357

APPENDICE

DOCUMENTS SOUMIS A LA COUR

A. — PAR LES AGENTS DES PUISSANCES REQUÉRANTES :

I.

I. — Le g juin 1932

— Extrait de la réponse des Puissances alliées et associées aux remarques

de la délégation allemande, 16 juin 1910.

2.
3.
4.

— Constitution de la République de Lithuanie du 1er août 1922.
— Lettre de la Conférence des Ambassadeurs du 20 décembre 1922.
— Statut du Territoire de Memel (doc. de la Société des Nations

C. 159. M. 39. 1024. VII) (22 mars 1924):

a)
5)
€)

a

TZ

Lettre de la Conférence des Ambassadeurs au Secrétariat général,
28 septembre 1923. |

Tettre de la Conférence des Ambassadeurs au Secrétariat général,
18 octobre 1923.

Lettre du président du Cabinet lithuanien au Secrétaire général,
22 novembre 1923.

Lettre du président du Cabinet lithuanien au Secrétaire général,
24 novembre 1923.

Extraits des procès-verbaux de la 27me session du Conseil, Paris:

Procés-verbal de la 8me séance, 15 décembre 1923; analyse sommaire

concernant la question de Memel, préparée par le Secrétariat.

Procès-verbal de la gme séance, 17 décembre 1923.

» » » » Tome » 5 » » » .

Rapport de M. Guani adopté par le Conseil le 17 décembre 1923.
Lettre de M. Skirmunt au président du Conseil, avec annexes, com-
muniquées aux Membres du Conseil, 11 décembre 1923.

Lettre de M. Galvanauskas au Secrétaire général, communiquée aux
Membres du Conseil le 11 décembre 1923.

Note du Secrétaire général, informant les Membres du Conseil de la
composition de la Commission de Memel, 9 février 1924.

Lettre de la Conférence des Ambassadeurs au Secrétaire général, en
date du 4 février 1924, et mémoire contenant les observations de la
Conférence des Ambassadeurs sur la lettre de M. Galvanauskas du
II décembre 1923.

Lettre de M. Galvanauskas au Secrétaire général: commentaires sur
la lettre de la Conférence des Ambassadeurs du 4 février 1924.

Lettre de M. Skirmunt au président du Conseil, communiquée au Conseil
le 10 mars 1924.

Extrait du procès-verbal de la 4me séance de la 28me session du
Conseil. Genève, 12 mars 1924.

m) Rapport de la Commission (annexe aux P.-V. de la 28me session du

n)
9)

P)

Conseil).

Extrait du P.-V. de la 8me séance de la 28me session du Conseil.
Genève, I4 mars 1924.

Projet de convention et annexes (annexe aux P.-V. de la 28me session
du Conseil).

Disposition transitoire (ancien art. 18 du projet de convention) (annexe
au P.-V. de la 28me session du Conseil).

5. — Lettre de M. Bôttcher (traduction), 16 janvier 1932.

6.

— Séance de la Diète de Memel (extrait du compte rendu en traduc-

tion}, 25 janvier 1932.

67
358 INTERPRÉTATION DU STATUT DU TERRITOIRE DE MEMEL

7. — Avis du gouverneur, M. Merkys, 6 février 1932.

8. — Documents relatifs à la procédure devant le Conseil de la Société
des Nations du 5 au 20 février 1932 (14 pièces) :

Ouverture de crédits (dépenses relatives aux experts). Rapport soumis par le

représentant du Guatemala. Genève, 5 février 1932 (doc. C. 175. 1932: X).

Procès-verbal de la gme séance de la 66me session du Conseil (6 févr. 1932).

Communication du Gouvernement allemand au sujet de Memel. Note du
Secrétaire général. Genève, 8 février 1932 (doc. C. 189. 1932. VII).
Communication du Gouvernement allemand. Note du Secrétaire général.
Genève, 9 février 1932 (doc. C. 194. 1932. VII).

Communication du Gouvernement lithuanien. Note du Secrétaire général.
Genève, ro février 1932 (doc. C. 203. 1932. VII).

Communication du Gouvernement lithuanien. Note du Secrétaire général.
Genève, 10 février 1932 (doc. C. 211. 1932. VII).

‘ Communication du représentant de l'Allemagne au Conseil. Note du Secré-
taire général. Genève, 11 février 1932 (doc. C. 212. 1932. VII).

Communication du Gouvernement allemand. Note du Secrétaire général.
Genève, 11 février 1932 (doc. C. 213. 1932. VII).

Échange de télégrammes entre le ministre des Affaires étrangères de Lithua-
nie et le Secrétaire général (11 févr. 1932; doc. C. 215. 1932. VII).
Aliégations concernant des infractions à la Convention de Memel: Lettre
du chancelier du Reich allemand. Communication du Gouvernement lithua-
nien. Note du Secrétaire général. Genève, 13 février 1932 (doc. C. 224.

1932. VIT). . .

Procès-verbal de la rrme séance de la 66me session du Conseil. Genéve,
13 février 1932.

Allégations concernant des infractions à la Convention de Memel: Lettre
du chancelier du Reich allemand. Note du Secrétaire général. Genève,
15 février 1932 (doc. C. 231. 1932. VII).

Rapport du représentant de la Norvège. Genève, 18 février 1932 (doc. C.
249. 1932. VII).

Procès-verbal de la 13me séance de la 66me session du Conseil. Genève,
20 février 1932.

9. — Lettre de M. Bôttcher, 23 février 1932.

10. — Protocole de signature de la Convention du 8 mai 1924 et quatre

lettres de M. Galvanauskas en date du 17 mai 1924 relatives à cette signature.

Ii. — Le 14 juin 1932.

11. — Note verbale présentée par le chargé d’affaires de S. M. britannique
à Kaunas au ministre des Affaires étrangères de Lithuanie le I9 mars 1932.
Des notes identiques furent présentées au Gouvernement lithuanien par les
ministres de France et d'Italie.

12. — Aide-mémoire présenté le 19 mars 1932 par le ministre des Affaires
étrangères de Lithuanie au chargé d’affaires de S. M. britannique 4 Kaunas.

ITI. — Le 11 juillet 1932.

13. — Dépêche du ministre de France à Kaunas au ministre des Affaires
étrangères à Paris, 26 février 1932.
14. — Traduction d’un « Avis officiel du gouverneur du Territoire de

Memel », 27 février 1932.
— Traduction d’une lettre de MM. Gubba et Kraus à M. Simaitis,
yer oars 1932.

68
359 INTERPRÉTATION DU STATUT DU TERRITOIRE DE MEMEL
16. — Traduction d'une lettre de MM. Gubba et Kraus au président du
Directoire, 2 mars 1932.

17. — Traduction d’une lettre de M. Simaïtis à M. Gubba, chef du groupe
du parti agraire, 1% mars 1932.

18. — Traduction d’une lettre de M. Gubba à M. Simaïtis, 11 mars 1932.

19. — Traduction d’une lettre de M. Kraus à M. Simaïtis, 11 mars 1932.

20. — Traduction d'une lettre de MM. Kraus et Gubba au gouverneur
de Memel, 12 mars 1932.

21. — Traduction du compte rendu de la séance de la Diète du 22 mars
1932.

22. — Chiffres montrant les résultats des élections qui eurent lieu à Memel

le 4 mai 1932.

B. — PAR L’aGENT DU GOUVERNEMENT LITHUANIEN :

I. —— En annexe au premier Contre-Mémoire (30 mai 1932).

+

1. — Convention signée à Paris le 8 mai 1924, entre la France, la Grande-
Bretagne, l'Italie, le Japon et la Lithuanie, relative au Territoire de Memel.

2. — Constitution de l’État lithuanien (Constitution de 1928).

3. —— Procès-verbal de la rime séance (publique) du Conseil de la Société
des Nations, tenue le samedi 13 février 1932, à 16 heures.

4. — Extraits des livres de comptabilité de la Trésorerie du Territoire 1.

5. — Copie du certificat délivré par le consul général d'Allemagne à
Memel, M. Toepke, à M. Baltromejus. ‘

6. — Copie du formulaire des laissez-passer délivrés habituellement par
les représentants diplomatiques et consulaires de l’Allemagne.

7. — Lettre du gouverneur du Territoire de Memel, M. Merkys, adressée

au président de la Chambre des Représentants, en date du 25 janvier 1932.

8. — Déclaration de M. Bôttcher, faite à Ia Chambre des Représentants
du Territoire, dans sa séance du 25 janvier 1932.

9. — Déclaration de M. Podszus, faite à la Chambre des Représentants
du Territoire, dans sa séance du 25 janvier 1932.

IT. — Le 15 juin 1932.

10. — Journal officiel de la Société des Nations, VIIme année, n° 10,
octobre 1926, contenant le procès-verbal de la séance du Conseil de la Société
des Nations tenue à Genève le 3 septembre 1926 et le rapport du Comité
des juristes du Conseil de la Société des Nations du 16 septembre 1926.

11. — Copie certifiée conforme des notes identiques remises par les repré-
sentants des Puissances signataires avec la Lithuanie de la Convention de
Paris, à la date du 19 mars 1932, au ministre des Affaires étrangères de
Lithuanie (voir ci-dessus, A, n° 11).

III. — Le 8 juillet 1932.

12. — Traduction de la lettre écrite par M. Bôttcher, après sa révocation,
à son fils, le 6 février 1932.

1 Traduction déposée le 11 juillet 1932 (voir ci-après, n° 24).

69
360 INTERPRÉTATION DU STATUT DU TERRITOIRE DE MEMEL

13. — Lettre du ro février 1932 des partis majoritaires au gouverneur
du Territoire.

14. — Procès-verbal de la séance du Reichstag allemand. Séance 59. —
Jeudi 25: février 1932. — Extrait. °
15. — Lettre du 1er mars 1932 des partis majoritaires au président du

Directoire. |
16. — Pro-memoria adressé le 7 mars 1932 par le Gouvernement lithuanien

aux Puissances signataires avec la Lithuanie de la Convention de Paris
du 8 mai 31924.

17. — Lettre du 12 mars 1932 des partis majoritaires au gouverneur du
Territoire.

18. — Lettre du 17 mars 1932 du président du Directoire de Memel au
gouverneur du Territoire de Memel.

19. — Extrait de la déclaration du président du Directoire, M. Simaitis,

lue à la Chambre des Représentants du Territoire de Memel le 22 mars
1932. .

IV. — Le 11 Guillet 1932.

20. — Lettre du 6 février 1932 adressée par le gouverneur du Territoire
de Memel à M. Zygaudas, membre du Directoire.

21. — Réponse de M. Zygaudas à la lettre précitée.

22. — Lettre adressée le 11 mars 1932 par le Directoire du Territoire de
Memel à M. J. Gubba, président du parti agraire.
23. — Lettre du 23 février 1932 adressée au gouverneur du Territoire de

Memel par les présidents du parti populaire et du parti agraire.

24. — Traduction des extraits des livres de comptabilité de la Trésorerie
du Territoire de Memel (voir ci-dessus, B, I, n° 4).

C. — La COUR A EU EN OUTRE SOUS LES YEUX:

1. —- Documents diplomatiques du ministère des Affaires étrangères de la
République de Lithuanie. Question de Memel. 2 volumes. Kaunas, 1923 et
1924.

2. — Résolutions du Conseil des:
22 octobre 1920.
25 » » .

27 juin 1921.
5 septembre 1923.

20 » 1926.
3. — Résolutions de l’Assemblée des:
21 septembre 1922.
26 » 1923.
4. — Déclaration lithuanienne de minorités du 1z mai 1922.

70


276

SEPARATE OPINION OF JUDGE GROS
[Translation]

Although my opinion on this case is not based on the Court’s reasoning
as set out in the grounds of the Judgment, I voted in favour of the opera-
tive clause because the Judgment puts an end to the action commenced by
the Applicant, and this coincides with the views of those who took the
view, as long ago as the first phase of the Court’s study of the case in
June 1973, that there was no legal dispute. By finding that, today at least,
the case between the two States no longer has any object, the Court puts
an end to it by other means.

The Court has taken as legal basis of its Judgment the need to settle
this question of the existence of the object of the dispute as absolutely
preliminary, even in relation to questions concerning its jurisdiction and
other questions relating to admissibility. The Judgment only deals with
the disappearance of the object of the claim, and no decision has been
taken on the questions concerning the Court's lack of jurisdiction or the
inadmissibility of the claim; it is thus inappropriate to deal with these
questions. But there remains the problem of the non-existence, from the
outset of the case submitted to the Court, of any justiciable dispute, and
on this point 1 find it necessary to make some observations.

1. In order to ascertain whether the proceedings were without founda-
tion at the outset, the Application instituting proceedings, dated 9 May
1973, which defines the object of the claim, must clearly be taken as point
of departure. The Applicant asked the Court to “order that the French
Republic shall not carry out any further such tests” [sc., atmospheric tests
of nuclear weapons in the South Pacific]. This request is based on 22 lines
of legal argument which makes up for its brevity by observing finally
that, for these reasons ‘‘or for any other reason that the Court deems to
be relevant, the carrying out of further ... tests is not consistent with
applicable rules of international law”. | have had occasion in another
case to recall that submissions, in the strict sense, have frequently been
confused with reasons in support, a practice which has been criticized by
Judge Basdevant (J.C.J. Reports 1974, pp. 137 ff.); such confusion still
occurs however, and is particularly apparent in this case. In order to have
these nuclear tests prohibited for the future, the Applicant had to base its
contention, however elliptically, on rules of law which were opposable to
the Respondent, rules which in its Application it left it to the Court to
discover and select. But it is not apparent how it is possible to find in
these few lines which precede the formulation of the claim, and which are
both formally and logically distinct from it, a request for a declaratory
judgment by the Court as to the unlawfulness of the tests. The question

27
NUCLEAR TESTS (SEP. OP. GROS) 277

raised is that of prohibition of French tests in the South Pacific region
inasmuch as all nuclear tests, wherever and by whoever conducted, are,
according to the Applicant, unlawful. Legal grounds, i.e., the unlaw-
fulness of the tests, therefore had to be shown in order to achieve the
object of the claim, namely a judicial prohibition. The submission, in the
strict sense, was the prayer for prohibition, and the unlawfulness was the
reasoning justifying it.

2. The rule is that the Court is seised of the precise object of the claim
in the way in which this has been formulated. The present case consisted
in a claim for prohibition of atmospheric tests on the ground that they
were unlawful. This is a procedure for establishing legality (contentieux de
légalité), not a procedure for establishing responsibility {contentieux de
responsabilité), with which the Application does not concern itself. In
order to succeed the Applicant had to show that its claim for prohibition
of French atmospheric tests was based on conduct by the French Govern-
ment which was contrary to rules of international law which were
opposable to that Government.

But it is not sufficient to put a question to the Court, even one which as
presented is apparently a legal question, for there to be, objectively, a
dispute. The situation is well described by the words of Judge Morelli:
“The mere assertion of the existence of a dispute by one of the parties
does not prove that such a dispute really exists” (/.C.J. Reports 1962,
p. 565; see also pp. 564 and 566-568), and even at the time of the Order of
22 June 1973 I had raised this question, when I referred to ‘tan unreal
dispute” (/.C.J. Reports 1973, p. 118) and ‘“‘a dispute which [a State]
alleges not to exist” (ibid., p. 120). [ then emphasized the preliminary
nature, particularly in a case of failur to appear, of examination of the
question of the real existence of the dispute before a case can be dealt with
by the Court in the regular exercise of its judicial function. By deciding to
effect such preliminary examination, after many delays, and without any
reference to the voluntary absence of one of the Parties, the Court is
endorsing the principle that examination of the question of the reality of
the dispute is necessarily a matter which takes priority. This point is thus
settled. There was nothing in the Court’s procedure to prevent examina-
tion in June 1973 of the question whether the dispute described to the
Court by the Applicant was, and had been from the outset, lacking in any
real existence.

3. When several reasons are invoked before the Court in support of the
contention that a case may not be judged on the merits—whether these
reasons concern lack of jurisdiction or inadmissibility—the Court has
always taken the greatest possible care not to commit itself either to any
sort of classification of these various grounds, any of which may lead to
dismissal of the claim, or to any sort of ranking of them in order. In the
Northern Cameroons case, the Court refused to establish any system for
these problems, or to define admissibility and interest, while analysing
in detail the facts of the case which enabled it to arrive at its decision
(cf. L.C.J. Reports 1963, p. 28):

28
NUCLEAR TESTS (SEP. OP. GROS) 278

“The arguments of the Parties have at times been at cross-purposes
because of the absence of a common meaning ascribed to such terms
as ‘interest’? and ‘admissibility’. The Court recognizes that these
words in differing contexts may have varying connotations but it does
not find it necessary in the present case to explore the meaning of
these terms. For the purposes of the present case, a factual analysis
undertaken in the light of certain guiding principles may suffice to
conduce to the resolution of the issues to which the Court directs its
attention.”

And further on, at page 30: “... itis always a matter for the determination
of the Court whether its judicial functions are involved.”

Thus the principle which the Court applies is a common-sense one: if a
finding is sufficient in itself to settle the question of the Court’s compe-
tence, in the widest sense of the word, that is to say to lead to the con-
clusion that it is impossible to give judgment in a case, there is no need to
proceed to examine other grounds. For there to be any proceedings on the
merits, the litigation must have an object capable of being the subject of a
judgment consistently with the role attributed to the Court by its Statute;
in the present case, where numerous objections as to lack of jurisdiction
and inadmissibility were raised, the question of the absence of any object
of the proceedings was that which had to be settled first for this very
reason, namely that if it were held to be well founded, the case would
disappear without further discussion. The concept of a merits phase has
no meaning in an unreal case, any more than has the concept of a jurisdic-
tion/admissibility phase, still less that of an interim measures phase, on
the fallacious pretext that such measures in no way prejudge the final
decision (on this point, see dissenting opinion appended to the Order of
22 June 1973, p. 123). In a case in which everything depends on recog-
nizing that an Application is unfounded and has no raison d’étre, and that
there was no legal dispute of which the Court could be seised, a marked
taste for formalism is required to rely on the inviolability of the usual
categories of phases. To do so would be to erect the succession of phases
in examination of cases by the Court into a sort of ritual, totally unjus-
tified in the general conception of international law, which is not
formalistic. These are procedural practices of the Court, which organizes
its procedure according to the requirements of the interests of justice.
Article 48 of the Statute, by entrusting the “‘conduct of the case” to the
Court, did not impose any limitation on the exercise of this right by
subjecting it to formalistic rules, and the institution of phases does not
necessarily require successive stages in the examination of every case,
either for the parties or for the Court.

4. To wait several years—more than a year and a half has already
elapsed—in order to reach the unhurried conclusion that a court is
competent merely because the two States are formally bound by a
jurisdictional clause, without examining the scope of that clause, and
then to join the questions of admissibility to the merits, only subse-

29
NUCLEAR TESTS (SEP. OP. GROS) 279

quently to arrive (perhaps) at the conclusion on the merits that there were
no merits, would not be a good way of administering justice.

The observation that, on this view of the matter, a State which declined
to appear would more rapidly be rid of proceedings than a State which
replied by raising preliminary objections, is irrelevant; apart from the
problem of non-appearance (on this point cf. paras. 23 to 29 below),
when the hypothesis arises that the case is an unreal one, with the possible
implication that there was a misuse of the right of seising the Court, there
is no obvious reason why a decision should be delayed unless from force
of habit or routine.

In the Judgment of 21 December 1962 in the South West Africa cases,
(1.C.J. Reports 1962, p. 328), the Court, before examining the preliminary
objections to jurisdiction and admissibility raised by the Respondent,
itself raised proprio motu the problem of the existence of a genuine dispute
between the Applicants and the Respondent (see also the opinion of
Judge Morelli on this point, /.C.J. Reports 1962, pp. 564-568).

5. The facts of the case leave no room for doubt, in my opinion, that
there was no dispute even at the time of the filing of the Application.

In the series of diplomatic Notes addressed to the French Government
by the Australian Government between 1963 and the end of 1972 (Appli-
cation, pp. 34-48), at no time was the argument of the unlawfulness of the
French tests advanced to justify a claim for cessation of such tests, based
on rules of international law opposable to the French Government. The
form of protests used expresses “regrets” that the French Government
should carry out such tests, and mention is made of the ‘‘deep concern”
aroused among the peoples of the area (Application, pp. 42, 44 and 46).
So little was it thought on the Australian side that there was a rule which
could be invoked against France’s tests that it is said that the Government
of Australia would like ‘‘to see universally applied and accepted” the 1963
test ban treaty (Note of 2 April 1970, Application, p. 44; in the same terms
exactly, Note of 20 April 1971, Application, p. 46, and Note of 29 March
1972, Application, p. 48). There is no question of unlawfulness, nor of
injury caused by the tests and international responsibility, but merely of
Opposition in principle to all nuclear tests by all States, with complete
consistency up to the Note of 3 January 1973, in which for the first time
the Australian Government invites the French Government ‘to refrain
from any further . . . tests”, which it regards as unlawful (Application,
Ann. 9, p. 51); this, then, was the Note which, by a complete change of
attitude, paved the way to the lawsuit.

The reason for the change was given by the Australian Government in
paragraph 14 of its Application:

“In its Note [of 3 January 1973], the Australian Government
indicated explicitly that in its view the French tests were unlawful and
unless the French Government could give full assurances that no
further tests would be carried out, the only course open to the
Australian Government would be the pursuit of appropriate interna-

30
NUCLEAR TESTS (SEP. OP. GROS) 280

tional legal remedies. In thus expressing more forcefully the point of
view previously expounded on behalf of Australia, the Government
was reflecting very directly the conviction of the Australian people
who had shortly before elected a Labour Administration, pledged to
a platform which contained the following statement: ‘Labour
opposes the development, proliferation, possession and use of

5%

nuclear, chemical and bacteriological weapons’.” (Application,
pp. 8-10.)

In the succeeding paragraph 15 the following will also be noticed: “The
Government of Australia claimed [in its Notes of 3 January and 7 Febru-
ary 1973} that the continuance of testing by France is illegal and called for
the cessation of tests.”

6. Thus the basis of the discussion is no longer the same; it is “‘claimed”’
that the tests are unlawful, and France is “invited” to stop them because
the Labour Party is opposed to the development, possession and use of
nuclear weapons, and the Government is bound by its electoral program-
me. This reason, the change of government, is totally irrelevant; a State
remains bound by its conduct in international relations, whatever electoral
promises may have been made. If for ten years Australian governments
have treated tests in the Pacific as unwelcome but not unlawful, subject to
certain protests on principle and demonstrations of concern, an electoral
programme is not sufficient argument to do away with this explicit
appreciation of the legal aspects of the situation.

The Applicant, as it happens, perceived in advance that its change of
attitude gave rise to a serious problem, and it endeavoured in the Applica-
tion to cover it up by saying that it had done no more than express “more
forcefully the point of view previously expounded on behalf of Australia”.
It can easily be shown that the previous viewpoint was totally different.
Apart from the diplomatic Notes of the ten years prior to 1973, which are
decisive, and which show that the Government of Australia did not
invoke any legal grounds to oppose the decision of the French Govern-
ment to conduct tests in the South Pacific region, it will be sufficient to
recall that Australia has associated itself with various atmospheric
explosions above or in the vicinity of its own territory, and that by its
conduct it has expressed an unequivocal view on the lawfulness of those
tests and those carried out by other States in the Pacific.

7. The first atmospheric nuclear explosion effected by the United
Kingdom occurred on 3 October 1952 in the Montebello Islands, which
are situated near the north-west coast of Australia. It was the Australian
Minister of Defence who announced that the test had been successful,
and the Prime Minister of Australia described it as “one further proof of
the very important fact that scientific development in the British Com-
monwealth is at an extremely high level” (Keesing’s Contemporary
Archives, 11-18 October 1952, p. 12497). The Prime Minister of the
United Kingdom sent a message of congratulation to the Prime Minister

31
NUCLEAR TESTS (SEP. OP. GROS) 281

of Australia. The Navy and Air Force and other Australian government
departments were associated with the preparation and execution of the
test; three safety-zones were forbidden for cverflight and navigation, on
pain of imprisonment and fines.

On 15 October 1953 a further British test was carried out at Woomera
in Australia, with a new forbidden zone of 80,000 square miles. The
British Minister of Supply, addressing the House of Commons on
24 June 1953, announced the new series of tests, which had been prepared
in collaboration with the Australian Government and with the assistance
of the Australian Navy and Air Force (Keesing’s Contemporary Archives
1953, p. 13222).

Two further series of British tests took place in 1956, one in the Mon-
tebello Islands (on 16 May and 19 June), the other at Maralinga in South
Australia (27 September, 4, 11 and 2! October). The acting Prime
Minister of Australia, commenting on fall-out, stated that no danger to
health could arise therefrom. Australian military personnel were present as
observers during the second series of tests (Keesing’s Contemporary
Archives, 1956, p. 14940). The British Government stated on 7 August
1956 that the Australian Government had given full co-operation, and
that various Australian government departments had contributed valu-
able assistance under the co-ordinating direction of the Australian
Minister for Supply. The second test of this series was observed by that
Minister and members of the Australian Parliament (Keesing’s Con-
temporary Archives, 1956, p. 15248).

The British Prime Minister stated on 7 June 1956:

“Her Majesty’s Governments in Australia and New Zealand have
agreed to make available to the task force various forms of aid and
ancillary support from Australian and New Zealand territory. We
are most grateful for this.” (Hansard, House of Commons, 1956,
Col. 1283.)

8. Active participation in repeated atmospheric tests over several
years in itself constitutes admission that such tests were in accordance
with the rules of international law. In order to show that the present tests
are not lawful, an effort has been made to argue, first, that what is
laudable on the part of some States is execrable on the part of others and,
secondly, that atmospheric tests have become unlawful since the time
when Australia itself was making its contribution to nuclear fall-out.

9. On 3 March 1962, after the Government of the United States had
decided to carry out nuclear tests in the South Pacific, the Australian
Minister for External Affairs said that:

*... the Australian Government ... has already made clear its view
that if the United States should decide it was necessary for the
security of the free world to carry out nuclear tests in the atmosphere,
then the United States must be free to do so” (Application, Ann. 3,
p. 36).

32
NUCLEAR TESTS (SEP. OP. GROS) 282

A few days after this statement, on 16 March 1962, the Australian
Government gave the United States its permission to make use of
Christmas Island (where more than 20 tests were carried out between
24 April and 30 June, while tests at very high altitude were carried out at
Johnston Island from 9 July to 4 November 1962).

In an aide-mémoire of 9 September 1963 the Australian Government
likewise stated:

“Following the signature of the Treaty Banning Nuclear Tests in
the Atmosphere, in Outer Space and Under Water, the Australian
Government also recognizes that the United States must take such
precautions as may be necessary to provide for the possibility that
tests could be carried out in the event, either of a breach of the
Treaty, or of some other States exercising their right to withdraw
from the Treaty.” (/bid., p. 38.)

In contrast, five years later, with solely the French and Chinese tests in
mind, the Australian Government wrote:

“On 5 April 1968, in Wellington, New Zealand, the Australia-
New Zealand-United States (ANZUS) Council, included the
following statement in the communiqué issued after the meeting:

‘Noting the continued atmospheric testing of nuclear weapons
by Communist China and France, the Ministers reaffirmed their
Opposition to all atmospheric testing of nuclear weapons in
disregard of world opinion as expressed in the Nuclear Test Ban
Treaty.” ” (/bid., Ann. 5, p. 42.)

10. On another occasion the Australian Government had already
evinced the same sense of discrimination. In 1954, in the Trusteeship
Council, when certain damage caused the Marshall Islands by the nuclear
tests of the administering authority was under consideration, the Austra-
lian delegate could not go along with the views of any of the delegations
who objected to the tests in principle.

11. It is not unjust to conclude that, in the eyes of the Australian
Government, what should be applauded in the allies who might protect
it is to be frowned upon in others: Quod licet Jovi non licet bovi. It is at
the time when the delegate of the United States has been revealing to the
United Nations that his Government possesses the equivalent of 615,385
times the original Hiroshima bomb (First Committee, 21 October 1974)
that the Australian Government seeks to require the French Government
to give up the development of atomic weapons.

It remains for me briefly to show how this constant attitude of the
Australian Government, from 1963 to the end of 1972, i.e., up to the
change described in paragraph 5 above, forms a legal bar to the Appli-
cant’s appearing before the Court to claim that, among nuclear tests,

33
NUCLEAR TESTS (SEP. OP. GROS) 283

certain can be selected to be declared unlawful and they alone prohibited.
Indeed the Court, in June 1973, already had a choice among numerous
impediments on which it might have grounded a finding that the case was
without object. For simplicity’s sake let us take the major reason: the
principle of the equality of States.

12. The Applicant’s claim to impose a certain national defence policy
on another State is an intervention in that State’s internal affairs in a
domain where such intervention is particularly inadmissible. The United
Kingdom Government stated on this point on 2 July 1973 as follows:

“... we are not concerned ... with the question of whether France
should or should not develop her nuclear power. That is a decision
entirely for France ...” (Hansard, col. 60).

In The Function of Law in the International Community (Oxford 1933,
p. 188) Mr. (later Sir) Hersch Lauterpacht wrote:

“se

. it means stretching judicial activity to the breaking-point to
entrust it with the determination of the question whether a dispute is
political in the meaning that it involves the independence, or the vital
interests, or the honour of the State. It is therefore doubtful whether
any tribunal acting judicially can override the assertion of a State
that a dispute affects its security or vital interests. As we have seen,
the interests involved are of a nature so subjective as to exclude the
possibility of applying an objective standard not only in regard to
general arbitration treaties, but also in regard to each individual
dispute.”

The draft law which the French Government laid before its Parliament
in 1929 to enable its accession to the General Act of Geneva of 26 Sep-
tember 1928 has been drawn to the Court’s attention; this draft embodied
a formal reservation excluding “disputes connected with claims likely to
impair the organization of the national defence’. On 11 July 1929 the
rapporteur of the parliamentary Committee on Foreign Affairs explained
that the reservation was unnecessary:

“Moreover the very terms in which the exposé des motifs presents
it show how unnecessary it is. ‘In the absence of contractual provi-
sions arising out of existing treaties or such treaties as may be con-
cluded at the instigation of the League of Nations in the sphere of
armaments limitation,’ says the text: ‘disputes connected with claims
likely to impair the organization of the national defence.’ But,
precisely because these provisions do not exist, how could an arbi-
tration tribunal rule upon a conflict of this kind otherwise than by
recognizing that each State is at present wholly free to organize its
own national defence as it thinks fit? Is it imagined that the action of
some praetorian arbitral case-law might oust or at any rate range

34
NUCLEAR TESTS (SEP. OP. GROS) 284

beyond that of Geneva? That would seem to be a somewhat chimae-
rical danger.” (Documents parlementaires: Chambre des deputés, 1929,
Ann. 1368, pp. 407 f.; Ann. 2031, p. 1143.)

The exposé des motifs of the draft law of accession, lays strong emphasis
on the indispensability of the competence of the Council of the League of
Nations for the ‘‘appraisal of the political or moral factors likely to be
relevant to the settlement of certain conflicts not strictly legal in char-
acter”, disputes “‘which are potentially of such political gravity as to
render recourse to the Council indispensable” (ibid., p. 407). Such was the
official position of the French Government upon which the rapporteur of
the Foreign Affairs Committee likewise sheds light here when he stresses
the combination of resort to the Council and judicial settlement (cbid.,
p. 1142).

13. It is not unreasonable to believe that the present-day world is still
persuaded of the good sense of the observations quoted in the preceding
paragraph (cf. the Luxembourg arrangement of 29 January 1966, between
the member States of the European Economic Community, on “‘very
important interests’). But there is more than one negative aspect to the
want of object of the Australian claim. The principle of equality before
the law is constantly invoked, reaffirmed and enshrined in the most
solemn texts. This principle would become meaningless if the attitude of
“to each his rule” were to be tolerated in the practice of States and in
courts. The proper approach to this matter has been exemplified in Sir
Gerald Fitzmaurice’s special report to the Institute of International
Law: ‘The Future of Public International Law” (1973, pp. 35-41).

In the present case the Applicant has endeavoured to present to the
Court, as the object of a legal dispute, a request for the prohibition of acts
in which the Applicant has itself engaged, or with which it has associated
itself, while maintaining that such acts were not only lawful but to be
encouraged for the defence of a certain category of States. However, the
Applicant has overlooked part of the statement made'by the Prime
Minister of the United Kingdom in the House of Commons on 7 June
1956, when he expressed his thanks to Australia for its collaboration in
the British tests (para. 7 above). The Prime Minister also said:

“Certainly, I do not see any reason why this country should not
make experiments similar to those that have been carried out by both
the United States and Soviet Russia. That is all that we are doing. I
have said that we are prepared to work out systems of limitation.
Personally, I think it desirable and I think it possible.” (Hansard,
col. 1285.)

On 2 July 1973, the position of the British Government was thus
analysed by the Attorney-General:

35
NUCLEAR TESTS (SEP. OP. GROS) 285

‘“,.. even if France is in breach of an international obligation, that
obligation is not owed substantially to the United Kingdom, and
there is no substantive legal right of the United Kingdom which
would seem to be infringed” (Hansard, col. 99).

And that despite the geographical position in the Pacific of Pitcairn
Island.

The Applicant has disqualified itself by its conduct and may not
submit a claim based on a double standard of conduct and of law. What
was good for Australia along with the United Kingdom and the United
States cannot be unlawful for other States. The Permanent Court of
International Justice applied the principle ‘‘allegans contraria non audi-
endus est” in the case of Diversion of Water from the Meuse, Judgment,
1937, P.C.1.J., Series A/B, No. 70, page 25.

14. In the arguments devised in 1973 for the purposes of the present
case, it was also claimed that the difference in the Australian Govern-
ment’s attitude vis-a-vis the French Government was to be explained by
the fact that, at the time of the explosions with which the Australian
Government had associated itself and which it declared to be intrinsically
worthy of approval, awareness of the danger of fall-out had not yet
reached the acute stage. One has only to read the reports of the United
Nations Scientific Committee on the Effects of Atomic Radiation, a
committee set up by the General Assembly in 1955, to see that such was
not the case. While it is true to say that more abundant and accurate
information has become available over the years, the reports of this com-
mittee have constantly recalled that: ‘‘Those [tests of nuclear weapons]
carried out before 1962 still represent by far the largest series of events
leading to global radio-active contamination.” (UNSCEAR Report
1972, Chap. I, p. 3.)

As for awareness of particular risks to Australia, the National Radia-
tion Advisory Committee was set up by the Australian Government in
May 1957 for the purpose of advising on all questions concerning the
effects of radiation on the Australian population. The Court has had
cognizance of the reports of 1967 (two reports), 1969, 1971 and 1972; the
report of March 1967 indicates that the previous report dated from 1965,
and that it dealt in detail with the question of fall-out over the Australian
environment and the effects upon man:

“The Committee at that time was satisfied that the proposed
French nuclear weapons tests in the South Pacific Ocean were
unlikely to lead to a significant hazard to the health of the Australian
population.” (Report to the Prime Minister, March 1967, para. 3.)

This same form of words is repeated in paragraph 11 of the March 1967
report, in reference to the first series of French tests, which took place in
the period July-October 1966, and also in paragraph 11 of the report for
December 1967, issued following a study of the effects of the second series

36
NUCLEAR TESTS (SEP. OP. GROS) 286

of tests (June-July 1967) and taking radiation doses from both series into
account. The report which the Australian NRAC addressed to the Prime
Minister in March 1969 concerned the French tests of July-September
1968 and repeated in its paragraph 12 the conclusions cited above from
paragraph 3 of the March 1967 report. The Committee’s March 1971
report recalls in its paragraph 3 that fall-out from all the French tests, in
1966, 1967 and 1968, did not constitute a hazard to the health of the
Australian population. The form of words used in paragraph 12 of that
report comes to the traditional conclusion as to the tests held in 1970.
The absence of risk is again recognized in the report issued by the NRAC
in July 1972 (paras. 8, 9 and 11). When, however, the new administration
took office in Australia, this scientific committee was dissolved. On
12 February 1973 the Prime Minister requested a report of the Australian
Academy of Science, the Council of which appointed a committee to
report on the biological effects of fall-out; the conclusions of this report
were considered at a joint meeting with French scientists in May 1973,
shortly before the filing of the Application instituting proceedings. It
appears that the debate over this last-mentioned report is continuing
even between Australian scientists.

15. For the similar experiments of the French Government to be the
subject of a dispute with which the Court can deal, it would at all events
be necessary that what used to be lawful should have become unlawful at
a certain moment in the history of the development of nuclear weapons.
What is needed to remove from the Applicant the disqualification arising
out of its conduct is proof that this change has taken place: what Australia
presented between 1963 and the end of 1972 as a conflict of interests, a
clash of political views on the problems of the preparation, development,
possession and utilization of atomic weapons, i.e., as a challenge to France’s
assertion of the right to the independent development of nuclear weapons,
cannot have undergone a change of legal nature solely as a result of the
alteration by a new government of the formal presentation of the conten-
tion previously advanced. It would have to be proved that between the
pre-1963 and subsequent explosions the international community effected
a passage from non-law to law.

16. The Court’s examination of this point could have taken place as
early as June 1973, because it amounts to no more than the preliminary
investigation of problems entirely separate from the merits, whatever
views one may hold on the sacrosanctity of the distinction between the
different phases of the same proceedings (cf. para. 3 above). The point is
that if the Treaty of 5 August 1963 Banning Nuclear Tests in the Atmo-
sphere, in Outer Space and Under Water is not opposable to France, there
is no dispute which Australia can submit to the Court, and dismissal
would not require any consideration of the contents of the Treaty.

17. The multilateral form given to the Treaty of 5 August 1963 is of
course only one of several elements where the legal analysis of the extent
of its opposability to States not parties to it is concerned. One need only
say that the preparation and drafting of the text, the unequal régime as

37
NUCLEAR TESTS (SEP. OP. GROS) 287

between the parties for the ratification of amendments, and the system of
supervision have enabled the Treaty to be classified as, constructively, a
bi-polar statute, accepted by a large number of States but not binding on
those remaining outside the Treaty. There is in fact no necessity to linger
on the subject in view of the subsequent conduct of the States assuming
the principal responsibility for the Treaty. None of the three nuclear
Powers described as the “Original Parties” in Article IL of the Treaty has
ever informed the other nuclear Powers, not parties thereto, that this text
imposed any obligation whatever upon them; on the contrary, the three
Original Parties, even today, call upon the Powers not parties to accede
to the Treaty. The Soviet delegate to the Disarmament Conference
declared at the opening of the session on 20 February 1974 that the nego-
tiations for the termination of nuclear tests “required the participation
of all nuclear States”. On 21 October 1974, in the First Committee of the
General Assembly, the delegate of the United States said that one of the
aims was to call for the co-operation of States which had not yet ratified
the 1963 Treaty. Statements to the same effect have been made on behalf
of the Government of the United Kingdom; on 2 July 1973 the Minister
of State for Foreign and Commonwealth Affairs stated during a parlia-
mentary debate:

“As far back as 1960, however, the French and the Chinese
declined to subscribe to any international agreement on testing. They
are not bound, therefore, by the obligations of the test ban treaty of
1963...

In 1963 Her Majesty’s Government, as well as the United States
Government, urged the French Government to sign the partial test
ban treaty.

As initiators and signatories of the treaty, we are seriously con-
cerned at the continuation of nuclear tests in the atmosphere, and we
urge that all Governments which have not yet done so should adhere
to it. This view is well known to the French and Chinese Govern-
ments. It has been stated publicly by successive Governments.”
(Hansard, cols. 58 and 59.)

18. The conduct of the Original Parties which laid down the rules of
the present nuclear statute by mutual agreement shows that those nuclear
States which have refused to accede to this statute cannot be considered as
subjected thereto by virtue of a doctrinal construction contrary to the
formally expressed intentions of the sponsors and guardians of the
Statute. The French Government, for its part, has always refused to
recognize the existence of a rule opposable to it, as many statements
made by it show.

19. The Treaty which the United States and the Union of Soviet
Socialist Republics signed in Moscow on 3 July 1974, on the limitation
of underground nuclear testing (United Nations, General Assembly
Official Records, A/9698, 9 August 1974, Ann. I) contains the following
preambular paragraph:

38
NUCLEAR TESTS (SEP. OP. GROS) 288

“Recalling the determination expressed by the Parties to the 1963
Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer
Space and Under Water in its preamble to seek to achieve the
discontinuance of all test explosions of nuclear weapons for all time,
and to continue negotiations to this end.” (Cf. the second preambular
paragraph of the 1963 Treaty.)

Like the 1963 Treaty, the Treaty of 1974 embodies the right of each
party to withdraw from the treaty if extraordinary events jeopardize “its
supreme interests’’.

20. To determine whether a rule of international law applicable to
France did or did not exist was surely an operation on the same level as
the ascertainment of the non-existence of a justiciable dispute. To find
that the Treaty of 1963 cannot be relied on against France requires merely
the determination of a legal fact established by the text and by the con-
sistent conduct of the authors of the legal statute in question. Similarly, to
find that no custom has come into being which is opposable to those
States which steadfastly declined to accept that statute, when moreover
(as we have seen in the foregoing paragraphs) the existence of such
customary rule is disproved by the positions adopted subsequent to the
treaty supposed to give it expression, would merely be to verify the exist-
ence of a source of obligation.

By not proceeding, as a preliminary, to verification of the existence of
any source of obligation opposable to the French Government, the Court
refused to render justice to a State which, from the very outset, manifested
its categorical opposition to proceedings which it declared to be without
object and which it requested the Court to remove from the list; an action
which the Court was not to take until 20 months had elapsed.

21. The character of the quarrel between the Australian Government.
and the French Government is that of a conflict of political interests
concerning a question, nuclear tests, which is only one inseparable
element in the whole range of the problems to which the existence of
nuclear weapons gives rise and which at present can be approached and
settled only by means of negotiations.

As the Court said in 1963, “it is not the function of a court merely to
provide a basis for political action if no question of actual legal rights is
involved” (Northern Cameroons, I.C.J. Reports 1963, p. 37).

In the absence of any rule which can be opposed to the French Govern-
ment for the purpose of obtaining from the Court a declaration prohibi-
ting the French tests and those alone, the whole case must collapse. I
shall therefore say nothing as to the other grounds on which the claim can
be dismissed at the outset on account of the Applicant’s want of standing,
such as the inadmissibility either of an actio popularis or of an action
erga omnes disguised as an action against a single State. The accumulation
of fall-out is a world-wide problem; it is not merely the last straw which

39
NUCLEAR TESTS (SEP. OP. GROS) 289

breaks the camel’s back (cf. the refusal of United States courts to admit
the proceedings brought by Professor Linus Pauling and others who
claimed that American nuclear tests in the Pacific should stop!),

*
ok *

22. I have still certain brief observations to make as to the conduct,
from the very outset, of these proceedings before the Court, in relation to
certain general principles of the regular functioning of international
adjudication, for the conduct of the proceedings gave rise to various
problems, concerning Articles 53 and 54 of the Statute of the Court,
whose existence will not be evident to the reader of the Judgment, given
the adopted grounds of decision.

23. What happened, in sum, was that a misunderstanding arose when
the questions of jurisdiction and admissibility were written into the Order
of 22 June 1973 as the prescribed subject-matter of the phase which had
been decided upon “to resolve [them] as soon as possible”; for the
separate and dissenting opinions of June 1973 reveal on the one hand
that, for certain Members of the Court. the problem of the existence of
the object of the dispute should be settled in the new phase, whereas a
majority of judges, on the other hand, had made up their minds to deal
in that phase solely with the questions of the jurisdiction of the Court
stricto sensu, and of the legal interest of the Applicant, and to join all
other questions to the merits, including the question whether the proceed-
ings had any object. At best, therefore, the jurisdiction/admissibility
phase could only result in a decision on jurisdiction and the legal interest
of the Applicant, and if that decision were positive, all the rest being
joined to the merits, the real decision would have been deferred to an
extremely remote phase. A settlement would therefore have been possible
“sooner” if jurisdiction/admissibility and merits had not been separated.
The reason for this refusal in 1973 to decide on the “preliminary”
character of the question concerning the existence of a justiciable dispute
is to be found in an interpretation of Article 53 consisting of the applica-
tion to a default situation of Article 67 of the Rules of Court, governing
preliminary objections in adversary proceedings, the analogy thus pro-
voking a veritable breach of Article 53 of the Statute.

24. The misunderstanding on the scope of the phase decided on by the
Order of 22 June 1973 was not without effect before the Court: the
apparent contradiction between paragraph 23 and paragraph 35 of the
Order enabled the Applicant to say to the Court, at the hearing of 6 July
1974, that the only question of admissibility was that of ‘legal interest”,
subject to any indication to the contrary from the Court. That indication
was given by the President on 9 July: “The Court will of course appre-

1 District Court for the District of Columbia, 31 July 1958, 164 Federal Supplement,
p. 390; Court of Appeals, 12 April 1960, 278 Federal Reporter, Second Series,
pp. 252-255.

40
NUCLEAR TESTS (SEP. OP. GROS) 290

ciate the question of admissibility in all the aspects which it considers
relevant.”

This process of covert and contradictory allusions, in which the conflicts
of views expressed in the opinions sometimes reappear, is not without
its dangers. This is evident both as regards this Order of 22 June 1973 and
as regards the attempts to make use of paragraphs 33 and 34 of the
Judgment in the Barcelona Traction case without taking account of the
existence of paragraphs inconsistent with these, i.e., paragraphs 89 to 91,
which were in fact intended to qualify and limit the scope of the earlier
pronouncement. That pronouncement was in fact not directly related to
the subject of the judgment, and was inserted as a sort of bench-mark for
subsequent use; but all bench-marks must be observed.

25. Article 53 of the Statute has had the Court’s attention from the
outset. of the proceedings, i.e., ever since the receipt on 16 May 1973 of a
letter from the French Government declaring its intention not to appear
and setting forth its reasons; but, in my view, it has been wrongly applied.
A further general examination of the interpretation of the rule embodied
in Article 53 is required.

To speak of two parties in proceedings in which one has failed to
appear, and has on every occasion re-affirmed that it will not have
anything to do with the proceedings is to refuse to look facts in the face.
The fact is that when voluntary absence is asserted and openly acknow-
ledged there is no longer more than one party in the proceedings. There is
no justification for the fiction that, so long as the Court has not recognized
its lack of jurisdiction, a State which is absent is nevertheless a party in
the proceedings. The truth of the matter is that, in a case of default, three
distinct interests are affected: that of the Court, that of the applicant and
that of the respondent; the system of wholly ignoring the respondent’s
decision not to appear and of depriving it of effect is neither just nor
reasonable. In the present case, by its reasoned refusal to appear the
Respondent has declared that, so far as it is concerned, there are no
proceedings, and this it has repeated each time the Court has consulted it.
Even if the Court refrains for a time from recording that default, the fact
remains that the Respondent has performed an act of default from which
certain legal consequences flow. Moreover, the applicant is entitled under
Article 53 to request immediately that judicial note be taken thereof and
the consequences deduced. That is what the Applicant did, in the present
instance, when it said in 1973 that the Court was under an obligation to
apply its rules of procedure, without indicating which, and to refuse to
take account of views and documents alleged by the Applicant to have
been irregularly presented by the Respondent. And the Court partially
accepted this point of view, in not effecting all communications to the
Respondent which were possible.

The result of not taking account of the Respondent’s default has been
the granting of time-limits for pleadings which it was known would not be
forthcoming, in order to maintain theoretical equality between the
parties, whereas in fact the party which appeared was favoured. There was

al
NUCLEAR TESTS (SEP. OP. GROS) 291

nothing to prevent the Court from fixing a short time-limit for the
presumptive Respondent—one month, for example—the theoretical
possibility being left open of a statement by the State in default during
that time, to the effect that it had changed its mind and requested a normal
time-limit for the production of a Memorial.

26. When it came to receiving or calling in the Agent of the Applicant
in the course of the proceedings in 1973, there was a veritable breach of
the equality of the Parties in so far as some of these actions or approaches
made by the Applicant were unknown to the presumptive Respondent.
(On this point, cf. paras. 31 and 33 below.)

On this question of time-limits the Court has doubtless strayed into
paths already traced, but precedents should not be confused with manda-
tory rules; each case has its own particular features and it is mere mechan-
ical justice which contents itself with reproducing the decisions of
previous proceedings. In the present case the Court was never, as in the
Fisheries Jurisdiction cases, informed of negotiations between the Parties
after the filing of the Application, and the double time-limits accorded did
not even have the justification, which they might have had in the above-
mentioned cases, of enabling progress to be made in such negotiations;
and there was never the slightest doubt, from the outset, on the question
of the existence of a genuine legal dispute.

27. It is not my impression that the authors of Article 53 of the Statute
intended it to be interpreted as if it had no effect of its own. It is not its
purpose to enable proceedings to be continued at leisure without regard
to the positions adopted by the absent respondent; it is true that the
applicant is entitled to see the proceedings continue, but not simply as it
wishes, with the Court reliant on unilateral indications of fact and law;
the text of Article 53 was designed to avoid such an imbalance in favour
of the applicant. When the latter calls upon the Court to decide in favour
of its claim, which the present Applicant did not do explicitly on the basis
of Article 53 but which resulted from its observations and submissions
both in June 1973, at the time of the request for interim measures of
protection, and in the phase which the Judgment brings to a close today,
it would be formalistic to maintain that the absence of any explicit
reference to Article 53 changes the situation. It must needs be realized
that the examination of fact and law provided for in Article 53 has never
begun, since the Court held in 1973 that the consequences of the non-
appearance could be joined to the questions of jurisdiction and admissibil-
ity, and that, in the end, the question of the effects of non-appearance will
not have been dealt with. Thus this case has come and gone as if Article 53
had no individual significance.

28. If we return to the sources, we note that the rapporteur of the
Advisory Committee of Jurists (PV, p. 590) stated that the Committee had
been guided by the examples of English and American jurisprudence in
drafting what was then Article 52 of the Statute on default. Lord Philli-
more, a member of the Committee, had had inserted the sentence which
in large measure has survived: “The Court must, before [deciding in

42
NUCLEAR TESTS (SEP. OP. GROS) 292

favour of the claim], satisfy itself that the claim is supported by conclusive
evidence and well founded in fact and law.” The words which disappeared
in the course of the consideration of the text by the Assembly of the
League of Nations were regarded as unnecessary and as merely over-
lapping the effect of the formula retained. The matter was clarified in only
one respect by the Court’s 1922 discussion, on account of the personality
of the judges who expressed their views on a draft article proposed for the
Rules of Court by Judge Anzilotti:

“If the response to an application is confined to an objection to
the jurisdiction of the Court, or if the State affected fails to reply
within the period fixed by the Court, the latter shall give a special
decision on the question of jurisdiction before proceeding further
with the case.” (P.CLLJ., Series D, No. 2, p. 522.)

Judge Huber supported the text. Lord Finlay did not feel that the article
was necessary, because,

“... even if there was no rule on the subject, the Court would always
consider the question of its jurisdiction before proceeding further
with the case. It would have to be decided in each particular case
whether the judgment with regard to the jurisdiction should be
delivered separately or should be included in the final judgment”
(ibid., p. 214).

Judge Anzilotti’s text was rejected by 7 votes to 5. The general impression
given by the influence English jurisprudence was recognized to possess,
and by the observations first of Lord Phillimore and then of Lord Finlay,
is that the Court intended to apply Article 53 in a spirit of conscientious
verification of all the points submitted by the applicant when the respon-
dent was absent from the proceedings, and that it would have regard to
the circumstances of each case. As is well known, in the British system
important precautions are taken at a wholly preliminary stage of a case to
make sure that the application stands upon a genuinely legal claim, and
the task of ascertaining whether this is so is sometimes entrusted to judges
other than those who would adjudicate (cf. Sir Gerald Fitzmaurice’s
opinion in the Northern Cameroons case (I.C.J. Reports 1963, pp. 106 f.),
regarding “filter” procedures whereby, as ‘‘part of the inherent powers or
jurisdiction of the Court as an international tribunal’’, cases warranting
removal can be eliminated at a preliminary stage).

Between this interpretation and that which the Court has given of
Article 53 in the present case, there is all the difference that lies between
a pragmatic concern to hold a genuine balance between the rights of two
States and a procedural formalism that treats the absent State as if it
were a party in adversary proceedings, which it is not, by definition.

*

43
NUCLEAR TESTS (SEP. OP. GROS) 293

29. On 22 June 1973, before the Court’s decision had been read at a
public sitting, a public statement which had been made by the Prime
Minister of Australia on 21 June at Melbourne, and which had been
widely reported by the Australian press!, reached Europe; in it the Prime
Minister stated that the Court had acceded by 8 votes to 6 to Australia’s
request.

30. It must first be explained that, whether by inadvertence or for some
other reason, the Court was not aware of that disclosure until after its
decision had been read out at the public sitting of 22 June; it can be
imagined that the Court would otherwise have postponed the reading of
the Order on 22 June. As the aftermath of this incident has only been
dealt with in two communiqués, one issued on 8 August 1973 and the
other on 26 March 1974, it would be difficult to describe it if the Court
had not finally decided on 13 December 1974 that certain documents
would be published in the volume of Pleadings, Oral Arguments, Docu-
ments to be devoted to this case2. Taking into account certain press items
and these public documents or communiqués, [ find it necessary to
explain why I voted on 21 March 1974 against the Court’s decision, by
11 votes to 3, to close its investigations on the scope and origins of the
public disclosure by the Prime Minister of Australia of the decision of
22 June 1973. The Court’s vote was on a resolution reproduced in the
press communiqué of 26 March 1974.

It is to be hoped that no-one will dispute the view that, if the head of
government of a State party to a case discloses a decision of the Court
before it is made public, there has been a breach of the prescriptions of
Article 54, paragraph 3, of the Statute: ‘The deliberations of the Court
shall take place in private and remain secret.” At the moment of the
disclosure, on 21 June, the decision was as yet no more than a text which

1 A Melbourne newspaper printed on 22 June the following article:

“The Prime Minister: We’ve won N-test case. The Prime Minister (Mr. Whitlam)
said last night that Australia would win its appeal to the International Court of
Justice by a majority of eight votes to six. Mr. Whitlam said he had been told the
Court would make a decision within 22 hours. The Prime Minister made the
prediction while addressing the annual dinner of the Victorian Law Institute. He
said: ‘On the matter of the High Court, I am told a decision will be given in about
22 hours from now. The majority in our favour is going to be eight to six.” When
asked to elaborate on his comments after the dinner, Mr. Whitlam refused to
comment, and said his remarks were off the record. The dinner was attended by
several hundred members of the Law Institute, including several prominent judges.
While making the prediction that the Court would vote eight to six, Mr. Whitlam
placed his hand over a microphone. The microphone was being monitored by an
ABC reporter.”

2 Four documents are to be published in this way. Two (see para. 31 below) have
already been communicated to the French Government; the others are reports to the
Court.

44
NUCLEAR TESTS (SEP. OP. GROS) 294

had been deliberated and adopted by the Court and was covered by the
rule of secrecy embodied in Article 54. In a letter of 27 June 19731, the
Prime Minister of Australia referred to the explanations furnished on
that same date by a letter from the Co-Agent of Australia! and expressed
his regret ‘‘at any embarrassment which the Court may have suffered as a
result of my remarks’. According to the Co-Agent, the Prime Minister’s
statement of 21 June had been no more than a speculative comment,
inasmuch as a view had been current among Australian advisers to the
effect that the decision could be in Australia’s favour, but by a small ma-
jotity, while press comment preceding the Prime Minister’s remarks had
speculated in some instances that Australia would win by a narrow margin.

31. But whatever endeavours may have been made to explain the
Prime Minister’s statement, whether at the time or, subsequently, by the
Agent and Co-Agent of Australia on various occasions, the facts speak
for themselves. The enquiry opened at the request of certain Members of
the Court on the very afternoon of 22 June 1973 was closed nine months
later without the Court’s having given any precise indication, in its
resolution of 21 March 1974, as to the conclusions that might have been
reached in consequence. The only elements so far published, or com-
municated to the Government which was constantly regarded by the
Court as the Respondent and had therefore the right to be fully informed,
which was by no means the case, are: the Australian Prime Minister’s
letter of 27 June 1973 and the Co-Agent’s letter of the same date 2; the
text of a statement made by the Attorney-General of Australia on 21-22
June 19732; the communiqué of 8 August 1973; the reply by the Prime
Minister to a question put in the Australian House of Representatives on
the circumstances in which he had been apprised of the details of the
Court’s decision (Australian Hansard, 12 September 1973); a resolution
by which the Court on 24 January 1974 decided to interrogate the Agent
of Australia 2 (the minutes of these conversations were not communicated
to the Respondent and will not be published); the communiqué of
26 March 19743.

I found it contrary to the interests of the Court, in the case of so grave
an incident, one which lays its 1973 deliberation open to suspicion, to
leave that suspicion intact and not to do what is necessary to remove it. L
will merely observe that the crystal-gazing explanation relied on by the
Prime Minister and the Agent’s statements enlarging thereon, with the
attribution of an oracular role to the Australian advisers, brought the
Court no positive enlightenment in its enquiry and should be left to the
sole responsibility of their authors.

1 Communicated to the French Government, by decision of the Court, on 29 March
1974.
2 Documents communicated to the French Government with a letter of 29 March
1974.
3 A letter of 28 February 1974 from the Agent of Australia to the Registrar is to be
reproduced in the Pleadings, Oral Arguments, Documents volume; it is connected with
the interrogation.

45
NUCLEAR TESTS (SEP. OP. GROS) 295

32. Were it maintained that a head of government did not have to
justify to the Court any statements made out of court and that moreover,
even if his statement was regrettable, the harm was done and could not
affect the case before the Court, [ would find these propositions incorrect.
The statement in question concerned a decision of the Court and could
lead to a belief that persons privy to its deliberations had violated their
obligation to keep it secret, with all the consequences that supposition
would have entailed if confirmed.

33. In concluding on 21 March 1974 that it could not pursue the matter
further, and in making this publicly known, the Court stigmatized the
incident and indirectly signified that it could not accept the excuse that
its decisions had been divined, but it recognized that, according to its own
assessment, it was not possible to uncover anything further as to the
origins of the disclosure.

1 voted against this declaration and the closure of the enquiry because
I consider that the investigation should have been pursued, that the
initial results were not inconsequential and could be used as a basis for
further enquiry, especially when not all the means of investigation avail-
able to the Court had been made use of (Statute, Arts. 48, 49 and 50).
Such was not the opinion of the Court, which decided to treat its investi-
gations as belonging to an internal enquiry. My understanding, on the
contrary, was that the incident of the disclosure was an element in the
proceedings before the Court—which is why the absent Respondent was
kept partly informed by the Court, in particular by a letter of 31 January
1974— and that the Court was fully competent to resolve such an incident
by judicial means, using any procedure it might decide to set up (cf. the
Court’s decision on “the competence required to enable [the] functions
[of the United Nations] to be effectively discharged” (C.J. Reports
1949, p. 179)). How could one suppose a priori that pursuit of the enquiry
would have been ineffectual without having attempted to organize such
an enquiry? Even if circumstances suggested that refusals to explain or
evasions could be expected, to note those refusals or evasions would not
have been ineffectual and would have been a form of censure in itself.

34. Symptomatic of the hesitation to get to the bottom of the incident
was the time taken to begin looking into the disclosure: six weeks, from
22 June to 8 August 1973, were to elapse before the issue of the mildest of
communiqués, palliative in effect and not representing the unanimous
views of the Court. For more than six months, all that was produced was
a single paper embodying a documented analysis of the successive press
disclosures on the progress of the proceedings before the Court up to the
dramatic public disclosure of the result and of the Court’s vote by the
Prime Minister on 21 June in Melbourne!. This analysis of facts publicly
known demonstrates how the case was accompanied by a succession of
rumours whose disseminators are known but whose source is not

1 This is one of the documents which the Court, on 13 December 1974, decided to
publish in the Pleadings, Oral Arguments, Documents volume.

46
NUCLEAR TESTS (SEP. OP. GROS) 296

unmasked. On 21 March 1974 the investigation was stopped, and the
various paths of enquiry and deduction opened up by this analysis as also
by the second report will not be pursued.

I consider that the indications and admissions that had already come
to light opened the path of enquiry instead of closing it. A succession of
mistakes, forgettings, tolerations, failures to react against uncalled-for
overtures or actions, each one of which taken in isolation could have been
considered devoid of particular significance, but which assume such
significance by their accumulation and impunity; unwise conversations at
improper moments, of which no minutes exist: all this combines to create
a sense of vagueness and embarrassment, as if a refusal to acknowledge
and seek to unravel the facts could efface their reality, as if a saddened
silence were the only remedy and the sole solution.

35. The harm was done, and has been noted (report of the Court to the
United Nations 1973-1974, para. 23; debate in the Sixth Committee of
the General Assembly, 1 October 1974, A/C.6/SR.1466, p. 6; parliamen-
tary answers by the French Minister for Foreign Affairs on 26 January
1974, Journal Officiel No. 7980, and 20 July 1974, Journal Officiel No.
11260). Even if it is not, at the present moment, possible to discover more
concerning the origin and development of the process of disclosure, as the
Court has stated in its resolution of 21 March 1974, 1 remain convinced
that a judicially conducted enquiry could have elucidated the channels
followed by the multiple disclosures noted in this case, the continuity and
accuracy of which suggest that the truth of the matter was not beyond the
Court’s reach. Such is the meaning of my refusal of the resolution of
21 March 1974 terminating an investigation which was begun with
reluctance, conducted without persistence and concluded without reason.

*
* *

36. Among the lessons to be learned from this case, in which a conflict
of political interests has been clothed in the form of a legal dispute, I
would point to one which I feel to merit special attention. Before these
proceedings were instituted, the General Act, ever since 1939, had been
dwelling in a kind of chiaroscuro, formally in force if one took account
only of express denunciation, but somewhat dormant:

“So far as the General Act is concerned, there prevails, if truth be
told, a climate of indifference or obliviousness which casts some
doubt on its continuance in force, at least where the Act of 1928 is
concerned.” (H. Rolin, L’arbitrage obligatoire: une panacée illusoire,
1959, p. 259.)

After the General Act had, with great elaboration, been presented to
the Court as a wide-open basis of possible jurisdiction, the behaviour of
the States formally considered as parties thereto is noteworthy. The
French Government was the first to denounce the General Act, on
2 January 1974, then on 6 February 1974 the Government of the United

47
NUCLEAR TESTS (SEP. OP. GROS) 297

Kingdom did likewise. The Government of India, since June 1973, has
informed the Court and the United Nations of its opinion as to the
General Act’s having lapsed (see also the new declaration by which India,
on 15 September 1974, accepted the jurisdiction of the Court under
Article 36, paragraph 2, of the Statute). Thus we see that States with sub-
stantial experience of international adjudication and arbitration have
only to note that there is some possibility of the General Act’s being
actually applied, instead of declarations less unreservedly accepting the
jurisdiction of the Court, to announce either (in two cases) that they are
officially putting an end to it or (in the other) that they consider it to
have lapsed. The cause of international adjudication has not been fur-
thered by an attempt to impose the Court’s jurisdiction, apparently for a
formal reason, on States in whose eyes the General Act was, quite clearly,
no longer a true yardstick of their acceptance of international jurisdiction.

Mr. Charles De Visscher had already shown that courts should take
care not to substitute doctrinal and systematized views for the indispen-
sable examination of the intentions of States. This is how he defined the
obligation upon the international judge to exercise reserve:

“The man of law, naturally enough, tends to misunderstand the
nature both of political tensions and of the conflicts they engender.
He is inclined to see in them only ‘the object of a dispute’, to enclose
within the terms of legal dialectic something which is pre-eminently
refractory to reasoning, to reduce to order something wholly con-
sisting of unbridled dynamism, in a word, to try to depoliticize
something which is political of its essence. Here it is not merely a
question, as is all too often repeated, of a deficiency in the mechanism
of law-transformation, or of gaps in the legal regulation of things.
We are dealing with a sphere into which, a priori, it is only excep-
tionally that law penetrates. Law can only intervene in the presence
of elements it can assimilate, i.e., facts or imperatives possessing a
regularity and at least minimum correspondence with a given social
order that enable them to be subjected to reasoned analysis, clas-
sified within some known category, and reduced to an objective
value-judgment capable of serving in its turn as a basis for the
application of established norms.” (Théories et réalités en droit
international public, 1970, p. 96.)

There is a certain tendency to submit essentially political conflicts to
adjudication in the attempt to open a little door to judicial legislation
and, if this tendency were to persist, it would result in the institution, on
the international plane, of government by judges; such a notion is so
opposed to the realities of the present international community that it
would undermine the very foundations of jurisdiction.

(Signed) A. GROS.

48


217

DECLARATION OF JUDGE VERESHCHETIN

Exclusive reliance of the Court on the 1939 decision by Great Britain relating
to the Hawar Islands — Presumed consent by the Rulers of Qatar and Bahrain
as the basis of this reliance — Historical and legal context of the 1939 British
decision — Failure of the Court to assess the substantive legality of the 1939
decision — Disagreement with the Court’s finding on the status of Qit’at Jara-
dah.

1. The core issue of the dispute before the Court is the appurtenance
of the Hawar Islands. Of all the possible grounds for the resolution of
this principal disagreement between the Parties (original title, the prin-
ciple of proximity and territorial unity, effectivités, the principle of uti
possidetis, and the 1939 decision by Great Britain), the Court has
chosen exclusive reliance on the latter. In my view, in the particular
circumstances of the case, reliance on the decision of the former
protecting Power could be possible and legally correct only in com-
bination with recourse by the Court to the principle of uti possidetis,
the essence of which, according to the Court’s jurisprudence, lies “in
its primary aim of securing respect for the territorial boundaries at the
moment when independence is achieved” (Frontier Dispute, Judgment,
LC J. Reports 1986, p. 566).

2. However, the Court has opted to found its Judgment purely on the
presumed consent by the Rulers of Qatar and Bahrain to refer their dis-
pute, which originated in the mid-1930s, to the British Government. Thus
the Judgment of the Court on sovereignty over the Hawar Islands rests
plainly and simply on the decision taken by the British Government in
1939. The Judgment states that the decision was binding at the time it
was taken and “continued to be binding on [Bahrain and Qatar] after
1971, when they ceased to be British protected States” (paragraph 139 of
the Judgment).

3. This characterization by the Court of the 1939 British decision
implies that it was and remains a sort of legally binding third-party
settlement of a territorial dispute between two sovereign States. Of
necessity, this assumption must also imply that the two States under
British protection at the relevant time could freely express their sovereign
will to be legally bound by the British decision. They must actually, in
one form or another, have made their commitments to be legally bound
by this decision. In turn, the British authorities which rendered the
decision must be presumed to be a neutral and impartial “third party”,
acting at the request of the Parties in dispute.

181
218 DELIMITATION AND QUESTIONS (DECL. VERESHCHETIN)

4. To assess the real nature of the presumed “agreement” between
Qatar and Bahrain to the effect “that the issue [of sovereignty over the
Hawar Islands] would be decided by ‘His Majesty’s Government’” (para-
graph 114 of the Judgment) and accordingly to assess the nature
and validity of the British decision, it would be pertinent to look at
the criteria developed in the Institut de droit international, which for a
number of years studied the topic of the distinction between international
texts with or without legal import. The Institute could not come to any
definitive conclusions. Nevertheless, it is interesting to note that its
Rapporteur, Professor M. Virally, in the light of the debates there, in
1982 concluded, inter alia, that:

“The legal or purely political character of a commitment set forth
in an international text of uncertain character depends upon the
intention of the parties as may be established by the usual rules of
interpretation, including an examination of the terms used to express
such intention, the circumstances in which the text was adopted and
the subsequent behaviour of the parties.” (Annuaire de l'Institut de
droit international, 1992, Tableau des résolutions adoptées (1957-
1991), p. 159; emphasis added.)

5. With reference to the above standards of interpretation, one inevi-
tably sees that the circumstances in which the undertakings by the Rulers
of Qatar and Bahrain were assumed were to say the very least not con-
ducive to the genuinely free expression of will and the free choice of a
third party: the recourse to any other State but Britain, or to any inter-
national organ, being practically precluded by the terms of the “special
relationship” existing between Britain and the “protected States”.

6. The Court cannot ignore the historical context in which the “con-
sent” was given. In the past, the British Government repeatedly charac-
terized Bahrain and Qatar as “independent States under the protection of
His Majesty’s Government” (see, for instance, the statement of the
Secretary of State for Foreign Affairs in the House of Commons in 1947,
445 H.C. Deb. (5th Ser.), cols. 1681-1682). However, this characterization
did not accord with the terms of the “Exclusive Agreements” of 1880 and
1892 between Bahrain and Great Britain and of the 1916 “General
Treaty” between Qatar and Great Britain, as well as with less formal
engagements later accepted by the two “protected States” combined with
the practices of the British political residents and agents. Not only all the
foreign relations of the two States were conducted by the United King-
dom, but also many vital areas of the internal life of Bahrain and Qatar
were placed under British control. It was only in the process of decolo-
nization, in 1971, that Bahrain and Qatar attained a full measure of sov-
ereignty, both internal and external.

182
219 DELIMITATION AND QUESTIONS (DECL. VERESHCHETIN)

7. Also, less than clear for determining the nature of the undertakings
are the terms used by the Rulers of Bahrain and Qatar in response to the
initiative taken by Great Britain. Thus, as reflected in the Judgment
(para. 118), on 10 May 1938 the Ruler of Qatar wrote to the British
political Agent to complain that “the Bahrain Government [were] making
interferences at Hawar” and to ask the British to “do what is necessary in
the matter”. One can hardly read into these words a specific commitment
by the Ruler of Qatar to be legally bound by the British actions relating
to the attribution of the disputed Islands. In the later stages of the
process the Ruler of Qatar repeatedly expressed his expectations that
the British Government would approach the matter “in the light of
truth and justice” or “in the light of justice and equity”.

8. Certainly, legal characterization of the British involvement in the
settlement of the dispute was not a matter of special consideration by the
States concerned. For the British authorities it was a matter of course
that they could act on their own authority. For Bahrain and Qatar the
appeal to the British Government was not a choice, it was the only
option, the single avenue open to them. It is regrettable that the Court,
having placed complete reliance on the presumed consent by the Rulers
of Qatar and Bahrain to be legally bound by the British decision, has not
paid due attention to a very revealing document prepared by an official
of the British Foreign Office, who in 1964 arrived at the following conclu-
sion based on a thorough study of the history of the British decision:

“Neither of the two Rulers was asked beforehand to promise his
consent to the award, nor afterwards to give it. H.M.G. simply
‘made’ the award. Although it followed the form of an arbitration to
some extent, it was imposed from above, and no question of its
validity or otherwise was raised. It was quite simply a decision which
was taken for practical purposes in order to clear the ground for oil
concessions.” (Reply of Bahrain, Vol. 2, Ann. 2, p. 4.)

9. As to another criterion for the assessment of international texts of
uncertain character mentioned by the Rapporteur of the Institut de droit
international — the subsequent behaviour of the Parties — the constant
protests of the Ruler of Qatar against the British decision speak for them-
selves. When the British decision was taken it was immediately protested
against by Qatar as “unjust and inequitable”. It was termed by Qatar the
“opinion” of the British Government on the matter and the request was
made that “the question may be considered again and that enquiries may
again be made into it”. The Ruler of Qatar stated that he “reserve[d] for
{himself his] rights to the Hawar Islands until the true position haïd]
become clear” (paragraph 134 of the Judgment).

183
220 DELIMITATION AND QUESTIONS (DECL. VERESHCHETIN)

10. The foregoing does not lead me to conclude that the 1939 British
decision is “null and void” or that it has no impact at all on the present
legal situation, as contended by Qatar in its pleadings before the Court.
I merely wish to say that this decision cannot be viewed as a fully-fledged
third-party legal settlement of the dispute; much less can it be mechani-
cally treated by the Court as if it had the character of res judicata. The
legal effect of this administrative decision of the former protecting Power
(the principle of uti possidetis set aside) cannot be the same in the assess-
ment of the International Court of Justice in 2001 as it could have been
for the two “protected States” at the time of its adoption in 1939, in an
absolutely different legal and political setting. Even with the assumptions
and presumptions of the consent by the Rulers of Bahrain and Qatar, the
Court did not necessarily have to lend its imprimatur to the British deci-
sion without looking into its substantive grounding in law. The so-called
“Bahraini formula”, although not specifically required to do so, did not
exclude a review by the Court of the British decision.

11. The Court should have analysed more deeply not only the formal
procedural aspects of the British decision but also, and especially, whether
it was well founded in law, in other words, the substance of the decision,
and should have rectified it if appropriate. By resorting to the traditional
grounds of territorial attribution, some of which were also the grounds
allegedly relied on by the British authorities, as evidenced by the Weight-
man Report, the Court could have verified and if necessary modified the
1939 British decision before lending its authority to it.

12. The subtle interplay of the principle of proximity, effectivités and
original title (in the absence of one single clearly prevailing ground)
might have led the Court either to confirm or reverse the British decision,
or else to modify it in the manner proposed by a group of judges (see the
joint dissenting opinion of Judges Bedjaoui, Ranjeva and Koroma). In
spite of all the pitfalls and uncertainty involved, such an approach would
have been much less subject to criticism than mere reliance on the admin-
istrative decision of the former “protecting Power”.

13. I regret also being unable to concur with another finding of the
Court relating to the characterization of the maritime feature Qit’at Jara-
dah as “an island” (paragraphs 195 and 252 (4) of the Judgment). The
opposing views of the experts, the absence of any evidence whatsoever to
the effect that Qit’at Jaradah has ever been shown on nautical charts as
an island, the alleged attempts of both States to artificially change the
upper part of its surface, do not allow me to conclude that Qit’at Jaradah
has the legal status of an island as provided for in the 1982 Convention
on the Law of the Sea. In my assessment, this tiny maritime feature (see
paragraph 197 of the Judgment), constantly changing its physical condi-
tion, cannot be considered an island having its territorial sea. Rather, it is

184
221 DELIMITATION AND QUESTIONS (DECL. VERESHCHETIN)
a low-tide elevation, whose appurtenance depends on its location in the
territorial sea of one State or the other. Therefore the attribution of

Qit’at Jaradah should have been effected after the delimitation of the ter-
ritorial seas of the Parties and not vice versa.

(Signed) Vladlen S. VERESHCHETIN.

185


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

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

(BOSNIA AND HERZEGOVINA v. YUGOSLAVIA)

ORDER OF 11 DECEMBER 1998

1998

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE A L’APPLICATION
DE LA CONVENTION POUR LA PREVENTION
ET LA REPRESSION DU CRIME DE GENOCIDE

(BOSNIE-HERZEGOVINE c. YOUGOSLAVIE)

ORDONNANCE DU 11 DECEMBRE 1998
Official citation:

Application of the Convention on the Prevention and Punishment
of the Crime of Genocide, Order of 11 December 1998,
I C.J. Reports 1998, p. 743

Mode officiel de citation:

Application de la convention pour la prévention et la répression
du crime de génocide, ordonnance du 11 décembre 1998,
CLS. Recueil 1998, p. 743

Sales number
ISSN 0074-4441 N° de vente: 7 1 6
ISBN 92-1-070785-0

743

COUR INTERNATIONALE DE JUSTICE

ANNÉE 1998 1998
- 11 décembre
Rôle général
11 décembre 1998 n° 91

AFFAIRE RELATIVE À L’APPLICATION
DE LA CONVENTION POUR LA PRÉVENTION
ET LA RÉPRESSION DU CRIME DE GÉNOCIDE

(BOSNIE-HERZÉGOVINE c. YOUGOSLAVIE)

ORDONNANCE

Présents: M. SCHWEBEL, président; M. WEERAMANTRY, vice-président;
MM. Opa, BEDJAOUI, GUILLAUME, RANJEVA, HERCZEGH,
SHI, FLEISCHHAUER, KOROMA, VERESHCHETIN, M HIGGINS,
MM. PARRA-ARANGUREN,  KOOIMANS, REZEK, juges;
M. ARNALDEZ, greffier adjoint.

La Cour internationale de Justice,

Ainsi composée,
Après délibéré en chambre du Conseil,

Vu Particle 48 du Statut de la Cour et le paragraphe 3 de l’article 44 de
son Règlement,

Vu lordonnance du 17 décembre 1997, par laquelle la Cour a prescrit la
présentation d’une réplique de la Bosnie-Herzégovine et d’une duplique
de la Yougoslavie portant sur les demandes soumises par les deux Parties,
et, compte tenu des vues exprimées par celles-ci, a fixé, respectivement,
au 23 janvier 1998 et au 23 juillet 1998 les dates d’expiration des délais
pour le dépôt de la réplique et de la duplique,

Vu lordonnance du 22 janvier 1998, par laquelle le président de la
Cour a reporté au 23 avril 1998 la date d’expiration du délai pour le

4
APPLICATION DE CONVENTION GENOCIDE (ORD. 11 XII 98) 744

dépôt de la réplique de la Bosnie-Herzégovine et au 22 janvier 1999 la
date d’expiration du délai pour le dépôt de la duplique de la Yougoslavie,

Vu la réplique déposée par la Bosnie-Herzégovine dans le délai ainsi
prorogé;

Considérant que, par lettre datée du 27 novembre 1998 et parvenue au
Greffe le même jour par télécopie, l’agent de la Yougoslavie a prié la
Cour de reporter au 22 avril 1999 la date d’expiration du délai pour le
dépôt de la duplique de son gouvernement et a indiqué les raisons à
l’appui de cette demande; et considérant que le greffier adjoint, se réfé-
rant au paragraphe 3 de l’article 44 du Règlement, a immédiatement
transmis copie de cette lettre à l'agent de la Bosnie-Herzégovine;

Considérant que, par lettre datée du 9 décembre 1998 et parvenue au
Greffe le même jour par télécopie, l’agent adjoint de la Bosnie-Herzégo-
vine a fait savoir que la Bosnie-Herzégovine estimait, pour les raisons
exposées dans ladite lettre, que la Cour ne devait accorder aucune pro-
rogation de délai,

Reporte au 22 février 1999 la date d’expiration du délai pour le dépôt
de la duplique de la Yougoslavie;
Réserve la suite de la procédure.

Fait en anglais et en français, le texte anglais faisant foi, au Palais de la
Paix, à La Haye, le onze décembre mil neuf cent quatre-vingt-dix-huit, en
trois exemplaires, dont l’un restera déposé aux archives de la Cour et les
autres seront transmis respectivement au Gouvernement de la Bosnie-
Herzégovine et au Gouvernement de la République fédérale de Yougo-
slavie.

Le président,
(Signé) Stephen M. SCHWEBEL.

Le greffier adjoint,
(Signé) Jean-Jacques ARNALDEZ.