131

SEPARATE OPINION OF JUDGE ODA

I concur with the Advisory Opinion of the Court in considering that the
transfer of the Regional Office from Alexandria to the new site, if such
transfer is inevitable, should be effected in an orderly manner with the
minimum of prejudice to the work of the Organization and the interest of
Egypt. However, differing as I do from the Advisory Opinion on some of
the legal issues which it touches upon, I feel bound to make known my own
individual views, as follows.

1. In my view the 1951 Agreement between Egypt and the WHO does
not govern the transfer of the Regional Office for the Eastern Mediterra-
nean from Alexandria, nor can the negotiation and notice provisions of its
Section 37 apply to any such transfer. In this connection it is necessary to
examine the relation between the 1951 WHO/Egypt Agreement, on the
one hand, and, on the other, the establishment and location of the Regional
Office in Alexandria.

The Director of the Legal Division of the WHO stated during the oral
proceedings :

“The provision which is the subject of the request for advisory
opinion merely repeated an analogous provision in the Agreement
between Switzerland and WHO of 1948, which Agreement also
repeated an identical provision in the Agreement between the ILO
and the Swiss Confederation in 1946. Hence the text in question was
not the subject of thorough discussion when it was adopted, since it
reproduced a clause that was already well known.” (Sitting of 23
October 1980.)

* *

2. In fact, Section 37 of the 1951 WHO/Egypt Agreement is practically
identical with Article 29 of the 1948 WHO/Swiss Agreement. In this
respect it is pertinent to start by examining the establishment in 1948 of the
headquarters of the WHO in Geneva and the conclusion of the 1948
WHO/Swiss Agreement.

The International Health Conference called by the United Nations in
New York in July 1946 concluded with the signature of the Constitution of
the WHO. In Chapter X thereof, Article 43 stated :

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132 INTERPRETATION OF AGREEMENT (SEP. OP. ODA)

“The location of the headquarters of the Organization shall be
determined by the Health Assembly after consultation with the
United Nations.”

The Interim Commission, established pursuant to the Arrangement
concluded at the International Health Conference, was charged, inter alia,
with making “studies regarding location of Headquarters of the Organi-
zation” (2 (b} (ii)). In the deliberations of the Interim Commission, which
met five times between July 1946 and February 1949, the establishment
and location of the headquarters of the Organization and the Agreement
with Switzerland concerning the legal status of the Organization were
always dealt with separately, or rather discussions on the Agreement with
Switzerland preceded determination of the establishment and location of
the headquarters of the Organization.

3. The Executive Secretary of the Interim Commission met with a
committee of representatives of the Swiss Confederation and Genevese
authorities on 18 and 19 September 1946, and discussed a draft agreement
indicating the privileges, immunities, guarantees and facilities of all kinds
which the WHO might enjoy if it established itself in Switzerland (WHO,
Official Records, No. 4, p. 72). Accordingly a proposed agreement between
the Swiss Federal Council and the WHO concerning the legal status of the
WHO in Switzerland, together with a proposed arrangement for the exe-
cution of the Agreement, were drafted : the Agreement was circulated as a
WHO document on 16 October 1946 (ibid., p. 81). The Executive Secretary
expressed on that occasion the desire that these two texts should mutatis
mutandis be applied provisionally to the services which were to be admin-
istered in Geneva by the Interim Commission until the WHO had chosen a
place for its permanent seat. The Swiss Federal Council expressed assent to
this proposal at its meeting of 25 October 1946. The letter from the Federal
Political Department to the Executive Secretary dated 28 October 1946
clearly indicated that this agreement was proposed for the purpose of
determining the legal status of the WHO in Switzerland in the event of its
deciding to establish its seat in Geneva (ibid., p. 88). This was nearly two
years before Geneva was actually chosen as the site of the WHO head-
quarters.

4. Atits third session (March/April 1947) the Interim Commission, on
the basis of the recommendations of the Temporary Panel of Legal Con-
sultants on Privileges and Immunities (1.e., those to be granted to the WHO
and its Interim Commission by the Swiss Government), adopted a reso-
lution noting with satisfaction the conclusion of the draft agreement of
19 September 1946 and considered that the draft agreement, the draft
arrangement of the same date and the letter of 28 October 1946, together
with the resolution itself, would constitute a legal agreement between the
Swiss Federal Government and the Interim Commission binding upon
both parties during the life of the Interim Commission (WHO, Offical
Records, No. 5, pp. 23 and 139). The Executive Secretary informed the
Swiss Federal Council of the resolution in a letter the date of which is not

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133 INTERPRETATION OF AGREEMENT (SEP. OP. ODA)

clear but which was at any rate before August 1947 (WHO, Official
Records, No. 5, p. 140 ; No. 6, p. 66). At the end of this letter the Executive
Secretary stated :

“It is perhaps superfluous for me to add that it will be necessary for
the World Health Assembly to give its approval to this projet d'accord
should it desire to have the provisions of the projet d'accord applied to
the World Health Organization.” (WHO, Official Records, No. 5,
p. 141.)

In the final report (1948) of the Interim Commission it was recom-
mended that the World Health Assembly resolve to approve, without
modification, the draft Agreement of 19 September 1946, as well as the
accompanying draft arrangement for its implementation (WHO, Official
Records, No. 10, p. 121).

5. At the First World Health Assembly, held in Geneva in June/July
1948, the Secretary explained the proposed agreement and arrangement to
the Legal Committee (WHO, Official Records, No. 13, p. 278), which then
unanimously decided to recommend that the Health Assembly accept
them (ibid., p. 279). The World Health Assembly itself, on 17 July 1948,
adopted without any objection at its fourteenth plenary meeting the report
of the Legal Committee which contained this recommendation, approving
the agreement and arrangement with only a minor modification of the
latter (ibid., p. 97). This was the final action taken by the World Health
Assembly as far as the WHO/Swiss agreement is concerned. The Agree-
ment and the Arrangement for its execution were approved by the Swiss
Federal Council on 21 August 1948 and came into force on that date,
effective retroactively from 17 July 1948 (UNTS, Vol. 26, p. 331). The
former carries the title : “Agreement concerning the legal status of the
WHO in Switzerland.”

6. Meanwhile, the establishment and location of the headquarters of the
WHO was being discussed quite separately from the draft Agreement with
the Swiss Government. The Interim Commission, at its second session
(Nov. 1946), set up an internal committee of five members for the study of
the future seat of the WHO (WHO, Official Records, No. 4, p. 15). On 6
March 1947, pursuant to the wish of this five-member internal committee
the Secretariat sent a circular letter to all governments invited to the
International Health Conference in New York, asking them for their offers
or views regarding the establishment of offices of the WHO (WHO, Offi-
cial Records, No. 5, p. 65). At the third session (March/Abpril 1947) of the
Interim Commission, the Committee on Headquarters was engaged in
making some surveys on the possibilities of the location of headquarters
(ibid. p. 136) and in a report of the Executive Secretary submitted in
August 1947 to the Interim Commission for its fourth session (Aug./Sep.

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134 INTERPRETATION OF AGREEMENT (SEP. OP. ODA)

1947) several possibilities regarding the headquarters were mentioned on
the basis of replies addressed to the Interim Commission in response to its
circular letter (WHO, Official Records, No. 6, p. 43).

At the fifth session (Jan./Feb. 1948) of the Interim Commission, the
Committee on Headquarters prepared a detailed analysis of New York,
Geneva, Paris and the United Kingdom for the possible location of the
headquarters from various aspects (WHO, Official Records, No. 7, p. 217).
However, it was agreed on 5 February 1948 that a decision on the location
should be left to the World Health Assembly to be held in a few months’
time (ibid., p. 56).

7. Atthe Committee on Headquarters and Regional Organization in the
First World Health Assembly (June/July 1948), the Chairman gave a short
summary of the question and made special reference to the opinions
expressed so far by various countries with regard to the different possible
locations for the headquarters. There was general agreement that, although
Geneva was not itself a very large medical centre, it was so centrally
situated in Europe as to be easily accessible to the various medical centres
(WHO, Official Records, No. 13, p. 330).

The Committee finally came to the unanimous conclusion that Geneva
should be selected as the permanent headquarters of the World Health
Organization. The Committee prepared a resolution for the Health Assem-
bly to adopt, and the report of the Committee containing the draft reso-
lution was taken up at the tenth plenary meeting on 2 July 1948. The
resolution read as follows :

“The Health Assembly resolves that Geneva be made the perma-
nent headquarters of the World Health Organization.” (WHA1.96 ;
ibid., pp. 77 and 330.)

As there were no objections, the President announced that Geneva had
been chosen as the permanent seat of the Organization with the reservation
that the Assembly had to consult the Secretary-General of the United
Nations (ibid., p. 77).

8. After this decision the delegate of Switzerland made the following
statement :

“In the name of the Swiss delegation I wish to express my thanks for
the great honour shown to our country by the choice of Geneva as the
permanent site of the World Health Organization. If, after consulta-
tion with the United Nations, your decision should be confirmed — as
we sincerely hope will be the case — you may rest assured that the
Federal Council, in concert with the authorities of Geneva, will con-
sider and study in the widest and most liberal sense all the steps to be
taken for the installation and work of the World Health Organization
in this town.” (Ibid.)

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135 INTERPRETATION OF AGREEMENT (SEP. OP. ODA)

The Economic and Social Council, in its resolution of 23 July 1948 :

“Consider{ed] that the establishment of the headquarters of the
World Health Organization at Geneva [was] in the best interests of the
United Nations and of the World Health Organization.” (ECOSOC,
res. 168 (VID).}

On 24 July 1948 at the sixteenth plenary meeting of the First World Health
Assembly, this resolution of the Economic and Social Council was intro-
duced and the President declared that the resolution as to the permanent
headquarters in Geneva should stand (WHO, Official Records, No. 13,
p. 103).

*

9. It seems to me that, from the analysis of the process under which the
1948 Swiss/WHO Agreement was prepared on the one hand, and from the
fact, on the other hand, that the choice of Geneva as the site of the
headquarters was effected through a separate process, it is difficult to
conclude that the establishment and location of the headquarters of the
WHO in Geneva was governed by the Swiss/WHO Agreement.

x *

10. As stated by the Director of the Legal Division of the WHO (para. 1
above), Article 29 of the 1948 WHO/Swiss Agreement also repeated Arti-
cle 30 of the 1946 ILO/Swiss Agreement. Not only that, these two Agree-
ments are practically identical except that the ILO/Swiss Agreement has
one extra provision concerning, the transitory régime which might be
necessitated by the fact that the International Labour Office had already
existed for many years.

The report of the Temporary Panel of Legal Consultants dated 26 April
1947, submitted to the third session of the Interim Commission (which I
referred to in para. 4 above), read as follows :

“An Agreement couched in almost identical terms, and serving as
model for the draft Agreement negotiated by the Executive Secretary
of the Interim Commission and the Swiss Government, had been
concluded between this same Government and the International
Labour Organisation. This ILO Agreement had met with no objection
whatever on the part of the Members of that Organisation.” (WHO,
Official Records, No. 5, p. 140.)

11. A group of the ILO which met in London from 21 January to 15
February 1946 prepared a Report of the Conference Delegation on Con-
stitutional Questions (International Labour Conference, 29th Session,
Report II (1)). According to this report

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136 INTERPRETATION OF AGREEMENT (SEP. OP. ODA)

“The Delegation considers that wherever the seat of the Office may
be located there should be an arrangement between the International
Labour Organisation and the Government or international authority
having jurisdiction over the seat which ensures that the Organisation
will enjoy there the full independence necessary for the effective
discharge of its international responsibilities until such time as the
arrangement is terminated by mutual agreement.” (P. 25.)

The talks in early March between Switzerland and the ILO to negotiate
an agreement concerning, the legal status of the ILO in Switzerland after
the dissolution of the League of Nations, in which Professor Guggenheim
and Dr. Jenks participated in their respective roles, are known to the Court.
The formal procès-verbal which was signed by the negotiators is so simple
as to exclude any background to the ILO/Swiss Agreement (UNTS,
Vol. 15, p. 377). However, according to a communication to the Court by
the Legal Adviser of the ILO, there exists an informal procès-verbal de
négociations which is based on notes taken at the time by the ILO nego-
tiators, but which has never been seen or approved by the other party.

12. We have been told that, on the topic eventually dealt with by Article
30 — which was copied as Article 29 of the WHO/Swiss Agreement — the
Swiss draft contained, according to this informal document, the following
article :

“{Translation] The present Arrangement shall remain in force so
long as the seat of the International Labour Organisation is main-
tained on the territory of Switzerland. It may be denounced on either
side, effective at the end of a year, by six months’ previous notice.”

It was certainly not the intention of Switzerland that this agreement
should provide for the removal of the office, effective at the end of a year, by
six months’ previous notice. On the contrary, the fate of the seat of the ILO
was not within the scope of this agreement. The meaning of the Swiss
delegate was that this agreement providing for the legal status of the
Organization in Switzerland would remain in force as long as the seat of the
ILO was maintained in Switzerland, but could however be denounced by
the procedure suggested.

According to the informal record supplied by the ILO:

“{Translation] Mr. Guggenheim emphasized that he would wish to
see a denunciation clause included in the Agreement. Mr. Jenks
proposed that a form of words be worked out to permit of revision of
the agreement between the two parties. If no such form of words could
be found, ultimately a provision should be included for each party to
have the right to denounce on sufficiently long notice. That proposal
was accepted.”

It was thus that the provision now existing as Article 30 was adopted.

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137 INTERPRETATION OF AGREEMENT (SEP. OP. ODA)

13. The ILO did not, apparently, challenge the basic principle as men-
tioned in the first part of the Swiss suggestion — it only asserted in
connection with the second part of the Swiss suggestion that the agreement
should be subject to some process of revision before any denunciation. It is
quite clear that neither side was engaged in discussing the location or the
transfer of the headquarters of the ILO while negotiating the proposed
agreement.

The draft which was agreed through these negotiations was submitted to
the Governing Body of the International Labour Office at its ninety-eighth
session in May 1946. The covering note contained the following pas-
sage :

“Tt was clearly understood . . . that the provisions of the Agreement
and Arrangement defining the legal status of the ILO in Switzerland
after the dissolution of the League of Nations do not prejudice in any
way the question of the seat of the Organization.” (ILO, Minutes of the
98th Session of the Governing Body, p. 188.)

The Agreement was signed on 11 March 1946 and came into force on 27
May 1946.

*
* *

14. The WHO has established six Regional Offices, including the one in
Alexandria. The Regional Office in Washington is very special because of
its historical background, which it is unnecessary to go into here. The five
other Regional Offices are in India, Egypt, the Philippines, the People’s
Republic of the Congo and Denmark. Those in India and Egypt started
their operations on | January and 1 July 1949, respectively, and the other
three began operating in the early 1950s. The agreements concerning these
five offices (which are similar apart from some minor differences) were
approved by the World Health Assembly at its second, fourth, fifth, sixth
and ninth sessions (WHA2.81, WHA4.59, WHAS5.41, WHA6.39 and
WHA937).

Since the Regional Office in India started its functions six months ahead
of the Regional Office in Alexandria, and the WHO/India Agreement was
approved by an earlier session of the World Health Assembly and came
into force earlier than the WHO/Egypt Agreement, it is pertinent to make
some analysis of the process under which the Regional Office in India was
brought into operation, and to compare it with the case of the Regional
Office in Egypt.

15. The Constitution of the WHO devotes its Chapter XI, containing
Articles 44-54, to Regional Arrangements. Article 44 provides for the
establishment of any regional organization, which, according to Article 46,
consists of a regional committee and a regional office. Article 54 stipulates
in effect that, where any inter-governmental health organization existed
prior to the date of signature of the Constitution, it should in due course be

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integrated with the WHO. It seems not to be correct to assume that Article
44, read with Article 46, and Article 54 are mutually exclusive or inde-
pendent of each other in their respective applications. Article 54 was
simply supplementary to Articles 44 and 46 for the establishment of a
regional office.

In preparing this chapter at the International Health Conference (June/
July 1946), the relationship of the Pan American Sanitary Bureau to the
WHO carried great weight. This is the reason why Article 54 was drafted.
But, the delegates of some countries, such as India, Liberia, Poland, South
Africa, the three Soviet Republics and Yugoslavia, urged that all existing
regional health agencies should be transformed as quickly as possible into
regional committees subordinated to the World Health Organization. The
Egyptian delegate intervened in the debate to call attention to the recently
created Health Bureau of the Pan Arab League and to request that it be
accorded the same consideration as the Pan American Sanitary Bureau
(WHO, Official Records, No. 2, p. 23).

16. The Interim Commission had as its task, among others, to carry out
studies regarding the definition of geographical areas with a view to the
eventual establishment of regional organizations as contemplated in Chap-
ter XI of the Constitution, due consideration being given to the views of the
governments concerned. (Arrangement concluded by the governments
present at the International Health Conference, 2 (b) (iii).)

It was only at the third session of the Interim Commission (March/April
1947) that matters concerning regional arrangements began to be given
due consideration. Some days prior to this session, the Executive Secretary
despatched to all member States a circular dated 6 March 1947, which has
been mentioned previously, regarding not only the establishment of the
headquarters of the WHO, but also the establishment of its regional
offices. In addition, at its third session the Interim Commission instructed
the Executive Secretary to undertake further studies on regional areas for
consideration at its fourth session and for recommendation to the World
Health Assembly (WHO, Official Records, No. 5, p. 143). Pursuant to this
decision, a circular was despatched on 4 June 1947 with reference to
Chapter X, particularly Article 44, of the Constitution of the WHO (WHO,
Official Records, No. 6, p. 196).

17. By the time of the fourth session (Aug./Sep. 1947) of the Interim
Commission a number of replies had been addressed by governments in
response to the circulars of 6 March 1947 and 4 June 1947, respectively. In
answer to the former circular, India announced that it would soon indicate
its views (ibid. p. 43). Neither India nor Egypt had replied to the latter
circular by that time.

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139 INTERPRETATION OF AGREEMENT (SEP. OP. ODA)

Prior to the fifth session (Jan./Feb. 1948) further replies had been
received from various countries, including Egypt and India. They are not
reproduced in their original form and their dates are not known, but it
seems that these replies were made in response to the general circular letter
of 6 March 1947 concerning the offices of the WHO and that of 4 June 1947
concerning regional arrangements, without making any separate reference
to the respective circulars. The replies from Egypt and India are quoted, as
follows :

“Egypt :

The competent authorities have declared that they are most anxious
to see a regional bureau established at Alexandria. This bureau could
deal with all questions coming within the scope of the WHO for the
entire Middle East.” (WHO, Official Records, No. 7, p. 135)

“India :

(3) In the event of India’s proposal regarding the location of head-
quarters in India not being accepted by the World Health Assembly,
the Government of India would press for a regional bureau to be
located in India. This bureau might conveniently cover the following
territories : Iran, Afghanistan, Pakistan, India, Burma, Ceylon, Siam
and possibly Malaya and Singapore.

(4) The Government of India gives an assurance that adequate
accommodation and other facilities, as well as necessary amenities
and privileges, on similar terms to those provided by other Govern-
ments for the United Nations or its Specialized Agencies, will be
provided for the headquarters office or the regional bureau, as the
case may be.” {/bid.)

In addition, Denmark and Iran indicated their interest in providing the
site of regional offices, and there were some replies from other countries
which indicated that Alexandria might be the site of one regional office
(ibid.).

18. At the fifth session (Jan./Feb. 1948) of the Interim Commission a
resolution concerning the determination of geographical regions was
adopted. Finding that there was not yet sufficient data available for
the delimitation of the geographical regions to be administered by the
regional offices, referred to in Article 44 of the Constitution of the World
Health Organization, the Interim Commission resolved to refer the ques-
tion to the World Health Assembly with a recommendation that it be
assigned as soon as possible for study to a Committee of the Assembly,
whose task it would be to make the necessary recommendations, taking
due note of the viewpoints expressed by the various governments (WHO,
Official Records, No. 7, p. 232).

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19. Meanwhile, a special question concerning the Alexandria office had
been taken up by the Interim Commission. At its third session (March/
April 1947) Dr. Shousha Pasha, Under-Secretary of State, Ministry of
Public Health of Egypt, who was serving as Vice-President of the Com-
mission, stated on 11 April 1947 that the Pan Arab Bureau was considering
the possibility of becoming a Regional Bureau of the WHO for the Medi-
terranean area. He desired that the Executive Secretary be instructed to
make an exploratory approach with regard to that Bureau. (WHO, Official
Records, No. 5, p. 26.) In response to his statement, the Interim Commis-
sion instructed the Executive Secretary to get in touch with the authorities
of the Pan Arab Sanitary Organization and to submit a report on the
activities and the status of the Organization (ibid., pp. 26 and 142). Hence
enquiry was made by the Executive Secretary on 2 May 1947.

On 26 July 1947 the Minister for Public Health of Egypt sent to the
Interim Commission a detailed memorandum on “The Pan Arab Regional
Health Bureau : its Origin and History” (WHO, Official Records, No. 6, p.
173). At the fourth session (Aug./Sep. 1947), the Committee on Relations
proposed that a small negotiating subcommittee be appointed to survey
the matter and report to the fifth session (ibid, p. 29). No report of this
subcommittee is printed in the Offical Records of the WHO. Apparently
there was no discussion on this subject at the fifth session of the Interim
Commission.

20. The Interim Commission, at its informal preparatory meeting in
Geneva in June 1948, included under the agenda item “Pre-existing
Regional Organizations” a report on the Sanitary Bureau at Alexandria by
Dr. A. Stampar, Chairman of the Commission. This is a very comprehen-
sive report and its Section 4 was entitled “Arguments in favour of Alex-
andria as a Regional Health Centre for the Near and Middle East” ;
Section 6 (conclusion) thereof read as follows :

“If we have realized how useful the establishment of a regional
organization would be and if we remember what a peculiar situation
Alexandria has from the point of view of well-established tradition in
precisely this kind of international sanitary work, by reason of its
geographical situation and the present progress of public health in
Egypt, we are bound to admit that the conditions which predestinate
Alexandria to be the centre of the future regional health organization
for the Near and Middle East are literally unique.” (WHO, Official
Records, No. 12, p. 65.)

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21. At the First World Health Assembly (June/July 1948), in the Com-
mittee on Headquarters and Regional Organization, a subcommittee,
appointed to study whether it was advisable actually to establish regional
organizations, recommended the establishment of at least three working
parties for three different regions, namely, South-East Asia, the Middle
East and the Far East (WHO, Official Records, No. 13, p. 264). The Com-
mittee decided to add two working parties for the regions of Europe and
Africa (ibid., pp. 265-266).

For South-East Asia it had been unanimously agreed in the working
party that a regional organization should be set up with [ndia as its
headquarters and it was also unanimously agreed that, in view of the urgent
needs of that part of the world, the setting-up of a regional organization for
the South East Asia area should be considered as priority number one.
Concerning the Middle East, the Near East and parts of North-East
Africa, the working group unanimously agreed to recommend that a
regional organization be established immediately to include Egypt and
other countries, with headquarters at Alexandria, and it recommended
also that the establishment of this regional organization be given the
highest priority (ibid, p. 267).

22. The Committee on Headquarters and Regional Organization
recommended in its second report as delimitation of geographical areas :
(i) Eastern Mediterranean Area ; (ii) Western Pacific Area ; (iii) South-
East Asia Area ; (iv) European Area ; (v) African Area ; (vi) American
Area (ibid., p. 330).

The Committee discussed at considerable length the necessity for estab-
lishing regional organizations in some or all of these areas during the year
1949. On the basis of a report of the Committee the First World Health
Assembly, at its eleventh plenary meeting on 10 July 1948, adopted a
resolution : this resolution WHA1.72 reads as follows :

“1. In accordance with Article 44 of the WHO Constitution, the
Health Assembly

Resolves to define the geographical areas as indicated in the second
report of the Committee on Headquarters and Regional Organiza-
tion,

2. The Health Assembly

Resolves that the Executive Board be instructed (1) to establish
regional organizations in the areas indicated in the second report of
the Committee on Headquarters and Regional Organization as soon
as the consent of a majority of Members situated within such area is
obtained ; where the consent of a majority of the Members has not yet
been obtained, a regional organization in the respective area should be
established as soon as the necessary consent becomes available ; (2) as
regards the Eastern Mediterranean Area, to integrate the regional
organization which already exists in that area, viz. the Alexandria

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Regional Bureau, with the World Health Organization as soon as
possible, through common action, in accordance with Article 54 of
the WHO Constitution; (3) as regards Europe,...” (WHO,
Official Records, No. 13, pp. 81 and 331).

23. The sites of the regional offices in India and at Alexandria were
mentioned in the report of the respective working groups, which were
adopted at committee level, but the World Health Assembly resolution did
not specify these names expressly, simply stating that the regional orga-
nizations should be established as soon as the consent of a majority of
members situated within such areas was obtained. However, in the case of
the Eastern Mediterranean Area specifically, integration of the existing
regional organization with the WHO was mentioned. It seems quite clear
that this integration was supplementary to the establishment of the
Regional Office in Alexandria in accordance with Article 44, read with
Article 46.

Meanwhile, although the name of India was not mentioned in the
resolution itself, Jawaharlal Nehru, Prime Minister of India, sent the
following telegram, which was read by the President of the World Health
Assembly at the fourteenth plenary meeting on 17 July 1948 :

“On behalf of the Government of India, I wish to thank you and
World Health Assembly for unanimously deciding to locate one of the
regional bureaux in India. The Government of India will gladly
extend every help in promoting the work of the bureau.” (/bid.,
p. 96.)

24. Thus, until the time of the First World Health Assembly the process
of establishing the Regional Offices in India and Egypt progressed at the
same pace, though in the case of Egypt special mention was made, since not
only was the Regional Office to be established in accordance with Arti-
cle 44, read with Article 46, but integration under Article 54 of the Con-
stitution was also made necessary.

*

25. Atits first session (July 1948) the Executive Board noted the letter
addressed to the President of the Assembly by the Chief Delegates of
Burma, Ceylon, India and Siam, stating that their countries had agreed to
join the Regional Organization for South-East Asia with headquarters in
India, and also the letter from the delegate of India proposing that this
regional organization should be located in the city of Mysore (WHO,
Official Records, No. 14, p. 12). The Regional Committee for South-East
Asia was convened for its first session in New Delhi in October 1948. At its
second session (Oct./Nov. 1948) the Executive Board adopted the follow-
ing resolution :

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143 INTERPRETATION OF AGREEMENT (SEP. OP. ODA)

“The Executive Board

In order to carry out the instructions of the first World Health
Assembly

(1) Approves the establishment of the South-East Asia Regional
Office on or about 1 January 1949,

(2) Having considered the recommendation of the Regional Com-
mittee ... Approves provisionally the selection of New Delhi as
the site of the Regional Office for South-East Asia, this action
being subject to consultation with the United Nations by the
Director-General . . .” (EB2.R29 ; ibid, p. 27.)

The consultation referred to in the resolution had in fact already taken
place in November 1948 in the Administrative Committee on Co-ordina-
tion (E/1076, Report of the Administrative Committee on Co-ordination
to the ECOSOC, 3 December 1948 ; ECOSOC, Official Records, 4th year,
8th Sess., Suppl. 5, p. 9). In fact, the shift of the future site of the Regional
Office in India from Mysore to New Delhi seems to have been made as a
result of this consultation on the ground that the United Nations, the ILO
and the Unesco offices already existed in New Delhi. The Economic and
Social Council at its 241st meeting on 17 February 1949 took note of the
report (ECOSOC, Official Records, 4th year, 8th Sess., p. 148).

26. In the case of the office in Egypt, the Regional Committee for the
Eastern Mediterranean was held in Cairo in February 1949. At its first
session the location of the Regional Office, date of commencement of
operations in the Regional Office, and integration of the Sanitary Bureau
were placed, together with other items, on the agenda. On the question of
the location of the Regional Office, the following draft resolution, which
was read by the delegate of Egypt, was adopted :

“The Regional Committee
Having considered

(1) the historical role of Alexandria as a centre for epidemiological
services to countries in the Eastern Mediterranean Area ; (2) the
policy laid down in Article XI (2) of the agreement between the
United Nations and the World Health Organization which states
that : ‘Any regional or branch offices which the World Health Orga-
nization may establish shall, so far as practicable, be closely asso-
ciated with such regional or branch offices as the United Nations may
establish’ ; (3) the importance of establishing the Regional Office in
the proximity of Cairo in which are located or expected to be located
offices of the United Nations and specialized agencies as follows :
FAO, ICAO, ILO, Unesco and UN Information Centre ; (4) the
desirability of the excellent site and buildings under favourable con-
ditions generously offered by the Government of Egypt.

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144 INTERPRETATION OF AGREEMENT (SEP. OP. ODA)

Therefore resolves to recommend to the Director-General and the
Executive Board, subject to consultation with the United Nations, the
selection of Alexandria as the site of the Regional Office.” (WHO,
Official Records, No. 17, p. 46.)

27. With regard to the integration of the Alexandria Sanitary Bureau,
the delegate of Egypt stated that in January a Committee of the Arab
States had voted in favour of the integration of this Bureau into the WHO.
(Regional Committee for Eastern Mediterranean, Summary Minutes,
4th Sess., 8 February 1949.) The Director-General read a draft resolution,
the adoption of which was then proposed by the delegate of Egypt, and the
Director-General confirmed that all functions would be carried on as in
the past. The resolution, which was adopted, read as follows :

“The Regional Committee,

Having regard to : (1) the relevant provisions of Chapter XI of the
Constitution of the World Health Organization ; and (2) the resolu-
tion of the World Health Assembly of 10 July 1948 ; and (3) the long
experience and the services rendered by the Sanitary Bureau at Alex-
andria in the field of health,

Resolves to recommend to the Executive Board that in establishing
the Regional Organization and the Regional Office for the Eastern
Mediterranean the functions of the Alexandria Sanitary Bureau be
integrated within those of the Regional Organization of the World
Health Organization.” (WHO, Official Records, No. 17, p. 46.)

The delegate of Egypt presented a statement, which read :

“In accordance with the declaration made by the Delegate of Egypt
to the International Sanitary Conference of 1938 at Paris, the Gov-
ernment of Egypt assumed the functions and has carried on the
services of the Alexandria Sanitary Bureau. In consideration of the
resolution on integration of the Alexandria Sanitary Bureau with the
World Health Organization, the Government of Egypt is pleased to
transfer these functions and all related files and records to the World
Health Organization. This transfer will be made as of the date on
which the World Health Organization notifies the Government of
Egypt of the commencement of operations in the Regional Office for
the Eastern Mediterranean Area.” (Ibid., p. 47.)

The Committee then expressed gratitude to the delegate of Egypt for the
transfer of the functions, files and records of the Alexandria Sanitary
Bureau to the Organization upon commencement of operations in the
Regional Office.

28. On the agenda item “the date of commencement of work in the
region”, the Committee requested the Director-General and the Executive

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145 INTERPRETATION OF AGREEMENT (SEP. OP. ODA)

Board to establish the Regional Office and commence work on 1! July
1949.

29. The Executive Board, at its third session (Feb./March 1949) held
soon after the Regional Committee for the Eastern Mediterranean,
adopted the following resolution :

“The Executive Board

(1) Conditionally approves the selection of Alexandria as the site of
the Regional Office for the Eastern Mediterranean Area, this action
being subject to consultation with the United Nations ;

(2) Requests the Director-General to thank the Government of
Egypt for its generous action in placing the site and buildings at
Alexandria at the disposal of the Organization for a period of nine
years at a nominal rate of 10 piastres a year ;

(3) Approves the establishment of the Regional Office for the East-
ern Mediterranean Area, operations to commence on or about 1 July
1949 ;

(4) Approves the resolution of the Regional Committee that ‘the
functions of the Alexandria Sanitary Bureau be integrated within
those of the Regional Organization of the World Health Organiza-
tion’ ;

(5) Authorizes the Director-General to express appreciation to the
Government of Egypt for the transfer of functions, files and records
of the Alexandria Sanitary Bureau to the Organization upon com-
mencement of operations in the Regional Office ...” (EB3.R30 ;
WHO, Official Records, No. 17, p. 16.)

The consultation took place in May 1949 in the Administrative Com-
mittee on Co-ordination (E/ 1340, Report of the Administrative Commit-
tee on Co-ordination to the ECOSOC, 25 May 1949 ; ECOSOC, Official
Records, 4th year, 9th Sess., Suppl. 15, p. 11). The Economic and Social
Council at its 33 1st meeting on 9 August 1949 took note of the report of the
Co-ordination Committee (E/1470) which contained the report of the
Administrative Committee on Co-ordination (ECOSOC, Official Records,
4th year, 9th Sess., p. 730).

30. Thus, pursuant to the resolution of the First World Health Assem-
bly, the establishment of the regional office and the selection of its site was
approved at the second session (Oct./Nov. 1948) of the Executive Board in
the case of India and at the third session (Feb./March 1949) of the
Executive Board in the case of Egypt, with an indication, on each occasion,
of the date of commencement of operations.

*X Ok
31. With regard to the agreement of the WHO with the host govern-
ments of its regional offices, the negotiations with India seemed to progress

more smoothly than those with Egypt. At its second session (Oct./Nov.

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146 INTERPRETATION OF AGREEMENT (SEP. OP. ODA)

1948), when the regional office in India was approved, the Executive Board
resolved that the Director-General be invited to continue negotiations with
the Indian Government in order to obtain an agreement extending privi-
leges and immunities to the Regional Organization of the WHO in South-
East Asia. Until such agreement came into force, the Indian Government
was invited, as a provisional measure, to extend to the regional organiza-
tion established on its territory the privileges and immunities contained in
the General Convention on the Privileges and Immunities of the Special-
ized Agencies, including Annex VII (EB2.R49 ; WHO, Official Records,
No. 14, p. 26).

In accordance with the resolution of the second session of the Executive
Board, the Director-General of the WHO had initiated negotiations with
the Government of India with regard to the draft agreement extending
privileges and immunities in India to the Regional Organization for South-
East Asia, and by letter of 20 May 1949 the Regional Director was
informed of the approval by the Indian Government of the draft agree-
ment (WHO, Official Records, No. 21, p. 375). The Second World Health
Assembly (June/July 1949) approved the draft and authorized the Direc-
tor-General or his representative to sign the instrument (WHA2.81 ; ibid.,
p. 49). The WHO/India Agreement was signed at New Delhi on 9 No-
vember 1949 but had come into force earlier on 22 September 1949, upon
an exchange of notes (UNTS, Vol. 67, p. 43).

*

32. In contrast, the process of preparation of the WHO/Egypt Agree-
ment proved somewhat complicated. It is not possible to get a clear picture
of the early stages of the negotiations between the WHO and Egypt from
any of the documents. It seems, however, most probable that negotiations
started early in 1949. According to one source, a draft agreement had been
prepared by the WHO prior to 8 February 1949 and handed to the Egyp-
tian Government, where it was under study in their legal department.
(Regional Committee for Eastern Mediterranean, Summary Minutes,
4th Sess., 8 February 1949.) According to other sources, Dr. Shousha
Pasha, Under-Secretary of State for Health, provided the Ministry of
Foreign Affairs in April 1949 with a copy of the draft agreement which the
WHO intended to conclude with Egypt. There is no proof, but I assume
that this draft agreement is the one which has often been referred to as
being on the lines of the model host agreement supplied by the WHO.

33. The Regional Committee for the Eastern Mediterranean noted at its
first session (Feb. 1949) that the Director-General would negotiate an
agreement with the Government of Egypt as an agreement with the host
government of the Regional Office (WHO, Official Records, No. 17,
p. 45).

Since the negotiations were still proceeding, the Second World Health
Assembly (June/July 1949) resolved that the Director-General be invited
to continue negotiations with the Government of Egypt in order to obtain

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147 INTERPRETATION OF AGREEMENT (SEP. OP. ODA)

an agreement extending privileges and immunities to the Regional Orga-
nization of the WHO in the Eastern Mediterranean Area (WHA2.82 ;
WHO, Official Records, No. 21, p. 49). As in the case of India, the World
Health Assembly invited the Government of Egypt, as a provisional
measure, to extend to the Regional Organization all privileges and immu-
nities contained in the General Convention on the Privileges and Immu-
nities of the Specialized Agencies.

At the fifth session (Jan./Feb. 1950) the Executive Board asked the
Director-General to continue the negotiations and requested the Govern-
ment of Egypt to expedite them (WHO, Official Records, No. 25,
p. 15).

34. At the Third World Health Assembly (May 1950) the Secretary
reminded the Working Party on Legal Matters, in connection with the
agenda item “Agreement with the Government of Egypt”, that the WHO
had concluded agreements with certain States that were acting as “hosts”,
either to the Organization or to its regional offices, and referred to agree-
ments such as those which had been concluded with Switzerland and India.
He said that the draft agreement with Egypt had become necessary since
the Regional Office for the Eastern Mediterranean Area had been estab-
lished and was functioning in Egypt (WHO, Official Records, No. 28,
p. 451).

The Third World Health Assembly approved the WHO/Egypt Agree-
ment, and requested the Director-General or his representative to sign the
said Agreement after approval by the Government of Egypt in accordance
with the respective constitutional procedures (WHA3.83 ; ibid., pp. 52, 451
and 492). However, there still remained some issues to be solved by the
WHO and Egypt on matters which are quite irrelevant to this case.

35. Finally agreement was reached and the Executive Board at its sev-
enth session (Jan./Feb. 1951) requested the Director-General to submit a
report on these negotiations and the agreement for approval by the Fourth
World Health Assembly (EB7.R8 ; WHO, Official Records, No. 32, p. 3).
The WHO/Egypt Agreement was signed on 25 March 1951 in Cairo by the
representative of the WHO and by the representative of Egypt.

It is to be noted with particular interest that at the Fourth World Health
Assembly (May 1951) Mr. A. Zarb, Chief of the Legal Office, on 17 May
1951 at the Legal Sub-Committee stressed the fact that :

“The Egyptian Government had so far shown a large measure of
understanding and had in fact accorded the Organization most of the
facilities necessary for the proper functioning of the Regional Office
at Alexandria. However, although the Organization thus enjoyed the
most courteous treatment, it would be highly desirable if such treat-
ment be accorded de jure and not only de facto.” (WHO, Official
Records, No. 35, p. 315.) .

The Fourth World Health Assembly (May 1951) took cognizance of the
declaration made by the Egyptian declaration under the terms of which

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148 INTERPRETATION OF AGREEMENT (SEP. OP. ODA)

paragraph 5 of the Notes to be exchanged neither extended nor restricted
the scope of Section 31 in Article X, invited the Government of Egypt to
reconsider point 5 in the text of the Notes to be exchanged, and approved
the Agreement together with those Notes. Again, the question of point 5 of
the Notes is not relevant here. At any rate, for reasons which are not
germane to this case, the finalization of the Agreement had been post-
poned for a few years before the Agreement, which was approved by the
Fourth World Health Assembly on 24 May 1951 (WHA4.59; WHO,
Official Records, No. 35, pp. 41, 136 and 350) and ratified by Egypt on
8 August 1951, came into force on 8 August 1951.

* *

36. I have mentioned the example of the Regional Office in India,
alongside the case of the Regional Office in Alexandria, mainly for two
reasons. First, the Regional Offices in India and Egypt were both set up in
accordance with Article 44 of the Constitution, read with Article 46. Cer-
tainly in the case of India there was no question of integration of a
pre-existing international organization, but the difference between the
cases of Egypt and India, relating to the additional application of Arti-
cle 54 in the case of Egypt, does not mean that the agreements are different
in nature. The fact that the pre-existing organization was integrated with
the WHO when the Regional Office in Egypt was established does not
seem to have any substantial bearing on the interpretation of the 1951
WHO/Egypt Agreement, nor on the determination of any transfer of the
Regional Office from the host country.

37. Secondly, as in the case of the WHO/Swiss Agreement on the legal
status of the WHO in Switzerland, the negotiations for the establishment
and location of the Regional Office, both in India and in Egypt, were dealt
with in the WHO separately from the preparation of the agreement with
the respective host countries. When the Swiss authorities initiated the
negotiations on the agreement concerning the legal status of the WHO with
that Organization, they anticipated that the headquarters might eventually
be located in Switzerland. In the cases both of India and of Egypt, if the
respective regional offices had not been located in these countries there
would not have been a special agreement with the WHO concerning
privileges, immunities and facilities. However, the process of the pre-
paration of the WHO Agreements with India and Egypt, and also the pro-
cess of determining the location of the regional offices in these two coun-
tries, were carried out separately ; thus neither the WHO Agreement with
Egypt, nor that with India, both of which were concluded apparently for
the purpose of determining the privileges, immunities and facilities to be
granted by the host government to the WHO, may be considered to
constitute agreements governing the establishment and location of the
Regional Office.

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149 INTERPRETATION OF AGREEMENT (SEP. OP. ODA)

38. The 1951 WHO/Egypt Agreement carries the title “Agreement for
the Purpose of Determining the Privileges, Immunities and Facilities to be
Granted in Egypt by the Government to the Organization, to the Repre-
sentatives of its Members and to its Experts and Officials”. Its preamble
states that both parties desire to conclude an agreement for the purposes
mentioned in the title, and adds:

“in particular with regard to its arrangements in the Eastern Medi-
terranean Region, and [for the purpose of] regulating other related
matters”.

The fact that a pre-existing international organization was integrated with
the WHO is not mentioned in the preamble or the text, nor is there any
mention of an agreement between the parties for the establishment of the
Regional Office in Alexandria. The Regional Office in Alexandria is only
once referred to by name, in a definition clause of this Agreement.

Itis certainly true that the WHO/Egypt Agreement would not have been
concluded if the office had not been located in Alexandria. This, however,
is very far from justifying an assertion that an agreement for the estab-
lishment or location of the Regional Office in Alexandria is contained in
the said Agreement. If, in fact, no such agreement is contained in the
instrument, it is a matter of course that the negotiation and notice provi-
sions of its Section 37 do not govern the transfer of the Regional
Office.

* *

39. It is a fact that, as stated in paragraph 12 above, in the process of
negotiating Article 30 of the 1946 ILO/Swiss Agreement, which was in-
directly copied by the WHO/Egypt Agreement, a clause suggested by
Switzerland reading

“{Translation] The present Arrangement shall remain in force so
long as the seat of the International Labour Organisation is main-
tained on the territory of Switzerland”

was dropped. The Swiss suggestion seemed to be quite logical as a reflec-
tion of the fact that the establishment and location of the headquarters of
the ILO had been placed outside the scope of the agreement which was
under negotiation. For whatever reason, that clause was withdrawn by the
Swiss delegate, but this is not, in my view, to be regarded as signifying that
the original intention of Switzerland had been rejected by the ILO.

40. In fact, the equivalent of this clause, which was suggested by Swit-
zerland in its negotiations with the ILO in early 1946, is now to be found in
a number of agreements which international organizations later concluded
with host countries of their headquarters or regional offices, to some of
which I shall now refer.

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150 INTERPRETATION OF AGREEMENT (SEP. OP. ODA)

41. The United Nations Headquarters was established in New York
pursuant to the resolution adopted by the United Nations General Assem-
bly on 14 December 1946. The Agreement concluded between the United
Nations and the United States (UNTS, Vol. 11, p. 12) on 16 June 1947 for
the purpose of carrying out the resolution stated that :

“This agreement shall cease to be in force if the seat of the United
Nations is removed from the territory of the United States...”
(Art. IX, Sec. 24.)

42. In the case of the Intergovernmental Maritime Consultative Orga-
nization, the headquarters in London was determined in the IMCO Con-
vention itself. The Agreement between the United Kingdom and IMCO of
1968 (UNTS, Vol. 677, p. 3) indicated the purpose of the Agreement,
without leaving any doubt, inasmuch as although the United Kingdom
undertook to apply to the Organization the provisions of the Convention
on the Privileges and Immunities of the Specialized Agencies, the conclu-
sion of a supplemental agreement had been envisaged “to ensure that the
Organization’s legal status in the United Kingdom should be defined and
the content of certain privileges, concessions and courtesies as well as the
measure for their implementation should be formulated in detail” (pream-
ble). The headquarters may be removed by virtue of a decision of the
Assembly in accordance with Article 44 (b) of the IMCO Convention,
and

“In the event of the Headquarters of the Organization being moved
from the territory of the United Kingdom ..., this Agreement
shall . . . cease to be in force.” (Art. 18 (2).)

43. For the International Civil Aviation Organization, the seat of the
headquarters was to be determined by the Interim Assembly of the Pro-
visional International Civil Aviation Organization. After Montreal was
chosen as the site of the headquarters of the ICAO, an agreement was
concluded between ICAO and Canada on 14 April 1951 in pursuance of
the desire “to conclude an Agreement on privileges, immunities and fa-
cilities by reason of the location in the territory of Canada of the Head-
quarters of the International Civil Aviation Organization”. (UNTS,
Vol. 96, p. 155.) Article VIII, Section 34, reads :

_“This Agreement shall cease to be in force if the seat of the Orga-
nization is removed from the territory of Canada.”

44. The case of the International Atomic Energy Agency is slightly
different from the examples mentioned above. In this case the Statute does
not contain any provision concerning its headquarters. Instead, unlike
most other agreements which international organizations have concluded
with host countries, the Agreement between Austria and the IAEA of
11 December 1957 (UNTS, Vol. 339, p. 152) mentions that this Agreement
was concluded “to establish the seat of the International Atomic Energy

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151 INTERPRETATION OF AGREEMENT (SEP. OP. ODA)

Agency in or near the City of Vienna and to regulate questions arising as a
result thereof”.
Yet it is provided that

“This Agreement shall cease to be in force ... if the permanent
headquarters of the IAEA is removed from the territory of the
Republic of Austria, ...” (Art. XX, Sec. 52)

thus implying that this kind of termination of the Agreement is different
from its revision or denunciation.

45. The analysis of these agreements necessarily leads us to conclude
that the transfer of the headquarters does not fall within their scope.

*

46. Mention may also be made of some agreements of international
organizations with host countries of their regional offices, as follows :

The Agreement between the ILO and Ethiopia concerning the estab-
lishment of an office in Addis Ababa in 1964 (UNTS, Vol. 521, p. 217)
states in its preamble that the ILO “has decided to establish an Office
of the International Labour Organisation in Addis Ababa and the
Government of Ethopia welcomes the establishment of such an office”
but

“This Agreement ... will remain in force while the ILO office
remains established in Addis Ababa.” (Art. 9 (2).)

The Agreement between the ILO and Argentina of 1970 (UNTS,
Vol. 725, p. 175) is of the same type and states :

“This Agreement shall remain in force for as long as the Office of
the ILO remains established in the city of Buenos Aires.” (Art. 4
(2).)

A more recent case of a similar type is seen in the Agreement between the
United Nations and Japan regarding the headquarters of the United
Nations University (Japanese Annual of International Law, No. 21, p. 222).
The Agreement of 1976 states that

“The Agreement shall cease to be in force ... if the permanent
headquarters of the University is removed from the territory of
Japan...” (Art. XV, Sec. 31.)

These examples are not exhaustive at all, but simply chosen at ran-

dom.
*

47. The listing of these examples seems to be sufficient to warrant
rejection of the contention that the 1951 WHO/Egypt Agreement, being
the sole instrument between the parties concerning the Regional Office in

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152 INTERPRETATION OF AGREEMENT (SEP. OP. ODA)

Alexandria, must contain an agreement between them for the establish-
ment and location of the Regional Office.

* x

48. It is to be noted that, in these agreements, apart from the ILO/
Ethiopia Agreement and the ILO/Argentina Agreement, some transi-
tional period is stipulated in such a way that, in spite of the clause men-
tioned above, such provisions in the agreements as may be applicable in
connection with the orderly termination of the operations of the offices
and the disposal of their property there are exempted from the cessation of
the agreements. The United Nations/United States Agreement states,
after a clause concerning the cessation of the Agreement as a result of the
removal of the headquarters from the United States, the following :

“except for such provisions as may be applicable in connection with
the orderly termination of the operations of the United Nations at its
seat in the United States and the disposition of its property therein”
(Art. IX, Sec. 24).

A clause identical in substance is seen in the ICAO/Canada Agreement,
in the IAEA/ Austria Agreement and in the United Nations/Japan Agree-
ment. The drafting of the IMCO/United Kingdom Agreement is slightly
different :

“this Agreement shall, after the period reasonably required for such
transfer and for the disposal of the property of the Organization in the
United Kingdom, cease to be in force.” (Art. 18.)

The effect, however, is quite similar to that of the examples mentioned
above.

49. In these agreements, which were concluded for the purpose of
granting privileges and immunities to the organization, there are provi-
sions which indicate that the agreements cease to be in force in the case of
removal or transfer of the office from the territory of the host country,
apart from revision of the provisions of the agreement and also denun-
ciation by either party in the event of failure of negotiations for revision.
However, the provisions necessary for the orderly termination of the
functions of the organization and the disposal of its property allow for
some reasonable transitional period.

The 1951 WHO/Egypt Agreement which is at issue in this case does not
contain such provisions. This seems to indicate that this instrument, which
does not contain agreements governing the establishment of the Regional
Office, does not automatically cease to be in force even if the Office is
transferred from the territory. The privileges, immunities and facilities
granted by Egypt to the Organization under the 1951 WHO/Egypt Agree-
ment will remain even after a decision by the WHO to transfer the Office,

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153 INTERPRETATION OF AGREEMENT (SEP. OP. ODA)

and in particular until the time when the transfer is effected. Although it is
not denied that most of the provisions of the 1951 WHO/Egypt Agreement
will lose their raison d’être after the transfer is effected, the Agreement can
only be terminated by mutual consent of the parties or by denunciation in
accordance with Section 37.

50. In contrast to an agreement between an international organization
and a State concerning the affording of services or co-operation which
would bestow definite benefits on the State, the establishment of a head-
quarters or regional office is made mainly for the effective performance of
the functions of the organization.

As Article 51 of the Constitution of the WHO provides, “the regional
office shall ... carry out within the region the decisions of the Health
Assembly and of the Board”. No doubt the establishment and location of a
regional office gives some incidental benefit, social, economic, political, to
the host country. Besides, it is not conceivable that a regional office would
be established against the wish of a host country, or even without the
consent of a host country. In fact, as mentioned previously, it is clear from
various documents that the Regional Office in Alexandria was established
owing to the strong wish of Egypt to invite it onto its own territory.

There is no doubt that, prior to 1949, the office in Alexandria had most
effectively exercised functions of an international nature. It is an undis-
puted fact that that office was integrated with the WHO. It is also not
contested that Egypt, as the host country of the Regional Office, had
always loyally and scrupulously carried out its obligations. If the transfer
of this Office is decided upon, it will no doubt be tantamount to a blow of
some magnitude to Egypt and its people. But if the Organization should
deem is unnecessary to keep its Regional Office in that country, there is no
reason why it should be obliged to retain the Office on the grounds that it
was once established. The fact that a pre-existing office was integrated with
the Organization does not have any bearing on this point.

It is not desirable, of course, that the Organization, the functions of
which are situated in the field of world health, emphatically not a political
but a humanitarian problem, should decide to shift the Office for political
motives. Yet once the Organization, in its considered judgment, which the
Court is not concerned with, finds it unnecessary or impossible to carry out
its functions through the Office at Alexandria, the transfer or removal of
the latter certainly falls within the competence of the World Health
Assembly. Article 18 of the Constitution of the WHO provides that the
determination of the policies of the Organization is one of the main
functions of the Health Assembly. There is nothing in the 1951 WHO/
Egypt Agreement to affect such a determination.

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154 INTERPRETATION OF AGREEMENT (SEP. OP. ODA)

51. In considering under what conditions, and in accordance with what
modalities, such a transfer may be effected, various factors must be taken
into due account by the Organization. The function of the Executive Board
includes, as provided in Article 28, giving effect to the decisions and
policies of the World Health Assembly. In view of the fact that the defining
of geographical areas and the establishment of regional organizations were
effected by the Health Assembly, and the commencement of the opera-
tions of the office was determind by the Executive Board duly considering
the convenience of the host country, consultations — rather than a nego-
tiation — based on good faith and a spirit of co-operation concerning the
conditions and modalities for the transfer, including the length of the
transitional period, should be held between the WHO and the host country
before the Executive Board’s decision is taken. These consultations are not,
however, a matter which falls within the context of the negotiation and
notice provisions of Section 37 of the 1951 WHO/Egypt Agreement.

(Signed) Shigeru ODA.

85


JUDGMENT No. 7. — POLISH UPPER SILESIA 96

Done in French and English, the French text being authoritative,
cat the Peace Palace, The Hague, this fifth day of February, one
thousand nine hundred and twenty-six, in three copies, one of
‘which is to be placed in the archives of the Court, and the others
‘to be forwarded to the Agents of the Applicant and Respondent
Parties respectively.

(Signed) Max HUBER,
President.

(Signed) A. HAMMARSKJÜLD,
| Registrar.

Annex II.
ORDER OF COURT DATED MARCH z22nd, 1926.

TENTH SESSION (EXTRAORDINARY).
Before :

MM. Huser, President,
LoDER, Former President,
Weiss, Vice-President,

Lord FINLAY,

MM. Nyxoiw,
ALTAMIRA,
ANZILOTTI,

Judges,

YOVANOVITCH, }
BEICHMANN, Deputy- Judges,
NEGULESCO, (
Count RoSTWOROWSKI, } . .
M. RABEL, ( National Judges.

Case concerning certain German interests in Polish Upper
‘Silesia. |

THE COURT,

composed as above,
after deliberation,
makes the following order :

The Court

(x) invites the Parties to furnish, at a public hearing, by whatever
‘means they may think fit, further information regarding the points
JUDGMENT No. 7. — POLISH UPPER SILESIA 97

reserved by the Court for this purpose, subject to the Court’s right,
should the evidence thus furnished be regarded by it as insufficient,
to make good such insufficiency by the means provided for in the
Statute ;

(2) instructs the President to fix the date of the hearing in question,
after having ascertained the wishes of the Parties.

Done in French and English, the French text being authoritative,
at the Peace Palace, The Hague, this twenty-second day of March,
nineteen hundred and twenty-six, in three copies, one of which is
to be placed in the archives of the Court, and the others to be
forwarded to the Agents of the Applicant and Respondent Parties
respectively.

(Signed) Max HUBER,
President.

(Signed) À. HaMMaRSKJOLD,
Registrar.


771

DECLARATION OF JUDGE KOROMA

While I concur with the Court’s findings in the operative paragraph of
the Judgment, I nevertheless consider it important to stress the following.

What the Court was asked to determine and has, in fact, ruled on
during this phase of the proceedings is the issue of jurisdiction.

The Applicant, the Government of Serbia and Montenegro, requested
the Court, inter alia, to adjudge and declare in respect of its jurisdiction
ratione personae.

At the oral proceedings, the Government of Germany requested the
Court to dismiss the Application for lack of jurisdiction.

Thus, neither Party called upon the Court to uphold its jurisdiction or
asserted that it was entitled to enter into the merits of the case, but rather
requested it to decide on its jurisdiction and to determine whether, as a
matter of law, the Applicant was entitled to bring a claim before the
Court. This Judgment is the response to the question about jurisdiction.
As the Court has stated (para. 36), the function of a decision of the Court
on its jurisdiction in a particular case is solely to determine whether or
not it may entertain the case on the merits and not to make any deter-
mination on substantive issues. The Court is obliged to discharge this
function before entering into the merits of a case. Moreover, this function
to decide on its jurisdiction is both primary and imperative. It is at one
and the same time both determined and limited by the Charter of the
United Nations and the Statute of the Court. The Court cannot emanci-
pate itself from this statutory requirement. It is therefore not only in con-
formity with the Statute of the Court but also by the force of logic that
the point of departure for the Court in responding to that question would
have to be the determination of its jurisdiction ratione personae.

It is within this paradigm that the Judgment should be understood: as
a decision by the Court on its jurisdiction, without any position being
taken on the merits of the dispute.

(Signed) Abdul G. Koroma.

55


104

SEPARATE OPINION OF JUDGE VALTICOS
[Translation]

1. Although concurring with the above Judgment as a whole, I wish to
make my position clear, in regard not only to certain points with which I
fully agree but also to some serious reservations which I wish to express as
to part of the reasoning and the ultimate findings.

THE INTERESTS OF THIRD STATES

2. To begin with the task of the Court, I can understand its position on
the question of third States, particularly on account of the Court’s remarks
in its decision of 21 March 1984, rejecting Italy’s application for permis-
sion to intervene. Here due emphasis should be placed, on the one hand, on
the special circumstances of this decision, and on the other hand, on the
fact that in the present Judgment, the Court has made it clear that the
“limited” decision which it has made in order to take account of Italy’s
interests does not signify

“that the claims of either Party to expanses of continental shelf
outside that area have been found to be unjustified” (para. 21).

These are therefore matters which Malta and Libya can examine together
with Italy with a view to arriving at a delimitation of their respective
potential areas, beyond the “limited” area to which the present decision
relates.

ROLE OF GEOLOGICAL AND GEOMORPHOLOGICAL FEATURES

3. Coming to the heart of the problem, I wish to emphasize my full
concurrence with the Court’s view that :

“since the development of the law enables a State to claim that the
continental shelf appertaining to it extends up to as far as 200 miles
from its coast, whatever the geological characteristics of the corres-
ponding sea-bed and subsoil, there is no reason to ascribe any role to
geological or geophysical factors within that distance either in veri-
fying the legal title of the States concerned or in proceeding to a
delimitation as between their claims” (para. 39).

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CONTINENTAL SHELF (SEP. OP. VALTICOS) 105

This finding is particularly important ; it marks the culmination of the
development of the law of the sea on this point in recent times. There is no
need to repeat here the arguments which have been invoked in its support.
It is enough to recall the criterion enshrined in the last sentence of Arti-
cle 76, paragraph 1, of the 1982 Convention on the Law of the Sea, which,
as the Court says, “is of major importance” (para. 27). The decline in the
physical characteristics of the continental shelf caused by the aforemen-
tioned 200-mile rule, and the increased importance attributed to geometric
factors (distance or adjacency to the sea) have brought about a corres-
ponding alteration in the concept of “natural prolongation”, at least where
areas within the 200-mile limit from each coast are concerned. Moreover,
both the Court and arbitral tribunals had already grown aloof from geo-
logical and geomorphological criteria, and the practice of States (with the
one frequently cited exception of the Strait of Timor) has consistently been
to ignore the physical features of the submarine terrain when concluding
bilateral delimitation agreements.

Furthermore, since delimitation is to be carried out according to equi-
table principles, there could hardly be a less equitable criterion than one
which would subject relations among States, and sometimes their very
well-being, to chance configurations of the sea-bed and to the often-
disputed significance of troughs or other physical features formed millions
of years ago and lying at depths of hundreds or thousands of metres.
Natural boundaries may often indeed derive from significant causes on
land, where they have sometimes imprinted, moulded and circumscribed
the lives of nations ; but what true meaning can they have at the bottom of
the sea, where they can only lead to uncertainty, injustice and disputation ?
No, there is every warrant for the rules that have now developed for
excluding geophysical criteria when effecting delimitations within 200-
mile limits, especially when the need to preserve the equality of coastal
States is borne in mind.

4. Thus the Court was quite right to take the view (para. 39) that the “rift
zone” cannot constitute a fundamental discontinuity terminating the
southward extension of the Maltese shelf, as if it were some natural
boundary. Rejection of the Libyan “rift zone” argument was the more
justified in that, apart from its being insufficiently grounded in law, it had
not been convincingly established that a fundamental discontinuity of this
nature actually existed, since the contradictory scientific evidence which
the Court heard on this point had left, to say the least, a serious degree of
doubt on the matter (see Judgment, para. 41).

5. [now come to two fundamental points on which I can only partially
endorse the Court’s position. The first concerns the criterion of the median

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CONTINENTAL SHELF (SEP. OP. VALTICOS) 106

line, to which the Court has seen fit to make a substantial “correction”. The
second relates to the “proportionality” factor. I shall also make some brief
comments regarding certain “relevant circumstances”, and clarify my
position with respect to the delimitation area.

THE CRITERION OF THE “MEDIAN LINE”

6. Ifitis fully agreed that delimitation of continental shelf areas must be
carried out in accordance with equitable principles and in such a manner as
to achieve an equitable result, having regard to the relevant circumstances,
I entirely support the first part of the Court’s reasoning whereby, in order
to arrive at a more precise criterion, the Court takes the view that in the
present case, where it is dealing for the first time with a delimitation
exclusively between opposite coasts, without any element of adjacency
between them and without complicating features, to draw a median line
between those coasts, by way of a provisional step, is “the most judicious
manner of proceeding with a view to the eventual achievement of an
equitable solution” (para. 62). The Court has rightly noted that “the
equitable nature of the equidistance method is particularly pronounced” in
cases of States with opposite coasts (ibid. ).

7. This approach is particularly worthy of note because, in recent years,
equidistance has often seemed to be the “Cinderella” among delimitation
methods. Its virtues have readily been pointed out, but its actual use has
been put off to a more favourable moment. In the present case, it seems to
me that there were a number of reasons for choosing the median line as a
delimitation line, not merely on a provisional basis, as the Court has
decided, but also on a final basis. I shall summarize them briefly.

8. The first reason, as the Court itself has pointed out, is the geogra-
phical situation of the coasts of Malta and Libya, which face each other in
the most obvious manner and present no difficult or complicating features,
whereas in previous cases (especially Continental Shelf (Tunisia/ Libyan
Arab Jamahiriya), Delimitation of the Maritime Boundary in the Gulf of
Maine Area), the coasts concerned were adjacent coasts which tended in
certain places fo become opposite coasts or indeed did face each other,
but only over a certain distance ; this complicated the problem and ren-
dered it less amenable to comparison, leading the Court (as well as the
Court of Arbitration in the Anglo-French case) not to adopt the equidis-
tance solution.

9. A second reason for choosing the median line arises from the new
trends in the matter of title to the continental shelf. As pointed out above,
the 1982 Convention on the Law of the Sea established the principle
whereby every State is entitled, without further condition and irrespective
of the configuration of the sea-bed, to a continental shelf of 200 nautical
miles. If adjacency or distance becomes the sole criterion of title to the

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CONTINENTAL SHELF (SEP. OP. VALTICOS) 107

continental shelf up to a distance of 200 nautical miles, representing the
domination of land sovereignty over the sea, the method of the median line
acquires increased importance as a delimitation method between opposite
coasts. In fact, each seaboard projects towards the other an area with a
theoretical potential breadth of 200 miles, and if these areas meet before
that point is reached, the most equitable method and the one most in
conformity with the principle of the equality of States should logically
consist in delimiting these areas in the middle of the distance which
separates them, unless special conditions apply. Admittedly, the Court
does not follow this line of reasoning automatically, and does not consider
that the equidistance method must necessarily be used, even as a prelimi-
nary and provisional step before a delimitation line is drawn (see Judg-
ment, paras. 42-43). However, while the “distance” criterion does not
imply that equidistance is the sole appropriate method of delimitation in
the case of opposite coasts, the aptness of this method is all the greater
when there are no special circumstances to hinder its use.

10. In the third place, the choice of the median line is borne out by the
practice of the great majority of States. Notwithstanding the disagree-
ments between the Parties on this point, the detailed statements and the
evidence they have submitted have clearly shown that, although the
numerous delimitations concluded by agreement among States present
some variations arising from the particular features of individual cases, the
overwhelming majority of opposite-coast delimitations (whether in the
case of islands or of continents, of coasts of different lengths, or of coasts in
varying degrees of proximity to or distance from each other) are indis-
putably derived from the median line, even where this is not explicitly
stated in the text of the agreement concerned. Adjustments or partial
corrections of the line are sometimes made in the light of relevant circum-
stances but, in general, alterations to the median line are slight and occur
rarely. This was pointed out by the 1977 Court of Arbitration (para. 85)
and in the facts and figures contained in a 1979 document quoted in a
recent publication !. Moreover, where Malta itself is concerned, it should
be noted that the delimitation line drawn northward of the island, between
Malta and Sicily, is a median line, and it is difficult to see why the line to the
south of the island, between Malta and Libya, should not be likewise. (At
no time has the length of the coast of Sicily been taken into consideration in
order to introduce a “proportionality” factor, as Libya would wish in the
case of its own coast.)

11. The Court gives a subtle version of this argument derived from State
practice (see Judgment, para. 44). Admittedly, the Court says, it :

“has no doubt about the importance of State practice in this matter.
Yet that practice ... falls short of proving the existence of a rule

' V. L. Caflisch, “Les zones maritimes sous juridiction nationale, leurs limites et leur
délimitation” in Le nouveau droit international de la mer, edited by Bardonnet and
Virally, Paris, Pedone, 1983, p. 60, n.-67.

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CONTINENTAL SHELF (SEP. OP. VALTICOS) 108

prescribing the use of equidistance, or indeed of any method, as
obligatory.”

Like the Court, I tend to the view that the States which concluded those
bilateral agreements to which reference has been made did not have the
impression that they were following a binding rule of law, and were not
guided by any opinio juris. But, at the very least, they did conclude these
agreements in the light of the legal background, and in the belief that the
median line was the most widespread and convenient method and that it
reflected what might be called an opinio aequitatis. It would at all events be
highly unfortunate if, on a point of such importance, a divorce were to set
in between the treaty practice of States, to which Article 38 of the Statute of
the Court refers, and the Court’s jurisprudence.

12. Furthermore, since its 1969 Judgment in the North Sea Continental
Shelf case, the Court itself has often referred to the advantages offered by
equidistance, and, as I said above, if it had not previously judged it
appropriate to use this method, that was because the cases with which it has
had to deal have all related, at least in part, to adjacent coasts. The present
case offered ideal conditions for using this method, and to reject it once
more, even partially, is to reduce its scope considerably.

13. Finally, it seems to me that the actual vocation of the Court is a
consideration of a more general nature which cannot be ignored. If I may
make an observation on a point of principle, due account should be taken
of the fact that the Court’s vocation is to resolve disputes by means of legal
solutions and, in so doing, to elicit, state and exemplify the relevant rule of
international law. In the present field, where the legal rule (the equitable
solution) is a guideline framed in deliberately broad terms, it is by means
of a gradual refinement of its scope, through the resolution of particular
questions, that the Court will eventually be able to elicit objective prin-
ciples capable of guiding States which encounter similar problems (and
there are many such States, apparently). In so doing, it will also be able to
contribute to that clarity, certainty, predictability and stability which are
so essential in international law. Moreover, the Court has itself emphasized
in the present Judgment (para. 45), that the application of justice, of which
equity is an emanation,

“should display consistency and a degree of predictability ; even
though it looks with particularity to the peculiar circumstances of an
instant case, it [the Court] also looks beyond it to principles of more
general application”.

This affirmation seems to me fundamental for any court, and especially for
an international court, which must play a particularly important role in the
development of rules of law. In the present case, which is a classic and
straightforward situation of opposite coasts without complications of any
kind, a solution based on the median line pure and simple would have had a
more general relevance.

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CONTINENTAL SHELF (SEP. OP. VALTICOS) 109
THE CORRECTION MADE TO THE MEDIAN LINE

14. Having established a provisional median line, the Court takes the
view that other considerations should prompt it to adjust this line. In this
connection, is has examined a number of factors, especially “relevant
circumstances”, and has included among the latter the difference in
lengths between the coasts. I shall now deal with this matter, turning first
to the “proportionality” factor.

THE “PROPORTIONALITY” FACTOR AND THE CIRCUMSTANCES OF THE
“LENGTH OF THE COASTS”

15. It is indisputable that the Maltese coasts are much shorter than the
coasts of Libya which lie opposite them. Should account be taken of this
from the viewpoint of the delimitation ? If so, at what stage, on what
grounds and to what degree ? These are the questions which have been put
to the Court, and which have carried weight in the discussions. Indeed, this
was the crux of the debate.

16. The most extreme position in this respect was the one maintained by
Libya. Libya raised the objection of “proportionality” in the sense that the
proportion of areas of continental shelf attributed respectively to Libya
and to Malta should be comparable to the proportionality between the
lengths of the coasts and the size of the landmass of Libya, on the one hand,
and Malta, on the other. The effect of Libya’s arguments was also to make
proportionality an essential and primordial principle of delimitation, con-
trary to the established jurisprudence in this field.

17. On this point, I fully endorse the Court’s position in rejecting the
thrust of this contention. The question of the landmass behind the coast
need not detain us here, since it has been unambiguously rejected by the
Court in terms which require no comment (para. 49). As regards the
criterion of the length of the coasts, I also share the Court’s view that
“proportionality” has nowhere been mentioned amongst “the principles
and rules of international law applicable to. . . delimitation’, but is simply
one possibly relevant “factor” among others (para. 57). The Court does not
therefore endorse the Libyan proposal, described as “‘so far reaching and
so novel” which, by treating “the ratio of coastal lengths as of itself
determinative of the seaward reach and area of continental! shelf proper to
each party”, went “far beyond the use of proportionality as a test of equity,
and as a corrective of the unjustifiable difference of treatment resulting
from some method of drawing the boundary line”, and would represent “at
once the principle of entitlement to continental shelf rights and also the
method of putting that principle into operation” (para. 58).

18. I think it is unnecessary to recall here the precedents which amply
justify the Court’s position. The Court quotes the classic case of the North

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CONTINENTAL SHELF (SEP. OP. VALTICOS) 110

Sea Continental Shelf Judgment of 1969, as well as the Decision of the
Anglo-French Court of Arbitration in 1977. The Judgment in the case of
the Continental Shelf (Tunisia/ Libyan Arab Jamahiriya) U.CJ. Reports
1982, p. 93, para. 133 B. 5), also treated proportionality not as a problem in
the definition of the shelf, but as a “function of equity” (ibid, paras.
103-104). More recently, the Chamber of the Court in 1984, in the case
concerning the Delimitation of the Maritime Boundary in the Gulf of Maine
Area, mentioned this factor as an auxiliary criterion serving merely to
check whether a provisional delimitation established on the basis of other
criteria could or could not be considered satisfactory in the light of
certain geographical features of the specific case, and whether it was or
was not reasonable to correct it accordingly U.C.J. Reports 1984, p. 323,
para. 185).

19. However, there is an essential point here which must be emphasized.
The great difference between the present case and the various past cases in
which the Court — and the Anglo-French Court of Arbitration ~ referred to
the proportionality factor (within the limited context which I have just
described) is that in those cases the coasts concerned belonged to adjacent
States, and their configurations were such as to carry a risk of encroach-
ment or curtailment. The Court has itself pointed out that, in matters of
delimitation, the position of opposite coasts is radically different from that
of adjacent States, the equidistance line being much more appropriate,
generally, in the former case than in the latter (see for example North Sea
Continental Shelf cases, I.C.J. Reports 1969, p. 36, para. 57, etc.). The aim
of proportionality, where adjacent coasts. are concerned, is to avoid solu-
tions which, in some instances, owing to the particular configuration of the
coasts in question, may seem contrary to equity. Here, in my opinion, there
are neither adjacent coasts nor any abnormal configuration, and no part
should be played by proportionality.

20. However, in the present case, the Court takes the view that the
median line should be corrected by virtue of a number of relevant cir-
cumstances, including principally the difference in the lengths of the coasts
of the two Parties. The foregoing comments explain the reservations which
I find myself compelled to make in this respect. To introduce the coast-
length factor, which in my view has no rightful place here, is to bring a
subjective element into the delimitation process (why adopt one particular
“correction” factor — here a certain number of minutes — rather than any
other ?). Subjective elements may well be unavoidable in matters of equity,
but they should be kept within strict limits. Another consequence is to
introduce an element of inequality and diversity, since the practical effect
of this formula is to locate the delimitation line closer to the shorter coast,
thus banishing any hope of achieving a minimum degree of harmony and
comparability in the establishment of the various delimitation lines in the
seas. Admittedly, this disadvantage is palliated by the fact that the verifi-
cation based on the respective lengths of the coasts does not constitute the
delimitation method itself. However, it can lead to a substantial correction,
and I must therefore express a reservation on this matter, especially in the

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CONTINENTAL SHELF (SEP. OP. VALTICOS) 111

light of the fact that here the difference in the length of the coasts is taken
into consideration both as a relevant circumstance and as a final check in
the verification of the result.

21. The proportionality calculation seems, moreover, to be particularly
difficult to make with any degree of accuracy in the present case, since the
Court’s decision to reserve the Italian claims reduces the areas of conti-
nental sheif actually apportioned to the expanse located between the
13° 50’ and the 15° 10’ meridians, which consequently makes it impossi-
ble, for the purposes of such a calculation, to take full account of the rough
triangle of which Malta forms the apex and the Libyan coast, from Ras
Ajdir to Ras Zarrug, the base.

22. The correction which the Court has made to the median line in order
to establish the final delimitation line is a substantial one, since it totals 18’,
extending from 34° 12’ (the median line) to 34° 30’. There are two reasons
which ultimately induced me not to dissociate myself, in this respect, from
this Judgment as a whole. The first reason is that the delimitation line
which has ultimately been chosen remains some minutes southward of the
delimitation line which would have divided Italy (Sicily) from Libya if
Malta did not exist, and thus a certain effect, though an inadequate one in
my view, has been given to the island of Malta. The second reason is that I
felt it was important for the Court to be able to agree on a basis which I
ultimately found more acceptable than others, although only in the last
resort and in the face of certain drawbacks which I am bound to
deplore.

THE DISTANCE BETWEEN THE COASTS

23. In deciding in favour of a correction of the median line, the Court
has also pointed to an additional relevant circumstance, the distance
between the coasts of the Parties. Once the Court had chosen the respective
lengths of the coasts as a relevant circumstance, the element of the distance
between the coast became a kind of necessary corrective of this circum-
stance. It is apparent that the circumstance of the respective lengths of the
coasts acquires greater significance when the coasts are distant from each
other, and tends to be reduced to vanishing point the closer the coasts
become. To cite an illustration, it is self-evident that if two coasts are
separated only by a seaway 24 miles wide, no other delimitation line can be
contemplated than the median line. It is only when the distance between
the two coasts becomes greater that — subject to the objections of principle
described above — a correction of the median line can be contemplated. It
is this element of a greater or lesser distance between the coasts which
explains why equidistance pure and simple was used between the north of
Malta and Sicily (see above, para. 10). This aspect reduces the scale of the
problem to some extent, without going so far as to remove the basic
objection mentioned above.

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CONTINENTAL SHELF (SEP. OP. VALTICOS) 112
THE ROLE OF CERTAIN OTHER “RELEVANT CIRCUMSTANCES”

24. Among the “relevant circumstances” mentioned during the oral
proceedings, there were two which call for brief comment ; these relate to
the economic and security factors.

25. In dealing with the economic factors, the Court, in paragraph 50,
does not consider that the delimitation to be made should be influenced by
the relative economic position of the two States in question. However, it
expresses the opinion that the natural resources of the continental shelf “so
far as readily ascertainable”, might constitute relevant circumstances to be
taken into account in a delimitation, quoting its previous statement in the
North Sea Continental Shelf cases (1. C.J. Reports 1969, p. 54, para. 101 (D)
2). Those resources, the Court says, are the essential objective envisaged by
States when they put forward claims to sea-bed areas containing them. The
Court had expressed a similar view regarding the existence of oil in an area
to be delimited, in the case concerning. the Continental Shelf (Tunisia/
Libyan Arab Jamahiriya) U.C.J. Reports 1982, p. 77, para. 107). For its
part, the Chamber formed to deal with the Delimitation of the Maritime
Boundary in the Gulf of Maine Area case devoted considerable attention to
economic considerations, particularly the potential resources of the sub-
soil, although these were less significant than in the present case (I CJ.
Reports 1984, p. 340, para. 232).

26. However, in the case now before us, the Court points out that the
Parties have not furnished any indications on the resources contained in
the sea-bed. It may nevertheless be noted that for many years Libya has
been enjoying substantial revenues from oil, whereas Malta, whose reve-
nues are much lower (from a third to a half of Libya’s per head of
population'), has no resources deriving from the sea-bed, although it has
granted a number of concessions which have not yet been developed,
notably for reasons related to the current dispute. It is thus reasonable to
assume that an equitable area of shelf, such as would have resulted from
the median line, would have increased its opportunities of developing its
economic resources in this oil-bearing region within which, as I have said, it
has granted concessions.

27. Another relevant circumstance which Malta has asked to have taken
into consideration is security. This question is linked to the fact that Malta
is a State entirely concentrated within the narrow boundaries of the island
which contains its capital. The Court observes (Judgment, para. 51) that
this factor might have played a part if the delimitation line were so close to
the coasts of Malta as to make questions of security a particular consi-

! See World Bank, World Tables, 3rd ed., Vol. I, The Johns Hopkins University
Press, Baltimore and London, 1983, p. 560, which gives a gross national product per
capita for 1981 of US$ 3,603 for Malta and US$ 8,454 for Libya.

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CONTINENTAL SHELF (SEP. OP. VALTICOS) 113

deration. The risk is admittedly less with the solution chosen by the Court.
It would have been even further reduced if the median line pure and
simple had been adopted.

THE DELIMITATION AREA

28. Before concluding this opinion, a few words must be added on the
question of the delimitation area. Generally speaking, in every delimita-
tion, as the Court pointed out in the case concerning the Continental Shelf
(Tunisia/ Libyan Arab Jamahiriya), account should be taken of every part
of the coast of one party the extension of which would overlap with part of
the coast of the other party (1. C.J. Reports 1982, p. 61, para. 75). In this
respect, the formula proposed by Maita, which would extend the island’s
coasts in all directions in which they may overlap with the extensions of
Libya’s coasts has logic on its side, and is in broad conformity with recent
trends in international law, especially the 200-mile rule. However, in the
present case this idea cannot be taken to its logical conclusion ; unarguable
as it may be in the middle of the ocean where a full extension is possible, in
the confines of the Mediterranean it encounters an evident obstacle : the
interests of third States. In the present delimitation between Malta and
Libya however, it is not possible to confine the area wholly within the
expanse defined on the west by a straight linejoining Ras il-Wardija, on the
island of Gozo, to Ras Ajdir, and, on the east, by a straight line joining the
Delimara Point, on the island of Malta, to Ras Zarruq, close to the
intersection of the 15° 10’ meridian (the limit of Italy’s claims) with the
Libyan coast. Account must also be taken of an expanse situated eastwards
of the line from Delimara Point to Ras Zarruq and westwards of the
15° 10’ meridian (and northwards of the delimitation line). This area,
forming a prolongation of the southeastern coast of Malta in the direction
of Benghazi, is located within a region outside the reach of Italy’s claims,
and it was therefore to be expected that it should also belong to Malta’s
area of continental shelf on the basis of the Court’s delimitation. To say
this does not, of course, exclude any future delimitation with Italy and
Libya as regards the expanses outside the restricted area to which the Court
has decided to limit the scope of the present Judgment.

29. Being thus fully in agreement with the Court’s views on a certain
number of points, although I must regretfully dissociate myself from it in
regard to others, I felt that in the final analysis, and notwithstanding the
significance of some of these points, not least the question of the median
line, I could vote for the Judgment as a whole for the reasons already given.

(Signed) Nicolas VALTICOS.

104