DISSENTING OPINION OF JUDGE KLAESTAD

I consider that the case should have been adjourned for the
following reasons :

The present Judgment deals with one of the three pleas in bar
which, in this second phase of the proceedings, have been invoked
by the Government of Guatemala. This plea in bar by that
Government is based on the ground that the naturalization granted
to Mr. Nottebohm by Liechtenstein is invalid because it is incon-
sistent with the national law of Liechtenstein as well as with
international law.

I. As to the national law of Liechtenstein, it is argued that
the authorities of that State, in applying their Nationality Law of
4th January, 1934, have not observed its provisions, but in various
respects departed therefrom, particularly with regard to the
prescribed order in which Government, Diet and Commune were
to deal with the application for naturalization. On this ground,
the Court is invited to declare that Mr. Nottebohm has not
properly acquired Liechtenstein nationality in accordance with
the law of the Principality.

It is generally recognized that questions of naturalization of
aliens are, in the absence of conventional rules, in principle within
the exclusive competence of States, and that international law
has left it to the States themselves to regulate in what manner
and under what conditions their nationality may be conferred
upon aliens. But if a State has in principle the exclusive competence
to regulate questions of nationality by its own legislation without
interference by other States, it is difficult to see on what ground
its own interpretation and application of this same legislation
could be open to challenge by other States. Such a challenge is
possible in theory on the ground that the legislation or the
application thereof is inconsistent with international law; but
the question now under consideration is only whether the author-
ities of Liechtenstein have applied their local law in a manner
consistent with the provisions of that local law.

The Permanent Court of International Justice has on several
occasions considered what attitude the Court should take with
regard to the national law of States, such as in Judgments No. 7
concerning German interests in Polish Upper Silesia and Nos. 14
and 15 in the Serbian and Brazilian Loans Cases. In accordance
with the view expressed in those Judgments, it may be said that
it would not be in conformity with the function for which the

28
29 NOTTEBOHM CASE (DISS. OPIN. OF JUDGE KLAESTAD)

Court is established if it proceeded to examine and decide whether
the competent authorities of Liechtenstein have applied the various
provisions of their Nationality Law of 1034 in a correct manner.
The Court is not deemed to know the national law of the different
States. It would hardly be possible for it to place its own construc-
tion upon the provisions of the Liechtenstein Nationality Law
and to disregard the interpretation and application made by the
competent local authorities. By so doing, the Court would substitute
itself for these local authorities and pronounce upon matters which
have no bearing on international law, and which therefore are
solely within the competence of these authorities.

What the Court, in my opinion, can and must do with regard to
the application of the Liechtenstein Nationality Law, is to
ascertain whether the naturalization in question was in fact granted
by the authority to which that law has attributed this competence.
Article 12 prescribes that it is the Reigning Prince who alone is
entitled to grant the nationality of the Principality. On the evidence
submitted to the Court, I am satisfied that the Prince did in fact
give his consent to the naturalization of Mr. Nottebohm.

II. The Government of Guatemala further contends that the
naturalization was not granted in accordance with international
law. It invokes the fact that Mr. Nottebohm had not established
his residence in Liechtenstein before he applied for naturalization,
and that he left the country soon after it was granted. Apart from
conventional rules, international law does not, however, require
previous residence in the country as a condition for naturalization,
nor does it presuppose a subsequent residence there. This is shown
by the fact that the national laws of a great number of States
have—though generally providing for previous residence in the
country—allowed dispensation from that requirement. The national
law of Liechtenstein equally requires such previous residence
(para. 6 (d) of the Nationality Law of 1934) but provides that this
requirement may be dispensed with, as in fact it was in the present
case. To exercise this discretionary power of dispensation is
a matter solely within the competence of the Government of
Liechtenstein.

The validity of the naturalization of Mr. Nottebohm is also
contested on the ground that the Government of Liechtenstein has
not proved the loss of his German nationality, as required by
paragraph 6 (c) of the same Law of 1934. But this requirement also
may be dispensed with according to that provision. It appears,
however, that such dispensation was considered unnecessary in
view of the provisions of Article 25 of the German Nationality
Law of 1913, according to which he would lose his German nation-
ality by acquiring the nationality of Liechtenstein. That he there-

29
30 NOTTEBOHM CASE (DISS. OPIN. OF JUDGE KLAESTAD)

by in fact lost his German nationality was, on 15th June, 1954,
certified by the Senate of Hamburg.

III. The view has been expressed that the relationship estab-
lished between State and individual by naturalization must pre-
suppose the existence of a physical or real link or a substantial
connection attaching the individual to the State. It is thereby
implied that a mere common and effective will, not vitiated by
fraud, is not sufficient for the creation of the relationship of nation-
ality. It may be questioned whether this view is a true expression
of a binding rule of international law.

When the Court, in the Asylum case, was confronted with a
contention relating to an alleged right of a unilateral and definitive
qualification of the offence committed by the refugee, it based itself
on the principle of State sovereignty and held that a party which
relies on a custom derogating from that principle must prove that
the rule invoked is in accordance with a constant and uniform
State practice accepted as law. The same method would seem to be
applicable in the present case. Having to base oneself on the ground
that questions of naturalization are in principle within the exclusive
competence of States, one should, as in the Asylum case, enquire
whether a rule derogating from that principle is established in such
a manner that it has bécome binding on Liechtenstein. The Govern-
ment of Guatemala would have to prove that such a custom is in
accordance with a constant and uniform State practice “accepted
as law’ (Article 38, para. 1 (6) of the Court’s Statute). But no
evidence is produced by that Government purporting to establish
the existence of such a custom.

IV. The present Judgment does not decide the question, in
dispute between the Parties, whether the naturalization granted
to Mr. Nottebohm was valid or invalid either under the national
law of Liechtenstein or under international law. Leaving this
question open, it decides that the Government of Liechtenstein is
not, under international law, entitled to extend its protection to
him as against Guatemala.

A solution upon these lines—severance of diplomatic protection
from the question of nationality, and restriction of the right of
protection—was never invoked by the Government of Guatemala,
nor discussed by the Government of Liechtenstein. It does not
conform with the argument and evidence which the Parties have
submitted to the Court, and the-Government of Liechtenstein has
had no occasion to define its attitude and prove its eventual conten-
tions with regard to this solution, whereby its claim is now dismissed.
In such circumstances, it is difficult to discuss the merits of such
a solution except on a theoretical basis; but I shall mention some
facts which show how necessary it would have been, in the interest

30
31 NOTTEBOHM CASE (DISS. OPIN. .OF JUDGE KLAESTAD)

of a proper administration of justice, to afford to the Parties an
opportunity to argue this point before it is decided.

Mr. Nottebohm went to Liechtenstein in 1946 after having been
liberated from his internment in the United States of America.
It is seen from Annex 5, paragraph 18, and Annex 6, paragraph 20,
of the Memorial, and paragraph 106 of the Rejoinder, that he must
have arrived in Liechtenstein before May 6th, 1946. He estab-
lished his residence in that country and has lived there ever since.

The record of this case shows that a number of measures were
taken by the Government of Guatemala against property of
Mr. Nottebohm at a time when he was permanently residing in
Liechtenstein. When expropriation measures were taken against
his property by virtue of the Legislative Decree No. 630 of
25th May, 1940, he had been living in Liechtenstein for more
than three years.

As the Judgment has not decided that the naturalization granted
to Mr. Nottebohm on 13th October, 1930, is invalid under Liechten-
stein law, one must, for the purpose of deciding the present plea
in bar, assume that it is valid. In such circumstances, it is difficult
to see on what legal basis the Government of Liechtenstein could
be considered as being debarred from affording diplomatic pro-
tection to him in respect of measures taken by the Government
of Guatemala against his property at a time when he was a
permanent resident in Liechtenstein. His link or connection with
that country was at that time of such a character that the reasons
relied on in the Judgment should constitute a solid ground for
the recognition of the right of the Government of Liechtenstein
to extend its protection to him as against Guatemala in respect
of all measures taken against his property during his permanent
residence in Liechtenstein.

V. It is alleged by the Government of Guatemala that the
Government of Liechtenstein, by granting its nationality to a
German national at a time when Germany was at war, has com-
mitted an abuse of right or a fraud. For the purpose of the present
case, it is unnecessary to express any views as to the possible
applicability of the notion of abuse of right in international law.
All I need say is that it would, if so applicable, in my view presup-
pose the infliction of some kind of injury upon the legitimate
interests of Guatemala by the naturalization of Mr. Nottebohm.
But it is not shown that an injury of any kind was thereby inflicted
upon Guatemala, which at that time was a neutral State.

As to the contention that fraud was committed by the Govern-
ment of Liechtenstein, it suffices to say that no evidence has been
produced in support of such a contention. The various irregularities

31
32 NOTTEBOHM CASE (DISS. OPIN. OF JUDGE KLAESTAD)

in the naturalization procedure of which the Government of Guate-
mala has complained, and the financial conditions fixed for the grant
of naturalization, cannot be considered as involving a fraud.

VI. The Government of Guatemala has finally contended that
fraud was committed by Mr. Nottebohm when he applied for and
obtained Liechtenstein nationality. It was argued that he fraudu-
lently sought this naturalization solely for the purpose of escaping
from the consequences of his German nationality under the shield
of the nationality of a neutral State. As no documentary evidence
in support of this contention was produced in the course of the
written proceedings, the Agent of Guatemala, after the closure
of those proceedings and a few days before the oral hearing, sub-
mitted to the Court a considerable number of new documents.
The Agent of Liechtenstein having objected to the production of
these documents, the Court on February 14th, 1955, decided to
permit the production of all these new documents, stating that it:

“Reserves to the Agent of the Government of Liechtenstein the
right, if he so desires, to avail himself of the opportunity provided
for in the second paragraph of Article 48 of the Rules of Court,
after hearing the contentions of the Agent of the Government of
Guatemala based on these documents, and after such lapse of time
as the Court may, on his request, deem just.”

On the basis of these new documents, Counsel for Guatemala
submitted at the oral hearing the new allegation. that part of the
property of the firm Nottebohm Hermanos of Guatemala, which
the Government of Liechtenstein now claims on behalf of Mr. Notte-
bohm, in reality belonged to the firm Nottebohm & Co. of Ham-
burg, and that Mr. Nottebohm, by obtaining Liechtenstein nation-
ality, attempted in a fraudulent manner to protect German
property from the consequences of the war. Counsel qualified the
case as a ‘‘cloaking case’.

These allegations of fraud, which now appear to constitute the
main aspect of this case, affect the plea in bar concerning nationality
as well as the merits. In its final Submissions as to the merits,
the Government of Liechtenstein requests the Court :

““(5) to adjourn the oral pleadings for not less than three months
in order that the Government of Liechtenstein may obtain
and assemble documents in support of comments on the new
documents produced by the Government of Guatemala.”

A consideration of the merits would render previous compliance
with this request necessary. Not only has the Government of Liech-
tenstein acquired a right, by virtue of Article 48, paragraph 2, of the
Rules of Court, to submit documents in support of its comments
upon the new documents produced by the Agent of Guatemala,
but this right was expressly reserved to the Agent of Liechtenstein
by the Court’s decision of February 14th. A finding on the plea

32
33 NOTTEBOHM CASE (DISS. OPIN. OF JUDGE KLAESTAD)

in bar concerning nationality (diplomatic protection) presupposes,
in my opinion, a consideration of the merits ; it depends, as I have
attempted to show, on the question whether Mr. Nottebohm
committed a fraud when he applied for and obtained Liechten-
stein nationality. This question of fraud is so closely connected
with the merits of the case that it cannot be decided apart from
them and without any appraisal of the various relevant facts which
may be disclosed by a consideration of the merits, including the
new documents produced by the Government of Guatemala and
the documents which the Government of Liechtenstein has become
entitled to produce.

This procedural situation also affects the two other pleas in bar
invoked by the Government. of Guatemala. The plea as to the
alleged necessity of previous diplomatic negotiations could only
arise if it were held that Mr. Nottebohm has validly acquired
Liechtenstein nationality. Only in that case would the Government
of Liechtenstein be qualified to present his claim to the Court.
Only then could a relevant question arise as to negotiations between
the two Governments concerning the claim. Similar considerations
apply to the plea in bar as to the exhaustion of local remedies.
If it were held that Mr. Nottebohm has not validly acquired the
nationality of Liechtenstein, the question whether he has exhausted
remedies in Guatemala could not arise before the Court.

For these reasons I have voted for the adjournment of the case.

(Signed) Helge KLAESTAD.

Lo
Ww


                                                                             886

            SEPARATE OPINION OF JUDGE RANJEVA

[Translation]

   Correspondence between Nicaragua’s requests and the subject-matter of the
Judgment — Interim decision on the merits or judgment on a preliminary objec-
tion — Declaration of the validity of the 1928 Treaty — Status of the three
islands and ending of the dispute — Closeness of links between the merits and
the procedural law — Nicaragua’s dual claim : possessory and petitory — Com-
bination of actions in Colombia’s objection — Colombia’s objection not of an
exclusively preliminary character — Risk of conflict of decisions on the exercise
of jurisdiction — Article VI of the Pact of Bogotá and Article 36, paragraph 2,
of the Statute — Inadequate grounds for exclusion of the optional clause.

  1. In its Memorial, Nicaragua requests the Court, in the main pro-
ceedings, to adjudge and declare that :
     “(1) the Republic of Nicaragua has sovereignty over the islands of
          San Andrés, Providencia, and Santa Catalina and the appurte-
          nant islets and cays.
     . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
      (4) the Bárcenas-Esguerra Treaty signed in Managua on 24 March
          1928 was not legally valid and, in particular, did not provide a
          legal basis for Colombian claims to San Andrés and Providen-
          cia”.
  Colombia, in its first preliminary objection, requests the Court to
adjudge and declare that :
     “(1) under the Pact of Bogotá, and in particular in pursuance of
          Articles VI and XXXIV, the Court declares itself to be without
          jurisdiction to hear the controversy submitted to it by Nicara-
          gua under Article XXXI, and declares that controversy ended”.
  Paragraph 90 of this Judgment states that :
     “the Court finds that it can dispose of the issue of the three islands
     of the San Andrés Archipelago expressly named in the first para-
     graph of Article I of the 1928 Treaty at the current stage of the pro-
     ceedings. That matter [sovereignty over the islands of San Andrés,
     Providencia and Santa Catalina] has been settled by the Treaty.”
   2. The correspondence and similarity in terms of subject-matter being
immediately obvious even to an uninformed reader, the Court has made
its decision to reject these two claims by Nicaragua. It may be pointed
out that the Court has not upheld Colombia’s request by means of a
direct action or ruling, but by dealing with it as an objection. In view of
the submissions in the main proceedings, Colombia could have requested

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          TERRITORIAL AND MARITIME DISPUTE (SEP. OP. RANJEVA)              887

a confirmatory decision in limine both on the validity of the 1928 Treaty
and the attribution of the three islands to Colombia. The Court could
have delivered a preliminary interim finding on the legal merits, in certain
circumstances : if the two Parties were in agreement, if one of the Parties
requested such a decision, and if the Statute and the Rules of Court
allowed it. However, the Respondent did not act in that way ; it chose the
path of preliminary objections, pursuant to Article 79 of the Rules of
Court. The present Judgment responds to Colombia’s first objection by
deciding part of the main proceedings, concerning sovereignty over the
three islands and the validity of the 1928 Treaty. However, this decision
is not a definitive one, since it does not settle the whole of the dispute or
rule on all the claims made in the main proceedings.
   3. Does Colombia’s first preliminary objection possess an exclusively
preliminary character ? The Court has answered this question in the
affirmative. It sees no legal obstacle to prevent it from exercising its juris-
diction. To arrive at this finding, the Judgment has chosen to regard
maritime delimitation as the only real subject of the dispute between the
Parties. The 1928 Treaty, by recognizing Colombia’s sovereignty over the
three islands, put an end to that dispute, so there is no need for a ruling
on the validity or possible nullity of the 1928 Treaty with regard to the
maritime delimitation that has been requested. In the absence of a dis-
pute, and the territorial status of the three islands having been settled by
treaty, there is consequently no reason to adjudicate on the fourth sub-
mission.
   4. In formal and textual terms, the lack of correspondence between the
submissions and the direct consequences of the Judgment leads one to
reflect on the jurisprudence of the Court, as established in the Lockerbie
cases :

        “That objection relates to many aspects of the dispute . . . [T]he
     United Kingdom seeks to obtain from the Court a decision not to
     proceed to judgment on the merits, which would immediately termi-
     nate the proceedings. However, by requesting such a decision, the
     United Kingdom is requesting, in reality, at least two others which
     the decision not to proceed to judgment on the merits would neces-
     sarily postulate . . . The Court therefore has no doubt that Libya’s
     rights on the merits would not only be affected by a decision, at this
     stage of the proceedings, not to proceed to judgment on the merits,
     but would constitute, in many respects, the very subject-matter of
     that decision. The objection raised by the United Kingdom on that
     point has the character of a defence on the merits. In the view of the
     Court, this objection does much more than ‘touch[ing] upon subjects
     belonging to the merits of the case’.” (Questions of Interpretation
     and Application of the 1971 Montreal Convention arising from the
     Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United
     Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1998,
     pp. 28-29, para. 50.)

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         TERRITORIAL AND MARITIME DISPUTE (SEP. OP. RANJEVA)             888

   The Court pointed out that, by raising an objection, the United King-
dom was indirectly seeking a reply which concerned the rights of the
Applicant in the main proceedings and which would have put an end to
the proceedings and the dispute. If the Court ruled on the objection by
the United Kingdom, according to which the resolutions of the Security
Council had rendered the Libyan claims without object, it would inevi-
tably be ruling on the merits ; that would have been the consequence
whether the British objection had been upheld or rejected. However, by
invoking Article 79, the Respondent set in train a procedure which is
designed precisely to prevent the Court from doing this. It found that the
objection did not possess an exclusively preliminary character, not because
of the effects of the decision on the merits of the dispute, but because the
decision would dispose of the merits of the rights at issue, in the context
of a procedure relating to questions of jurisdiction and admissibility.
   5. In the present case, the issue is whether, by closing the debate on the
validity of the 1928 Treaty, the Court was not ruling incidentally on the
merits of Nicaragua’s claims. Clearly, the territorial delimitation first
entailed a response concerning the territorial status of the islands. How-
ever, Colombia’s objection sought to prevent the Court from giving one,
in other words from discussing the substantive provisions of the Treaty
whose validity Nicaragua was contesting, maintaining it to be null and
void. The problem was then twofold : the claim that the Treaty was null
and void, and the blocking of such a finding by the use of Article 79 of
the Rules of Court.
   6. The questioning of the validity of the 1928 Treaty is closely linked
to the territorial status of the islands in the archipelago, San Andrés,
Providencia and Santa Catalina, but it is presented as an independent
claim in Nicaragua’s strategy. Can a State be challenged, through the
courts, as regards the basis for its territorial titles ? The problem stems
from the fact that Nicaragua explicitly stated that its arguments on nul-
lity were confined solely to the jurisdictional debate, and reserved further
complementary arguments on the same issue for the merits phase. But
neither the Respondent nor the Court has questioned it on that issue,
whereas two grounds for nullity have been invoked : coercion and the
violation of the treaty provisions. By ruling in limine and, it would seem,
definitively on the question of the nullity of the 1928 Treaty, the Court’s
decision has been taken without regard for the rule of procedural fair-
ness.
   7. The Court could have upheld such an objection without an exclu-
sively preliminary character if, on the one hand, the Applicant had
brought an improper action — a debatable notion, indeed a non-existent
one, in terms of the Statute and the Rules of Court — and if, on the
other, the Respondent in the main proceedings had put forward such an
argument. These two presumed conditions were not met in the present
case. Assuming that such an action might exist in international law, it can
only be of such a kind, in so far as the rights on the merits are established
in advance, that it cannot have an exclusively preliminary character. It

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         TERRITORIAL AND MARITIME DISPUTE (SEP. OP. RANJEVA)             889

would be an abuse of process to seek to re-open before the courts an issue
which had already been resolved and to challenge the rights that had
been established. Challenging the very basis of those rights then becomes
a question associated with the legal merits ; it would not be limited to
merely touching upon these, but would go to the very substance of the
right of the Applicant. Since the right of action before the Court has a
consensual basis, it is the consent of the Parties which allows the Court to
exercise its jurisdiction.
   8. By regarding as exclusively preliminary in nature the first part of the
reply to the first preliminary objection concerning the territorial status of
the three islands, so as to settle the dispute on that subject by conven-
tional means, the Judgment incidentally disposes of Nicaragua’s fourth
submission on the merits. The Judgment has ruled directly on the ques-
tion of the validity of the Treaty at the preliminary objections stage.
Relying upon Article XXXIV of the Pact of Bogotá in order to declare
the controversy ended was conceivable, if the nullity of the Treaty as
defective had not been claimed as a separate formal submission. The for-
malistic analysis pursued in the Judgment does not accurately reflect the
overall structure of Nicaragua’s claim, and the Judgment does not con-
sider the real links between the first and fourth submissions.

   9. Nicaragua, in its first submission, was asking the Court to protect
its possession. The request is for a ruling on a possessory claim, its sov-
ereignty over the three islands and the appurtenant islets and cays, and is
an independent submission, aimed at establishing whether or not it holds
a valid legal title. Here, though, Nicaragua’s possessory action was
accompanied by a petitory one. In the main proceedings, the Applicant is
questioning the basis in law : by claiming the nullity of the 1928 Treaty,
Nicaragua is asking the Court to reply to a dual question — is there a
territorial title, and who holds it ? For the same 1928 Treaty is claimed by
Colombia as providing a legal title to San Andrés, Providencia and Santa
Catalina.

   Nicaragua has combined two actions. Colombia opposed this request
with a negative petitory action, seeking the implicit recognition by the
Court, at the incidental proceedings stage, of the validity of the 1928
Treaty, with the inferred consequence that the controversy between the
Parties shall be declared ended, to use the words of the Pact of Bogotá.
   10. The simultaneous presence of two conflicting petitory actions and
a possessory action will have helped to create confusion. In this case,
these disagreements were closely linked to the substance of the pro-
cedural law. Indeed, at a procedural level one can envisage a solution
dealing with the possessory aspect, because of its nature. As regards the
petitory aspect, however, the questions are framed in different terms. In
relation to sovereign title and the 1928 Treaty, the Court was faced with
one action in the form of a claim and another contradicting it. The
Parties made no mistake in this respect, as reflected by the importance

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          TERRITORIAL AND MARITIME DISPUTE (SEP. OP. RANJEVA)               890

given in their exchanges to the issue of the nullity or validity of the 1928
Treaty. This debate brought into question the substance of the law on
sovereignty that is in dispute.
   The Court, by dismissing Nicaragua’s possessory and petitory actions
and acceding to Colombia’s request, has preserved intact this combina-
tion of actions. By a single decision, both sovereign possession and the
title to sovereignty have been determined. It has thus taken the view that
the question of sovereignty over the islands of San Andrés, Providencia
and Santa Catalina was settled by the 1928 Treaty, without noting that
the seemingly procedural actions of the Parties were linked to the dual
nature of the dispute’s subject-matter in this respect. By adopting this
approach, the Judgment has implicitly decided an issue which formed
part of the subject-matter of the dispute : the validity of the territorial
title. Consequently, the question arises of whether a treaty rendered null
and void ex tunc and not ex nunc may still be regarded as in force, in
particular in 1948 and on the date the Application was filed. The Judg-
ment’s consideration of Nicaragua’s conduct is an essential parameter for
determining whether the Treaty was in force in the eyes of the Applicant,
but inasmuch as the objection concerns the nullity and not the oppos-
ability of the said Treaty, the Judgment decides an argument relating to
the legal merits. However, it is absurd to think for a moment that a treaty
could be in force if it is flawed by nullity, notwithstanding the provisions
of Article VI of the Pact of Bogotá.
   11. In these circumstances, the first preliminary objection could not
possess an exclusively preliminary character.
   12. The result of the combination of actions has been the choice of the
Pact of Bogotá alone as the basis of jurisdiction, the effect of which has
been the ending of the controversy between the Parties and the decision
not to entertain the second basis : the optional clauses of Article 36 of the
Statute of the Permanent Court of International Justice.
   13. This latter decision in the Judgment requires some further explana-
tion. An international court is free to choose from among the proposed
bases the one which seems to it the most appropriate for the exercise of
its jurisdiction ; even so, the reasons for its preference have to be explained.
In political terms, the Pact of Bogotá is plausible, but in legal and judicial
terms, the Court, in view of the conclusion reached in the Judgment,
needed to apply the test of non-conflict, in a situation where two inde-
pendent bases of jurisdiction were being claimed. The right of access to
the Court is subject to strict conditions, on the one hand laid down by the
Statute and the Rules of Court, and on the other developed through its
jurisprudence. The law and the exercise of the Court’s jurisdiction are of
a peremptory nature ; when the necessary conditions are met in conten-
tious proceedings, the Court may not dispose of its own jurisdiction. In
this case, therefore, it needed to ensure that there was no risk of conflict
in its decisions. That would have been so if the consideration of the
respective optional declarations had reached a different conclusion : that
the first objection did not possess an exclusively preliminary character.

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         TERRITORIAL AND MARITIME DISPUTE (SEP. OP. RANJEVA)             891

   14. In paragraph 138, the Judgment sets against the applicability of
the optional clause the absence of a legal dispute in the sense understood
by the Judgment. Logically, in theoretical terms, the optional clause may
still be of use. Since the dispute over the islands is regarded as settled in
the Judgment by a treaty which has already been declared “valid”, does
the Court have jurisdiction to return, by other means, to a matter which
has already been decided ?
   It was essential to give an unequivocal answer to this question in order
to eliminate a possible conflict of decisions.
   The issues thus described and all the arguments set out by the Parties
confirm that the first preliminary objection raised by Colombia does not
possess an exclusively preliminary character.

                                          (Signed) Raymond RANJEVA.

                                                                          63


SEPARATE OPINION OF JUDGE TARAZI
[Translation]

I voted in favour of the Order adopted by the Court. I think it necessary,
however, to express my separate opinion on two essential points which,
in my view, are particularly important:

(1) the Court’s jurisdiction;
(2) the role of the Court as an organ of the United Nations and its place
in the process of peaceful settlement of international disputes.

JURISDICTION OF THE COURT

The jurisdiction which the International Court of Justice possesses in
contentious proceedings is not compulsory. It is necessary that States
shall have given their prior consent to its being seised. If the respondent
does not appear, the Court is under an obligation to ascertain, before any
consideration of the merits, whether it is competent to settle the dispute
referred to it by the applicant State, in accordance with Article 53 of the
Statute.

In the present instance the Court had to consider a request for interim
measures of protection, submitted by the Government of Greece. This
request, in the eyes of that Government, was intended for the protection
of Greece’s rights over the continental shelf of the Aegean Sea. The Court
was therefore urgently convened by its President, in accordance with the
provisions of paragraph 3 of Article 66 of its Rules.

Turkey, the respondent party, in the case, has chosen not to respond to
the invitation made to it under paragraph 2 of Article 66 of the Rules of
Court. Nevertheless the Ministry of Foreign Affairs of Turkey has sent the
Registrar of the Court a written communication. That communication
raised an objection alleging lack of jurisdiction and called for:

(a) the rejection of the Greek request for the indication of interim
measures of protection;
(6) the removal of the case from the Court’s list.

There we have two quite separate requests. The first was based on a
contention that the interim measures of protection were not required by
the situation. The second denied the Court’s right to pronounce upon the
Application of Greece or even to discuss it.

At this stage of the proceedings, the Court had solely to decide whether

32
AEGEAN SEA (SEP. OP. TARAZI) 32

the interim measures should or should not be granted. Was it entitled to
grant them if it did not possess the power to decide the substantive dispute
or if; in other words, it lacked jurisdiction? It has been maintained that,
so far as concerns the application of the provisions of Article 41 of the
Statute of the Court, the text of which governs the question of interim
measures, the Court possesses a special competence which is in some way
different from its basic, specific jurisdiction as conferred by Article 36 of
that Statute.

This is a theory with which I am unable to agree. Without going into
the details of the argument, I feel impelled to declare that the Court is
competent only by virtue of Article 36 of its Statute. The power conferred
upon it by Article 41 to indicate interim measures when appropriate is
merely a corollary of its jurisdiction under Article 36, in accordance with
the old legal saw that qui magis potest minus potest.

That being so, the situation before the Court was such as to require it
to show vigilance in the appraisal of the various elements in the Applica-
tion, in which Greece had claimed that two diplomatic instruments
conferred jurisdiction on the Court: Article 17 of the General Act for the
Pacific Settlement of International Disputes, 1928, and the joint com-
muniqué of Brussels of 31 May 1975.

The Court could not, on simple perusal of these two documents,
pronounce upon its jurisdiction at the present stage of the proceedings.
A more thoroughgoing examination was needed, on account of the
complexity and ambiguity of the problems confronting the Court,
problems which it could only resolve after written and oral proceedings
had taken place in the normal way.

The request that the case be removed from the Court’s list could not
be acceded to in the present circumstances. According to the consistent
jurisprudence of the Court, such removal is decided only in the event that
the applicant State does not invoke in support of its Application any
legal instrument conferring jurisdiction on the Court but contents itself
with leaving the respondent State the possibility of expressing its assent
to the proceedings. If, on the other hand, the respondent State responds
in the negative, by indicating its refusal to recognize the Court’s jurisdic-
tion, the Court orders the case to be removed from its list. Such in my
view are the significance and legal scope of the Orders of 12 July 1954
(Treatment in Hungary of Aircraft and Crew of United States of America,
ILC. Reports 1954, pp. 99.and 103), 14 March 1956 (Aerial Incident of
10 March 1953, .C.J.. Reports 1956, p. 6) and of 16 March 1956 (Antarc-
tica, I.C.J. Reports. 1956, pp. 12 and 15).

It is clear that the situation is different in respect of the present case.
That is why the Court has not decided to remove it from its list and has
reserved its position on the question of its jurisdiction for later consider-
ation.

33
AEGEAN SEA (SEP. OP. TARAZI) 33

POWER AND ROLE OF THE COURT IN
THE UNITED NATIONS SYSTEM

I think that the Court was well advised to act as it has. I feel however
that particular attention should have been paid to the fact that the pro-
ceedings are attended by special circumstances.

At the same time as it requested the Court to indicate interim measures,
Greece turned to the Security Council to request it to examine the situa-
tion which it had already described in its Application. This was not an
example of the simultaneous use of two parallel remedies, inasmuch as
the Security Council, unlike the Court, is a political organ. The rule
electa una via did not have to be applied.

Now, while the oral proceedings were taking place before the Court, the
Security Council adopted “by consensus” the resolution of 25 August
1976 by which it, in the main, recommended the parties to continue their
negotiations and address themselves, if appropriate, to the Court. There
can be no doubt that this was a situation which created a new element
requiring to be taken into consideration in the formulation of the Court’s
Order.

For if it is true and certain that the Court is an independent and judicial
organ, and that neither the General Assembly nor the Security Council
are able, without the consent of the interested parties, to withdraw from
it any case which has been referred to it, it is no less true that it is an integral
part of the United Nations, inasmuch as Article 7 of the Charter provides
that it is one of the “principal organs of the United Nations” while
Article 92 indicates that its Statute is annexed to and “forms an integral
part of” the Charter. Such was not the case with the Court’s predecessor.
The Covenant of the League of Nations did not provide that the Perma-
nent Court of International Justice should be one of its organs. The
Court itself had been set up independently of the elaboration and adoption
of the Covenant.

That being so, the present Court, while maintaining its independence,
should not fail to take into consideration this basic truth, namely that it
is an integral part of the United Nations. The Charter, whose genesis
marked a new stage in the course of history, features some essential
differences in comparison with the provisions of its predecessor, the
Covenant of the League of Nations. Those differences were due to the new
situation which States and peoples had to face on account of the conse-
quences of the Second World War and of the developments which preceded
or triggered its outbreak.

There is no necessity here to consider these differences in detail. One
may content oneself with the affirmation that, by virtue of the Charter,
the Security Council bears an essential responsibility for the maintenance
of peace and security. The Court, if the circumstances so require, ought
to collaborate in the accomplishment of this fundamental mission.

It must be recognized that the Court has indeed applied itself to this

34
AEGEAN SEA (SEP. OP. TARAZI) 34
task. Several of the paragraphs in the reasoning of the Order recall the

Security Council resolution. Nevertheless, I would have thought it neces-
sary to mention this resolution in the operative part.

(Signed) Salah El Dine TARAZI.

35


ORDONNANCE
RENDUE A LA DATE DU 25 MAI 1929.

sr SEIZIÈME SESSION (EXTRAORDINAIRE)

Le 25 mai.
Dossier E.c.XIX.
Présenis : ~
MM. ANZILOTTI, Président,
HUBER, Vice-Président,
LODER,
NYHOLM,
DE BUSTAMANTE,
ALTAMIRA, _) Juges,
Opa, ;
PEssôA,
HUGHES,
. BEICHMANN, .

, | uges suppléants.
NEGULESCO, . J 5 bp

AFFAIRE RELATIVE A L’USINE DE CHORZOW
(NDEMNITES)

entre le Gouvernement d’Allemagne, représenté par M. le

Dr Erich Kaufmann, professeur à Bonn,
Demandeur,

et le Gouvernement de la République polonaise, représenté

par M. le Dr Thadée Sobolewski, agent du Gouvernement
polonais auprés du Tribunal arbitral mixte polono-allemand,
Défendeur.

La Cour,
composée ainsi qu'il est dit ci-dessus,
aprés délibéré en Chambre du Conseil,

rend l’Ordonnance suivante :
La Cour permanente de Justice internationale,
12 CHORZ6W. — ORDONNANCE DU 25 MAI 1929

Vu la Requéte introductive d’instance déposée, au nom du
Gouvernement allemand, au Greffe de la Cour le 8 février 1927;

Vu l’Arrêt n° 13 rendu par la Cour sur cette Requête à la
date du 13 septembre 1928 ;

Vu VOrdonnance rendue par le Président de la Cour le
15 décembre 19281; .

Vu l’article 48 du Statut ;

Vu l’article 61 du Règlement;

Attendu que, par lettre du 6 décembre 1928, l'agent du
Gouvernement allemand en l'affaire dont il s’agit a, en se
référant à l’article 61 du Règlément, informé le Greffier de la
Cour que, «dans l'affaire concernant l'usine de Chorzéw, les
Parties sont tombées d’accord sur la solution à donner au litige » ;

Attendu que, par lettre du 13 décembre 1928, l'agent du
Gouvernement polonais en l'affaire a fait au Greffier une com-
munication dans les mémes. termes ;

Attendu que copie d’un accord intervenu, le 12 novembre
1928, entre le Fisc polonais, d’une part, et la Bayerische Stick-
stoffwerke A.-G. et l’Oberschlesische Stickstoffwerke A.-G.,
représentées par M. le professeur Dr Caro, d’autre part, ainsi
que de notes échangées, le 27 novembre 1928, entre le ministre
des Affaires étrangères de Pologne et le ministre d'Allemagne à
Varsovie, a été communiquée à la Cour par l'agent du Gou-
vernement allemand; que l'agent. du Gouvernement polonais
a renvoyé aux documents ainsi déposés, dont copie avait .été
mise à sa disposition; que, d’ailleurs, par lettre du 1e février 1929,
il a, sur la demande du Greffier, communiqué à celui-ci le texte
polonais, faisant autorité, dudit accord du 12 novembre 1928 ;

Attendu, aux termes dudit échange de notes du 27 novembre
1928, que le Gouvernement allemand a déclaré que, « pour ce
qui ‘est de l'affaire de ‘Chorzéw, il n’y ‘à plus de divergence de
vues entre le Reich allemand et la Pologne »; et qu’il a été
convenu entre les Parties que l’«instance actuellement pendante
-devant la Cour permanente de Justice internationale de La Haye,
en l'affaire de Chorzéw, sera retirée comme devenue sans objet »;

l Annexe, p. 14.0 ¢ ..
13 ‘ CHORZOW. — ORDONNANCE DU 25 MAI 1929 °
“Attendu que, par Ordonnance du 15 décembre 1928, : le
Président de la Cour — considérant, entre autres, « qu’il y a
lieu d’estimer que l’accord intervenu comporte la solution de
l’ensemble du litige porté devant la Cour à la date du
8 février 1927, par le Gouvernement allemand ; et que l’accord
entre les Parties ayant, avant la clôture de la procédure, été
notifié par écrit à la Cour, il ne reste à celle-ci, aux termes de
l’article 61 du Règlement, qu’à donner acte de l'accord inter-
venu» — a prononcé la clôture de la procédure par experts
instituée en l'affaire de l’usine de Chorzôw (indemnités) en
vertu, notamment, de l’arrêt rendu par la Cour à la date du
13 septembre 1928; .

Considérant que les notes échangées le 27 novembre 1928
entre le ministre des Affaires étrangères de Pologne et le
ministre d'Allemagne à Varsovie constituent, en l'espèce, «l’ac-
cord sur la solution à donner au litige», dont, aux termes de
l’article 61, alinéa premier, du Règlement, la notification par
écrit à la Cour avant la clôture de la procédure est l’une
des conditions pour l’application de ladite disposition ;

La Cour,

Donne acte au Gouvernement du Reich allemand et au
Gouvernement de la République polonaise, respectivement
demandeur et défendeur en l'affaire relative à l'usine de
Chorzéw (indemnités), de l’accord sur la solution à donner
au litige intervenu entre eux le 27 novembre 1928 ;

Constate que la procédure au sujet de ladite affaire a pris fin.

Fait en français et en anglais, le texte français faisant foi,.
au Palais de la Paix, à La Haye, le vingt-cinq mai mil neuf
cent vingt-neuf, en trois exemplaires, dont l’un restera déposé
aux archives de la Cour et dont les autres seront transmis
aux agents du Gouvernement d'Allemagne et du Gouvernement
de la République polonaise respectivement.

Le Président de la Cour :
(Signé) D. ANZILOTTI.

Le Greffier de la Cour:

(Signé) A. HAMMARSKJÜLD.


155

SEPARATE OPINION OF JUDGE AGO

[Translation]

I. I subscribe to the Court’s conclusions so far as the reply to be given to
the request for advisory opinion is concerned. Those conclusions define the
mutual obligations incumbent on the organization and host State in the
present case, in terms which largely correspond to what I myself have
found, though on the basis of grounds and reasoning which in part are
different.

In its Advisory Opinion the Court has made a series of pertinent
observations concerning the “establishment” of an international organi-
zation in the territory of a host State. I would however have liked it on
this occasion to have given a precise and complete definition of the
very concept of such establishment, for I am convinced that this would
have been the best approach to the problem which the Court had to
face.

An international organization is like a State, a subject of international
law, but it is one which enjoys limited international legal capacity, and in
particular, unlike a State, it is a subject of law which lacks all territorial
basis. Its “establishment” in the territory of a given State is therefore a
conditio sine qua non of its actually functioning as an organization, carrying
on its activities and fulfilling its object and purpose. Furthermore, for this
condition in turn to be met, it is indispensable that the appropriate mutual
consent should crystallize between the organization in question and a State
which is ready to offer it the possibility of establishing its headquarters —
or a subsidiary seat — in its territory. Here, though it is certainly necessary
that the international organization, following deliberations by the organs
competent in the matter under its own constitution, should manifest a
desire to establish its seat within the territory of a certain State, this is
clearly not sufficient by itself. That intention has to be matched by an
intention manifested on their side by the organs competent under that
State’s constitution to accommodate the organization permanently within
its territory, and to create there the conditions essential to its functioning.
“Establishment” is therefore necessarily the subject of a bilateral agree-
ment between the “organization” as subject of law on the one side and the
“host State” as subject of law on the other, for, while it is true that an
international organization cannot be compelled to establish itself, contrary
to its own wishes, in the territory of one State rather than another, neither
can a State be compelled, if it is not so disposed, to welcome an interna-
tional organization within its territory and permit it there to carry on, in the

86
INTERPRETATION OF AGREEMENT (SEP. OP. AGO) 156

conditions indispensable therefor, the activities laid down in that organi-
zation’s constitution. In making this observation, I am simply enlarging in
different language on the very appropriate remarks to be found in para-
graph 37 of the Advisory Opion.

However, this is by no means the last word on the subject of the nature
and specific content of the concept of establishment. That concept is a
“legal” concept, and the term “establishment” is a term of law. It would be
erroneous to understand establishment, a legal fact, as being the equivalent
of physical installation, because this may lead to the mistaken belief that
establishment has come about simply because a de facto installation has
taken place. As to the content of this concept, there is no doubt that it
involves quite a number of elements. Among these are some with entirely
or partly physical connotations, even though sometimes enshrined in legal
provisions : e.g., the designation of the town fixed upon as seat and, within
it, of the locality where the organization is to have its office and of the
buildings, whether existing or to be erected, in which it is to be installed ;
likewise the timing and planning arrangements for this installation, and its
eventual execution. But there are also elements of a legal nature, which are
surely no less indispensable. These include, in particular, the determina-
tion of the legal status which the organization is to enjoy in the territory of
the host State. The determination of this legal status is, in my view, the
essential element of establishment qua legal fact : for upon it depends the
possibility of the organization’s taking up its functions and carrying on its
activities in full independence, without any interference by the host State,
while at the same time respecting the latter’s territorial sovereignty.

I consider it necessary to stress this aspect, because in my view it would
be absurd to imagine that the establishment of an organization in the
territory of a State could come about without the conditions enabling it to
exist and operate there as an international organization having first been
defined. It is such a definition which makes possible that co-existence of
two subjects of international law in one and the same territory which
establishment essentially connotes. To take as an example the concrete
case with which the present Advisory Opinion is concerned, I would point
out that, had the Egyptian State insisted on certain conditions which at one
stage in the negotiations it wished to see included in the agreement
designed to fix the Organization’s legal status in Egypt, and had the
Organization, for its part, persistently regarded them as unacceptable,
such an insuperable disagreement would obviously, it seems to me, have
resulted in there not being any “establishment” whatever. The existing
installation of the WHO Regional Office in the premises of the Alexandria
Sanitary Bureau would then have been no more than a fact provisionally
accomplished on the basis of an expected agreement which had ultimately
failed to materialize : a fact destined to vanish no less rapidly than it had
arisen.

This example aside, I would add that, for the purpose of defining the
concept of establishment, it makes, to my mind, no real difference whether

87
INTERPRETATION OF AGREEMENT (SEP. OP. AGO) 157

its various component elements all materialize at the same time and, as
sometimes happens, are lumped together in a single written instrument, or
appear separately in a gradual process, with the written instrument being
reserved for the final and conclusive element thereof, namely the deter-
mination of the legal status to be conferred upon the organization in the
territory of the host State. This happens no less frequently and is, in fact,
the present case.

It is, one may add, still more evident in the second of the two hypotheses
that “establishment” is by nature a complex legal fact, and those Members
of the Court who share the viewpoint described in paragraph 39 of the
Advisory Opinion have made a point of stressing that in the present case
the agreement governing the establishment in question, while, in the
Court’s words, a “single transaction”, is none the less composed of various
particular understandings which all converge to one goal and which, if they
did not co-exist, could scarcely have effect. I believe in fact that even where
the legal act covering all the various aspects of the establishment consists in
a single instrument, the establishment as such remains a complex legal fact,
this being, intrinsically its nature. At all events, and quite aside from the
search for the most appropriate theoretical definition, what really matters
is that the establishment of an international organization in the territory of
a host State postulates the eventual co-existence of a number of elements
which, though distinct, all contribute to the crystallization of a single legal
fact, which has no real existence unless and until it is completed and
perfected by one indispensable element, namely the determination of the
organization’s legal status.

In sum, the establishment of an international organization in the terri-
tory of a host State is, to my way of thinking, a legal fact, emerging from
bilateral action, possessing the characteristics and content indicated
above, one which — as the Advisory Opinion points out in paragraph 43 —
connotes the inception of a lasting bilateral relationship between two
separate subjects of international law which are destined to co-exist in the
territory of the same State.

II. It follows that the existence of this bilateral relationship, and the
nature of the legal fact which underlies it, have to be kept in view whenever
either party shows signs of intending to bring this legal relationship to an
end. From that point of view it makes no appreciable difference whether
such an intention is evinced by the organization wishing at a given moment
to transfer its seat elsewhere, or by the State wishing to put an end toa
presence in its territory which it is not disposed to countenance in future.
Whatever the situation, I find it obvious that the party contemplating the
cessation of the legal relationship in question is under an obligation to
inform the other of its intention and of the reasons why it has come to
harbour it, and that both jointly must then review in good faith the causes
having prompted one of them to seek the termination of that relationship,
consider the possibilities of overcoming any difficulty that may have arisen

88
INTERPRETATION OF AGREEMENT (SEP. OP. AGO) 158

and, failing these, seek ways and means of bringing the hitherto existing
establishment to an end in the most appropriate manner and with the least
detriment to the interests of either. For it must always be borne in mind
that, objectively speaking, given the very nature of an international
organization and the requirements for its functioning, any change of seat
on its part — whether involving its headquarters or a major office — has to
be regarded as an exceptional event which can hardly be accomplished
without more or less profound and protracted disturbances in the lives
of both the organization and the State which has been affording it hospi-
tality.

Paragraph 43 of the Advisory Opinion very properly emphasizes that the
legal relations between an international organization and the host State
constitute a special régime. The paragraphs which follow it treat at length
of the obligations to consult, negotiate and co-operate which this special
régime implies, defining them in correct though cautious terms. At the
same time they draw attention to the solid foundation for these obligations
which already exists in the principles of general international law concern-
ing the subject of international organizations, as well as what may be called
the common principles emerging from the whole body of conventional
instruments concluded between States and international organizations. I
have myself nothing to add on this subject. On the other hand I would like
to make a few further observations with regard to the treaty-law specifi-
cally binding upon the WHO and Egypt, for I am one of those who
consider that the provisions of the Agreement of 25 March 1951 also apply
to the eventuality of a transfer from Egypt of the seat of the WHO Regional
Office for the Eastern Mediterranean.

I do not propose to dwell at any length on the question whether the
Agreement of 25 March 1951 is a “host agreement” (accord de siège). I find
it hardly feasible to contradict the opinion concordantly expressed by the
two contracting parties on this point. On page 357 of Volume I (1948-1972)
of the Handbook of Resolutions and Decisions of the World Health Assembly
and the Executive Board the successive stages in the conclusion of this
Agreement are set out under the heading “Host Agreement with the
Government of Egypt” (“Accord de siège avec le Gouvernement de
l'Egypte” in the French Recueil), and the same title is used on pages
356-358 for the Agreements of the same nature — based moreover on the
same model — concluded with the Governments of Switzerland, India, the
Phillipines, France and Denmark. The expression “host agreement” was
also used in the correspondence of 1950 between the Government of Egypt
and the WHO Regional Office concerning the negotiation of that Agree-
ment ; it was as a “host agreement” that the instrument was defined in the
Royal Decree submitted to the Egyptian Parliament and received parlia-
mentary approval. In addition to these formal pointers, others may be
derived from an examination of the substantive content of the agreement.

89
INTERPRETATION OF AGREEMENT (SEP. OP. AGO) 159

For this purpose it is enough to take account of such essential articles as
Article ITI, which guarantees the Organization and its principal or sub-
sidiary organs “independence and freedom of action” as well as “absolute
freedom of meeting, including freedom of discussion and decision”, or
again Article X, directed to guaranteeing Egypt against any prejudice to its
security resulting from the activity of the WHO. These are undeniably
provisions characteristic of an agreement whose primary purpose is to
render possible and effective the “establishment” of that major organ of
the WHO known as the Eastern Mediterranean Regional Office and not
merely, as some would have it through rather facile deduction from its
title’s short list of purposes, to heap the enjoyment of certain privileges and
immunities upon an “establishment” already realized and perfected from
every point of view. I therefore find it evident that the 1951 Agreement
must be seen as acomponent element of that “establishment” of the WHO
Eastern Mediterranean Regional Office in Egypt whose nature as a legal
fact I have been striving to make plain. It must in fact be seen as the final
and conclusive element in the whole process covered by the expression
“establishment”, the element which contributes to it the indispensable
definition of the legal status of the organization in the territory of the State
in which it establishes its seat. I do not think that I need expatiate further on
this point.

The point on which, on the other hand, | consider it desirable to make
some further observations relates to the divergence of views — so amply
and efficiently summarized in paragraphs 40 and 41 of the Advisory
Opinion — which has come to light among those who, while agreed in
recognizing that the 1951 Agreement formed part of the single though
composite transaction whereby the establishment of the WHO Regional
Office in Egypt was accomplished, nevertheless remain divided with res-
pect to one specific question. Their views in fact part company on the
question whether the provisions of Section 37 of Article XII of the Agree-
ment can be considered applicable in the event of a transfer of the seat of
the Office from Egypt.

I recognize that the wording of Section 37 is not a model of clarity. At
first sight it can certainly lead the reader to hesitate as to the answer to the
above question. On reflection, however, considerations of two kinds lead
me to think that the answer must be a positive one.

(a) In the first place, I must say that a careful consideration of the text,
such as it is, of Section 37 suffices in itself to persuade me that it is highly
improbable, not to say impossible, that the parties can have intended to
provide so grave a sanction as the unilateral denunciation of the entire
Agreement merely to meet a possible failure to agree upon a partial
revision concerning this or that provision. Denunciation by Egypt of the
1951 host agreement would thus leave the Eastern Mediterranean
Regional Office, after expiry of the period laid down in the final provision
of Section 37, totally deprived of its special legal status and, consequently,

90
INTERPRETATION OF AGREEMENT (SEP. OP. AGO) 160

of the conditions indispensable for its functioning !. The maintenance of
its establishment in Egypt would manifestly become impossible. The ines-
capable conclusion, therefore, is that in granting each other a power of
unilateral denunciation the contracting parties had in view difficulties of a
major kind liable, on account of their serious nature, to affect the desire of
the Organization or of the host State to maintain the Regional Office’s
presence in Egypt.

I would add that the transfer to another country of the seat of the
Regional Office would not be a step which must necessarily lead to the
extinction of the 1951 Agreement. The parties might possibly decide that it
should remain in force in respect of those provisions not bound up with the
existence in Egypt of the Regional Office, as well as such provisions as
might be added pursuant, precisely, to an agreed revision. For example, the
replacement of the Regional Office by a mere field office, or by an Egyp-
tian office linked to the Organization by some form of collaboration, might
serve as an occasion for so acting. In any case, it would be going much too
far, in my view, to regard the applicability of Section 37 to the eventuality
of one of the parties wishing to transfer the seat of the Regional Office from
Egypt as ruled out because such a transfer would exceed the theoretical
bounds of any “revision” of the Agreement.

The same kind of consideration impels me to make just one further
remark. I would find it hardly explicable if, in the process of contracting an
agreement, the parties, on specifically broaching in one of its clauses the
question of its possible denunciation, should have chosen to settle it but
partially and deliberately left a vague possibility of denunciation under
general international law to subsist alongside the one textually provided
for in the agreement.

(b) Secondly, I would point out that the question which has been raised
in this connection could not in any event be resolved without a close
examination of the origins of the clause embodied in Article XII, Sec-
tion 37, of the Agreement of 25 March 1951.

What those origins were has been abundantly stated and proved in the
course of the proceedings. The World Health Organization merely bor-
rowed, quite consciously, from Article 30 of the Agreement between the
Swiss Federal Council and the International Labour Organisation,
adopted and signed on 11 March 1946 “to regulate the legal status of the
Organisation in Switzerland”, the wording which it first employed in the
clause it inserted in Article 29 of the Agreement concluded with the Swiss
Federal Céuncil “to regulate the legal status of the WHO” in July-August
1948. The WHO subsequently reproduced it, practically unchanged, in

' It should not be forgotten that at the time Egypt had not even become a party to the
Convention on the Privileges and Immunities of the Specialized Agencies, which it was
to ratify only later ; furthermore, this general convention does not contain clauses
comparable with those to be found in an agreement for the establishment of an orga-
nization in the territory of a host State, such as Articles ITI and X of the 1951 Agree-
ment.

91
INTERPRETATION OF AGREEMENT (SEP. OP. AGO) 161

Section 37 of Article XII of the 1951 host agreement with Egypt and in the
corresponding provisions of the host agreements concluded with other
States accepting regional offices on their soil.

The underlying provision — that in the ILO/Switzerland Agreement —
had itself had a somewhat unusual origin. Instead of taking place, in the
usual way, after the final choice of the seat of the organization, the nego-
tiation of this agreement had, on the contrary, come first. In other words,
the legal status of the Organisation was defined by mutual agreement on
the basis of the expectation that Geneva would definitely be chosen for
that seat. The object of thus anticipating this choice was obviously to
enable the ILO administration to tell the Twenty-Ninth Session of the
Conference, which was to be held at Montreal in the summer of 1946 and to
consider constitutional questions including the location of the Organisa-
tion’s headquarters ! : (1) that the Swiss Government had indicated “that
the International Labour Office would be most welcome in Geneva at any
time”, and (2) that, in accordance with the intention it had evinced on the
same occasion, of guaranteeing, through an agreement with the Organis-
ation, “the full independence necessary for the effective discharge of its
international responsibilities” 2, the Swiss Government had in fact
already, on 11 March 1946, concluded an agreement with the ILO con-
firming this intention.

Now, as is briefly mentioned in paragraph 41 of the Advisory Opinion,
there were two conflicting approaches during the negotiations between the
two parties, who were respectively represented by two jurists, the late
lamented Wilfred Jenks and Paul Guggenheim. Seeking to protect the
agreement from any possible reconsideration by the host government and,
above all, to ensure the permanent stability of its establishment in Swit-
zerland, the Organisation proposed the insertion of a provision to the
effect that the agreement might only be revised by common accord
between the parties and that accordingly no unilateral denunciation
should be allowed. The Swiss Government, on the other hand, preferred to
keep open the possibility of such denunciation. The parties accordingly
settled on a compromise, and it is that compromise which is found
enshrined in the wording of Article 30 of the ILO/Switzerland Agree-
ment.

In the light of these facts, and given the respective standpoints of the
contracting parties, there are, I find, two interlinked conclusions which
must be drawn, namely that they were both agreed upon a power of
unilateral denunciation strictly contained within the limits of the provi-
sions of Article 30, and that the term “revision” as used in this clause was
understood in its widest connotation and thus covered in particular the

' A question that had become pressing owing to the need to amend the article of the
Constitution which provided that the ILO should be established at the seat of the
League of Nations.

? See, in connection with all this, the reports of the Conference Delegation on
Constitutional Questions on the work of its first session, held in London from 21 Jan-
uary to 15 February 1946 (Constitutional Questions, Part 1, para. 32, p. 24).

92
INTERPRETATION OF AGREEMENT (SEP. OP. AGO) 162

eventuality of the radical revision which would be entailed by a change in
the seat of the organization. Considering, therefore, that the WHO plainly
intended to follow the model so conveniently afforded by the 1946 ILO/
Switzerland Agreement when it came to conclude its own Agreement with
the same State in 1948, as also in proceeding to the conclusion of all its
other host agreements, I find it truly difficult to imagine that this formula
acquired in what, so to speak, were derivative instruments some other
meaning and scope than it possessed in the underlying model.

The reader of these conclusions will readily appreciate that I have not
been persuaded by the reasoning of those who argue that the provisions of
Section 37 in Article XII of the WHO/Egypt host agreement of 25 March
1951 must be regarded as totally irrelevant to the questions laid before the
Court in the present case.

Being /ex specialis, a treaty provision in force between two parties has
inherent priority over such rules of a general nature as may also be
applicable between them. It consequently remains my view that consid-
eration of the provision in question ought to have been given pride of place
in the process by which the Court reached its opinion in the case. At the
same time, I would not for a moment deny that it was useful, indeed
needful, to turn to general international law in order to seek in the overall
principles and rules governing the law of treaties and the law of interna-
tional organizations a confirmation of the conclusions drawn from those of
treaty-interpretation. It is moreover a fact that, in the present case, the
parties’ mutual obligations are finally expressible in the same terms, no
matter from what source derived. One could scarcely detail the obligation
of consultation laid down in the second sentence of Section 37 more
effectively in respect of the present case than has been done in para-
graph 49 and the operative part of the Advisory Opinion. Even where the
obligation of notice stated at the end of Section 37 is concerned, it must not
be forgotten that this provision is obviously a residual rule intended to
provide a fair yardstick for application solely if it proves impossible to
agree upon the “reasonable period of notice” mentioned in subparagraph
(c) of the Court’s definition of the parties’ obligations. It was from this
standpoint that I felt able to concur in the conclusions of the Court and the
Advisory Opinion in which they are set forth.

(Signed) Roberto AGo.

93


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE NOTTEBOHM

(LIECHTENSTEIN c. GUATEMALA)

ORDONNANCE DU 8 MAI 1954

1954

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

NOTTEBOHM CASE

(LIECHTENSTEIN v. GUATEMALA)
ORDER OF MAY 8th, 1954
La présente ordonnance doit être citée comme suit:

« Affaire Nottebohm,
Ordonnance du 8 mat 1954: C.I. J. Recueil 1954, p. 16.»

This Order should be cited as follows:

“Notiebohm case,
Order of May 8th, 1954: I.C.J. Reports 7954, p. 16.”

N° de vente: 118
Sales number

1954
Le 8 mai
Rôle général
n° 18

16

COUR INTERNATIONALE DE JUSTICE

ANNÉE 1054

8 mai 1954

AFFAIRE NOTTEBOHM

(LIECHTENSTEIN c. GUATEMATA)

ORDONNANCE

La Cour internationale de Justice,
vu l’article 48 du Statut de la Cour,

vu l’article 37 du Règlement de la Cour;

Rend l'ordonnance suivante :

Vu l'arrêt du 18 novembre 1953 par lequel la Cour, après avoir
rejeté l'exception préliminaire présentée par le Gouvernement de
la République du Guatemala, a fixé les délais pour le dépôt des
contre-mémoire, réplique et duplique,

Vu l’ordonnance du 15 janvier 1954 par laquelle, sur demande
de l'agent du Gouvernement du Guatemala, la date d'expiration
du délai pour le dépôt du contre-mémoire par ce Gouvernement
a été prorogée au 20 avril 1954, et par laquelle la suite de la
procédure a été réservée,

Considérant que le contre-mémoire a été déposé dans le délai
ainsi prorogé ;

La Cour,

Aprés s’étre renseignée auprés des Parties,

Fixe au 17 juillet 1954 la date d’expiration du délai pour le
dépét de la réplique par le Gouvernement de Liechtenstein et au

4
17 AFFAIRE NOTTEBOHM (ORDONNANCE DU 8 V 54)

2 octobre 1954 la date d'expiration du délai pour le dépôt de la
duplique par le Gouvernement du Guatemala.

Fait en français et en anglais, le texte français faisant foi, au
Palais de la Paix, à La Haye, le huit mai mil neuf cent cinquante-
quatre, en trois exemplaires, dont l’un restera deper4 aux archives
de la Cour et dont les autres seront transmis respect” ment au
Gouvernement de la Principauté de Liechtenstein et au Louver-
nement de Ja République du Guatemala.

Le Président,
(Signé) ARNoLD D. McNair.

Le Greffier,
(Signé) J. Lopez OxivAn.


520

SEPARATE OPINION OF JUDGE PARRA-ARANGUREN

1. Notwithstanding my agreement with the operative part of the Order,
I consider it necessary to make the following observations.

2. Article IX of the Genocide Convention is in force between the
Parties. It prescribes:

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

3. Yugoslavia maintains that the Respondent has violated:

“the obligation contained in the Convention on the Prevention and
Punishment of the Crime of Genocide not to impose deliberately on
a national group conditions of life calculated to bring about the
physical destruction of the group .. .” (Application of Yugoslavia,
p. 12).

Furthermore, during the public hearings Yugoslavia stated “in the cir-
cumstances the intensive bombing of Yugoslav populated areas consti-
tutes a breach of Article I] of the Genocide Convention” (CR 99/25,
p. 12, Brownlie).

4. The Respondent considers that it has not violated the Genocide
Convention, because no genocide crimes have been committed during or
as a result of the military intervention of the NATO countries in Yugo-
slavia.

5. In its Judgment of 11 July 1996 the Court admitted prima facie the
existence of a legal dispute between the Parties because of the existence
of:

“‘a situation in which the two sides hold clearly opposite views
concerning the question of the performance or non-performance
of certain treaty obligations’ ({nterpretation of Peace Treaties
with Bulgaria, Hungary and Romania, First Phase, Advisory Opin-
ion, LC.J. Reports 1950, p. 74)

and that, by reason of the rejection by Yugoslavia of the complaints
formulated against it by Bosnia and Herzegovina, ‘there is a legal
dispute’ between them (East Timor (Portugal v. Australia), I. C.J.
Reports 1995, p. 100, para. 22)” (Application of the Convention on

43
521 LEGALITY OF USE OF FORCE (SEP. OP. PARRA-ARANGUREN)

the Prevention and Punishment of the Crime of Genocide, Prelimi-
nary Objections, C.J. Reports 1996 (11), pp. 614-615, para. 29).

6. Consequently, taking into account the allegations of the Parties in
these incidental proceedings, there appears to exist, prima facie, a “legal
dispute” between them regarding the interpretation and application of
the Genocide Convention. For this reason, Article IX of the Genocide
Convention is applicable and, in my opinion, the Court has prima facie
jurisdiction to entertain the request for provisional measures presented
by Yugoslavia.

7. Article IX of the Genocide Convention is the only prima facie basis
for jurisdiction of the Court in the present case. Therefore the only pro-
visional measures that it can indicate are those aiming to guarantee the
rights of the Applicant under the Genocide Convention.

8. Yugoslavia is requesting the Court to indicate that the Respondent
“shall cease immediately the acts of use of force and shall refrain from
any act of threat or use of force against the Federal Republic of Yugo-
slavia” (CR 99/14, p. 63, Etinski). However, the threat or use of force
against a State cannot in itself constitute an act of genocide within the
meaning of the Genocide Convention. Consequently the provisional
measures requested by Yugoslavia do not aim to guarantee its rights
under the Genocide Convention, 1.e., the right not to suffer acts which
may be qualified as genocide crimes by the Convention. Therefore, in my
opinion, the measures requested by Yugoslavia shall not be indicated.

(Signed) Gonzalo PARRA-ARANGUREN.

44