

. Note from M. A. Brives to the Académie des Sciences (21 Iv 08).
. Letter from the Director-General of Public Works in Morocco to M. Combelas

(30 XI 12).

. Letter from M. Combelas to Lieutenant de Féraudy (3 xt 12), and the

notes dated 4-10 XII 12 which followed it.

. Letter from Lieutenant de Féraudy to M. Combelas, and the latter’s

reply (3 XII 12).

. Telegram from M. de Saint-Aulaire (13 XII 12).
. Dahir of 19 1 14 containing regulations for the settlement of mining

disputes,

. Report by M. Busset to the Arbitration Commission concerning prospecting

for phosphates in the Beni Meskine district (Iv 14).

. Dahir dated 3 x1 14 suspending the issue of prospecting licences for

mining products.

. Letter from the Head of the Department of Mines to M. Combelas

(5 XI 17).

. Dahir dated 9 vi 18, abrogating the dahir of 3 x1 14 and providing

for the re-introduction of the system of prospecting licences for mining
products.

. Opinion by the Directorate-General of Public Works concerning the

application of the Mining Regulations (8 vir 18).

. Prospecting licence issued to M. Busset; reverse of the same; and receipt

for the application relating thereto (17 x 18).

. Note by M. A. Brives (14 IV 19).
. Letter from M. Deruis to the Secretary-General of the Protectorate

(9 v 19).

. Authenticated copy of the Official Gazette containing list of the phos-

phate prospecting licences issued to MM. Busset and Deruis (13-20 X 19).

. Letter from M. Deruis to the Head of the Department of Mines (19 V 20).
. Letter from the Engineer of the Department of Mines to M. Deruis

(21 Vv 20).

. Letter from M. Deruis to the Engineer of the Department of Mines (31 v 20).
. Letter from the Engineer of the Department of Mines to M. Deruis (5 VI 20).
. Letter from M. Deruis to the Chief Engineer of the Department of Mines

(9 VI 20).

. Reply by the Chief Engineer of the Department of Mines to M. Deruis

(10 VE 20).

. Decision of the Arbitration Commission at Paris rejecting the demands

of M. Busset and his partners (16 VI 20).

. Extract from the minutes of the meeting of the Chambre des Députés on

17 VI 20.

. Letter from M. Deruis to the Inspector-General, M. Lantenois (28 1x 20).

40
89.

90.

91.
92.
93:
94.
95.
96.
97-
98.
99.

100.

101.

102.

103.

104.

A./B. 74.—PHOSPHATES IN MOROCCO 47

. Letter from M. Deruis to the Head of the Department of Mines (8 vu 21).
. Letter from M. Colle-Deudon to M. Tassara (24 VIII 21).
. Note from the Italian Embassy at Paris to the Royal Ministry for Foreign

Affairs (16 IX 21).

. Constitution of the Italo-Marocchina Partnership Association (24 IX 21).
. Report by M. Busset concerning prospecting works carried out at Oued

Zem (x 21).

. Report by M. Deruis concerning prospecting works carried out at Bir

Fenzer (x 21).

. Extract from the report of the Board of the Shereefian Phosphate Office

concerning the financial year: 1921 (1922).

. Power of attorney given by M. Tassara to M. de Gennaro Musti (10 vrtt 28).
. Transfer of twenty-eight licences by M. Tassara to M. de Gennaro Musti

(10 IV 29). :

. Constitution of the Italian commercial company Miniere e Fosfati (6 11 30).
. Power of attorney given by the Minieve e Fosfati Company to M. de

Gennaro Musti (25 III 30).

. Letter from M. Combelas to M. de Henseler (26 vi 31).
. Idem (6 vit 31).
. Letter from M. de Gennaro Musti to M. Lucien Saint, Resident-General

in Morocco (29 x 31).

. Transfer of nineteen licences to the ‘American and Moroccan Phosphate

Corporation’’ (24 II 33).

. Certificate by the Registry of the Court at Rome to the effect that

M. de Gennaro Musti was appointed Chairman of the Board of the
Miniere e Fosfati Company on 2 VI 33 (22 VI 33).

Letter from the Italian Miniere e Fosfati Company to the ‘American
and Moroccan Phosphate Corporation’? concerning the cancellation of the
transfer (5 IV 35).

Letter from the “American and Moroccan Phosphate Corporation” to the
Italian Miniere e Fosfati Company concerning the cancellation of the
transfer (25 V 35).

Note from the Italian Embassy at Paris to the Ministry for Foreign
Affairs of the Republic (27 11 37).

Idem (5 IV 37).

Certificate by the Registry of the Court at Rome to the effect that the
Miniere e Fosfati Company is entered in the Court’s Register of Com-
panies under No. 87, 1930 (3 VI 37).

Certificate by the Mayor’s Office at Genoa to the effect that M. Becaro
Pietro is of Italian nationality (17 vi 37).

Certificate by the Mayor’s Office at Genoa to the effect that M. Rolla
Ferdinando is of Italian nationality (17 vi 37).

Certificate by the Mayor’s Office at Genoa to the effect that the late Taccone
Enrico was of Italian nationality (17 vI 37).

Certificate by the Mayor’s Office at Genoa to the effect that the late
Tassara Costantino was of Italian nationality (17 VI 37).

Certificate by the Mayor’s Office at Genoa to the effect that M. Traverso
Ernesto is of Italian nationality (17 vi 37).

Certificate by the Mayor’s Office at Genoa to the effect that M. Martignoni
Vittorio is of Italian nationality (17 vi 37).

Certificate by the Mayor’s Office at Genoa to the effect that M. Martignoni
Luigi is of Italian nationality (17 vi 37).

Certificate by the Mayor’s Office at Genoa to the effect that M. Carenzi
Angelo is of Italian nationality (17 vi 37).

Certificate by the Mayor’s Office at Florence to the effect that M. Bosi
Ferdinando is of Italian nationality (17 VI 37).

Certificate by the Mayor’s Office at Trani to the effect that the late
Palieri Gioacchino was of Italian nationality (18 vi 37).

Certificate by the Mayor’s Office at Trani to the effect that the late
Palieri Alfredo was of Italian nationality (18 vi 37).

4I
105.

106.

107.

108.

109.

A./B. 74.—PHOSPHATES IN MOROCCO 48

Certificate by the Italian Consulate-General at Paris to the effect that
M. Gaspare de Gennaro Musti is of Italian nationality (18 vi 37).

Note from M. Tissier, Vice-President of the Conseil d'État of France,
to the Directorate of Political and Commercial Affairs of the Quai. d’Orsay
(undated).

Receipt from the Bangue d'État for the payment of Francs 300 made
by M. Tassara in respect of the transfer of prospecting licence No. 146.
Extracts from the Official Gazette of Morocco, No. 472 of 8 x1 21,
No. 481 of 10 I 22, No. 498 of 9 V 22, concerning licences ‘that had
lapsed.
Certificate by the Governatorato at Rome to the effect that M. Giulio
Pestalozza was of Italian nationality (undated).

. Declaration by the liquidator of the Associazione Italo-Marocchina con-

cerning the situation of MM. Colle-Deudon and Jacob Levy (undated).

. Note from M. Scialoja to M. Briand (undated).

B.— Documents filed during the oval proceedings.

. Fifteen prospecting licences issued in respect of calcium phosphates by

the Department of Mines to M. Busset, together with the respective
receipts for the applications.

. Letter from M. Deruis to the Department of Mines (8 vit 21).
. Twenty-seven receipts from the Banque d'État du Maroc, dated 14 X 21.
. Official Gazette of the Shereefian Empire, French Protectorate of Morocco,

toth year, No. 472, 8 XI 21; 11th year, No. 481, to 1 22; 11th year,
No. 498, 9 V 22.

. Letter from M. Lémery (10 11 38).
. Letter from the Shereefian Phosphate Office to M. de Gennaro Musti

(25 IV 32).

42


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE A LA LICEITE
DE L’EMPLOI DE LA FORCE

(YOUGOSLAVIE c. ITALIE)

ORDONNANCE DU 21 FEVRIER 2001

2001

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING
LEGALITY OF USE OF FORCE

(YUGOSLAVIA v. ITALY)

ORDER OF 21 FEBRUARY 2001
Mode officiel de citation:

Licéité de l'emploi de la force (Yougoslavie c. Italie),
ordonnance du 21 février 2001, C.LJ. Recueil 2001, p. 25

Official citation:

Legality of Use of Force {Yugoslavia v. Italy),
Order of 21 February 2001, LC.J. Reports 2001, p. 25

N° de vente:
ISSN 0074-4441 Sales number 8 1 3

ISBN 92-1-070914-4

25

INTERNATIONAL COURT OF JUSTICE

YEAR 2001 2001
21 February
General List
21 February 2001 No. 109

CASE CONCERNING
LEGALITY OF USE OF FORCE

(YUGOSLAVIA v. ITALY)

ORDER

Present: Vice-President Sui, Acting President; President GUILLAUME;
Judges ODA, BEDIAOUI, RANJEVA, HERCZEGH, FLEISCHHAUER,
KOROMA, VERESHCHETIN,  HIGGINS, PARRA-ARANGUREN,
KOOLMANS, REZEK, AL-KHASAWNEH, BUERGENTHAL; Registrar
COUVREUR.

The International Court of Justice,

Composed as above,

After deliberation,

Having regard to Article 48 of the Statute of the Court and to
Articles 44 and 79 of the Rules of Court,

Having regard to the Order of 30 June 1999, whereby the Court fixed
5 January 2000 and 5 July 2000 as the time-limits for the filing, respec-
tively, of a Memorial of the Federal Republic of Yugoslavia and a
Counter-Memorial of the Italian Republic,

Having regard to the preliminary objections to jurisdiction and admis-
sibility filed by Italy on 4 July 2000,

Having regard to the Order of 8 September 2000, whereby the Vice-
President of the Court, Acting President, fixed 5 April 2001 as the time-
limit within which the Federal Republic of Yugoslavia might present a

4
LEGALITY OF USE OF FORCE (ORDER 21 IT 01) 26

written statement of its observations and submissions on the preliminary
objections made by the Italian Republic;

Whereas, by letter dated 18 January 2001, received in the Registry on
19 January 2001 by facsimile, the Minister for Foreign Affairs of the
Federal Republic of Yugoslavia referred inter alia to recent diplomatic
initiatives and requested the Court, for reasons stated in that letter, “to
grant a stay of the proceedings or . . . to extend the time limit for the
submission of observations of Yugoslavia, for a period of twelve months” ;
and whereas, on receipt of that letter, the Registrar transmitted a copy
thereof to the Agent of the Italian Republic;

Whereas, by letter dated 30 January 2001, received in the Registry on
the same day by facsimile, the Agent of the Italian Republic informed the
Court that his Government was not opposed to a stay of proceedings or,
if a stay was not possible, to an extension of the time-limit for the filing
of the observations and submissions of Yugoslavia on the preliminary
objections of Italy,

Taking account of the agreement of the Parties and of the circum-
stances of the case,

Extends to 5 April 2002 the time-limit within which the Federal Repub-
lic of Yugoslavia may present a written statement of its observations and
submissions on the preliminary objections made by the Italian Republic;
and

Reserves the subsequent procedure for further decision.

Done in French and in English, the French text being authoritative, at
the Peace Palace, The Hague, this twenty-first day of February, two
thousand and one, in three copies, one of which will be placed in the
archives of the Court and the others transmitted to the Government of
the Federal Republic of Yugoslavia and the Government of the Italian
Republic, respectively.

(Signed) Su Jiuyong,
Vice-President.

(Signed) Philippe COUVREUR,
Registrar.


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING
ELETTRONICA SICULA S.p.A. (ELSI)

(UNITED STATES OF AMERICA v. ITALY)

ORDER OF 2 MARCH 1987
CONSTITUTION OF CHAMBER

1987

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE
DE L’ELETTRONICA SICULA S.p.A. (ELSI)

(ÉTATS-UNIS D’AMERIQUE c. ITALIE)

ORDONNANCE DU 2 MARS 1987
CONSTITUTION DE CHAMBRE
Official citation :

Elettronica Sicula S.p.A. (ELSI),
Constitution of Chamber, Order of 2 March 1987,
ICJ. Reports 1987, p. 3.

Mode officiel de citation:

Elettronica Sicula S.p.A. (ELSI),
constitution de chambre, ordonnance du 2 mars 1987,
C1.J. Recueil 1987, p. 3.

Sales number 5 2 6
N° de vente :

INTERNATIONAL COURT OF JUSTICE

1987 YEAR 1987
2 March
General List
No. 76 2 March 1987

CASE CONCERNING
ELETTRONICA SICULA S.p.A. (ELSI)

(UNITED STATES OF AMERICA v. ITALY)

ORDER

CONSTITUTION OF CHAMBER

Present: President NAGENDRA SINGH ; Judges LACHS, RuDA, ELIAS, ODA,
AGO, SETTE-CAMARA, SCHWEBEL, Sir Robert JENNINGS, MBAYE,
BEDJAOUI, NI, EVENSEN, TARASSOV ; Registrar VALENCIA-OSPINA.

The International Court of Justice,

Composed as above,
After deliberation,

Having regard to Articles 26, paragraph 2, 31 and 48 of the Statute of
the Court, and to Articles 17, 18, 31, 44, 91 and 92 of the Rules of Court,

Makes the following Order :

1. Whereas, by an Application filed in the Registry of the Court on
6 February 1987, the United States of America instituted proceedings
against the Republic of Italy in respect of a dispute arising out of the requi-
sition by the Government of Italy ofthe plant and related assets of Elettro-
nica Sicula S.p.A. (ELSD, an Italian company which is stated to have been
100 per cent owned by two United States corporations ;

2. Whereas by letters dated 6 February 1987 the United States Secretary
of State and the Chargé d’affaires ad interim of the United States of Amer-
ica accredited to the Kingdom of the Netherlands informed the Court
that the Honorable Abraham D. Sofaer was appointed Agent of the

4
4 ELETTRONICA SICULA (ORDER 2 III 87)

United States, and that the Government of the United States requested,
pursuant to Article 26, paragraph 3, of the Statute of the Court, that a
Chamber be formed, composed of five judges, to hear and determine the
case ;

3. Whereas by a telegram dated 13 February 1987 the Minister for
Foreign Affairs of Italy informed the Court that Professor Luigi Ferrari
Bravo was appointed Agent of Italy and that the Government of Italy
accepted the proposal put forward by the Government of the United
States, that the case be heard by a Chamber composed in accordance
with Article 26 of the Statute, and this acceptance was confirmed by a
letter dated 13 February 1987 from the Agent of Italy ;

4, Whereas the Court thus has before it a request by the two Parties that
the case be heard and determined by a Chamber formed to deal with the
case ; and whereas the Parties have been duly consulted as to the composi-
tion of the proposed Chamber of the Court in accordance with Article 26,
paragraph 2, of the Statute and Article 17, paragraph 2, of the Rules of
Court; ,

5. Whereas the Parties, consulted with regard to questions of proce-
dure pursuant to Article 31 of the Rules of Court, have indicated that they
are in agreement on a period of two months being fixed for the Memorial
of the United States of America and six months for the Counter-Memorial
of Italy ;

THE CourT,
Unanimously,

1. Decides to accede to the request of the Governments of the United
States of America and Italy to form a special Chamber of five judges to
deal with the present case ;

2. Declares that at an election held on 2 March 1987 the following
Members of the Court were elected to the Chamber:

President Nagendra Singh,
Judges Oda,
Ago,
Schwebel,
Sir Robert Jennings ;

3. Declares a Chamber to deal with this case to have been duly consti-
tuted by the present Order, with the composition indicated above ;

4. Fixes the following time-limits for the initial pleadings in the case:

15 May 1987 for the Memorial of the United States of America ;
16 November 1987 for the Counter-Memorial of the Republic of
Italy ;

and reserves the subsequent procedure for further decision.

5
5 ELETTRONICA SICULA (ORDER 2 III 87)

Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this second day of March, one thousand
nine hundred and eighty-seven, in three copies, one of which will be
placed in the archives of the Court, and the others transmitted to the
Government of the United States of America and to the Government of
Italy, respectively.

(Signed) NAGENDRA SINGH,
President.

(Signed) Eduardo VALENCIA-OSPINA,
Registrar.