525

DISSENTING OPINION OF JUDGE ODA

Errors in the present case.

Germany — Improper basis for instituting proceedings — Absence of a “dis-
pute” arising out of the interpretation or application of the Vienna Convention
on Consular Relations — Distinction from case concerning Fisheries Jurisdic-
tion (Federal Republic of Germany v. Iceland) -— Failure to raise dispute with
United States prior to submitting Application —- Unilateral application —
Impact of imposition of United States death penalty — Potential consequence
that States that have accepted the compulsory jurisdiction of the Court will
withdraw their acceptance.

United States — Failure to raise objections to the German Application prior
to submission of Counter- Memorial.

International Court of Justice — Improper granting of Order indicating pro-
visional measures — Situation entailing rights of individuals rather than rights
of States.

Errors in the Judgment.

Five principal issues — United States admitted violation of Vienna Conven-
tion requirement of prompt consular notification — No relation between Con-
vention and execution of LaGrands — No relation between Order of 3 March
1999 indicating provisional measures and present case — Illusion that Conven-
tion differentiates between rights of nationals of sending State and those of
receiving State — Protection of foreign nationals.

Absence of a dispute between the Parties concerning the interpretation or
application of the Vienna Convention — Failure of United States to raise pre-
liminary objection on jurisdictional ground — Inadmissibility of German
claims — Failure of United States to raise preliminary objection on this
ground — Whether Vienna Convention confers rights on individuals as well as
States — Application of procedural default rule — Whether orders indicating
provisional measures are binding — Whether the Court should speak of meas-
ures for avoiding the reoccurrence of violations of the Vienna Convention.

I. THE ACCUMULATION OF ERRORS
IN THE PRESENT CASE

1. I would like to begin this dissenting opinion by stating my view of
the case as a whole. This case is unique and most difficult to understand.
I see it as one that has come before the Court as a result of an accumula-
tion of errors: the first made by Germany, as the Applicant; the second
made by the United States, as Respondent; and the third made by the
Court itself.

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1. The Error Made by Germany in Unilaterally Bringing before this

Court Claims for Alleged Violations by the United States of the Con-

vention on Consular Relations rather than the “Dispute” within the
Meaning of the Optional Protocol

2. On 2 March 1999 Germany, “pursuant to Article I of the Vienna
Convention’s Optional Protocol concerning the Compulsory Settlement
of Disputes”, filed in the Registry of the Court an “Application institut-
ing proceedings .. . against the United States of America for violations of
the Vienna Convention on Consular Relations” (Application of the Fed-
eral Republic of Germany; emphasis added).

It is important to note that Germany never stated in the Application
that it was instituting proceedings in respect of a dispute arising out of the
interpretation or application of the Vienna Convention, although the
Application did refer to Article I of the Optional Protocol, which reads:

“Disputes arising out of the interpretation or application of the
Convention shall lie within the compulsory jurisdiction of the Inter-
national Court of Justice and may accordingly be brought before the
Court by an application.” (Emphasis added.)

This case stands in clear contrast to the case concerning Fisheries
Jurisdiction (Federal Republic of Germany v. Iceland), a case which Ger-
many brought against Iceland nearly 30 years ago and in which Germany
filed an “Application instituting proceedings . . . in respect of a dispute”
(Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits,
Judgment, LC.J. Reports 1974, p. 176; emphasis added). This point is
most important and should not have been overlooked in connection with
the issues concerning the jurisdiction of the Court in the present case.

3. I submit, first of all, that before this case was instituted on
2 March 1999, neither the United States, the Respondent, nor even Ger-
many, the Applicant, considered there to be a dispute between them
which had “aris[en] out of the interpretation or application of the [Vienna]
Convention”. There had been no negotiation, or even discussion, over
any such dispute.

4. The background to this case, involving Walter LaGrand, whose
name is used by the Court as the title of the case, and his brother
Karl LaGrand, is set out in detail in paragraphs 13 to 29 of the Judg-
ment. The facts are: the LaGrand brothers committed crimes on 7 Janu-
ary 1982 and were arrested on the same day; they were convicted by the
Superior Court of Pima County, Arizona, on 17 February 1984, and were
sentenced to the death penalty on 14 December 1984. These facts have
not been disputed. Appeals against the convictions and sentences to the
Supreme Court of Arizona were rejected on 30 January 1987. Applica-

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tions to the United States Supreme Court for further review of those
judgments were denied on 5 October 1987.

Petitions for post-conviction relief were denied by an Arizona state
court in 1989. Review of that decision was denied by the Supreme Court
of Arizona in 1990 and by the United States Supreme Court in 1991. The
subsequent judicial proceedings, including a request to the Supreme
Court of Arizona for review of sentencing and a request for clemency,
were all dismissed. The Supreme Court of Arizona decided on 15 January
1999 that Karl LaGrand and Walter LaGrand were to be executed on
24 February 1999 and on 3 March 1999 respectively. On 19 Janu-
ary 1999, the German Consulate learned of the Arizona Supreme Court
decisions setting the dates for the executions of the LaGrand brothers.

5. At the time of their arrest, neither of the LaGrand brothers was aware
that he had German nationality; nor were the competent United States
authorities aware that the LaGrands were not United States nationals.
The present Judgment states that the “competent authorities” of the
United States became aware of the brothers’ German nationality at some
point between mid-1983 and late 1984. While the United States authori-
ties failed to inform either brother of his true nationality until 1991, the
LaGrands had in fact been made aware of their nationality status before
that date. The case was brought to the attention of the German Consu-
late in June 1992 “by the LaGrands themselves, who had learnt of their
rights [under Article 36, paragraph (1) (6), of the Vienna Convention]
from other sources, and not from the Arizona authorities” (Judgment,
para. 22). The German Consulate had repeated contact with the LaGrand
brothers between December 1992 and February 1999. The Court states
that “[o]n 21 December 1998, the LaGrands were formally notified by the
United States authorities of their right to consular access” (Judgment,
para. 24; emphasis added). I fail to see the significance of this “formal”
notification, given that “actual” notification had already occurred and
that “on a number of . . . occasions . . . an official of the Consulate-
General of Germany in Los Angeles [had] visited the LaGrands in prison”
(Judgment, para. 22).

6. At no point in the sequence of events related above did Germany
ever raise the question of the LaGrand brothers with the United
States. Only in January/February 1999 did Germany approach the United
States at the highest national levels requesting clemency for the LaGrand
brothers (Judgment, para. 26). On 22 February 1999 — just two days
before Karl LaGrand’s execution — the German Foreign Minister
drew the attention of the United States Secretary of State to the lack of
consular notification.

It must be noted again that Germany did not institute proceedings in
respect of a dispute with the United States regarding application of the
Vienna Convention on Consular Relations. Even if Germany thought
that the United States had violated the Vienna Convention on Consular
Relations, it raised no such claims with the United States and the United

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528 LAGRAND (DISS. OP. ODA)

States was, of course, not privy to any unexpressed thoughts which Ger-
many might have had about possible violations of the Convention by the
United States. Neither State was aware before 2 March 1999 of any dif-
ference of views between them concerning the Vienna Convention. There
were no negotiations between the two States on this point.

7. Suddenly, on 2 March 1999, Germany filed an “Application insti-
tuting proceedings . . . for violations of the Vienna Convention on Con-
sular Relations” (Application, introductory paragraph) in the Registry of
the Court pursuant to the Statute of the Court, Article 40, paragraph 1,
and the Rules of Court, Article 38, paragraph 1.

It was at that point that the United States could have first discovered
that it was involved in a “dispute” arising out of the interpretation or
application of the Convention. It must have been very odd indeed for the
United States to learn, only after proceedings had been brought against
it, of the alleged existence of a “dispute”.

The United States was informed by the Application filed by Germany
on 2 March 1999 that Germany was claiming violations by the United
States of the Vienna Convention on Consular Relations. | am surprised
that Germany unilaterally brought this case under such circumstances.
More than 17 years had already passed since the LaGrand brothers com-
mitted the crimes in January 1982 and were arrested on the same day.
Nearly 15 years had passed since the Arizona state court sentenced them
to death. During this period, Germany had done nothing to indicate that
it had claims against the United States for violation of the Vienna Con-
vention and that there was an issue giving rise to a “dispute” between the
two countries.

8. Germany filed its Application instituting proceedings against the
United States for an alleged violation of the Convention, but — again I
wish to emphasize this point — not instituting proceedings in respect of
“disputes arising out of the interpretation or application of the [Vienna]
Convention on Consular Relations”, which could have fallen within the
compulsory jurisdiction of the Court pursuant to the Optional Protocol.
A dispute arising out of the interpretation or application of the Conven-
tion either did not in fact exist between Germany and the United States
or, if it did exist, had not been the subject of any diplomatic negotiations
between them. All that existed at that time was Germany’s potential
claim, unbeknownst to the United States, of alleged violations of the
Convention by the United States.

I believe that Germany erred: it presented its Application of
2 March 1999 instituting proceedings for violations of the Vienna Con-
vention as if it were submitting a “dispute” under the Optional Clause. I
maintain that this is a case of a unilateral application made in reliance
upon subsequent consent to the Court’s jurisdiction to be given by the
respondent State. A dispute would then have come into existence once
the Court was seised of the case after the United States consented to the
Court’s jurisdiction.

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529 LAGRAND (DISS. OP. ODA)

9. I would hazard a guess that the German Government was prompted
to bring this case before the International Court of Justice by the outcry
raised by some in Germany, by the emotional reaction on the part of
some people there — where the death penalty has been abolished — to a
case involving the existence and application of the death penalty in the
United States, a reaction made even stronger by the realization that the
nationality of a fellow German (Karl LaGrand) had been ignored and
that he had been executed after being afforded the same treatment a
United States citizen would have received and that another German
national (Walter LaGrand) whose execution was imminent had been
treated in the same way.

It appears to me that the main aim was to save the life of Wal-
ter LaGrand, which aim was further supported by the Request for the
indication of provisional measures filed together with the Application. It
is unlikely that any human rights group in Germany ever thought that
this case involved the Vienna Convention on Consular Relations. This
may be mere supposition, but is there any other convincing reason to
explain why the German Government referred an alleged violation of the
Vienna Convention on Consular Relations to the Court without ascer-
taining through consultation or negotiation with the United States Gov-
ernment whether there existed any difference of views concerning the
Vienna Convention between the two countries?

I am and have always been fully aware of the humanitarian concerns
raised by the fate of the LaGrand brothers. However, I also drew atten-
tion to the rights of the victims of the LaGrand brothers’ crimes and
stated in my declaration appended to the Order of 3 March 1999 that:

“if Mr. Walter LaGrand’s rights as they relate to humanitarian
issues are to be respected then, in parallel, the matter of the rights of
victims of violent crime (a point which has often been overlooked)
should be taken into consideration” (LaGrand (Germany v. United
States of America), Provisional Measures, Order of 3 March 1999,
LC J. Reports 1999 (1), p. 18, declaration of Judge Oda).

10. I very much fear that the Court’s acceptance of this Application
presented unilaterally pursuant to the “optional clause” will in future
lead States that have accepted the compulsory jurisdiction of the Court,
either under Article 36, paragraph 2, of the Statute or under the Optional
Protocol concerning the Compulsory Settlement of Disputes attached to
multilateral treaties, to withdraw their acceptance of the Court’s jurisdic-
tion.

2. The Error Made by the United States in Not Responding in an Appro-
priate Manner to Germany’s Application

11. The United States, which learned of Germany’s views concerning
the dispute allegedly “arising out of the interpretation or application of

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the [Vienna] Convention” only upon the filing of Germany’s Application,
should, in my view, have raised preliminary objections to the case. The
United States could have done this immediately after the Application was
filed on 2 March 1999 or shortly afterwards. In fact, the United States
did not do so. Instead, on 5 March 1999, the Court ordered that, since
this was a case begun by means of a unilateral application to the Court,
the applicant State (Germany) and the respondent State (the United
States) — both of which are parties to the Optional Protocol — should
submit their written pleadings within the respective time-limits set by the
Court, namely, 16 September 1999 and 27 March 2000.

The United States could still have presented an objection to the case
prior to 27 March 2000, the time-limit set for the presentation of the
Counter-Memorial. I found it surprising that the United States, as
Respondent, raised no objection during that one-year period. One might
suppose that the United States felt itself to be in a weak position in its
defence against this Application. From the earliest stages, the United
States knew that it had failed to give prompt notice to the German Con-
sulate of the facts involving the two German nationals. The United States
would also have been aware that by that omission it had at that time vio-
lated the Vienna Convention on Consular Relations to a certain limited
extent. If Germany had raised only the matter of the failure to give timely
consular notification, the United States would have been without any
strong counter-argument.

12. Upon receiving Germany’s Memorial on 16 September 1999, the
United States must have realized that Germany was essentially attempt-
ing to change the character of the Application as it then stood. Having
incorporated the issues relating to compliance or non-compliance by the
United States with the Court’s Order of 3 March 1999 indicating provi-
sional measures, the submissions presented by Germany in its Memorial
of 16 September 1999 appeared to me to be far different in nature and
broader in scope than those in its Application of 2 March 1999,

Once again, the United States could, pursuant to Article 79 of the
Rules of Court, have raised objections before 27 March 2000 (namely,
the time-limit set by the Court for the submission of its Counter-Memo-
rial), and it should have done so, especially in the light of this significant
change in the issues. The United States did not do so and instead pre-
sented its Counter-Memorial on that date. It was only in its Counter-
Memorial of 27 March 2000 that the United States stated that “all other
claims and submissions of... Germany [i.e., those other than the alleged
breach of Article 36 (1) (6) of the Vienna Convention on Consular Rela-
tions] [should be] dismissed” (Counter-Memorial, p. 140, para. 175 (2)).
It was there that the United States challenged the inclusion in the Appli-
cation of 2 March 1999 of some of Germany’s submissions contained in
its Memorial of 16 September 1999.

13. The United States may have chosen not to raise an objection at the
outset simply because it did not think that Germany would, in its subse-

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quent Memorial, redefine the dispute referred to in its earlier Application,
but the United States must have realized upon receipt of the Memorial
in September 1999 that Germany had broadened and modified the defini-
tion of the “dispute”. The case has been greatly complicated by the
approach thus adopted by the United States.

14, In my view the improper filing of Germany’s Application, as
explained above, and the very indifferent reaction of the United States to
Germany’s Application form the essence of this case.

3. The Error Made by the International Court of Justice in Indicating
Provisional Measures in its Order of 3 March 1999

15. In response to Germany’s request submitted on 2 March 1999
together with its Application of the same date, the Court on 3 March 1999
issued an Order granting provisional measures. In my view, the issuing of
that Order was not entirely proper. In order to maintain the solidarity of
the Court and out of humanitarian concerns, I voted — albeit very reluc-
tantly — in favour of the Order of 3 March 1999, and it was therefore
adopted unanimously.

1 now regret that I voted in favour of that Order, since I did so against
my judicial conscience. It should, however, be clear from my declaration
appended to the Court’s Order of 3 March 1999 that I was, in substance,
opposed to the issuance of that Order.

At that time, I held the view (which I still hold now) that:

“as a general rule, provisional measures are granted in order to pre-
serve rights of States exposed to an imminent breach which is irrepa-
rable and these rights of States must be those to be considered at the
merits stage of the case, and must constitute the subject-matter of
the application instituting proceedings or be directly related to it”
(LaGrand (Germany v. United States of America}, Provisional
Measures, Order of 3 March 1999, 1 C.J. Reports 1999 (I), p. 19,
declaration of Judge Oda)

and that

“the request for provisional measures should not be used by appli-
cants for the purpose of obtaining interim judgments that would
affirm their own rights and predetermine the main case” (ibid. ).

16. Let us reflect on the circumstances surrounding the Order of
3 March 1999, Karl LaGrand had already been executed, and the
request for provisional measures was submitted to the Court together
with the Application instituting proceedings at 7.30 p.m. on 2 March
1999, when Walter LaGrand’s execution was imminent. Only on the
morning of 3 March 1999 was the request dated 2 March 1999 provided
to Members of the Court. Another case had been scheduled for that day,

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532 LAGRAND (DISS. OP. ODA)

and all Members of the Court therefore happened to be present at
The Hague.

The Court made its Order at 7.15 p.m. on 3 March 1999, that is, on the
very same day on which the consideration of Germany’s request had
begun — the sole reason for such haste being that Walter LaGrand’s
execution was imminent — without having given the United States a
chance to express its views in writing and without having held a court
sitting for oral hearings. (The times of day are those reported in Judge
Buergenthal’s dissenting opinion.) This Court was clearly faced with an
extraordinary situation for which there was no precedent; it was only
because of the exceptional circumstances of the case that the Court was
able to make such an extraordinary Order in the limited time available
to it.

17. This was not, however, a situation entailing rights of States exposed
to an imminent, irreparable breach. The rights of States in question must
be those to be considered at the merits stage of the case and must con-
stitute the subject-matter of the application instituting proceedings or be
directly related to it.

I submit that the provisional measures ordered by the Court on
3 March 1999, aimed at staying the execution — and therefore preserving
the life, at least temporarily — of Walter LaGrand, were not directly
related to the rights of States under the Vienna Convention and that the
Court made a significant error in issuing an Order indicating provisional
measures in this case, since the issue for which interim relief was sought
did not figure among those for which provisional measures may be
properly ordered by this Court. | am confident in my view that the
Court did indeed err in issuing that Order.

This error was, however, quite understandable, as a human life hung in
the balance and the Court was given very little time to decide upon the
request for an order. As I stated earlier, I believe that Germany is respon-
sible for the ensuing difficulties in this case, since it chose to file its Appli-
cation at the last minute before Walter LaGrand’s execution, and for
placing the Court in a very difficult and delicate position. Now, with the
benefit of a full hearing of both Parties and exposition of all the facts, it
should be clear to the Court (as it was already clear to me on
3 March 1999) that it should not have issued the Order.

II. ERRORS IN THE CoURT’S PRESENT JUDGMENT

A. Introduction

18. As explained in Part I above, I believe that the Court is confronted
with a situation which resulted from an accumulation of three separate
errors: the first error was made by Germany in improperly bringing the
case before the Court; the second by the United States in not raising

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objections to Germany’s Application at the proper time; and the third by
the Court in handing down an order improperly granting provisional
measures. The Court appears to be making an ultimate error on top of
those cumulative errors. I am unable to support the Court’s decision as a
whole in the present Judgment.

19. Before explaining how I voted on each of the paragraphs of the
operative part, I would like, in particular, to mention five principal issues
involved in the present case.

First, the United States admitted its failure to give prompt consular
notification and the ensuing violation of the Vienna Convention on Con-
sular Relations in that respect. There was no dispute on this point
between Germany and the United States.

Second, I see no relation between the delay in consular notification on
the part of the United States authorities, on the one hand, and the hand-
ing down of the death sentence by the Arizona state court and the execu-
tion of the LaGrand brothers, on the other.

Third, the question of compliance with the Order for the indication of
provisional measures of 3 March 1999 bears no relation to the present
case, which was submitted by Germany in respect of alleged violations by
the United States of the Vienna Convention on Consular Relations.

Fourth, the Court seems to cherish the illusion that a national of the
sending State should, under the Convention, be accorded greater protec-
tion and enjoy more rights than nationals of the receiving State.

Fifth, it seems to me that the Court has confused the right, if any, of
the arrested foreign national accorded under the Vienna Convention with
the rights of foreign nationals to protection under general international
law or other treaties or conventions, and, possibly, even with human
rights.

B. Specific Critiques of the Operative Part
1. Subparagraph (1) of the operative part (Judgment, para. 128}

20. In subparagraph (1) of the operative part of the Judgment the
Court states that “it has jurisdiction . . . to entertain the Application
filed by [Germany] on 2 March 1999”. As stated in Part I, section 1,
above, there is no basis for believing that there existed a dispute between
Germany and the United States arising out of the interpretation or appli-
cation of the Vienna Convention on Consular Relations in respect of
which an Application could have been filed. I voted in favour of the
Court’s determination that the Court has jurisdiction to entertain
Germany’s Application of 2 March 1999 solely for the reason that the

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United States, the Respondent, raised no preliminary objection to that
Application.

However, I must stress that the Court’s jurisdiction is over the Applicu-
tion of 2 March 1999, as originally filed, not as subsequently qualified by
Germany’s submissions extensively altering and supplementing the Appli-
cation so as to change the very essence of it. It is to be noted in this
regard that the United States, in its Counter-Memorial and in the oral
arguments heard on 17 November 2000, submitted that Germany’s claims
and submissions, other than those concerning the breach by the United
States of Article 36, paragraph 1 (6), of the Vienna Convention, should
be dismissed.

21. In this respect I must refer also to Germany’s third submission,
regarding the Court’s Order of 3 March 1999 indicating provisional
measures, which, according to the present Judgment, “concerns issues
that arise directly out of the dispute between the Parties before the Court
over which the Court has already held that it has jurisdiction . . . and
which are thus covered by Article I of the Optional Protocol” (Judgment,
para. 45). The Court goes on to state:

“The Court reaffirms, in this connection, what it said in its Judg-
ment in the Fisheries Jurisdiction case, where it declared that in
order to consider the dispute in all its aspects, it may also deal with
a submission that ‘is one based on facts subsequent to the filing of
the Application, but arising directly out of the question which is the
subject-matter of that Application. As such it falls within the scope
of the Court’s jurisdiction... (Fisheries Jurisdiction ( Federal Repub-
lic of Germany v. Iceland), Merits, Judgment, 1 C.J. Reports 1974,
p. 203, para. 72).” (Ibid. )

From these statements the Court concludes:

“Where the Court has jurisdiction to decide a case, it also has
jurisdiction to deal with submissions requesting it to determine that
an order indicating measures which seeks to preserve the rights of
the Parties to this dispute has not been complied with.” (Jbid. )

I would like to point out that in the Fisheries Jurisdiction case, Ger-
many referred a difference which had already ripened into a dispute with
Iceland to the Court on the basis of, inter alia, an optional clause in the
Exchange of Notes dated 19 July 1961. This differentiates it from the
present case, which, as I stated in paragraphs 6 to 8 above, cannot be
considered to have been brought under the Optional Protocol. In addi-
tion, in the Fisheries Jurisdiction case provisional measures were indi-
cated to protect the rights of a State, Germany, from possible infringe-
ments which might arise from Iceland’s exercise of its competence
pursuant to its previously enacted national legislation. There is no basis

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for likening the present case to the Fisheries Jurisdiction case as regards
orders indicating provisional measures.

2. Subparagraph (2) of the operative part (Judgment, para. 128)

22. In connection with subparagraph (2) of the operative part, I believe
that the Court should have decided on the admissibility of Germany’s
Application of 2 March 1999, not of Germany’s submissions set out sub-
sequently in the Memorial and repeated in its oral pleadings on 16 Novem-
ber 2000. For this reason, I voted against the whole of subparagraph (2),
notwithstanding the fact that I note that the United States raised no pre-
liminary objection in connection with the admissibility of the present
case.

3. Subparagraph (3) of the operative part (Judgment, para. 128)

23. Subparagraph (3) appears to me to proceed from the premise that
the Vienna Convention on Consular Relations placed a legal obligation
on the United States not only to Germany but also to the LaGrand
brothers. Let me follow the reasoning set out in the present Judgment.
The Court begins by stating:

“The Court cannot accept the argument of the United States
which proceeds, in part, on the assumption that paragraph 2 of
Article 36 applies only to the rights of the sending State and not
also to those of the detained individual. The Court has already
determined that Article 36, paragraph 1, creates individual rights for
the detained person in addition to the rights accorded the sending
State, and that consequently the reference to ‘rights’ in paragraph 2
must be read as applying not only to the rights of the sending State,
but also to the rights of the detained individual (see paragraph 77
above).” (Judgment, para. 89; emphasis added.)

What “[t]he Court has already determined” is as follows:

“The Court notes that Article 36, paragraph 1 (6), spells out the
obligations the receiving State has towards the detained person and
the sending State. It provides that . . . the receiving State must
inform the consular post of the sending State . . . It provides further
that any communication by the detained person . . . must be for-
warded to [the consular post of the sending State] by authorities of
the receiving State .. . Significantly, this subparagraph ends with the
following language: ‘The said authorities shall inform the person
concerned . . . of his rights . . ... Moreover, under Article 36, para-
graph 1 (c), the sending State’s right to provide consular assistance
to the detained person may not be exercised ‘if he expressly opposes
such action’. The clarity of these provisions [Article 36, para-

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536 LAGRAND (DISS. OP. ODA)

graph 1 (b), (c)], viewed in their context, admits of no doubt. It
follows, as has been held on a number of occasions, that the Court
must apply these as they stand . . . Based on the text of these pro-
visions, the Court concludes that Article 36, paragraph 1, creates
individual rights, which, by virtue of Article I of the Optional Pro-
tocol, may be invoked in this Court by the national State of the
detained person. These rights were violated in the present case.”
(Judgment, para. 77; original emphasis by the Court deleted; empha-
sis is added.)

I see no convincing argument to support the determination of the
Court that

“Article 36, paragraph |, creates individual rights for the detained
person in addition to the rights accorded the sending State, and...
consequently the reference to ‘rights’ in paragraph 2 must be read as
applying not only to the rights of the sending State, but also to the
rights of the detained individual” (Judgment, para. 89).

24. I shall take the liberty of expressing my puzzlement at the reason
for and relevance of the Court’s reference in the Judgment to Article 36,
paragraph | (c), of the Convention in connection with the rights of a
detained person. I believe that this provision was included in the Conven-
tion simply to provide for the situation in which an arrested foreign
national waives consular notification in order to prevent his criminal con-
duct or even his presence in a foreign country from becoming known in
his home country; that provision may not have any further significance.

25. Article 36, paragraphs | and 2, of the Vienna Convention on Con-
sular Relations is perceptively interpreted by Vice-President Shi in his
separate opinion and I fully share his views.

4. Subparagraph (4) of the operative part (Judgment, para. 128)

26. In connection with this subparagraph (4), the Court admits that
“fijn itself, the [procedural default] rule does not violate Article 36 of the
Convention” but concludes that in the present case:

“the procedural default rule does not allow the detained individual
[in this case the LaGrand brothers] to challenge a conviction and
sentence by claiming, in reliance on Article 36, paragraph 1, of the
Convention, that the competent national authorities failed to
comply with their obligation to provide the requisite consular
information ‘without delay’, thus preventing the person from
seeking and obtaining consular assistance from the sending State”
(Judgment, para. 90).

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537 LAGRAND (DISS. OP. ODA)

This conclusion may be connected with the refusal on 23 February 1999
by the Arizona Superior Court in Pima County to entertain a further
petition, as noted in the Judgment (para. 28). I fail to understand the
factual situation underlying the Court’s assertion that “the procedural
default rule had the effect of preventing ‘full effect [from being] given to
the purposes for which the rights accorded under [Article 36 of the Con-
vention] are intended’, and thus violated paragraph 2 of Article 36”
(Judgment, para. 91).

27. Iam not convinced of the correctness of the Court’s holding that
the Vienna Convention on Consular Relations grants to foreign indivi-
duals any rights beyond those which might necessarily be implied by the
obligations imposed on States under that Convention. In addition, I can-
not but think that the Court holds the view that the Vienna Convention
on Consular Relations grants more extensive protection and greater or
broader individual rights to foreign nationals (in this case, German
nationals in the United States) than would be enjoyed by nationals in
their home countries (in this case, Americans in the United States).

If the Vienna Convention on Consular Relations is to be interpreted as
granting rights to individuals, those rights are strictly limited to those
corresponding to the obligations borne by the States under the Conven-
tion and do not include substantive rights of the individual, such as the
rights to life, property, etc. I find the Judgment devoid of any convincing
explanation of this point.

5. Subparagraph (5) of the operative part (Judgment, para. 128)

28. As stated in paragraph 21 above, compliance or non-compliance
with the Order indicating provisional measures of 3 March 1999 does not
fall within the scope of the present case, brought before the Court by
Germany’s Application of 2 March 1999 in respect of violations of the
Convention on Consular Relations. Apart from this point, it appears to
me that the Court has not properly understood the meaning of the indi-
cation of provisional measures. As stated above in paragraphs 15 to 17,
the Court was mistaken in March 1999 in granting provisional measures.

29. The Court appears to be mostly concerned with the question of
whether or not provisional measures indicated by it are binding. In the
present Judgment, the Court dedicates as many as 25 paragraphs
(paras. 92-116) to this issue. After summarizing the views of Germany
and the United States (paras. 92-97), the Court attempts to explain at
length in 19 paragraphs (paras. 98-116) why an order indicating provi-
sional measures has binding effect or binding force.

30. Commencing with a general discussion of the meaning of
Article 41, concerning provisional measures, of the Court’s Statute, the
Court states that

75
538 LAGRAND (DISS. OP. ODA)

“in accordance with customary international law, reflected in
Article 31 of the 1969 Vienna Convention on the Law of Treaties
.. à treaty must be interpreted in good faith in accordance with the
ordinary meaning to be given to its terms in their context and in the
light of the treaty’s object and purpose” (Judgment, para. 99).

Noting the difference between the authentic French text and the authen-
tic English text, the Court then “consider[s] the object and purpose of the
Statute together with the context of Article 41” (Judgment, para. 101).
The Court goes on to state that:

“The object and purpose of the Statute is to enable the Court to
fulfil the functions provided for therein, and, in particular, the basic
function of judicial settlement of international disputes by binding
decisions in accordance with Article 59 of the Statute. The context in
which Article 41 has to be seen within the Statute is to prevent the
Court from being hampered in the exercise of its functions because
the respective rights of the parties to a dispute before the Court are
not preserved.” (Judgment, para. 102.)

The Court further states that:

“It follows from the object and purpose of the Statute, as well as
from the terms of Article 41 when read in their context, that the
power to indicate provisional measures entails that such measures
should be binding, inasmuch as the power in question is based on
the necessity, when the circumstances call for it, to safeguard, and to
avoid prejudice to, the rights of the parties as determined by the final
judgment of the Court.” (/bid. }

The Court immediately concludes that “[t]he contention that provisional
measures indicated under Article 41 might not be binding would be con-
trary to the object and purpose of that Article” (ibid. ; emphasis added).
I fail to find any affirmative reason in the above argument to support the
binding force of an order for the indication of provisional measures.

31. As “[a| related reason which points to the binding character of
orders made under Article 41 and to which the Court attaches impor-
tance” (Judgment, para. 103), the Judgment refers to the jurisprudence of
the Permanent Court of International Justice in the 1939 case concerning
Electricity Company of Sofia and Bulgaria (Electricity Company of Sofia
and Bulgaria, Interim Measures of Protection, Order of 5 December
1939, P.CLJ., Series AIB, No. 79, p. 194) and to many other orders of
the present Court in which that case was cited (Judgment, para. 103). In
my view, however, the “principle universally accepted by international
tribunals and likewise laid down in many conventions” mentioned in that
Order was nothing more than a general statement concerning provisional
measures “to the effect that the parties to a case must abstain from any
measure capable of exercising a prejudicial effect in regard to the execu-

76
539 LAGRAND (DISS. OP. ODA)

tion of the decision to be given” (P.C.LJ., Series A/B, No. 79, p. 199)
and cannot be interpreted as supporting the contention that an order on
provisional measures has binding force.

32. The Court, though “not consider[ing] it necessary to resort to the
preparatory work”, “nevertheless point[s] out that the preparatory
work of the Statute does not preclude the conclusion that orders under
Article 41 have binding force” (Judgment, para. 104; emphasis added).

After stating that “the lack of means of execution and the lack of bind-
ing force are two different matters” (Judgment, para. 107) and quoting
Article 94 of the United Nations Charter, which states that “[e]Jach Mem-
ber of the United Nations undertakes to comply with the decision of the
International Court of Justice in any case to which it is a party” (Judg-
ment, para. 108), the Court concludes that “Article 94 of the Charter
does not prevent orders made under Article 41 from having a binding
character” (ibid. ; emphasis added). The present Judgment further states
that

“none of the sources of interpretation . . . including the preparatory
work, contradict the conclusions drawn from the terms of Article 41
read in their context [that is, the binding character of orders] and in
the light of the object and purpose of the Statute” (Judgment,
para. 109; emphasis added).

33. After this extensive discussion, which seems to me a rather vain
and unproductive undertaking, the Court states that “[t]hus, [it] has
reached the conclusion that orders on provisional measures under
Article 41 have binding effect” (ibid). I fail to understand either this
roundabout method of analysis to which the Court dedicates as many
as 25 paragraphs or the process by which that analysis led the Court
to that conclusion.

34. In my view, addressing the general question as to whether or not
an order indicating provisional measures “is binding” or “has binding
force” is an empty, unnecessary exercise. I wonder what the Court really
wants to say in holding that an order indicating provisional measures is
binding. Is the Court trying to raise the question of responsibility of the
State which allegedly has not complied with the order? This question has
not arisen in the past jurisprudence of this Court. It suffices that provi-
sional measures “ought to be taken” or, in the French, “doivent étre
prises” (Statute, Art. 41). Whether an order indicating provisional
measures has been complied with or not is decided by the Court in its
Judgment on the merits.

35. In paragraph 111 of the Judgment, the Court then considers the
“the question whether the United States has complied with the obligation
incumbent upon it as a result of the Order of 3 March 1999”. After a

77
540 LAGRAND (DISS. OP. ODA)

circuitous analysis the Court concludes that “under these circum-
stances . . . the United States has not complied with the Order of
3 March 1999” (Judgment, para. 115), simply because Walter LaGrand
was executed.

Even if I were to accept that the issuance of the Order indicating pro-
visional measures of 3 March 1999 was a valid exercise of the Court’s
jurisdiction, I believe that that Order was complied with by the United
States, which took all measures at its disposal in an attempt to respect the
terms. At any rate, the stay of an execution, in this case of Wal-
ter LaGrand, could not be — and, in fact, was not — mandated by the
Court in its Order indicating provisional measures. | reiterate: it is
extraordinary that the Court, in its Order of 3 March 1999, determined
not the rights and duties of a State but the rights of an individual. In any
case, the question as to whether or not the Order of 3 March 1999 indi-
cating provisional measures was complied with should never have been
raised.

6. Subparagraph (6) of the operative part (Judgment, para. 128)

36. Given my opinion that there was no other violation of the Vienna
Convention on Consular Relations on the part of the United States than
its failure to notify the German consular officials without delay of the
incident involving the LaGrand brothers and the fact that the United
States did indeed take various measures to prevent the reoccurrence of
that violation, 1 do not believe there is any more to be said on this subject
in the Judgment. However, | voted in favour of this subparagraph for the
sole reason that the statement in this subparagraph cannot cause any
harm.

7. Subparagraph (7) of the operative part (Judgment, para. 128)

37. I am utterly at a loss as to what the Court intends to say in this
subparagraph. My failure to understand may stem from the fact that I
hold a diametrically different view on “the rights set forth in [the Vienna]
Convention”. However, I believe that the sole subject-matter of the
Court’s consideration should have been the violations of the Vienna Con-
vention by a party to it, as explained in paragraphs 23 to 25 above.

(Signed) Shigeru ODA.

78


204

SEPARATE OPINION OF JUDGE KOROMA

Construction of wall and annexation —- Validity of Court’s jurisdiction —
Functions of Court in advisory proceedings  Findings on basis of applicable
law — Erga omnes character of findings. Respect for humanitarian law —

Role of General Assembly.

1. While concurring with the Court’s findings that the construction of
the wall being built by Israel, the occupying Power, in the Occupied
Palestinian Territory, including in and around East Jerusalem, and its
associated régime are contrary to international law, I nevertheless con-
sider it necessary to stress the following points.

2. First and foremost, the construction of the wall has involved the
annexation of parts of the occupied territory by Israel, the occupying
Power, contrary to the fundamental international law principle of the
non-acquisition of territory by force. The Court has confirmed the
Palestinian territories as occupied territory and Israel is therefore not
entitled to embark there on activities of a sovereign nature which will
change their status as occupied territory. The essence of occupation is
that it is only of a temporary nature and should serve the interests of the
population and the military needs of the occupying Power. Accordingly,
anything which changes its character, such as the construction of the
wall, will be illegal.

3. Understandable though it is that there may be a diversity of legal
views and perspectives on the question submitted to the Court, namely,
the rights and obligations of an occupying Power in an occupied territory
and the remedies available under international law for breaches of those
obligations — a question which, in my view, is eminently legal and falls
within the advisory jurisdiction of the Court — the objection is not sus-
tainable that the Court lacks competence to rule on such a question, as
determined under the United Nations Charter (Art. 96 — functional
co-operation on legal questions between the Court and the General
Assembly), the Statute of the Court (Art. 65 —- discretionary power; and
Art. 68 — assimilation with contentious procedures), the Rules of Court
(Art. 102, para. 2 — assimilation with contentious proceedings), and the
settled jurisprudence of the Court. Also not sustainable is the objection
based on judicial propriety, which the Court duly considered in terms of
its competence and of fairness in the administration of justice. In this
regard, the question put to the Court is not about the Israeli-Palestinian
conflict as such, nor its resolution, but rather the legal consequences of
the construction of the wall in the occupied territory. In other words, is it
permissible under existing law for an occupying Power, unilaterally, to

72
205 CONSTRUCTION OF A WALL (SEP. OP. KOROMA)

bring about changes in the character of an occupied territory? An emi-
nently legal question, which, in my view, is susceptible of a legal response
and which does not by necessity have to assume the nature of an adjudi-
cation of a bilateral dispute; it is a request for elucidation of the appli-
cable law. It is to that question that the Court has responded. It was
therefore appropriate for the Court to exercise its advisory jurisdiction in
this matter. The jurisdictional basis of the Court’s Advisory Opinion is
thus firmly anchored in its jurisprudence.

4. The function of the Court in such proceedings is to ascertain and
apply the law to the issue at hand. To reach its findings, the Court has
applied the relevant rules of the international law of occupation as it per-
tains to the Palestinian territories. Applying these rules, the Court has
found that the territories were occupied territory and thus not open to
annexation; that any such annexation would be tantamount to a viola-
tion of international law and contrary to international peace. Under the
régime of occupation, the division or partition of an occupied territory by
the occupying Power is illegal. Moreover, in terms of contemporary inter-
national law, every State is under an obligation to refrain from any
action aimed at the partial or total disruption of the national unity and
territorial integrity of any other State or country.

5. The Court has also held that the right of self-determination as an
established and recognized right under international law applies to the
territory and to the Palestinian people. Accordingly, the exercise of such
right entitles the Palestinian people to a State of their own as originally
envisaged in resolution 181 (11) and subsequently confirmed. The Court
has found that the construction of the wall in the Palestinian territory
will prevent the realization of such a right and is therefore a violation
of it.

6. With respect to humanitarian and human rights law, the Court has
rightly adjudged that both these régimes are applicable to the occupied
territories; that Israel as the occupying Power is under an obligation to
respect the rights of the Palestinian population of the occupied territo-
ries. Accordingly, the Court has held that the construction of the wall in
the occupied territories violates the régime of humanitarian and human
rights law. To put an end to such violations, the Court has rightly called
for the immediate cessation of the construction of the wall and the pay-
ment of reparation for damages caused by the construction.

7. Equally important is the finding that the international community
as a whole bears an obligation towards the Palestinian people as a former
mandated territory, on whose behalf the international community holds
a “sacred trust”, not to recognize any unilateral change in the status of
the territory brought about by the construction of the wall.

8. The Court’s findings are based on the authoritative rules of inter-

73
206 CONSTRUCTION OF A WALL (SEP. OP. KOROMA)

national law and are of an erga omnes character. The Court’s response
provides an authoritative answer to the question submitted to it. Given
the fact that all States are bound by those rules and have an interest in
their observance, all States are subject to these findings.

9. Just as important is the call upon the parties to the conflict to
respect humanitarian law in the ongoing hostilities. While it is under-
standable that a prolonged occupation would engender resistance, it is
nonetheless incumbent on all parties to the conflict to respect interna-
tional humanitarian law at all times.

10. In making these findings, the Court has performed its role as the
supreme arbiter of international legality and safeguard against illegal
acts. It is now up to the General Assembly in discharging its responsibili-
ties under the Charter to treat this Advisory Opinion with the respect and
seriousness it deserves, not with a view to making recriminations but to
utilizing these findings in such a way as to bring about a just and peaceful
solution to the Israeli-Palestinian conflict, a conflict which has not only
lasted for far too long but has caused enormous suffering to those
directly involved and poisoned international relations in general.

(Signed) Abdul G. Koroma.

74


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRÊTS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DE LA BARCELONA
TRACTION, LIGHT AND POWER

COMPANY, LIMITED
(NOUVELLE REQUÊTE: 1962)
(BELGIQUE c. ESPAGNE)

ORDONNANCE DU 16 MARS 1963

1963

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING
THE BARCELONA TRACTION, LIGHT

AND POWER COMPANY, LIMITED
(NEW APPLICATION: 1962)
(BELGIUM v. SPAIN)

ORDER OF 16 MARCH 1963
La présente ordonnance doit être citée comme suit:

« Affaire de la Barcelona Traction, Light and Power Company,
Limited (nouvelle requête : 1962) (Belgique c. Espagne),
Ordonnance du 16 mars 1963: C. I. J. Recueil 1963, p. 9.»

This Order should be cited as follows:
“Case concerning the Barcelona Traction, Light and Power Company,
Limited (new Application: 1962) (Belgium v. Spain),
Order of 16 March 1963: I.C.]. Reports 1963, p. 9.”

Ne de vente : 975
Sales number

COUR INTERNATIONALE DE JUSTICE

ANNÉE 1063
1963
Le 16 mars
Réle général 16 mars 1963
n° 50

AFFAIRE DE LA BARCELONA
TRACTION, LIGHT AND POWER

COMPANY, LIMITED

(NOUVELLE REQUÊTE: 1962)
(BELGIQUE c. ESPAGNE)

ORDONNANCE

Le Président de la Cour internationale de Justice,

vu l’article 48 du Statut de la Cour et l’article 62 du Règlement

de la Cour;

vu l’ordonnance du 7 août 1962 fixant au 15 mars 1963 le délai

pour le dépôt du contre-mémoire du Gouvernement espagnol ;

Considérant que, dans le délai ainsi fixé, le Gouvernement espa-
gnol a déposé certaines exceptions préliminaires et prié la Cour de
dire et juger qu’elle est incompétente pour connaître ou décider des
demandes formulées par la requête et le mémoire du Gouvernement

belge, et que la requête est irrecevable;

Considérant qu’en conséquence, en vertu des dispositions de
l'article 62, paragraphe 3, du Règlement de la Cour, la procédure
sur le fond est suspendue et qu’il échet de fixer un délai dans lequel

4
Lo BARCELONA TRACTION (ORDONN. DU 16 III 63)

la Partie adverse pourra présenter un exposé écrit contenant ses
observations et conclusions sur les exceptions préliminaires;

Après s’étre renseigné auprès des Parties,

Fixe au 15 août 1963 la date d’expiration du délai dans lequel
le Gouvernement belge pourra présenter un exposé écrit contenant
ses observations et conclusions sur les exceptions soulevées par le
Gouvernement espagnol.

Fait en français et en anglais, le texte francais faisant foi, au
Palais de la Paix, 4 La Haye, le seize mars mil neuf cent soixante-
trois, en trois exemplaires, dont l’un restera déposé aux archives de
la Cour et dont les autres seront transmis respectivement au Gou-
vernement belge et au Gouvernement espagnol.

Le Président,
(Signé) B. WINIARSKI.

Le Greffier,
(Signé) GARNIER-COIGNET.


87

DÉCLARATION DE M. FERRARI BRAVO

J'ai voté en faveur de l’autre avis consultatif sur la licéité des armes
nucléaires, donné ce même jour (Licéité de la menace ou de l'emploi
d'armes nucléaires, CI.J. Recueil 1996, p. 226), parce que je pense qu’il
est du devoir de la Cour internationale de Justice de n’épargner aucun
effort pour répondre au mieux aux questions que lui posent les organes
principaux des Nations Unies habilités à la saisir, surtout lorsqu'une telle
réponse peut augmenter les possibilités de sortir d’une impasse qui, dans
le cas actuel, perdure depuis plus de cinquante ans en faisant peser une
ombre triste et menaçante sur l'humanité tout entière.

Dans sa fonction d’organe judiciaire principal des Nations Unies (ar-
ticle 92 de la Charte), la Cour a été, entre autres, créée justement pour
cela et elle ne doit pas se demander si sa réponse, au mieux de ce qu’elle
peut faire, pourra contribuer à l’évolution de la situation. Elle n’a pas
non plus à se justifier si sa réponse n’est pas exhaustive. Je souscris par con-
séquent pleinement aux motifs qui étayent la décision prise par la Cour
de faire droit à la demande de l’Assemblée générale.

A ce propos, il est toutefois nécessaire de dire que la question se pré-
sente sous un angle tout à fait différent lorsque la saisine provient d’une
institution spécialisée des Nations Unies, dont la compétence pour s’adres-
ser à la Cour est, pour des raisons de principe, bien délimitée. J’ai, par-
tant, voté aussi en faveur du présent avis, par lequel la Cour décide de ne
pas répondre à la demande de l'Organisation mondiale de la Santé et je
trouve qu’il y a de la logique dans ce comportement. La Cour, en effet,
est l’organe judiciaire principal des Nations Unies, mais elle ne l’est pas
d’autres organisations internationales dont le droit de la saisir demande à
être soigneusement limité si l’on veut conserver un partage correct de
compétences — et, donc, d'efficacité — entre organismes internationaux,
en évitant que des fonctions politiques, que la logique du système a
confiées seulement aux Nations Unies, soient usurpées par d’autres orga-
nisations qui, pour ne rien dire d’autre, n’ont ni la compétence, ni la
structure pour ce faire.

{Signé) L. FERRARI BRAVO.

25


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

DIFFERENCE RELATING TO IMMUNITY FROM
LEGAL PROCESS OF A SPECIAL RAPPORTEUR
OF THE COMMISSION ON HUMAN RIGHTS

(REQUEST FOR ADVISORY OPINION)

ORDER OF 10 AUGUST 1998

1998

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

DIFFEREND RELATIF À L'IMMUNITÉ
DE JURIDICTION D’UN RAPPORTEUR SPECIAL
DE LA COMMISSION DES DROITS DE L'HOMME

(REQUETE POUR AVIS CONSULTATIF)

ORDONNANCE DU 10 AOUT 1998
Official citation:

Difference Relating to Immunity from Legal Process of a
Special Rapporteur of the Commission on Human Rights,
Order of 10 August 1998, I.C.J. Reports 1998, p. 423

Mode officiel de citation:

Différend relatif à l'immunité de juridiction d’un rapporteur spécial
de la Commission des droits de l'homme, ordonnance du 10 août 1998,
CIS. Recueil 1998, p. 423

Sales number
ISSN 0074-4441 N° de vente: 71 1
ISBN 92-1-070779-6

423

COUR INTERNATIONALE DE JUSTICE
ANNÉE 1998

10 août 1998

DIFFÉREND RELATIF À L'IMMUNITÉ
DE JURIDICTION D’UN RAPPORTEUR SPECIAL
DE LA COMMISSION DES DROITS DE L'HOMME

(REQUÊTE POUR AVIS CONSULTATIF)

ORDONNANCE

Le juge doyen, faisant fonction de président de la Cour internationale
de Justice en vertu du paragraphe 3 de l’article 13 du Règlement de la Cour,

Vu les paragraphes 2 et 4 de Particle 66 du Statut de la Cour,

Considérant que, le 5 août 1998, le Conseil économique et social des
Nations Unies a adopté la décision 1998/297 ci-après:

«Le Conseil économique et social,

Ayant examiné la note du Secrétaire général sur les privilèges et im-
munités du rapporteur spécial de la Commission des droits de l’homme
chargé de la question de l’indépendance des juges et des avocats,

Considérant qu’un différend oppose l'Organisation des Nations
Unies et le Gouvernement malaisien, au sens de la section 30 de la
convention sur les privilèges et immunités des Nations Unies, au
sujet de l’immunité de juridiction de Dato’ Param Cumaraswamy,
rapporteur spécial de la Commission des droits de l’homme chargé
de la question de l’indépendance des juges et des avocats,

Rappelant la résolution 89 (I) de l’Assemblée générale, en date du
11 décembre 1946,

1. Prie la Cour internationale de Justice de donner, à titre priori-
taire, en vertu du paragraphe 2 de l’article 96 de la Charte des

! E/1998/94,

1998
10 août
Rôle général
n° 100
IMMUNITÉ DE JURIDICTION (ORDONNANCE 10 VIII 98) 424

Nations Unies et conformément à la résolution 89 (I) de l’Assemblée
générale, un avis consultatif sur le point de droit concernant l’appli-
cabilité de la section 22 de l’article VI de la convention sur les privi-
lèges et immunités des Nations Unies au cas de Dato’ Param Cumaras-
wamy, en tant que rapporteur spécial de la Commission des droits de
l’homme chargé de la question de l’indépendance des juges et des avo-
cats, en tenant compte des paragraphes 1 à 15 de la note du Secrétaire
général’, et sur les obligations juridiques de la Malaisie en l’espéce;

2. Invite le Gouvernement malaisien à veiller à ce que tous les
jugements prononcés et mesures prises sur cette question par les tri-
bunaux malaisiens soient suspendus jusqu’a ce que la Cour interna-
tionale de Justice ait rendu son avis, qui sera accepté par les parties
comme décisif.

1 E/1998/94» ;

Considérant que copie certifiée conforme des versions française et
anglaise de cette décision, de la note du Secrétaire général qui y est visée,
ainsi que de l’additif à cette note (E/1998/94 et Add.1) a été transmise à la
Cour par une lettre du Secrétaire général de Organisation des Nations
Unies en date du 7 août 1998, reçue au Greffe par télécopie le 10 août 1998;

Considérant que, pour fixer les délais de procédure, il est nécessaire de
tenir compte du fait que la requête pour avis consultatif a été expressé-
ment présentée «à titre prioritaire»,

Décide que l'Organisation des Nations Unies et les Etats parties à la
convention sur les privilèges et immunités des Nations Unies sont suscep-
tibles de fournir des renseignements sur la question soumise à la Cour
pour avis consultatif;

Fixe au 7 octobre 1998 la date d'expiration du délai dans lequel des
exposés écrits sur la question pourront être présentés à la Cour confor-
mément au paragraphe 2 de l’article 66 de son Statut;

Fixe au 6 novembre 1998 la date d’expiration du délai dans lequel les
Etats ou organisations qui auront présenté un exposé écrit pourront pré-
senter des observations écrites sur les autres exposés écrits conformément
au paragraphe 4 de l’article 66 du Statut de la Cour;

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 dix août mil neuf cent quatre-vingt-dix-huit.

Le juge doyen,
(Signé) Shigeru ODA.
Le greffier,
(Signé) Eduardo VALENCIA-OSPINA.


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DE LA DELIMITATION
DE LA FRONTIERE MARITIME
DANS LA REGION DU GOLFE DU MAINE

(CANADA/ETATS-UNIS D’AMERIQUE)

ORDONNANCE DU 28 JUILLET 1982

1982

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING DELIMITATION
OF THE MARITIME BOUNDARY
IN THE GULF OF MAINE AREA

(CANADA/UNITED STATES OF AMERICA)

ORDER OF 28 JULY 1982
Mode officiel de citation :

Délimitation de la frontiére maritime dans la région du golfe du Maine,
ordonnance du 28 juillet 1982, C.J. Recueil 1982, p. 557.

Official citation :
Delimitation of the Maritime Boundary in the Gulf of Maine Area,
Order of 28 July 1982, I.C.J. Reports 1982, p. 557.

Sales number 477
N° de vente :

557

INTERNATIONAL COURT OF JUSTICE
YEAR 1982

28 July 1982

CASE CONCERNING DELIMITATION
OF THE MARITIME BOUNDARY IN
THE GULF OF MAINE AREA

(CANADA/UNITED STATES OF AMERICA)

ORDER

The President of the Chamber of the International Court of Justice
formed to deal with the case concerning: Delimitation of the Maritime
Boundary in the Gulf of Maine Area between Canada and the United States
of America,

Having regard to Article 48 of the Statute of the Court and to Articles 18,
paragraph 3, 44, 46 and 92 of the Rules of Court,

Having regard to the Order of the Court of 1 February 1982 fixing
26 August 1982 as the time-limit for the filing of the Memorial of each
Party ;

Whereas, by a letter dated 27 July 1982, the Agent of Canada, for the
reasons therein set out, requested the Chamber to extend by four weeks the
time-limit for the filing of the Memorials of the Parties ;

Whereas, by a letter dated 27 July 1982, the Agent of the United States of
America stated that his Government had no objection to the request for
extension ;

Extends to 27 September 1982 the time-limit for the filing of the
Memorials of Canada and of the United States of America ;

Reserves the subsequent procedure for further decision.
GULF OF MAINE (ORDER 28 VII 82) 558

Done in French and in English, the French text being authoritative, at
the Peace Palace, The Hague, this twenty-eighth day of July one thousand
nine hundred and eighty-two, in three copies, one of which will be placed in
the archives of the Court, and the others transmitted to the Government of
Canada and to the Government of the United States of America, respec-
tively.

(Signed) Roberto AGo,
President of the Chamber.

(Signed) Santiago TORRES BERNARDEZ,
Registrar.


1176

                   DECLARATION OF JUDGE GEVORGIAN

  Clarification on paragraph 49 of the Order — Relation between Article 4 of the
Palermo Convention and the principles of international law referred to therein —
Immunities ratione personae derive from the principle of sovereign equality of
States.

   1. I concur with the conclusions and reasoning of the Order. At the
same time, I ﬁnd it necessary to clarify my views on the relation between
Article 4 of the Palermo Convention and the principles of international
law referred to therein.
   2. According to the ﬁrst paragraph of this provision, “States Parties
shall carry out their obligations under this Convention in a manner con-
sistent with the principles of sovereign equality and territorial integrity of
States and that of non-intervention in the domestic aﬀairs of other
States.” Paragraph 49 of the Order indicates that this provision “does not
appear to create new rules concerning the immunities of holders of
high-ranking oﬃce in the State or incorporate rules of customary interna-
tional law concerning those immunities”. In my understanding, this state-
ment does not mean that rules of immunity of State oﬃcials from foreign
criminal jurisdiction do not derive from the principles mentioned in Arti-
cle 4 of the Palermo Convention. In fact, the opposite is true : such immu-
nities are deeply entrenched in the principle of sovereign equality. As the
International Law Commission has indicated in its commentary to
Article 4 of the Draft Articles on Immunity of State Oﬃcials from For-
eign Criminal Jurisdiction (dealing with the scope of immunity ratione
personae), “the purpose of immunity ratione personae . . . relates . . . to
protection of the sovereign equality of the State” (ILC Commentary on
Draft Article 4, provisionally adopted by the Commission at the
Sixty-Fifth Session, UN doc. A/68/10, p. 69, para. 6 of the Commen-
tary). A similar ﬁnding has been made by this Court with regard to State
immunities 1.

     1      “The Court considers that the rule of State immunity occupies an important place
         in international law and international relations. It derives from the principle of sove-
         reign equality of States, which, as Article 2, paragraph 1, of the Charter of the United
           Nations makes clear, is one of the fundamental principles of the international
         legal order. This principle has to be viewed together with the principle that each
         State possesses sovereignty over its own territory and that there ﬂows from that
         sovereignty the jurisdiction of the State over events and persons within that terri-
         tory. Exceptions to the immunity of the State represent a departure from the prin-
         ciple of sovereign equality. Immunity may represent a departure from the principle
         of territorial sovereignty and the jurisdiction which ﬂows from it.” (Jurisdictional
         Immunities of the State (Germany v. Italy: Greece intervening), Judgment, I.C.J.
         Reports 2012 (I), pp. 123-124, para. 57.)

32

1177 immunities and criminal proceedings (decl. gevorgian)

   3. Thus, in my understanding, the above-mentioned statement made
in paragraph 49 does not refer to the link between immunities and
sovereign equality, but rather to the link between the principles of
international law mentioned in Article 4 of the Palermo Conven-
tion and the Convention itself. So from this perspective, in the present
case I share the ﬁnding made in paragraph 49 that the alleged dispute
brought by Equatorial Guinea “does not relate to the manner in which
France performed its obligations under Articles 6, 12, 14 and 18” of the
Palermo Convention.

                                         (Signed) Kirill Gevorgian.

33