COUR PERMANENTE DE JUSTICE INTERNATIONALE

SERIE AIB
ARRETS, ORDONNANCES ET AVIS CONSULTATIFS

FASCICULE N° 52

AFFAIRE RELATIVE A L'ADMINISTRATION

DU PRINCE VON PLESS
(EXCEPTION PRÉLIMINAIRE)

ORDONNANCE DU 4 FÉVRIER 1933
XXVIme SESSION

1933

XXVIth SESSION
ORDER OF FEBRUARY 4th, 1933

PERMANENT COURT OF INTERNATIONAL JUSTICE

SERIES A./B.
JUDGMENTS, ORDERS AND ADVISORY OPINIONS

FASCICULE No. 52

CASE CONCERNING THE ADMINISTRATION

OF THE PRINCE VON PLESS
(PRELIMINARY OBJECTION)

SOCIETE D’EDITIONS A. W. SIJTHOFF’S

LEYDE LEYDEN
A. W. SIJTHOFF PUBLISHING COMPANY
II

PERMANENT COURT OF INTERNATIONAL JUSTICE
1933-
February 4th.
General List:
Nos. 49 and 55.

ORDER MADE ON FEBRUARY 4th, 1933.

TWENTY-SIXTH (EXTRAORDINARY) SESSION.

February 4th, 1933.

CASE CONCERNING THE ADMINISTRATION
OF THE PRINCE VON PLESS
(PRELIMINARY OBJECTION)

Present : MM. ADATCI, President ; GUERRERO, Vice-President ;
Baron ROLIN-JAEQUEMYNS, Count RosTwoRowskI,
MM. FROMAGEOT, ANZILOTTI, URRUTIA, Sir CECIL Hurst,
MM. SCHÜCKING, NEGULESco, Jhr. VAN EvysINGa,
M. Wana, Judges.

The Permanent Court of International Justice,

composed as above,

after deliberation,

having regard to Articles 40 and 48 of the Statute,

having regard to Articles 33, 35, 38 and 40 of the Rules
of Court,

Makes the following Order :
WITH REGARD TO THE PRESENT POSITION OF THE PROCEEDINGS :

Whereas, by an Application dated May r8th, 1932, and trans-
mitted to the Registrar of the Court in a letter from the
German. Minister at The Hague of the same day, the Govern-
ment of the German Reich brought before the Permanent
Court of International Justice a suit against the Government

4
PRINCE VON PLESS ADMINISTRATION 12

of the Republic of Poland, founded on an alleged violation by
the Polish Government of certain obligations incumbent upon
that Government under the Geneva Convention of May 15th,
1922, concerning Upper Silesia, in regard to the Adminis-
tration of the Prince von Pless, a Polish national belonging
to the German minority in Polish Upper Silesia ;

Whereas in its Application, to which various annexes were
appended, the German Government formulates the subject of
the dispute in the following submissions :

“May the Court be pleased. .... to give judgment....

(x) that the attitude of the Polish Government and authorities
towards the Pless Administration in the matter of income taxes
for the fiscal years 1925-1930—especially as regards the application
of the procedure by default, the accumulation of the amounts due
over several fiscal years, the interpretation and application of the
provisions concerning depreciation and the non-taxation of charges
relating to the acquisition, maintenance and security of revenue,
together with the revaluation of items in the balance sheets—is in
conflict with Articles 67 and 68 of the Geneva Convention ;

(2) that acts of the fiscal authorities in conflict with the
aforementioned provisions are, according to Article 65 of the
Geneva Convention, null and void; ~

(3) that the Polish Government is bound to indemnify the
Prince von Pless for the damage resulting from the attitude
referred to in (2) above, and that the applicant Government shall
subsequently be given an opportunity of stating the figure claimed
for this indemnity ;

(4) that the Pless Administration enjoys full liberty to appoint
its employees and. workmen, regardless of race and language,
without being exposed in this connection to any pressure whatever
from the Polish Government and authorities” ;

Whereas the time-limits for the presentation of the docu-
ments of the written proceedings were, after successive exten-
sions, fixed so that the period allowed to the German Govern-
ment for the presentation of its Case expired on July 22nd,
1932, and the period allowed to the Polish Government for the
presentation of its Counter-Case expired on October roth, 1932;

Whereas the German Government duly filed its Case within
the prescribed time; and whereas, at the request of the Court,
it also submitted a series of additional documents in support
of the Case; but whereas the said Case merely refers back to
the Application and does not, as required by Article 40 of the
Rules, formulate the submissions of the German Government ;

Whereas, by a document, accompanied by a Preliminary
Counter-Case, filed with the Registry on October 8th, 1032,

5
PRINCE VON PLESS ADMINISTRATION . 13

the Government of the Polish Republic raised, under Article 38
of the Rules, a preliminary objection to the German Govern-
ment’s Application, submitting that the Court should “declare
the German Government’s Application inadmissible” ;

Whereas, in view of the preliminary objection of the Polish
Government, the Court fixed October 31st, 1932, as the date
by which the German Government might present its observa-
tions and conclusions in writing in regard to the said objection ;
© Whereas, on October 31st, 1932, the German: Government
filed a statement, asking the Court to “overrule the objection
raised by the Polish Government; to declare the Application
admissible ; and to retain it for judgment on the merits” ;

Whereas, on November 7th, oth, roth and rith, 1932, at
public sittings of the Court, Professor Dr. Erich Kaufmann,
the Agent appointed by the German Government, M. Th.
Sobolewski, Principal Legal Adviser to the Polish Department
of State Litigation, Agent appointed by the Polish Government,
and Professor Gaston Jéze, Counsel for the Polish Govern-
ment, presented oral arguments on behalf of the respective
Parties upon the above-mentioned preliminary objection ;

AS REGARDS THE PRELIMINARY OBJECTION :

Whereas the German Government, in instituting the present
proceedings, has founded itself on Article 72, paragraph 3, of
the Convention of Geneva, by which Poland agrees that any
difference of opinion as to questions of law or of fact arising
out of the preceding articles between the Polish Government
and any one of the Principal Allied and Associated Powers, or
any other Power, a Member of the Council of the League of
Nations, shall be held to be a dispute of an international
character under Article 14 of the Covenant of the League
of Nations; and agrees that any such dispute shall, if the
other Party thereto demands, be referred to the Permanent
Court of International Justice ;

Whereas the preliminary objection filed by the Polish
Government under Article 38 of the Rules of Court, submitting
that the Court should declare the German Government’s
Application inadmissible, is based on the reasons set forth in
the Preliminary Counter-Case which accompanied the said
objection ;

Whereas the Polish Government maintains, in the first
place, that between the German and Polish Governments there
exists no difference of opinion within the meaning of Article 72,
paragraph 3, of the Geneva Convention ;

Whereas, in order to determine whether such a difference
does or does not exist, it is necessary to determine what is

6
PRINCE VON PLESS ADMINISTRATION 14

the subject of the dispute; whereas, under Article 40 of the
Statute, it is the Application which sets out the subject of
the dispute, and the Case, though it may elucidate the terms
of the Application, must not. go beyond the limits of the claim
as set out therein;

Whereas, in submission No. x of its Application instituting
proceedings, the German Government enumerates certain acts
for which it alleges that the Polish Government is responsible,
and which, in the German Government’s view, constitute an
attitude on the part of the Polish Government and authorities
towards the Administration of the Prince von Pless inconsistent
with Articles 67 and 68 of the Geneva Convention ; whereas,
however, the said enumeration, which is prefaced by the
word “especially”, is not exhaustive in character, and does
not purport to be complete;

Whereas, on the other hand, in submission No. 4 of the
Application, no specific act is indicated as constituting a
violation of the Geneva Convention; whereas an examination
of the German Application raises the question what is the
relation between submission No. 4 and submissions Nos. I to 3
of the Application, and, in particular, whether the said sub-
mission No. 4 is intended to refer to the same acts as those
envisaged in submission No. 1; and whereas this point may
be of considerable importance in determining the existence and
scope of a difference of opinion between the two Governments
within the meaning of Article 72, paragraph 3, of the Geneva
Convention ;

Whereas, moreover, the Polish Government maintains that
the acts mentioned in submission No. 1 of the Application
relate only to a dispute between the Polish Treasury and the
Prince von Pless as a tax-payer; whereas it states that
it is in agreement with the German Government as regards
the principle enunciated in submission No. 4 and denies
that that principle has been violated or disregarded by it;
whereas, on the other hand, the German Government appears
to regard the acts mentioned in submission No. I as
means used by the Polish Government of bringing unlawful
pressure to bear upon the Prince von Pless; and as, accord-
ingly, the question whether there is a difference of opinion,
within the meaning of Article 72, paragraph 3, of the Geneva
Convention, appears to be inextricably bound up with the
facts adduced by the Applicant and can only be decided on
the basis of a full knowledge of these facts, such as can only
be obtained from the proceedings on the merits ;

Whereas the German Government, in submission No. 3 of its
Application, asks the Court to decide that the Polish Govern-
ment is bound to indemnify the Prince von Pless for the

7
PRINCE VON PLESS ADMINISTRATION 15

damage resulting from the attitude referred to in submission
No. 2 and asks to be given at a later date an opportunity
of stating the figure claimed for this indemnity ;

Whereas the claim thus made raises a question regarding
the Court’s jurisdiction, and as this question is connected
with another, namely, whether, on the basis of Article 72,
paragraph 3, of the Geneva Convention, a State, in its
capacity as a Member of the Council, may claim that an
indemnity be awarded to a national of the respondent State,
who is a member of a minority; and as the latter question—
which the Court feels called upon to raise proprio motu—
concerns the merits, the Court cannot pass upon the question
of jurisdiction until the case has been argued upon the merits;

Whereas the Polish Government maintains, in the second
place, that the Application is inadmissible so long as the Prince
von Pless has not exhausted the means of redress open to
him under Polish law ;

Whereas, in support of the complaints lodged by the
German Government against the Polish Government, a number
of decisions given by the Polish authorities against the Prince
von Pless relating to taxes payable by him are cited;

But whereas no final decisions have been given ;

Whereas, in fact, on February 3rd and 4th and May roth,
tath and 14th, 1030, the Prince von Pless appealed to the
“Revising Commission” against the amounts of tax for which
he had been assessed for the years 1925-1929 by the authority
of first instance (the ‘‘Assessment Commission’); and as the
decisions of the Revising Commission were given on July 11th
and 14th, November rath and 15th, and December 2oth, 1030;

Whereas, by a decree of August 21st, 1931, the Polish
Minister of Finance “annulled the decisions of the Revising
Commission whose duty it was to examine the question of the
Prince von Pless’s income-tax for the years 1925-1929” 1 and
“ordered a further enquiry with a view to modifying certain
figures which had previously been included in the list of
taxable income” ;

Whereas new decisions by the Revising Commission upon
the appeals of the Prince von Pless against his assessments
by the Assessment Commission for 1925-1929 were given on
March roth, 1932; whereas, on April roth, 2oth, 26th and
May oth and roth, 1932, the Prince von Pless appealed to
the Supreme Polish Administrative Tribunal against these
decisions ;

1 This passage is rendered as follows in the English version of the Minutes
of the Council of the League of Nations (meeting of Sept. roth, 1931,
65th Session) “.... the Commission of Enquiry appointed to examine....’’.

8
PRINCE VON. PLESS ADMINISTRATION 16

Whereas the German Government maintains that the rule
as to the exhaustion of internal means of redress does ‘not
apply in this case ;

Whereas the German Government intends to rely on certain
alleged violations of the Polish fiscal laws, and as it is these
violations which have caused the Prince von Pless to bring
the appeals above mentioned ;

Whereas the Court does not consider it necessary to pass
upon the question of the applicability of the principle as to
the exhaustion of internal means of redress in the present
Order since, in any event, it will certainly be an advantage to
the Court, as regards the points which have to be established
in the case, to be acquainted with the final decisions of the
Supreme Polish Administrative Tribunal upon the appeals
brought by the Prince von Pless and now pending before
that Tribunal; and as the Court must therefore arrange its
procedure so as to ensure that this will be possible ;

Whereas it is desirable that the Agent for the Polish Govern-
ment should be enabled, when preparing his Counter-Case on
the merits, to take these final decisions into account;

Whereas, however, the foregoing must. not be allowed to
interfere with the operation of the provisions of Part III,
Head I, of the Geneva Convention ;

Whereas, accordingly, the German Government—the Applic-
ant—must be given an opportunity of submitting to the
Court that there has been an unwarrantable delay by the
Supreme Polish Administrative Tribunal in rendering these
decisions—though the Court will reserve judgment upon this
point until after it has heard argument by the two Parties;

THE CourRT,

(x) joins the preliminary objection raised by the Polish
Government to the merits of the suit concerning the Admin-
istration of the Prince von Pless in order to pass upon the
objection and, if the latter is overruled, upon the merits, by
means of a single judgment ;

(2) raises proprio motu the question whether the Court has
jurisdiction to entertain a claim for an indemnity put forward
by a State, in its capacity as Member of the Council, on the
basis of Article 72, paragraph 3, of the Geneva Convention, on
behalf of a national of the respondent State who is a member
of a minority ;

(3) fixes as follows the time-limits for the filing of the documents
of the written proceedings on the merits:

(a) for the filing of the Counter-Case by the Polish Govern-
ment: August r5th, 1933;

9
PRINCE ‘VON _PLESS ADMINISTRATION 17

(6) for the filing of the Reply by the German Government :
September 15th, 1933;

(c) for the filing of the Rejoinder by the Polish Govern-
ment: October 315th, 1933;

(4) decides that, should the Agent for the Polish Govern-
ment ask—in conformity with Article 33 of the Rules—for an
extension of the time-limits fixed under (3), on the ground
that the Supreme Polish Administrative Tribunal has not, by
July ist, 1933, pronounced judgment upon the appeals of the
Prince von Piless filed on April 1gth, zoth and 26th and
May oth and roth, 1932, it will give effect to such request and
fix new time-limits ;

(5) decides that, should the Agent for the German Govern-
ment, after July rst, 1933, and having regard to any request for
an extension made by the Polish Government’s Agent, submit a
request for the fixing of time-limits based on the contention
that there has been an unwarrantable delay in the delivery
of the said decisions by the said Supreme Tribunal, and that this
is calculated to prejudice the proper operation of the provisions
of Part III, Head I, of the Geneva Convention, it will,
notwithstanding the decision recorded under (4) above, consider
such request after duly hearing both Parties.

Done in French and English, the French text being author-
itative, at the Peace Palace, The Hague, this fourth day of
February, one thousand nine hundred and thirty-three, in
three copies, one of which shall be deposited in the archives
of the Court and the others transmitted to the Government
of the German Reich and to the Government of the Polish

Republic respectively.

(Signed) M. ApaTct,
. President of the Court.

(Signed) À. HamMarsKJOLD,
Registrar of the Court.

10


25

ANNEXES A L’AVIS N° 13

A. — PIÈCES TRANSMISES PAR LE SECRÉTAIRE GÉNÉRAL, DE LA SOCIÉTÉ DES
NATIONS EN DATE DU I7 AVRIL 1926, CONFORMÉMENT A LA RÉSOLUTION
ADOPTÉE PAR LE CONSEIL DE LA SOCIÉTÉ DES NATIONS LE 17 MARS 1926:

Copie. certifiée conforme de l’avant-projet, de convention sur le
travail de nuit dans les boulangeries, adopté en 1924 par un vote
provisoire de la Conférence internationale du Travail lors de sa
sixième session (en français et en anglais).

Copie certifiée conforme du projet de convention concernant le
travail de nuit dans les boulangeries, adopté en 1925 par la Confé-
rence internationale du Travail lors de sa septième session (en
français et en anglais).

Comptes rendus imprimés de la sixième session de la Conférence
internationale du Travail (en français et en anglais).

Comptes rendus imprimés de la septième session de la Confé-
rence internationale du Travail (en français et. en anglais).

Extraits certifiés conformes des procès-verbaux de la trentitme
session du Conseil d’administration du Bureau international du
Travail (5me et ome séances).

B. — PIÈCES TRANSMISES PAR LA FEDERATION SYNDICALE INTERNATIONALE
EN ANNEXE AU MÉMOIRE DÉPOSÉ PAR CETTE ORGANISATION :

I. — Sommaire de deux manifestes contre le travail de nuit dans
les boulangeries, adoptés par le Congrés international des
ouvriers boulangers à Cologne, 14 et 15 octobre 1922 (en
frangais et en anglais).

II. — Texte de la résolution pour le maintien de l'interdiction
et la compléte disparition du travail de nuit dans les bou-
langeries, adoptée par le Congrés international des ouvriers
boulangers à Berne, 23 avril 1924 (en français et en anglais).

TI. — Informations sociales, vol. XVI, n° 4 (en français et en anglais) bd
IV. — Rapport sur le travail de nuit dans les boulangeries. Bureau
international du Travail, Genève, 1924 (en français et en

anglais).

V..— Lettre du Directeur de la Capitale fédérale Vienne a toutes

les autorités politiques municipales d’arrondissement à la

date du 1o février i923 (en français, en anglais et en alle-
mand). ‘

VI. — Rapport sur la situation en Hollande en regard au travail
de nuit dans les boulangeries (en français et en anglais).
20

AVIS CONSULTATIF N° 13

VII. — Revue internationale de la Boulangerie, 1ère année, n° 1,

novembre 1924.

VIII. — Lettre originale de l’Union centrale ‘des corporations de

boulangers allemands Germania à M. Jean Schifferstein,
Zürich, 4, Kôrnerstrasse 12, à la date du 1o mars 1926
(en français, en anglais et en allemand).

VIII a..— Discours prononcé par M. Heinrich Müller à la sixième ses-

sion de la Conférence internationale du Travail (en alle-
mand).

IX. — Lettre originale du Syndicat patronal des petites et moyennes

boulangeries de l'Ile-de-France aux sénateurs, à la date du
10 avril 1926 (en français et en anglais).

© X. — Contrat original d'association entre Mme Vve Darribehaude,

d’une part, et MM. Sampieri Camille et Bergeron Gilbert, d’autre
part, à la date du 31 août 1922 (en français et en anglais)

C. — Prèces TRANSMISES PAR L'ORGANISATION INTERNATIONALE DES EM-
PLOYEURS INDUSTRIELS :

Consultation donnée par MM. Berthélémy, Le Fur et Julliot

de la Morandière.

Consultation donnée par sir Leslie Scott et M. E. J. Rimmer.

D. — DossIER COMPLÉMENTAIRE MIS A LA DISPOSITION DE LA COUR PAR LE
DIRECTEUR. DU BUREAU INTERNATIONAL DU TRAVAIL :

I. —

6. —

7 —

Texte des projets de convention et des recommandations adoptés
par la Conférence internationale du Travail au cours de ses
sept premières sessions (en français et en anglais).

Questionnaire relatif au travail de nuit dans les boulangeries,
adressé par le Bureau international du Travail aux gouvernements
avant la sixième session de la Conférence du Travail (en français
et en anglais).

Rapport et rapport supplémentaire relatifs au travail de nuit
dans les boulangeries, établis d’après les réponses des gouverne-
ments au questionnaire du Bureau international du Travail
(en français et en anglais).

Rapport destiné à la septième session de la Conférence et conte-
nant les amendements proposés par les gouvernements à l'avant-
projet de convention sur le travail de nuit dans les boulangeries,
adopté provisoirement par la Conférence à sa sixième session
(en français et en anglais).

État des ratifications de la Convention sur l'emploi de la céruse
dans la peinture à la date du 1€ mai 1926.

Tableau relatif à la législation de divers pays sur le travail de
nuit dans les boulangeries.

Collection d'exemples de restrictions apportées par la loi à la
liberté professionnelle des employeurs.


451

SEPARATE OPINION OF JUDGE FORTIER

Challenge of eighty-two (82) Qatari documents by Bahrain — Decision by
Qatar to disregard “non-authentic documents” — History of eighty-two (82)
documents including impact on Qatari claim to Hawar Islands — Qatar’s new
argument — Potential damage to administration of international justice.

Sovereignty over Zubarah — Review of 1868 to 1916 documents — Burden of
proof — Naim presence in Zubarah — Allegiance of nomadic tribes as basis of
title — Events of 1937 — Acts of conquest and change of title in 1937 — Pro-
test of forcible taking in pre-United Nations Charter days — Effect of principle
of stability — Competency of Court.

Janan Island and 1939 British decision — Janan Island as part of the Hawars
Context and interpretation letters of 23 December 1947.

Maritime delimitation — Reservations.
PRELIMINARY ISSUE

1. Before I write my separate opinion in respect of Zubarah and Janan
Island, I wish to address one important issue which has arisen in the
course of the present proceedings and which, I believe, should have been
commented upon in the Judgment. Since the Court chose not to address
this issue, I have decided that it was my duty to do so. I refer to the
82 Qatari documents whose authenticity was successfully challenged by
Bahrain.

2. The only reference to the 82 documents in the Judgment is found in
paragraphs 15 to 23 of the section setting out the history of the proceed-
ings before the Court. It consists of a mere narrative. I am of the view
that this extraordinary incident merits the following comments.

3. When Qatar made its Application to the Court in July 1991, it
based its principal contentions in support of its claim to the Hawar
Islands on these 82 documents. When Qatar filed its Memorial in Sep-
tember 1996, its Annexes included these 82 documents. These documents
played an essential role in Qatar’s Memorial, serving as almost the only
basis for Qatar’s claim to the Hawar Islands as well as, to a lesser degree,
the Zubarah region. Once the authenticity of these essential docu-
ments was challenged by Bahrain, Qatar did not abandon its claim to
the Hawar Islands. It adduced a new argument, which was not even
developed in its original Memorial as an alternative argument.

415
452 DELIMITATION AND QUESTIONS (SEP. OP. FORTIER)

4. I believe that the Court should not simply disregard and fail to take
into consideration this unprecedented incident. In my opinion, these
documents have “polluted” and “infected” the whole of Qatar’s case
(CR 2000/11, pp. 12 and 14).

5. Some of them resurface, directly or indirectly, at various stages of
Qatar’s written and oral pleadings. They remain in the record and some
of them linger and are invoked occasionally in support of Qatar’s alter-
native argument.

6. While I must accept, as I do, Qatar’s disclaimer and apologies, in
my opinion I cannot consider Qatar’s case without having in mind the
damage that would have been done to the administration of international
justice, indeed to the very position of this Court, if the challenge by
Bahrain of the authenticity of these documents had not led Qatar,
eventually, to inform the Court that it had “decided [to] disregard all
the 82 challenged documents for the purposes of the present case”.

7. In my consideration of Qatar’s case, I cannot ignore the history of
these documents. Qatar’s case today is not the same case as it was when
it was first set out in the Claimant’s Memorial in September 1996. The
manner in which the Qatari claim to the Hawar Islands has been
developed before the Court has changed fundamentally since the Qatar
Memorial and Counter-Memorial. What has happened has a direct
bearing on the substance of various important aspects of the case.

8. I note that the introduction to Qatar’s Counter-Memorial contained
a summary of what it called “the central elements” of its case and
asserted that Qatar’s evidence had achieved the following:

— one, it had “demonstrated” the territorial integrity of Qatar as com-
prising the whole peninsula and the Hawar Islands;

— two, it “showed” that this alleged territorial integrity was recognized
“at least” since the mid-nineteenth century by Britain, the Ottoman
Empire, local rulers, and indeed Bahrain;

— three, it had “shown” the worthlessness of Bahrain’s evidence in sup-
port of its successful defence of the Hawar Islands in the arbitration
that resulted in the British Award of 1939; and

— four, it had “provided evidence” of Qatar’s own “acts of sovereignty”
on the Hawar Islands (Counter-Memorial of Qatar, paras. 1.2-1.8).

9. I observe that all these “central elements” of Qatar’s case depended
on the use of the 82 documents. These documents were later abandoned
by Qatar.

10. As I noted earlier, Qatar then adopted a new argument to support
the maintenance of its claim to the Hawar Islands. Conduct and effec-
tivité having been abandoned, Qatar’s title to the Hawar Islands now
rests on original title and proximity. Why was this new argument, if it has
the merit that Qatar now claims for it, not developed in Qatar’s original
Memorial at the very least as an alternative line of approach? Qatar
never answered that question.

416
453 DELIMITATION AND QUESTIONS (SEP. OP. FORTIER)

11. With these observations, I end my comments on the 82 challenged
documents and close that chapter. I believe that the Court, in considering
the Parties’ conflicting versions of the facts in this case, had a duty to do
more than merely narrate the Parties’ respective exchange of letters fol-
lowing Bahrain’s challenge of the authenticity of 82 documents which
loomed as central to Qatar’s case. I regret that it elected not to do so.

ZUBARAH

12. While I voted in favour of the Court’s Judgment that the State of
Qatar has sovereignty over Zubarah, I reach my conclusion for reasons
different from those set out in the Judgment.

In my view, the documents originating between 1869 and 1916 on
which Qatar relies in support of its claim to Zubarah and which the
Court found dispositive do no such thing. By 1916, Bahrain had not lost
its title to Zubarah on the Qatar peninsula.

13. In paragraph 5 of its Application to the Court in July 1991, Qatar
represented that: “until 1868, the Qatar peninsula was considered by the
British as a dependency of Bahrain”. This admission by Qatar permits
me to observe at the outset of my separate opinion that, at least until
1868, the entirety of the Qatar peninsula was subject to Bahrain’s sov-
ereignty; this obviously included Zubarah.

14. The question which I set out to resolve is: how, where, when and
in what degree did Bahrain lose its title to the peninsula, including, more
particularly, Zubarah? Qatar has the burden of proof in respect of this
question. Having reviewed the evidence I have reached the conclusion
that it has not discharged its burden.

15. Qatar, in support of its claim to Zubarah, has relied on a series of
documents originating between 1868 and 1916. I will refer to these docu-
ments, in turn.

16. Having reviewed the 1868 Agreements, I find no basis whatsoever
on which I could conclude that, by virtue of these Agreements, Bahrain’s
authority in the Qatar peninsula ended in 1868.

17. The history of the period from 1868 to 1916 consists of a complex
web of relations between the Turks, the British, the Sheikhs of Bahrain,
the leaders of the Al-Thani family and many tribes in the east and north
of the Qatar peninsula. Having reviewed the record before the Court,
I find nothing in it to suggest that, during this period, the Sheikhs of
Bahrain abandoned their claims to Zubarah. I note, in particular, that
in its Memorial and Counter-Memorial, Qatar relied on a number of
documents originating during this period as supportive of its claim to
Zubarah. Many of these documents have been acknowledged as “non-
authentic”.

18. Before the departure of the Ottomans in 1915, Great Britain and

417
454 DELIMITATION AND QUESTIONS (SEP. OP. FORTIER)

Turkey concluded the unratified 1913 Anglo-Turkish Convention and the
1914 Treaty. Counsel for Qatar has referred the Court to Article 11 of the
unratified 1913 Anglo-Turkish Convention (CR 2000/22, p. 18, para. 40).
That Article includes the provision that “the said peninsula shall be gov-
erned, as heretofore, by Sheikh Jasim-bin-Sani and his successors”. I see
nothing in that clause or, indeed, anywhere in the document that amounts
to recognition of an independent State of Qatar existing throughout the
peninsula. The crucial words are that the peninsula shall be governed “as
heretofore” by the Al-Thani. The evidence before the Court is over-
whelming: the prior governance of the peninsula (prior to 1913) by the
Al-Thani did not extend to large parts of the peninsula, including Zuba-
rah. I fail to see how Qatar can rely on the text of the 1913 Agreement as
evidence of its title to Zubarah. In any event, the unratified 1913 Treaty
cannot create a title.

19. Did the 1914 Treaty amount to recognition of a State of Qatar as
of that date? Having reviewed the Treaty carefully, I find nothing in it to
suggest recognition of the political status of the territory of El-Katr or
the area of authority of those who governed part of it.

20. I come now to consider the 1916 Agreement. Does it demonstrate
the loss by Bahrain of its title to Zubarah, in favour of Qatar? The Court
has been referred by Qatar to Articles X and XI of that Agreement. By
virtue of Article X, the British Government undertook to protect the
Ruler, his subjects and his territory from aggression. By virtue of
Article XI, Britain also undertook to grant the Ruler its good offices
should he or his subjects be assailed by land within the territory of
Qatar. In neither of these articles or, indeed, anywhere in the Treaty,
was any definition given of this “Territory”. Nowhere in the 1916
Agreement can I find an acknowledgment of Qatar’s status or of title to
the Qatar peninsula, in particular, Zubarah.

21. I conclude that Qatar has not discharged its burden of proof
and that the evidence is clear: by 1916, Bahrain had not lost its title to
Zubarah on the Qatar peninsula.

22. Before I come to certain events in 1937 which are crucial to my
conclusion on which Party has sovereignty over Zubarah today, I will
review briefly two important facets of the present case:

(i) May a Ruler establish or maintain his title in territories having cer-
tain characteristics through tribes swearing allegiance to him?

(ii) May the ties between the Ruler of Bahrain and the Naim Tribe be

characterized as ties of allegiance capable of serving as the basis of a
claim by Bahrain to sovereignty over Zubarah?

I will deal with these two questions together.

418
455 DELIMITATION AND QUESTIONS (SEP. OP. FORTIER)

23. I believe that the evidence before the Court is sufficient to establish
a regular and consistent Naim presence in the Zubarah region, at the very
least from 1868 to 1937. That the Naim and the Al-Khalifah had a rela-
tionship is uncontroverted (see Reply of Bahrain, pp. 124-126). Does the
allegiance of the Naim tribes that inhabited the northwest of the Qatar
peninsula and who remained loyal to Bahrain and the Ai-Khalifah
throughout the relevant period confirm Bahrain’s title over the Zubarah
region? Qatar has argued forcefully that there was no such allegiance and
that, in any event, allegiance of nomadic tribes such as the Naim in the
Gulf region cannot create title.

24. In areas such as the Zubarah region, where the pattern of habita-
tion was nomadic and boundaries were not drawn formally, are the ties
of allegiance referred to above capable of serving as the basis of a claim
by Bahrain to sovereignty over Zubarah? I believe so.

25. International law recognizes that in certain territories that are pos-
sessed of exceptional circumstances such as low habitability, of which the
Zubarah region is undoubtedly one, a Ruler might establish and main-
tain title to his territory by manifestations of dominion or control through
tribes who gave him their allegiance and looked to him for assistance.

26. In the Dubai/Sharjah Arbitration, which involved a border dispute
between neighbours of the Parties to the present case, this basis of title
received legal approbation. The Tribunal observed as follows:

“until the mid-twentieth century this region was largely desert and
sparsely populated. Except for the coastal fringe, the population was
nomadic or semi-nomadic and for such people the modern concept
of ‘boundary’ or ‘frontier’ had no meaning. They were concerned
only with areas or localities within which they moved from place to
place.

The tribes owed allegiance to a Ruler. The form of allegiance
varied, but might, for instance, involve the payment of the religious
tax known as ‘zakat’. The link between a tribe and a Ruler might be
close or tenuous, dependent on the degree of independence mani-
fested by the people concerned. It was, however, by way of this alle-
giance that a Ruler was able to exercise a form of sovereignty over a
region where nomadic tribesmen were regularly moving from place
to place. There was no direct control by a Ruler over a given terri-
tory but a control exercised through the tribal system, which might
indeed, if a particular tribe displayed a high degree of independence,
become more or less theoretical. Mr. Morsy Abdullah has very well
summarised the position in these words:

‘Political boundaries were dependent on tribal loyalties to par-
ticular shaikhs and consequently were subject to frequent change.
Therefore, the frontier between the Trucial States and the Sultan-
ate of Muscat and the inter-state boundaries changed frequently

419
456

DELIMITATION AND QUESTIONS (SEP. OP. FORTIER)

during the nineteenth and twentieth centuries as it was based on
the dirah of the tribes. Dirah in Arabia at this time was a flexibly
defined area, changing in size according to the strength of the tribe
which wandered within it. In addition, a tribe’s loyalty was deter-
mined by its own interests and could, and at this time often did,
alter.’

The term ‘dirah’ indicates a region within which a nomadic people
moves. The term ‘haram’ means, however, an area in the vicinity of
a town or settlement upon which such town or settlement has a
claim of exclusive rights for the purpose of obtaining the necessities
of its existence.” (DubailSharjah Border ( Award), International Law
Reports, Vol. 91, pp. 587-588.)

27. The tribal dirah of Zubarah was the home of the Naim tribe
during the relevant period and it remained so until the events of
1937 (Memorial of Bahrain, Sect. 2.1; Counter-Memorial of Bahrain,
Sect. 2.2. See also Map 5 in Annex 7 of Memorial of Bahrain).

28. Inthe Western Sahara case, the Court considered different regional
concepts of sovereignty as basis for territorial sovereignty in international

law.

420

The Court said:

“Morocco requests that, in appreciating the evidence, the Court
should take account of the special structure of the Sherifian State.
No rule of international law, in the view of the Court, requires the
structure of a State to follow any particular pattern, as is evident
from the diversity of the forms of State found in the world today.
Morocco’s request is therefore justified. At the same time, where
sovereignty over territory is claimed, the particular structure of a
State may be a relevant element in appreciating the reality or other-
wise of a display of State activity adduced as evidence of that sov-
ereignty.

That the Sherifian State at the time of the Spanish colonization of
Western Sahara was a State of a special character is certain. Its spe-
cial character consisted in the fact that it was founded on the com-
mon religious bond of Islam existing among the peoples and on the
allegiance of various tribes to the Sultan, through their caids or
sheikhs, rather than on the notion of territory . . . Political ties of
allegiance to a ruler, on the other hand, have frequently formed a
major element in the composition of a State. Such an allegiance,
however, if it is to afford indications of the ruler’s sovereignty, must
clearly be real and manifested in acts evidencing acceptance of his
political authority. Otherwise, there will be no genuine display or
exercise of State authority. It follows that the special character of the
Moroccan State and the special forms in which its exercise of sov-
ereignty may, in consequence, have expressed itself, do not dispense
the Court from appreciating whether at the relevant time Moroccan
457 DELIMITATION AND QUESTIONS (SEP. OP. FORTIER)

sovereignty was effectively exercised or displayed in Western
Sahara.” (Western Sahara, Advisory Opinion, 1. C.J. Reports 1975,
pp. 43-44, paras. 94-95; emphasis added.)

29. In my opinion, sovereignty over Zubarah appertained to Bahrain
through the period from 1868 to 1937 as a result of the presence in the
region of the Naim tribe, which clearly manifested its allegiance to the
Ruler of Bahrain and accepted his political authority. The record pro-
vides numerous examples of this relationship (Reply of Bahrain, pp. 124-
126).

30. I observe that Qatar, for its part, has been unable to provide any
evidence of Al-Thani or Ottoman activities in the Zubarah region prior
to 1937.

31. I find a letter written by the British Political Resident, Hickin-
botham, in May 1937, pertinent both to events which unfolded later in
that year as well as to the alleged sovereignty of Qatar at that time to the
whole of the peninsula. He wrote:

“The Adviser [Belgrave] informed me that the Bahrain Govern-
ment had a counter proposal ready if necessary, the basis of which
was that they were prepared to concede all the area directly extra-
neous to Zubarah itself provided the Bahrain Government were per-
mitted to retain Zubarah itself to do with exactly as they wished. We
were agreed that provided any vestige of power remained with
Shaikh Abdullah [or Qatar], there was no reason why a compromise
should not be satisfactorily arrived at in this form — whilst the
Naim should be given the right to decide by plebiscite as to which
ruler they desire to serve, and of course should they move into any
portion of Qatar belonging to the Shaikh of Qatar, after having
admitted, for example, Bahrain nationality, they would then ipso
facto be liable for payment of all taxation that at the time had been
imposed upon other adherents to Qatar.” (Memorial of Bahrain,
Vol. 3, Ann. 128, p. 675; emphasis added.)

32. There was thus no doubt in the mind of the British Political Resi-
dent in that crucial year of 1937 that there were portions of Qatar which
did not then belong to the Sheikh of Qatar. The Zubarah region was
manifestly one of those “portions”.

33. In sum, the evidence provided by Bahrain, in my opinion, estab-
lishes a regular and consistent Naim presence in the Zubarah region until
1937. Sovereignty over Zubarah appertained to Bahrain prior to the
events of 1937. I now come to those events.

34. As I wrote earlier, the Zubarah region was then inhabited by the
Naim tribe. In July 1937, the Naim tribesmen who lived in Zubarah were
attacked by the Al-Thani and their adherents and forcibly evicted from
the region. First-hand recollections of this battle have been provided to
the Court. (See Memorial of Bahrain, paras. 283-284.)

421
458 DELIMITATION AND QUESTIONS (SEP. OP. FORTIER)

35. Having examined the record before the Court, I believe that the
events of July 1937 can only be characterized as acts of conquest by
Qatar. Bahrain has never acquiesced in the seizure by Qatar of Zubarah
(see Reply of Bahrain, Sect. 4.6, at pp. 140 et seg. See also Memorial of
Bahrain, Vol. 5, Ann. 301, pp. 1216-1217).

36. If the seizure of Zubarah, in 1937, by an act of force, were to occur
today, there would be no doubt that it would be unlawful and ineffective
to deprive Bahrain of its title. The position now prevailing and fully
accepted in international law is that the use of force is unlawful and, by
itself, ineffective to bring about a change of title.

37. In 1937, however, the law was in a process of evolution and the
situation was not so clear.

38. During the oral pleadings, the Court was referred to the Fifth Edi-
tion of Oppenheim’s International Law, published in 1937, and the Ninth
Edition, published in 1992 (CR 2000/11, pp. 39-41). In this last edition,
the authors, Sir Robert Jennings and Sir Robert Watts, opined that it
should not be assumed that forcible takings of territories in the pre-
United Nations Charter days can be protested today.

39. The authors of the Ninth Edition conclude their comments with
the following observation: “This conclusion is fortified by the principle
of stability which must be at least a significant factor in questions con-
cerning territorial sovereignty” (at p. 705). I agree.

40. I have thus come to the conclusion that the Court is not competent
to judge and declare today, more than 60 years after the forcible taking,
that Bahrain is and at all material times has remained sovereign over
Zubarah.

41. For these reasons, I conclude that Qatar has sovereignty over
Zubarah.

JANAN ISLAND

42. The Court has found that the State of Qatar has sovereignty over
Janan Island, including Hadd Janan. In this separate opinion, I set out
the reasons why, in my view, the State of Bahrain has sovereignty over
Janan Island, including Hadd Janan.

43. The Court hgs ruled that the 1939 British decision was dispositive
of the question of title to the Hawar Islands in favour of Bahrain. The
critical issue in relation to Janan is whether, by the normal canons of
interpretation, that decision is to be understood as having, at the time,
included Janan. The Court’s sole task is to interpret the 1939 decision.

44, The letter containing the 1939 decision states:

“on the subject of the ownership of the Hawar Islands | am directed
by His Majesty’s Government to inform you that, after careful con-

422
459 DELIMITATION AND QUESTIONS (SEP. OP. FORTIER)

sideration of the evidence adduced . . . they have decided that these
Islands belong to the State of Bahrain and not to the State of Qatar”
(Counter-Memorial of Bahrain, Vol. 1, p. 150, para. 362; emphasis
added).

45. Was the generalized reference in the 1939 British decision to the
“Hawar Islands” to be understood as including or excluding Janan? In
my opinion, it can only be understood as including Janan.

46. There is ample evidence in the record before the Court that the
terms “Hawar Islands Group”, “Hawar Group of Islands”, “Hawar
Group” and “Hawar Islands” were used synonymously by all interested
parties in the 1930s.

47. In the 1930s and before, the general tendency was to perceive
Janan as being part of the Hawars. This was not based on any geological
studies, nor on measurements of sea depth between Jazirat Hawar and
Janan. Each side has sought to proffer maps suggesting that the Hawars,
including Janan, belonged to them. There is no map evidence to suggest
that the British, the Turks, or others, differentiated Janan from the
Hawars. It is clear that in the 1930s the British would have thought that
the attribution of sovereignty for “the Hawars” covered Janan, too.

48. Nor was there anything in the conduct of Bahrain and Qatar, in
the period prior to the 1939 decision, which would have led Great Britain
to think that it was facing anything more than a single problem in
deciding sovereignty in the islands off the west coast of Qatar.

49. In 1936, against the background of negotiations for an oil conces-
sion over Bahrain’s unallotted area, the Ruler of Bahrain provided a list
of islands that formalized his claim to the Hawars. The list included
Janan island. There was no indication, either internally or in correspon-
dence with the Ruler of Bahrain, that Britain regarded Janan as outside
the Hawars, and thus as having been included in PCL’s 1935 Qatar
concession.

50. Janan had been specifically mentioned in the 1936 Bahrain list
which appeared to be the first formal written statement by Bahrain of its
sovereignty over the Hawar Islands. The 1937 Bahrain list mentioned
neither Janan or Hawar Island nor other specific islands. It simply refers
to the “Howar peninsula”. There is every reason to read that phrase by
reference to the more specific listings of the previous year, and thus
as including Janan.

51. The 1938 list was proffered in immediate connection with the deci-
sion to be made on the Hawar Islands. In that context, one might have
expected a total listing of all claimed islands and islands off the west
coast of Qatar. However, I find it entirely persuasive that in the light of
the two earlier lists submitted within the previous two years, Bahrain saw

423
460 DELIMITATION AND QUESTIONS (SEP. OP. FORTIER)

no need to repeat but in fact chose to do something different — to
attempt to substantiate a claim already made through now identifying
rocks and islands with beacons. This list was passed by Belgrave, who
within a few days also passed a concession map clearly showing Janan as
part of the Hawar Islands concession area.

52. Finally, I note that in the claim presented by Qatar in respect of
the 1939 British decision, it is never suggested that, whatever the outcome
of the Hawars might be, Janan was a separate issue, in which Qatar’s
claim was as strong, or stronger.

53. In coming to its conclusion in respect of Janan Island, the Court
has attached a great deal of importance to the letters sent on 23 Decem-
ber 1947 by the British Political Agent in Bahrain to the Rulers of Qatar
and Bahrain. The Court has found that the British Government, in thus
proceeding in 1947, “provided an authoritative interpretation of the 1939
decision and of the situation resulting from it” (Judgment, para. 164).

54. In my opinion, the 1947 letters do not purport to determine owner-
ship of any island, large or small. The letters, by any normal rule of
interpretation, do not purport to interpret the 1939 decision. The critical
issue for the Court is not whether the 1947 sea-bed delimitation, in its
references to Janan, was or was not right. If the 1939 British decision did
indeed include Janan as part of the Hawars (as I believe it does), the
statement in the letter of 1947 that “Janan Island is not regarded as being
included in the islands of the Hawar Group”, cannot lawfully revise the
1939 decision. Finally, in my opinion, it carries little conviction even as
an interpretation by an official, in 1947, of a governmental decision in
1939, because it does not address the documentation that would be rele-
vant to such an interpretation.

55. Finally, the context of the 1947 letters is also important. The pur-
pose of the letters was not to notify the Rulers of a decision which they
would be entitled to respect, but merely to inform them that the British
authorities would henceforth consider the sea-bed as being divided by the
line described therein, particularly in the course of their dealings with
PLC and BAPCO, the two competing oil companies concerned. In sum,
it appears clear to me that the 1947 letters purported only to express the
policy of the United Kingdom and had no legal significance whatsoever
regarding ownership of Janan Island.

56. In closing, I observe that the fact that Janan Island has always
been considered to be one of the Hawar group of islands appears to be
acknowledged by Qatar when it cites Lorimer’s 1908 description of the
Hawar Islands. Lorimer wrote that “the island (Jaruzar Hawar) is
adjoined on the north by Jazirats Rubadh and on the south by Jazirat
Janan” (see Memorial of Qatar, para. 5.38).

424
461 DELIMITATION AND QUESTIONS (SEP, OP. FORTIER)

57. For the foregoing reasons, I find that Janan, including Hadd
Janan, must be considered to be part of the Hawars over which Bahrain
has sovereignty. In the circumstances, I have thus voted against para-
graph 3 of the operative part of the Judgment.

MARITIME DELIMITATION

58. Although I have some serious reservations with the Court’s
reasoning in respect of certain aspects of the maritime delimitation,
particularly its treatment of Fasht al Azm, Qit’at Jaradah and Fasht
ad Dibal, I have decided to vote for paragraph 6 of the operative part of
the Judgment.

59. However, I wish to stress that I do not agree with that part of the
single maritime boundary that runs westward between Jazirat Hawar and
Janan. Since in my view Janan is part of the Hawars and thus belongs to
Bahrain, I agree with my colleague Judge Kooijmans that the boundary
should run south-westward between Janan and the coast of the penin-
sula. Since the Court, however, has ruled that Janan belongs to Qatar
and has drawn the maritime boundary on that basis, I have elected not to
express my disagreement by casting a negative vote.

(Signed) L. Yves Fortier.

425


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE NOTTEBOHM

(LIECHTENSTEIN c. GUATEMALA)
ORDONNANCE DU 26 JANVIER 1952

1952

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

NOTTEBOHM CASE

(LIECHTENSTEIN v. GUATEMALA)
ORDER OF JANUARY 26th, 1952
La présente ordonnance doit être citée comme suit :

«Affaire Nottebohm,
Ordonnance du 26 janvier 1952: C.I. J. Recueil 1952, p. 10.»

This Order should be cited as follows :

“Nottebohm case,
Order of January 26th, 1952: I.C.J. Reports 1952, p. 10.”

Ne de vente: 7 8
Sales number

26 JANVIER 1952

ORDONNANCE

AFFAIRE NOTTEBOHM
(LIECHTENSTEIN c. GUATEMALA)

NOTTEBOHM CASE
(LIECHTENSTEIN v. GUATEMALA)

JANUARY 26th, 1952

ORDER
Io

INTERNATIONAL COURT OF JUSTICE

1952
January 26th

YEAR 1952 General List :

No. 18

January 26th, 1952

NOTTEBOHM CASE

(LIECHTENSTEIN v. GUATEMALA)

ORDER

The President of the International Court of Justice,
having regard to Article 48 of the Statute of the Court
having regard to Article 37 of the Rules of Court ;

Whereas on December 17th, 1951, the Government of the Princi-
pality of Liechtenstein caused to be filed in the Registry of the Court
an Application, dated December roth, 1951, instituting proceedings
against the Republic of Guatemala concerning measures taken by
the latter Government against the person and the property of
Friedrich Nottebohm, a citizen of Liechtenstein ;

Whereas the Application invokes the Declaration dated
March 29th, 1950, whereby the Government of the Principality of
Liechtenstein accepted the conditions determined by the General
Assembly of the United Nations and thus became a party to the
Statute of the Court ;

Whereas the Application further invokes the Declarations by
which the Government of the Principality of Liechtenstein and the
Government of the Republic of Guatemala accepted the compulsory
jurisdiction of the Court in accordance with Article 36, paragraph 2,
of the Statute of the Court, thus specifying the provision on which
the Applicant founds the jurisdiction of the Court ;
ORDER OF 26 I 52 (NOTTEBOHM CASE) II

Whereas, by a letter received in the Registry on December 17th,
1951, the Chief of Government of the Principality of Liechtenstein
notified the Court of the appointment as Agent for that Govern-
ment of Dr. Erwin H. Loewenfeld, LL.B., Legal Adviser to the
Government of the Principality, and of his address for service at
the seat of the Court ;

Whereas the Application, which bears the signature of the Agent,
duly certified by the Chief of the Princely Government, states the
nature of the claim and gives a succinct statement of the facts and
grounds on which the claim is based ;

Whereas, therefore, the Application fulfils the formal conditions
laid down by the Rules of Court ;

Whereas, on December 17th, 1951, the Government of the
Republic of Guatemala was duly informed by telegram of the filing
of the Application, of which a certified true copy was despatched to
it on December 18th, 1951 ;

Fixes as follows the time-limits for the filing by the Parties of
the first two pleadings :

for the Memorial of the Government of the Principality of
Liechtenstein : April 2nd, 1952 ;

for the Counter-Memorial of the Government of the Republic of
Guatemala : July rath, 1952 ;

And reserves the rest of the procedure for further decision.

Done in French and English, the French text being authoritative,
at the Peace Palace, The Hague, this twenty-sixth day of January,
one thousand nine hundred and fifty-two, in three copies, one of
which will be placed in the archives of the Court and the others
will be transmitted to the Governments of the Principality of
Liechtenstein and of the Republic of Guatemala, respectively.

(Signed) BASDEVANT,
President.

(Signed) E. HAMBRO,
Registrar.


INTERNATIONAL COURT OF JUSTICE

REPORTS. OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING
THE VIENNA CONVENTION
ON CONSULAR RELATIONS

(PARAGUAY v. UNITED STATES OF AMERICA)

ORDER OF 8 JUNE 1998

1998

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE
A LA CONVENTION DE VIENNE
SUR LES RELATIONS CONSULAIRES

(PARAGUAY c. ETATS-UNIS D’AMERIQUE)

ORDONNANCE DU 8 JUIN 1998
Official citation:

Vienna Convention on Consular Relations (Paraguay
v. United States of America), Order of 8 June 1998,
LC J. Reports 1998, p. 272

Mode officiel de citation:

Convention de Vienne sur les relations consulaires
(Paraguay c. Etats-Unis d’ Amérique), ordonnance du 8 juin 1998,
C.LJ. Recueil 1998, p. 272

Sales number
ISSN 0074-4441 N° de vente: 707
ISBN 92-1-070771-0

1998
8 June
General List
No. 99

272

INTERNATIONAL COURT OF JUSTICE
YEAR 1998

8 June 1998

CASE CONCERNING
THE VIENNA CONVENTION
ON CONSULAR RELATIONS

(PARAGUAY y. UNITED STATES OF AMERICA)

ORDER

The Vice-President of the International Court of Justice, Acting Presi-
dent,

Having regard to Article 48 of the Statute of the Court and to
Article 44, paragraphs 3 and 4, of the Rules of Court,

Having regard to the Order of 9 April 1998, by which the Vice-Presi-
dent of the Court, Acting President, fixed 9 June 1998 and 9 September
1998, respectively, as time-limits for the filing of the Memorial of Para-
guay and the Counter-Memorial of the United States;

Whereas by a letter of 20 May 1998, the Agent of Paraguay requested
the Court to extend to 9 August 1998 the time-limit for the filing of its
Memorial and explained the reasons for that request; and whereas on
receipt of that letter the Registrar, referring to Article 44, paragraph 3, of
the Rules of Court, transmitted a copy thereof to the Agent of the United
States;

Whereas by a letter of 4 June 1998, the Agent of the United States indi-
cated that his Government concurred that additional time should be
accorded to the Parties for the filing of their written pleadings and pro-
posed that the time-limits fixed in the Order of 9 April 1998 be extended,
respectively, to 9 October 1998 for the filing of the Memorial of Paraguay
and 9 April 1999 for the filing of the Counter-Memorial of the United

4
273 VIENNA CONVENTION (ORDER 8 VI 98)

States; and whereas the Agent of Paraguay, duly informed of the matter,
indicated that this proposal was acceptable to his Government;

Taking into account the agreement of the Parties,
Extends to 9 October 1998 the time-limit for the filing of the Memorial
of Paraguay;

Extends to 9 April 1999 the time-limit for the filing of the Counter-
Memorial of the United States; and

Reserves the subsequent procedure for further decision.

Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this eighth day of June, one thousand nine
hundred and ninety-eight, in three copies, one of which will be placed in
the archives of the Court and the others transmitted to the Government
of the Republic of Paraguay and the Government of the United States of
America, respectively.

(Signed) Christopher G. WEERAMANTRY,
Vice-President.

(Signed) Eduardo VALENCIA-OSPINA,
Registrar.


82

DISSENTING OPINION
OF JUDGES BASDEVANT, WINIARSKI,
SIR ARNOLD McNAIR AND READ.

I. We regret that, while we concur in the opinion of the majority
of the members of the Court as to the legal character of the first
question, as to the power of the Court to answer it and the desir-
ability of doing so, and as to the competence of the Court to give
any interpretation of the Charter thereby involved, we are unable
to concur in the answer given by the majority to either question,
and we wish to state our reasons for not doing so.

2. The request made to the Court for an advisory opinion is
as follows :

“Is a Member of the United Nations which is called upon, in
virtue of Article 4 of the Charter, to pronounce itself by its vote,
either in the Security Council or in the General Assembly, on the
admission of a State to membership in the United Nations, juri-
dically entitled to make its consent to the admission dependent
on conditions not expressly provided by paragraph 1 of the said
Article ? In particular, can such a Member, while it recognizes
the conditions set forth in that provision to be fulfilled by the
State concerned, subject its affirmative vote to the additional
condition that other States be admitted to membership in the
United Nations together with that State ?”

There are two questions and we shall begin by examining the
first.

3. In our opinion, it is impossible to regard the first question
as one which relates solely to the statements or the arguments which
a Member of the United Nations may make or put forward in the
Security Council or in the General Assembly when those organs
are considering a request for admission, and not to the reasons on
which that Member bases its vote. The Court is asked whether
a Member is “‘juridically entitled to make its consent to the admis-
sion” dependent on conditions not provided for by paragraph 1
of Article 4. Its consent to admission is expressed by its vote.
It is therefore the vote that is in question, as is confirmed by the
expression ‘‘subject its affirmative vote’ used in the second ques-
tion, which is complementary to the first. But it would be a
strange interpretation which gave a Member freedom to base its
vote upon a certain consideration and at the same time forbade
it to invoke that consideration in the discussion preceding the
vote. Such a result would not conduce to that frank exchange

29
JOINT DISSENTING OPINION 83

of views which is an essential condition of the healthy functioning
of an international organization. It is true that it is not possible
to fathom the hidden reasons for a vote and there exists no legal
machinery for rectifying a vote which may be cast contrary to
the Charter in the Security Council or the General Assembly.
But that does not mean that there are no rules of law governing
Members of the United Nations in voting in either of these organs ;
an example is to be found in paragraph 1 of Article 4 prohibiting
the admission of a new Member which does not fulfil the qualif-
ications specified therein. This distinction, which it has been
attempted to introduce between the actual vote and the discussion
preceding it, cannot be accepted; it would be inconsistent with
the actual terms of the question submitted to the Court, and its
recognition would involve the risk of undermining that respect
for good faith which must govern the discharge of the obligations
contained in the Charter (Article 2, paragraph 2).

4. The question submitted to us is whether, apart from the
qualifications expressly specified in paragraph 1x of Article 4, a
Member of the United Nations is at liberty to choose the reasons
on which it may base its vote or which it may invoke in the Security
Council or the General Assembly in the course of the proceedings
telating to an application for admission, or whether, on the
other hand, that Member is forbidden to rely on considerations
which are foreign to the qualifications specified in paragraph 1 of
Article 4 The question has been put to us in terms of the conduct
of a member of the United Nations in the Security Council or in
the General Assembly ; the Member is envisaged in its capacity
as a member of these organs, that is to say, in the discharge of
its duty to contribute to the making of a recommendation by the
Security Council or of a decision by the General Assembly on that
recommendation. The freedom of that Member in this respect
cannot be either more or less than that of the organ as a member
of which he is called upon to give his vote. Accordingly, in order
to answer the question put with regard to the conduct of a member,
we are compelled to begin by deciding what the answer should be
in relation to the organ, be it the Security Council or the General
Assembly.

5. The reason why the question stated has been submitted to
the Court is that the relevant provisions did not seem to be clear
enough to provide a simple and unambiguous answer to the ques-
tion. Such, at any rate, was the view of the General Assembly
and we share it. Accordingly, in our opinion, we are confronted
with a question of interpretation and therefore we must apply the
rules generally recognized in regard to the interpretation of treaties.

6. The relevant article of the Charter is No. 4, which is as
follows :

30
JOINT DISSENTING OPINION 84

“1. Membership in the United Nations is open to all other
peace-loving States which accept the obligations contained in
the present Charter and, in the judgment of the Organization,
are able and willing to carry out these obligations.

2. The admission of any such State to membership in the
United Nations will be effected by a decision of the General
Assembly upon the recommendation of the Security Council.”

Although the terms of the question as put to the Court by the
General Assembly are confined to mentioning the first paragraph of
this Article, its second paragraph is equally relevant, because it
deals with the discussion and the voting in the Security Council and
the General Assembly when examining a request for admission, and
because it is the second paragraph which fixes the respective spheres
of the Security Council and the General Assembly in this matter.

Moreover, it is a rule of interpretation which was well recognized
and constantly applied by the Permanent Court of International
Justice that a treaty provision should be read in its entirety.

Again, it must be placed in its legal context as supplied by the
other provisions of the Charter and the principles of international
law.

7. The first conclusion that emerges from areading of Article 4 in
its entirety is that the Charter does not follow the model of the mul-
tilateral treaties which create international unions and frequently
contain an accession clause by virtue of which a declaration of
accession made by a third State involves automatically the acquisi-
tion of membership of the union by that State. On the contrary,
the Charter, following the example of the Covenant of the League
of Nations and having due regard to the fact that it is designed to
create a political international organization, has adopted a different
and more complex system, namely, the system of admission.
Assuming that a request is made by a State desiring to be admitted,
the system involves a decision by the General Assembly whereby
admission ‘will be effected”’ ; this decision is taken upon a recom-
mendation made by the Security Council; that recommendation
cannot be made, and that decision cannot be taken, unless certain
qualifications specified in paragraph 1 of Article 4 are possessed by
the applicant State.

8. The essential feature of this system is the decision of the
General Assembly whereby the admission ‘‘will be effected”. The
provisions of paragraph 2 of Article 4, which fix the respective
powers of the General Assembly and the Security Council in this
matter, do not treat the admission of new Members as a mere matter
of the routine application of rules of admission. It would only
be possible to attribute such a meaning to this Article if it had
adopted a system of accession and not of admission ; and if acces-
sion had been the system adopted it would have been better to have
placed the Secretary-General in control of the procedure. This

37
JOINT DISSENTING OPINION 85

Article does not create a system of accession, but the entirely
different system of admission. In the working of this system the
Charter requires the intervention of the two principal political
organs of the United Nations, one for the purpose of making a
recommendation and then the other for the purpose of effecting the
admission. It is impossible by means of interpretation to regard
these organs as mere pieces of procedural machinery like the
Committee for Admissions established by the Security Council.
In the system adopted by the Charter, admission is effected by the
decision of the General Assembly, which can only act upon a
recommendation of the Security Council, and after both these organs
are satisfied that the applicant State possesses the qualifications
required by paragraph 1 of Article 4.

g. The resolutions which embody either a recommendation or a
decision in regard to admission are decisions of a political character ;
they emanate from political organs; by general consent they
involve the examination of political factors, with a view to deciding
whether the applicant State possesses the qualifications prescribed
by paragraph 1 of Article 4; they produce a political effect by
changing the condition of the applicant State in making it a Member
of the United Nations. Upon the Security Council, whose duty it
is to make the recommendation, there rests by the provisions of
Article 24 of the Charter “primary responsibility for the maintenance
of international peace and security’’—a purpose inscribed in Article x
of the Charter as the first of the Purposes of the United Nations.
The admission of a new Member is pre-eminently a political act,
and a political act of the greatest importance.

The main function of a political organ is to examine questions in
their political aspect, which means examining them from every
point of view. It follows that the Members of such an organ who
are responsible for forming its decisions must consider questions
from every aspect, and, in consequence, are legally entitled to base
their arguments and their vote upon political considerations.
That is the position of a member of the Security Council or of the
General Assembly who raises an objection based upon reasons other
than the lack of one of the qualifications expressly required by
paragraph 1 of Article 4.

That does not mean that no legal restriction is placed upon this
liberty. We donot claim that a political organ and those who con-
tribute to the formation of its decisions are emancipated from all
duty to respect the law. The Security Council, the General
Assembly and the Members who contribute by their votes to the
decisions of these bodies are clearly bound to respect paragraph 1
of Article 4, and, in consequence, bound not to admit a State which
fails to possess the conditions required in this paragraph.

But is there any other legal restriction upon the freedom which
in principle these organs enjoy in the choice of the reasons for their
decisions, that is to say, upon the liberty which in principle a State

32
JOINT DISSENTING OPINION 86

enjoys in choosing the reasons for its decisions, and in this case,
for its vote? Is there in this case a restriction consisting in a pro-
hibition to oppose an application for admission on grounds
foreign to the qualifications required by paragraph 1 of Article 4 ?

ro. We must therefore decide whether there exists such a restric-
tion upon the principle of law stated above.

There is a rule of interpretation frequently applied by the Perm-
anent Court of International Justice, when confronted with a rule
or principle of law, to the effect that no restriction upon this rule or
principle can be presumed unless it has been clearly established,
and that in case of doubt it is the rule or principle of law which must
prevail. In the present case, before acknowledging the existence
of any restriction upon the principle of the widest examination of
requests for admission by the Security Council, the General Assembly
and their members, it is necessary to show that such a restriction
has been established beyond a doubt.

Can it therefore be said that the application of this principle is
subject to a clearly established restriction precluding the putting
forward, in the course of the examination of requests for admission,
of considerations not expressly specified in paragraph x of Article 4 ?

xx. There is no treaty provision which establishes such a
restriction.

The effect of paragraph x of Article 4—the only relevant text in
this connexion—is that certain qualifications therein enumerated
are required for admission, and that these qualifications are essen-
tial ; but there is no express and direct statement that these qualific-
ations are sufficient and that once they are fulfilled admission must
of necessity follow.

Not only does the paragraph not say this, but it does not even
imply any such restriction ; indeed quite the contrary is the case.

The language of Article 4—‘‘Membership is open’’, ‘Peuvent
devenir Membres’’, ‘‘admission will be effected’, “‘se fazt’’—1is per-
missive in tone, not obligatory. So far as we understand, the
Chinese, Russian and Spanish texts contain nothing which con-
tradicts this view. Paragraph 1 of Article 4 enacts that States
which fulfil the conditions therein enumerated possess the qualific-
ations required for admission ; this enumeration is exhaustive in the
sense that no other condition is required by the Charter ; this pro-
vision, which prohibits the admission of a State not fulfilling these
conditions, fully carries out the intentions of the drafters of the
Charter and is entitled to complete legal effect. But this provision
contains no evidence of any definite intention to deprive the
Security Council or the General Assembly or their members of the
legal right possessed by them of giving effect to other consider-
ations.

Indeed, so far from depriving them of this power, Article 4
lends support to its existence.

33
JOINT DISSENTING OPINION 87

12. This view accords with the intentions of the framers of the
Charter.

Without wishing to embark upon a general examination and
assessment of the value of resorting to tvavaux préparatoires in the
interpretation of treaties, it must be admitted that if ever there is a
case in which this practice is justified it is when those who negotiated
the treaty have embodied-in an interpretative resolution or some
similar provision their precise intentions regarding the meaning
attached by them to a particular article of the treaty. This is
exactly what was done with respect to paragraph 2 of Article 4.

13. Before dealing with this point we may begin by stating that
while the Minutes of the San Francisco Conference show clearly the
importance attached to the qualifications for admission therein set
out and also to the respective rôles of the General Assembly and
the Security Council in regard to admission, and while they make it
clear that the above-mentioned qualifications are regarded as
essential, they contain no indication of any intention to regard them
as sufficient to impose upon the Organization a legal obligation to
admit the State which possesses them.

14. Without describing in detail the drafting of Article 4, we
shall mention the following points :

The Dumbarton Oaks Proposals (Chapter III, Membership, and
Chapter V, General Assembly) contained the two following sen-
tences :

“Membership of the Organization should be open to all peace-
loving States.”

“The General Assembly should be empowered to admit new
Members to the Organization upon recommendation of the Security
Council.”

(It will be remembered that these were proposals and not draft
articles.)

At San Francisco, the first of these sentences was dealt with by
Committee 2 of Commission I, and finally emerged as paragraph 1
of Article 4 of the Charter. The Minutes of this Committee are to
be found in Volume VII of the Conference Records. On page 306
will be found the report of the Rapporteur of Committee I/2 submit
ting the text of paragraph 1 of Article 4 in substantially the form
adopted. After dealing with the rejection of the proposal in favour
of universal membership, it referred to the “two principal tendencies.

.. manifested in the discussion”, one in favour of ‘‘inserting in the
Charter specific conditions which new Members should be required to:
fulfil, especially in matters concerning the character and policies of
governments’’, while the other view was that ‘‘the Charter should
not needlessly limit the Organization in its decisions concerning

34
JOINT DISSENTING OPINION 88

requests for admission and asserted that the Organization itself
would be in a better position to judge the character of candidates
for admission”.

“It was clearly stated that the admission of a new Member
would be. subject to study, but the Committee did not feel it
should recommend the enumeration of the elements which were
to be taken into consideration. It considered the difficulties
which would arise in evaluating the political institutions of States
and feared that the mention in the Charter of a study of such
a nature would be a breach of the principle of non-intervention,
or if preferred, of non-interference. This does not imply, however,
that in passing upon the admission of a new Member, considerations
of all kinds cannot be brought into account.” (Vol. VII, p. 308).

It will be noted that this passage calls upon the Organization,
that is to say, the Security Council and the General Assembly, to
conduct the most extensive investigation. No doubt it might be
argued that the final sentence quoted relates solely to the investiga-
tion which the Organization must make regarding the qualifications
specified in paragraph 1 of Article 4. This interpretation is in no
way self-evident ; it is purely conjectural and is inconsistent with
the French text of this report, which states the duty of the Organiza-
tion to be “de se former un jugement sur l'opportunité de l'admission
dun membre nouveau”. Judgment upon the expediency of an
admission is not a mere declaration that the conditions specified in
paragraph x of Article 4 are satisfied ; it goes much further than that.

A little further on (p. 309), the same report, commenting upon
the future paragraph x of Article 4, in a sentence the significance
of which is reinforced by the fact that this sentence was substituted
for an earlier and less precise text (p. 290), declares that “‘the text
adopted sets forth more clearly than the Dumbarton Oaks Proposals
those qualifications for membership which the delegates deem
fundamental, and provides a more definite guide to the General
Assembly and Security Council on the admission of new members”.
The statement that the qualifications required by paragraph 1 of
Article 4 are considered as fundamental in no way excludes, but, on
the contrary, implies, the possibility of further requirements, upon
grounds which are different and more discretionary.

The second sentence of the Dumbarton Oaks Proposals quoted
above was dealt with at San Francisco by Committee 1 of Commis-
sion II (General Assembly), whose proceedings are recorded in
Volume VIII of the Records of that Conference. The report of the
Rapporteur of this Committee, as approved by the Committee on
May 28th, 1945, contains the following paragraph (VIII, p. 451) :

“The Committee recommends that new members be admitted
by the General Assembly upon recommendation of the Security

35
JOINT DISSENTING OPINION 89

Council. (See attached Annex, Item 2.) In supporting the
acceptance of this principle, several delegates emphasized that
the purpose of the Charter is primarily to provide security against
a repetition of the present war and that, therefore, the Security
Council should assume the initial responsibility of suggesting new
participating states.” (The italics are ours.)

Annex, Item 2, Vol. VIII (p. 456), is as follows :

“The General Assembly may admit new Members to the Organiza-
tion upon the recommendation of the Security Council.”

Language more discretionary, more permissive, than ‘‘may
admit”’, ‘a le pouvoir d'admettre”, it would be difficult to find.

The Summary Report of the 15th Meeting of the same Committee,
held on June r8th, 1945, contains the following passage (Vol. VIII,

p. 487) :

“Admission of New Members.

The Committee considered the following texts of Chapter V,
Section B, paragraph 2, of the Dumbarton Oaks Proposals, which
were under consideration by the Co-ordination Committee :

‘The admission of any State to membership in the United Nations
will be effected by a decision of the General Assembly upon the
recommendation of the Security Council.’

‘L’admission de tout Etat comme membre des Nations unies
est prononcée par l’Assemblée générale sur la recommandation
du Conseil de Sécurité.’

The Secretary reported that he had been advised by the Secretary
of the Advisory Committee of Jurists that that Committee felt
these texts would not in any way weaken the original text adopted
by the Committee. In the light of this interpretation, the Committee
approved the texts.” (The italics are ours.)

The Second Report of the Rapporteur of Committee II/r, which
was circulated to the Members for their approval on June roth,
1945, contains the following passage (Vol. VIII, p. 495) :

‘Admission of New Members (Chapter V, Section B, paragraph 2,
of the Dumbarton Oaks Proposals).

The Committee considered a revision of the text of this para-
graph which was under consideration by the Co-ordination Com-
mittee in order to determine whether the power of the Assembly
to admit new Members on recommendation of the Security Council
was in no way weakened by the proposed text.

The Committee was advised that the new text ded not in the
view of the Advisory Commitiee of Jurists, weaken the right of the
Assembly to accept or reject a recommendation for the admission
of a new member...

The Committee agreed that this interpretation should be
included in its minutes as the one that should be given to this
provision of the Charter, and on this basis approved the text as
suggested by the Co-ordination Committee.” (Italics ours.)

36
JOINT DISSENTING OPINION go

These passages show that the text thus worked out which ultim-
ately became paragraph 2 of Article 4, was regarded as conferring
very wide powers upon the General Assembly.

Finally, M. Delgado, the Rapporteur of Commission I, said, both
in his Report to the Conference (Vol. VI, p. 248) and in his speech
at the plenary session on the 25th June: ’ New Members will be
admitted only if they are recognized as peace-loving, accept the
obligations contained in the Charter, and, upon scrutiny by the
Organization, are adjudged able and ready to carry out those
obligations.” (Vol. I, p. 615.)

He thus stated very clearly that the qualifications specified in
paragraph 1 of Article 4 are essential qualifications. Had he
considered them also as sufficient, he would not have failed to say so.

15. Nor can the significance of the word "‘recommendation”’,
in paragraph 2 of Article 4, be overlooked. It is the function of
the Security Council to reject an applicant or to recommend its
admission. On the one hand, this fact indicates the discretionary
nature of this function of the Security Council, while, on the other
hand, the freedom of the General Assembly either to accept the
recommendation and admit the applicant or to reject the applica-
tion indicates that the function of the General Assembly in this
matter is also discretionary.

16. So far as particularly concerns the freedom of a Member
of the United Nations to put forward, in the course of the examin-
ation of an application for admission, this or that consideration
foreign to the qualifications specified by paragraph 1 of Article 4,
we may add that the General Assembly and the Security Council
possess, by virtue of Articles 21 and 30 of the Charter, the right
to regulate their own procedure. We can find nothing else which
could restrict the freedom of discussion and, consequently, subject
to the general control exercised by each organ, a Member enjoys
the right of expressing its views in the course of the debates.

17. In our opinion it follows from these considerations that a
Member of the United Nations remains legally entitled, either in
the Security Council or in the General Assembly, during the discus-
sion upon the admission of a new Member, to put forward consider-
ations foreign to the qualifications specified in paragraph 1 of
Article 4, and, assuming these qualifications to be fulfilled, to base
its vote upon such considerations.

18. In our opinion, while the Charter makes the qualifications
specified in paragraph I of Article 4 essential, it does not make
them sufficient. If it had regarded them as sufficient, it would
not have failed to say so. The point was one of too great
importance to be left in obscurity.

It is easy to understand why the authors of the Charter, after
having rejected the principle of universality, should deem it

37
JOINT DISSENTING OPINION gr

undesirable to exclude the consideration of the very diverse political
factors which the question of admission can in certain cases involve.
When one considers the variety in the political conditions of
the States which were not original Members of the United Nations
—some ex-enemy, some ex-neutral, one permanently neutral by
treaty, some with empires and some without, some unitary and
some consisting of federal or other unions of States—and when one
considers the political repercussions attending the union of existing
States, or the emergence of new States and their entry into the
United Nations—perhaps, the framers of the Charter, after having
decided in this connexion to entrust a special mission to the Security
Council, were wise in their generation in taking the view (as we
submit they did) that it was impossible to do more than to pre-
scribe certain preliminary and essential qualifications for member-
ship and to leave the question of admission to the good faith and
the good sense of the Security Council and the General Assembly,
and particularly the former by reason of the special responsibilities
laid uponit. For the authors of the Charter had to look beyond the
year 1945 and endeavour to provide for events which the future had
in store. A little reflection upon the changes in the map of the
world during the short period which has elapsed since June 1945
suggests to us that they were prescient and prudent in the plan
wich they adopted.

19. When a Member of the United Nations imports into the
examination of an application for admission a consideration which
is foreign to the qualifications of paragraph 1 of Article 4, what he
does is not the same thing as it would be if the Charter made such
a consideration a qualification additional to those already required.
That would involve amending the Charter, and there can be no
question of that. The Member is merely introducing into the
discussion, as he has a right to do, a political factor which he con-
siders of importance and on which he is entitled to rely but which
the other Members are equally entitled to consider and decide
whether to accept or reject, without being legally bound to attach
any weight to it ; whereas on the other hand they would be legally
bound to give effect to an objection based on the duly established
lack of one of the qualifications specified in paragraph x of
Article 4.

20. While the Members of the United Nations have thus the
right and the duty to take into account all the political considera-
tions which are in their opinion relevant to a decision whether or
not to admit an applicant for membership or to postpone its admis-
sion, it must be remembered that there is an overriding legal obliga-
tion resting upon every Member of the United Nations to act in
good faith (an obligation which moreover is enjoined by paragraph 2
of Article 2 of the Charter) and with a view to carrying out the

38
JOINT DISSENTING OPINION 92

Purposes and Principles of the United Nations, while at the same
time the members of the Security Council, in whatever capacity
they may be there, are participating in the action of an organ which
in the discharge of its primary responsibility for the maintenance of
international peace and security is acting on behalf of all the
Members of the United Nations.

That does not mean the freedom thus entrusted to the
Members of the United Nations is unlimited or that their
discretion is arbitrary.

21. For these reasons, our view is that the first question should
be answered as follows :

A Member of the United Nations which is called upon, in virtue
of Article 4 of the Charter, to pronounce itself by its vote, either in
the Security Council or in the General Assembly, on the admission
of a State which possesses the qualifications specified in paragraph 1
of that Article, is participating in a political decision and is there-
fore legally entitled to make its consent to the admission dependent
on any political considerations which seem to it to be relevant. In
the exercise of this power the Member is legally bound to have
regard to the principle of good faith, to give effect to the Purposes
and Principles of the United Nations and to act in such a manner
as not to involve any breach of the Charter.

22. Having now replied to the first question, we shall proceed to
the second, which is as follows :

“In particular, can such a Member, while it recognizes the
conditions set forth in that provision to be fulfilled by the State
concerned, subject its affirmative vote to the additional condition
that other States be admitted to membership in the United
Nations together with that State ?”

The practice of the General Assembly and of the Security Council
in regard to the admission of new Members recognizes an affirmative
vote, a negative vote, or an abstention, but not a vote subject to a
condition ; so the second question put must be understood as asking
the Court to decide whether a Member of the Organization is legally
entitled, while admitting that the qualifications prescribed in
Article 4, paragraph 1, are fulfilled by the applicant State, to vote
against its admission unless the Member is assured that other States
will be admitted to membership in the United Nations contem-
poraneously with that State.

This question is put in general terms, and without making any
distinction according to the importance possessed by the vote of any
particular Member in the attainment of the majority required in the
Security Council or in the General Assembly.

23. Ifit is agreed (as we have already submitted) that a Member
of the United Nations is legally entitled to refuse to vote in favour

39
JOINT DISSENTING OPINION 93

of admission by reason of considerations foreign to the qualifications
expressly laid down in Article 4, paragraph 1, this interpretation
applies equally to the second question.

A consideration based on the desire that the admission of the
State should involve the contemporaneous admission of other States
is clearly foreign to the process of ascertaining that the first State
possesses the qualifications laid down in Article 4, paragraph I;
it is a political consideration. Ifa Member of the United Nations
is legally entitled to make its refusal to admit depend on political
considerations, that is exactly what the Member would be doing in
this case.

24. Ifthe request for an opinion involved the Court in approving
or disapproving the desire thus expressed by a Member of the United
Nations to procure the admission of other States at the same time
as the applicant State, it would only be possible to assess this pol-
itical consideration from a political point of view. But such an
assessment is not within the province of the Court. An opinion on
this subject would not be an opinion on a legal question within the
meaning of Article 96 of the Charter and Article 65 of the Statute.
It is one thing to ask the Court whether a Member is legally entitled
to rely on political considerations in voting upon the admission of
new Members ; that is a legal question and we have answered it.
It is quite another thing to ask the Court to assess the validity of any
particular political consideration upon which a Member relies ; that
is a political question and must not be answered.

25. Nevertheless, as we have said, a Member of the United
Nations does not enjoy unlimited freedom in the choice of the polit-
ical considerations that may induce it to refuse or postpone its vote
in favour of the admission of a State to membership in the United
Nations. It must use this power in good faith, in accordance with
the Purposes and Principles of the Organization and in such a
manner as not to involve any breach of the Charter. But no
concrete case has been submitted to the Court which calls into
question the fulfilment of the duty to keep within these limits ; so
the Court need not consider what it would have to do if a con-
crete case of this kind were submitted to it.

(Signed) J. BASDEVANT.

( ) WINIARSKI.

{ ,, ) ArRnotp D. McNarr.
( ) Jon E. Reap,

40