246

SEPARATE OPINION OF JUDGE ELARABY

The nature and scope of United Nations responsibility — The international
legal status of the Occupied Palestinian Territory — Historical survey — The
law of belligerent occupation, including current situation of prolonged occupa-
tion, principle of military necessity, breaches of international humanitarian law
and the erga omnes right to self-determination of the Palestinian people.

I would like to express, at the outset, my complete and unqualified sup-
port for the findings and conclusions of the Court. I consider it necessary,
however, to exercise my entitlement under Article 57 of the Statute, to
append this separate opinion to elaborate on some of the historical and
legal aspects contained in the Advisory Opinion.

I feel obliged, with considerable reluctance, to start by referring to
paragraph 8 of the Advisory Opinion. In my view, as Judge Lachs wrote
in his separate opinion in Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America), Judgment,
“A judge — as needs no emphasis — is bound to be impartial, objective,
detached, disinterested and unbiased.” (C.J. Reports 1986, p. 158.)
Throughout the consideration of this Advisory Opinion, I exerted every
effort to be guided by this wise maxim which has a wider scope than the
solemn declaration every judge makes in conformity with Article 20 of
the Statute of the International Court of Justice.

In this separate opinion, I will address three interrelated points:

(i) the nature and scope of the United Nations responsibility;
(ii) the international legal status of the Occupied Palestinian Territory;
(iii) the law of belligerent occupation.

I. THE NATURE AND SCOPE OF THE UNITED NATIONS RESPONSIBILITY

1. The first point to be emphasized is the need to spell out the nature
and the wide-ranging scope of the United Nations historical and legal
responsibility towards Palestine. Indeed, the Court has referred to this
special responsibility when it held that:

“The responsibility of the United Nations in this matter also has

114
247 CONSTRUCTION OF A WALL (SEP. OP. ELARABY)

its origin in the Mandate and the Partition Resolution concerning
Palestine . . . this responsibility has been manifested by the adoption
of many Security Council and General Assembly resolutions, and by
the creation of several subsidiary bodies specifically established to
assist in the realization of the inalienable rights of the Palestinian
people.” (Advisory Opinion, para. 49.)

What I consider relevant to emphasize is that this special responsibility
was discharged for five decades without proper regard for the rule of law.
The question of Palestine has dominated the work of the United Nations
since its inception, yet no organ has ever requested the International
Court of Justice to clarify the complex legal aspects of the matters under
its purview. Decisions with far-reaching consequences were taken on the
basis of political expediency, without due regard for the legal require-
ments. Even when decisions were adopted, the will to follow through to
implementation soon evaporated. Competent United Nations organs,
including the General Assembly and the Security Council, have adopted
streams of resolutions that remain wholly or partially unfulfilled. The
United Nations special responsibility has its origin in General Assembly
resolution 118 (II) of 29 November 1947 (hereafter, the Partition
Resolution).

Proposals to seek advisory opinions prior to the adoption of the Par-
tition Resolution were considered on many occasions in the competent
subsidiary bodies but no request was ever adopted. This fact by itself
confers considerable importance on the request for an advisory opinion
embodied in General Assembly resolution ES-10/14 (A/ES-10/L.16),
adopted on 8 December 2003, at the 23rd meeting of the resumed Tenth
Emergency Special Session. The request is indeed a landmark in the
United Nations consideration of the question of Palestine. The historical
record of some previous attempts to seek the views of the International
Court of Justice deserves to be recalled, albeit briefly.

The report of the Sub-Committee 2 in 1947 to the Ad Hoc Committee
on the Palestinian Question recognized the necessity to clarify the legal
issues. In paragraph 38, it was stated:

“The Sub-Committee examined in detail the legal issues raised by
the delegations of Syria and Egypt, and its considered views are
recorded in this report. There is, however, no doubt that it would be
advantageous and more satisfactory from all points of view if an
advisory opinion on these difficult and complex legal and constitu-
tional issues were obtained from the highest international judicial
tribunal.” (Document A/AC.14/32 and Add.l, 11 November 1947,
para. 38.)

115
248 CONSTRUCTION OF A WALL (SEP. OP. ELARABY)

The “difficult and complex legal and constitutional issues” revolved
around:

“whether the General Assembly is competent to recommend either
of the solutions proposed by the majority and by the minority
respectively of the Special Committee, and whether it lies within the
power of any Member or group of Members of the United Nations
to implement any of the proposed solutions without the consent
of the people of Palestine” (document A/AC.14/32 and Add.1,
11 November 1947, para. 37).

Several such proposals were considered. None was adopted. The Sub-
Committee in its report, some two weeks before the vote on the Partition
Resolution, recognized that:

“A refusal to submit this question for the opinion of the Interna-
tional Court of Justice would amount to a confession that the Gen-
eral Assembly is determined to make recommendations in a certain
direction, not because those recommendations are in accord with the
principles of international justice and fairness, but because the major-
ity of the representatives desire to settle the problem in a certain
manner, irrespective of what the merits of the question or the legal
obligations of the parties might be. Such an attitude will not serve to
enhance the prestige of the United Nations. . . .” U/bid., para. 40.)

The clear and well-reasoned arguments calling for clarification and elu-
cidation of the legal issues fell on deaf ears. The rush to vote proceeded
without clarifying the legal aspects. In this context, it is relevant to recall
that the Partition Resolution fully endorsed referral of “any dispute relat-
ing to the application or interpretation”! of its provisions to the Interna-
tional Court of Justice. The referral “shall be . . . at the request of either
party” ?. Needless to say, this avenue was also never followed.

Thus, the request by the General Assembly for an advisory opinion, as
contained in resolution 10/14, represents the first time ever that the Inter-
national Court of Justice has been consulted by a United Nations organ
with respect to any aspect regarding Palestine. The Advisory Opinion has
great historical significance as a landmark which will definitely add to its
legal value.

‘No. 181 (I), resolution adopted on the report of the 4d Hoc Committee on the
Palestinian Question (29 November 1947), Chap. 4, para. 2.
? Ibid.

116
249 CONSTRUCTION OF A WALL (SEP. OP. ELARABY)

Il. THE INTERNATIONAL LEGAL STATUS OF THE OCCUPIED PALESTINIAN
TERRITORY

2.1. The international legal status of the Palestinian Territory
(paras. 70-71 of the Advisory Opinion), in my view, merits more compre-
hensive treatment. An historical survey is relevant to the question posed
by the General Assembly, for it serves as the background to understand-
ing the legal status of the Palestinian Territory on the one hand and under-
lines the special and continuing responsibility of the General Assembiy on
the other. This may appear as academic, without relevance to the present
events. The present is however determined by the accumulation of past
events and no reasonable and fair concern for the future can possibly dis-
regard a firm grasp of past events. In particular, when on more than one
occasion the rule of law was consistently side-stepped.

The point of departure, or one can say in legal jargon, the critical date,
is the League of Nations Mandate which was entrusted to Great Britain.
As stated in the Preamble of the Mandate for Palestine, the United King-
dom undertook “to exercise it on behalf of the League of Nations” *. The
Mandate must be considered in the light of the Covenant of the League
of Nations. One of the primary responsibilities of the Mandatory Power
was to assist the peoples of the territory to achieve full self-government
and independence at the earliest possible date. Article 22, paragraph 1, of
the Covenant stipulated that the “well-being and development of such
peoples form a sacred trust of civilisation”. The only limitation imposed
by the League’s Covenant upon the sovereignty and full independence
of the people of Palestine was the temporary tutelage entrusted to the
Mandatory Power. Palestine fell within the scope of Class A Mandates
under Article 22, paragraph 4, of the Covenant, which provided that:

“Certain communities formerly belonging to the Turkish Empire
have reached a stage of development where their existence as
independent nations can be provisionally recognized subject to the
rendering of administrative advice and assistance by a Mandatory
until such time as they are able to stand alone.”

The conventional wisdom and the general expectation were such that
when the stage of rendering administrative advice and assistance had
been concluded and the Mandate had come to an end, Palestine would
be independent as of that date, since its provisional independence as a
nation was already legally acknowledged by the Covenant. Moreover, the
Covenant clearly differentiated between the communities which formerly
belonged to the Turkish Empire, and other territories. Regarding the
latter, the Mandatory Power was held responsible for the complete

* Preamble, CMD No. 1785 (1923), reprinted in report of the United Nations Special
Committee on Palestine (UNSCOP report).

117
250 CONSTRUCTION OF A WALL (SEP. OP. ELARABY)

administration of the territory and was not confined to administrative
advice and assistance*. These distinct arrangements can be interpreted as
further recognition by the Covenant of the special status of the former
Turkish territories which included Palestine.

In point of fact, the report submitted by Sub-Committee 2 to the Ad
Hoc Committee on the Palestinian Question in 1947 shed more light on
the status of Palestine. The report gave the conclusion that

“the people of Palestine are ripe for self-government and that it has
been agreed on all hands that they should be made independent at
the earliest possible date. It also follows, from what has been said
above, that the General Assembly is not competent to recommend,
still less to enforce, any solution other than the recognition of the
independence of Palestine.” (A/AC.14/32, and Add.1, 11 November
1947, para. 18.)

The Sub-Committee further submitted the following views:

“It will be recalled that the object of the establishment of Class A
Mandates, such as that for Palestine, under Article 22 of the Cov-
enant, was to provide for a temporary tutelage under the Mandatory
Power, and one of the primary responsibilities of the Mandatory was
to assist the peoples of the mandated territories to achieve full self-
government and independence at the earliest opportunity. It is
generally agreed that that stage has now been reached in Palestine,
and not only the United Nations Special Committee on Palestine but
the Mandatory Power itself agree that the Mandate should be
terminated and the independence of Palestine recognized.” (Jbid.,
para. 15.)

2.2. The Court has considered the legal nature of mandated territories
in both 1950 (International Status of South West Africa, Advisory Opin-
ion) and 1971 (Legal Consequences for States of the Continued Presence
of South Africa in Namibia (South West Africa) notwithstanding
Security Council Resolution 276 (1970), Advisory Opinion), and laid
down both the conceptual philosophy and the legal parameters for
defining the legal status of former mandated territories. The dicta of the
Court emphasized the special responsibility of the international com-
munity. It is to be noted that, in the setting up of the mandates system,
the Court held that

“two principles were considered to be of paramount importance: the
principle of non-annexation and the principle that the well-being and
development of such peoples form ‘a sacred trust of civilization’”
(4 C.J. Reports 1950, p. 131; emphasis added).

4 Covenant of the League of Nations, Art. 22.

118
251 CONSTRUCTION OF A WALL (SEP. OP. ELARABY)

The two fundamental principles enunciated by the Court in 1950 apply to
all former mandated territories which have not gained independence.
They remain valid today for the Occupied Palestinian Territory. The
territory cannot be subject to annexation by force and the future of
the Palestinian people, as “a sacred trust of civilization”, is the direct
responsibility and concern of the United Nations.

2.3. It should be borne in mind that General Assembly resolution 181 (II)
of 29 November 1947, which partitioned the territory of mandated
Palestine, called for, inter alia, the following steps to be undertaken:

(i) the termination of the Mandate not later than 1 August 1948;

(ii) the establishment of two independent States, one Arab and one
Jewish;

(iii) the period between the adoption of the Partition Resolution and
“the establishment of the independence of the Arab and Jewish
States shall be a transitional period”.

On 14 May 1948, the independence of the Jewish State was declared.
The Israeli declaration was “by virtue of [Israel’s] natural and historic
right” and based “on the strength of the resolution of the United Nations
General Assembly” >. The independence of the Palestinian Arab State has
not yet materialized.

That there “shall be a transitional period” pending the establishment
of the two States is a determination by the General Assembly within its
sphere of competence and should be binding on all Member States as
having legal force and legal consequences. This conclusion finds support
in the jurisprudence of the Court.

The Court has held in the Namibia case that when the General
Assembly declared the Mandate to be terminated,

“*South Africa has no other right to administer the Territory’. This
is not a finding on facts, but the formulation of a legal situation. For
it would not be correct to assume that, because the General Assem-
bly is in principle vested with recommendatory powers, it is debarred
from adopting, in specific cases within the framework of its compe-
tence, resolutions which make determinations or have operative
design.” (Legal Consequences for States of the Continued Presence
of South Africa in Namibia (South West Africa) notwithstanding
Security Council Resolution 276 (1970), Advisory Opinion, L CJ.
Reports 1971, p. 50, para. 105.)

$ Laws of the State of Israel, Vol. 1, p. 3.

6 Moreover, Judge Weeramantry, in his dissenting opinion in the East Timor case, con-
sidered that “a resolution containing a decision within its proper sphere of competence
may well be productive of legal consequences” (East Timor ( Portugal v. Australia}, 1 CJ.
Reports 1995, p. 186; emphasis added).

119
252 CONSTRUCTION OF A WALL (SEP. OP. ELARABY)

The Court, moreover, has previously held, in the Certain Expenses
case, that the decisions of the General Assembly on “important ques-
tions” under Article 18, “have dispositive force and effect” (Certain
Expenses of the United Nations (Article 17, paragraph 2, of the Char-
ter}, Advisory Opinion, .C.J. Reports 1962, p. 163).

The legal force and effect of a General Assembly resolution adopted by
the General Assembly “within the framework of its competence” is there-
fore well established in the Court’s jurisprudence. On that basis, it is sub-
mitted that two conclusions appear imperative:

(a) the United Nations is under an obligation to pursue the establish-
ment of an independent Palestine, a fact which necessitates that the
General Assembly’s special legal responsibility not lapse until the
achievement of this objective;

{b) the transitional period referred to in the Partition Resolution serves
as a legal nexus with the Mandate. The notion of a transitional
period carrying the responsibilities emanating from the Mandate to
the present is a political reality, not a legal fiction, and finds support
in the dicta of the Court, in particular, that former mandated terri-
tories are the “sacred trust of civilization” and “cannot be annexed”.
The stream of General Assembly and Security Council resolutions
on various aspects of the question of Palestine provides cogent
proof that this notion of a transitional period is generally, albeit
implicitly, accepted.

2.4. The legal status of the Occupied Palestinian Territories cannot be
fully appreciated without an examination of Israel’s contractual under-
takings to respect the territorial integrity of the territory, and to with-
draw from the occupied territories. The withdrawal and the territorial
integrity injunctions are based on Security Council resolution 242 (1967)
which is universally considered as the basis for a just, viable and com-
prehensive settlement. Resolution 242 (1967) is a multidimensional reso-
lution which addresses various aspects of the Arab-Israeli dispute. I will
focus only on the territorial dimension of resolution 242 (1967): the reso-
lution contained two basic principles which defined the scope and the
status of the territories occupied in 1967 and confirmed that occupied ter-
ritories have to be “de-occupied”: resolution 242 (1967) emphasized the
inadmissibility of acquisition of territory by war, thus prohibiting the
annexation of the territories occupied in the 1967 conquest. It called for
the withdrawal of Israeli armed forces from the territories occupied in the
conflict. On 22 October 1973, the Security Council adopted resolu-
tion 338 (1973) which reiterated the necessity to implement resolution 242
(1967) “in all of its parts” (S/RES/338 of 22 October 1973, para. 2).

Following resolution 242 (1967), several undertakings to end the Israeli
military occupation, while reserving the territorial integrity of the West
Bank and Gaza, were made by Israel:

120
253 CONSTRUCTION OF A WALL (SEP. OP. ELARABY)

(a) The Camp David Accords of 17 September 1978, in which Israel
agreed that the basis for a peaceful settlement of the conflict with its
neighbours is United Nations Security Council resolution 242 (1967)
in all its parts.

(b) The Oslo Accord, signed in Washington, D.C. on 13 September
1993, which was a bilateral agreement between Israel and Palestine.
Article IV of the Oslo Accord provides that “the two sides view the
West Bank and the Gaza Strip as a single territorial unit whose
integrity will be preserved during the interim period”.

(c) The Israeli-Palestinian Interim Agreement on the West Bank and
the Gaza Strip, signed in Washington, D.C. on 28 September 1995,
reiterated the commitment to respect the integrity and status of the
Territory during the interim period. In addition, Article XXXI (7)
provided that “[nJeither side shall initiate or take any step that will
change the status of the West Bank and the Gaza Strip pending the
outcome of the permanent status negotiations”.

Thus Israel undertook to carry out the following obligations:

(i) to withdraw in conformity with resolution 242 (1967);
(ii) to respect the territorial integrity of the West Bank and the Gaza
Strip; and
(iii) to refrain from taking any step that would change the status of the
West Bank and Gaza.

These undertakings were contractual and are legally binding on Israel.

2.5. Yet, notwithstanding the general prohibition against annexing
occupied territories, the dicta of the Court on the legal nature of former
mandatory territories, and in clear contravention of binding bilateral
undertakings, on 14 April 2004, the Prime Minister of Israel addressed a
letter to the President of the United States. Attached to the letter is a
Disengagement Plan which one has to interpret as authoritatively reflect-
ing Israel’s intention to annex Palestinian territories. The Disengagement
Plan provides that

“it is clear that in the West Bank, there are areas which will be part
of the State of Israel, including cities, towns and villages, security
areas and installations, and other places of special interest to Israel”.

The clear undertakings to withdraw and to respect the integrity and
status of the West Bank and Gaza legally debar Israel from infringing
upon or altering the international legal status of the Palestinian territory.
The construction of the wall, with its chosen route and associated régime,
has to be read in the light of the Disengagement Plan. It is safe to assume
that the construction was conceived with a view to annexing Palestinian
territories, “cities, towns and villages” in the West Bank which “will be
part of the State of Israel”. The letter of the Prime Minister of Israel was

121
254 CONSTRUCTION OF A WALL (SEP. OP. ELARABY)

dated 14 April 2004, over two months before the delivery of the Advisory
Opinion.

The Court reached the correct conclusion regarding the characteriza-
tion of the wall when it held that:

“the construction of the wall and its associated régime create a ‘fait
accompli’ on the ground that could well become permanent, in
which case, and notwithstanding the formal characterization of the
wall by Israel, it would be tantamount to de facto annexation”
(Advisory Opinion, para. 121).

It is submitted that this finding should have been reflected in the disposi-
tif with an affirmation that the Occupied Palestinian Territory cannot be
annexed. It would also have been appropriate, in my view, to refer to the
implications of the letter of the Prime Minister of Israel and its attach-
ments and to underline that what it purports to declare is a breach of
Israel’s obligations and contrary to international law.

Ti]. THE LAW oF BELLIGERENT OCCUPATION

The Court was requested by the General Assembly to urgently render
an advisory opinion on “the legal consequences arising from the con-
struction of the wall being built by Israel, the occupying Power, in the
Occupied Palestinian Territory” (A/RES/ES-10/14-A/ES-10/L.16). The
focus of the request evolves around the law of belligerent occupation. As
already stated, I do concur with the reasoning and conclusions in the
Advisory Opinion. I feel constrained, however, to emphasize and elabo-
rate on some points:

(a) the prolonged occupation;

(b) the scope and limitations of the principle of military necessity ;
(c) the grave breaches of international humanitarian law; and

(d) the right to self-determination.

3.1. The prohibition of the use of force, as enshrined in Article 2, para-
graph 4, of the Charter, is no doubt the most important principle that
emerged in the twentieth century. It is universally recognized as a jus
cogens principle, a peremptory norm from which no derogation is per-
mitted. The Court recalls in paragraph 87, the Declaration on Principles
of International Law concerning Friendly Relations and Co-operation
among States (resolution 2625 (XXV)), which provides an agreed inter-
pretation of Article 2 (4). The Declaration “emphasized that ‘No territo-
rial acquisition resulting from the threat or use of force shall be recog-
nized as legal’” (Advisory Opinion, para. 87). The general principle that
an illegal act cannot produce legal rights — ex injuria jus non oritur — is
well recognized in international law.

122
255 CONSTRUCTION OF A WALL (SEP. OP. ELARABY)

The Israeli occupation has lasted for almost four decades. Occupation,
regardless of its duration, gives rise to a myriad of human, legal and
political problems. In dealing with prolonged belligerent occupation,
international law seeks to “perform a holding operation pending the ter-
mination of the conflict” ’. No one underestimates the inherent difficulties
that arise during situations of prolonged occupation. A prolonged occu-
pation strains and stretches the applicable rules, however, the law of
belligerent occupation must be fully respected regardless of the duration
of the occupation.

Professor Christopher Greenwood provided a correct legal analysis
which I share. He wrote:

“Nevertheless, there is no indication that international law per-
mits an occupying power to disregard provisions of the Regulations
or the Convention merely because it has been in occupation for a
long period, not least because there is no body of law which might
plausibly take their place and no indication that the international
community is willing to trust the occupant with carte blanche.”*

Both Israelis and Palestinians are subjected to untold sufferings. Both
Israelis and Palestinians have a right to live in peace and security. Secu-
rity Council resolution 242 (1967) affirmed the right “of every State in the
area . .. to live in peace within secure and recognized boundaries free
from threats or acts of force” (S/RES/242 (1967), para. | (ii)). These are
solemn reciprocal rights which give rise to solemn legal obligations. The
right to ensure and enjoy security applies to the Palestinians as well as to
the Israelis. Security cannot be attained by one party at the expense of
the other. By the same token of corresponding rights and obligations, the
two sides have a reciprocal obligation to scrupulously respect and comply
with the rules of international humanitarian law by respecting the rights,
dignity and property of the civilians. Both sides are under a legal obliga-
tion to measure their actions by the identical yardstick of international
humanitarian law which provides protection for the civilian population.

The Court has very clearly held, in the Legality of the Threat or Use of
Nuclear Weapons case, that

“The cardinal principles contained in the texts constituting the
fabric of humanitarian law are the following. The first is aimed at
the protection of the civilian population and civilian objects and
establishes the distinction between combatants and non-combatants;
States must never make civilians the object of attack and must con-

7 €. Greenwood, “The Administration of Occupied Territory in International Law”,
International Law and the Administration of Occupied Territories, E. Playfair, ed., 1992,
pp. 262-263.

® Thid.

123
256 CONSTRUCTION OF A WALL (SEP. OP. ELARABY)

sequently never use weapons that are incapable of distinguishing
between civilian and military targets. According to the second prin-
ciple, it is prohibited to cause unnecessary suffering to combatants:
it is accordingly prohibited to use weapons causing them such harm
or uselessly aggravating their suffering. In application of that second
principle, States do not have unlimited freedom of choice of means
in the weapons they use.” (Advisory Opinion, I.C.J. Reports 1996 (I),
p. 257, para. 78.)

The fact that occupation is met by armed resistance cannot be used as
a pretext to disregard fundamental human rights in the occupied terri-
tory. Throughout the annals of history, occupation has always been met
with armed resistance. Violence breeds violence. This vicious circle weighs
heavily on every action and every reaction by the occupier and the occu-
pied alike.

The dilemma was pertinently captured by Professors Richard Falk and
Burns Weston when they wrote

“the occupier is confronted by threats to its security that arise...
primarily, and especially in the most recent period, from a pro-
nounced and sustained failure to restrict the character and terminate
its occupation so as to restore the sovereign rights of the inhabitants.
Israeli occupation, by its substantial violation of Palestinian rights,
has itself operated as an inflaming agent that threatens the security
of its administration of the territory, inducing reliance on more and
more brutal practices to restore stability which in turn provokes the
Palestinians even more. In effect, the illegality of the Israeli occupa-
tion regime itself set off an escalatory spiral of resistance and repres-
sion, and under these conditions all considerations of morality and
reason establish a right of resistance inherent in the population. This
right of resistance is an implicit legal corollary of the fundamental
legal rights associated with the primacy of sovereign identity and
assuring the humane protection of the inhabitants.”»

I wholeheartedly subscribe to the view expressed by Professors Falk
and Weston, that the breaches by both sides of the fundamental rules of
humanitarian law reside in “the illegality of the Israeli occupation regime
itself”. Occupation, as an illegal and temporary situation, is at the heart
of the whole problem. The only viable prescription to end the grave vio-
lations of international humanitarian law is to end occupation.

The Security Council has more than once called for ending the occu-

° Falk and Weston, “The Relevance of International Law to Israeli and Palestinian
Rights in the West Bank and Gaza”, International Law and the Administration of Occu-
pied Territories, E. Playfair, ed., 1992, Chap. 3, pp. 146-147.

124
257 CONSTRUCTION OF A WALL (SEP. OP. ELARABY)

pation. On 30 June 1980, the Security Council reaffirmed “the overriding
necessity for ending the prolonged occupation of Arab territories occu-
pied by Israel since 1967, including Jerusalem” (S/RES/476 (1980)). Not-
withstanding this clarion call, the Palestinians are still languishing under
a heavy-handed, prolonged occupation.

3.2. The Court, in paragraph 135, rejected the contention that the
principle of military necessity can be invoked to justify the construction
of the wall. The Court held that:

“However, on the material before it, the Court is not convinced
that the destructions carried out contrary to the prohibition in Ar-
ticle 53 of the Fourth Geneva Convention were rendered absolutely
necessary by military operations.” (Advisory Opinion, para. 135.)

I fully share this finding. Military necessities and military exigencies
could arguably be advanced as justification for building the wall had
Israel proven that it could perceive no other alternative for safeguarding
its security. This, as the Court notes, Israel failed to demonstrate. A dis-
tinction must be drawn between building the wall as a security measure,
as Israel contends, and accepting that the principle of military necessity
could be invoked to justify the unwarranted destruction and demolition
that accompanied the construction process. Military necessity, if appli-
cable, extends to the former and not the latter. The magnitude of the
damage and injury inflicted upon the civilian inhabitants in the course
of building the wall and its associated régime is clearly prohibited under
international humanitarian law. The destruction of homes, the demoli-
tion of the infrastructure, and the despoilment of land, orchards and
olive groves that has accompanied the construction of the wall cannot
be justified under any pretext whatsoever. Over 100,000 civilian non-
combatants have been rendered homeless and hapless.

It is a fact that the law of belligerent occupation contains clauses which
confer on the occupying Power a limited leeway for military necessities
and security. As in every exception to a general rule, it has to be inter-
preted in a strict manner with a view to preserving the basic humanitar-
ian considerations. The Secretary-General reported to the General Assem-
bly on 24 November 2003 that he recognizes “Israel’s right and duty to
protect its people against terrorist attacks. However, that duty should not
be carried out in a way that is in contradiction to international law...”
(A/ES-10/248, para. 30.)

The jurisprudence of the Court has been consistent. In the 1949 Corfu
Channel case, the Court referred to the core and fabric of the rules of
humanitarian law as “elementary considerations of humanity, even more
exacting in peace than in war” (Corfu Channel, Merits, Judgment, 1949,
LCS Reports 1949, p. 22). In the case concerning Legality of the Threat
or Use of Nuclear Weapons, the Court held that

125
258 CONSTRUCTION OF A WALL (SEP. OP. ELARABY)

“these fundamental rules are to be observed by all States whether or
not they have ratified the conventions that contain them, because
they constitute intransgressible principles of international customary
law” (C.J. Reports 1996 (I), p. 257, para. 79).

In the final analysis, I have reached the same conclusion as Professor
Michael Schmitt, that

“Military necessity operates within this paradigm to prohibit acts
that are not militarily necessary; it is a principle of limitation,
not authorization. In its legal sense, military necessity justifies
nothing.” '°

The Court reached the same conclusion. The Court held that

“In the light of the material before it, the Court is not convinced that
the construction of the wall along the route chosen was the only means
to safeguard the interests of Israel against the peril which it has invoked
as justification for that construction.” (Advisory Opinion, para. 140.)

3.3. It is relevant to recall, moreover, that the reading of the reports by
the two Special Rapporteurs, John Dugard and Jean Ziegler, leaves no
doubt that as an occupying Power, Israel has committed grave breaches.
The pattern and the magnitude of the violations committed against the
non-combatant civilian population in the ancillary measures associated
with constructing the wall, are, in my view, “extensive destruction and
appropriation of property, not justified by military necessity and carried
out unlawfully and wantonly” (Fourth Geneva Convention, Art. 147). In
the area of extending protection to civilians, the rules of international
humanitarian law have progressively developed since the conclusion of
the Geneva Conventions and Additional Protocols. It is submitted that
the Court should have contributed to the development of the rules of jus
in bello by characterizing the destruction committed in the course of
building the wall as grave breaches.

3.4. The Court underlined the paramount importance of the right to
self-determination in our contemporary world and held in paragraph 88:
“The Court indeed made it clear that the right of peoples to self-deter-
mination is today a right erga omnes (see East Timor (Portugal v. Aus-
tralia), Judgment, I. C.J. Reports 1995, p. 102, para. 29).” Moreover, the
Court notes that the route chosen for the wall and the measures taken
“severely impedes the exercise by the Palestinian people of its right to
self-determination, and is therefore a breach of Israel’s obligation to
respect that right” (Advisory Opinion, para. 122). This legally authorita-
tive dictum, which has my full support, was confined to the reasoning.

10 M. N. Schmitt, “Bellum Americanum: The U.S. View of Twenty-First Century War
and Its Possible Implications for the Law of Armed Conflict” (1998), 19 Michigan Journal
of International Law, p. 1080.

126
259 CONSTRUCTION OF A WALL (SEP. OP. ELARABY)

The legal consequences that flow for all States from measures which
severely impede the exercise by the Palestinians of an erga omnes right,
should, in my view, have been included in the dispositif.

CONCLUSION

I now approach my final comment. It is a reflection on the future. The
Court, in paragraph 162, observes that in its view

“this tragic situation can be brought to an end only through imple-
mentation in good faith of all relevant Security Council resolu-
tions, in particular resolutions 242 (1967) and 338 (1973)” (Advisory
Opinion, para. 162).

This finding by the Court reflects a lofty objective that has eluded the
international community for a very long time. Since 22 November 1967,
all efforts have been aimed at ensuring the implementation of Security
Council resolution 242 (1967) which was adopted unanimously. In the
course of its 37-year lifespan, Security Council resolution 242 (1967) has
been both praised and vilified. Yet detractors and supporters alike agree
that the balance in its provisions represent the only acceptable basis for
establishing a viable and just peace. The Security Council, in the after-
math of the 1973 armed conflict, adopted resolution 338 (1973), which
called upon the parties concerned “to start immediately after the ceasefire
the implementation of Security Council resolution 242 (1967) in all of its
parts” (emphasis added). The obligations emanating from these resolu-
tions are obligations of result of paramount importance. They are synal-
lagmatic obligations in which the obligation of each party constitutes the
raison d’étre of the obligation of the other. It is legally wrong and politi-
cally unsound to transform this obligation of result into a mere obliga-
tion of means, confining it to a negotiating process. Any attempt to
tamper with such solemn obligation would not contribute to an outcome
based on a solid foundation of law and justice.

The establishment of “a just and lasting peace”, as called for in Secu-
rity Council resolution 242 (1967), necessitates the full implementation of
the corresponding obligations by the two parties. The Advisory Opinion
should herald a new era as the first concrete manifestation of a meaning-
ful administration of justice related to Palestine. It is hoped that it will
provide the impetus to steer and direct the long-dormant quest for a just
peace.

(Signed) Nabil ELARABY.

127


       COUR INTERNATIONALE DE JUSTICE

          RECUEIL DES ARRÊTS,
   AVIS CONSULTATIFS ET ORDONNANCES

    CERTAINS ACTIFS IRANIENS
(RÉPUBLIQUE ISLAMIQUE D’IRAN c. ÉTATS-UNIS
               D’AMÉRIQUE)

    ORDONNANCE DU 15 NOVEMBRE 2019

              2019
       INTERNATIONAL COURT OF JUSTICE

        REPORTS OF JUDGMENTS,
     ADVISORY OPINIONS AND ORDERS

     CERTAIN IRANIAN ASSETS
(ISLAMIC REPUBLIC OF IRAN v. UNITED STATES
              OF AMERICA)

        ORDER OF 15 NOVEMBER 2019

                        Mode oﬃciel de citation :
                         Certains actifs iraniens
         (République islamique d’Iran c. Etats-Unis d’Amérique),
       ordonnance du 15 novembre 2019, C.I.J. Recueil 2019, p. 680

                            Oﬃcial citation:
                         Certain Iranian Assets
         (Islamic Republic of Iran v. United States of America),
         Order of 15 November 2019, I.C.J. Reports 2019, p. 680

                                           No de vente:
ISSN 0074-4441
ISBN 978-92-1-003836-2
                                           Sales number   1178

                                  15 NOVEMBRE 2019

                                   ORDONNANCE

        CERTAINS ACTIFS IRANIENS
(RÉPUBLIQUE ISLAMIQUE D’IRAN c. ÉTATS-UNIS
               D’AMÉRIQUE)

         CERTAIN IRANIAN ASSETS
(ISLAMIC REPUBLIC OF IRAN v. UNITED STATES
              OF AMERICA)

                                15 NOVEMBER 2019

                                      ORDER

               680

                              COUR INTERNATIONALE DE JUSTICE

                                              ANNÉE 2019
    2019
15 novembre                                 15 novembre 2019
Rôle général
   no 164
                             CERTAINS ACTIFS IRANIENS
                       (RÉPUBLIQUE ISLAMIQUE D’IRAN c. ÉTATS-UNIS
                                      D’AMÉRIQUE)

                                            ORDONNANCE

                   Le président de la Cour internationale de Justice,
                   Vu l’article 48 du Statut de la Cour et les articles 31, 44, 45, para-
               graphe 2, 48 et 49 de son Règlement,
                   Vu la requête déposée au Greﬀe de la Cour le 14 juin 2016, par laquelle
               la République islamique d’Iran (ci-après l’« Iran ») a introduit une ins-
               tance contre les Etats-Unis d’Amérique (ci-après les « Etats-Unis ») au
               sujet d’un diﬀérend concernant de prétendues violations par les Etats-Unis
               du traité d’amitié, de commerce et de droits consulaires signé par les
               deux Etats à Téhéran le 15 août 1955 et entré en vigueur le 16 juin 1957
               (ci-après le « traité d’amitié »),
                   Vu l’ordonnance du 1er juillet 2016, par laquelle la Cour a ﬁxé au
               1 février 2017 et au 1er septembre 2017, respectivement, les dates d’expi-
                 er

               ration du délai pour le dépôt du mémoire de l’Iran et du contre-mémoire
               des Etats-Unis,
                   Vu le mémoire de l’Iran déposé dans le délai ainsi ﬁxé,
                   Vu les exceptions préliminaires à la compétence de la Cour et à la rece-
               vabilité de la requête soulevées par le Gouvernement des Etats-Unis le
               1er mai 2017,
                   Vu l’ordonnance en date du 2 mai 2017, par laquelle la Cour a constaté
               qu’en vertu des dispositions du paragraphe 5 de l’article 79 du Règlement
               du 14 avril 1978, tel qu’amendé le 1er février 2001, la procédure sur le
               fond était suspendue,
                   Vu l’arrêt en date du 13 février 2019, par lequel la Cour a déclaré
               qu’elle avait compétence pour se prononcer sur la requête déposée par
               l’Iran le 14 juin 2016 — sauf en ce qui concerne les demandes de l’Iran

               4

681         certains actifs iraniens (ordonnance 15 XI 19)

relatives aux immunités souveraines et sous réserve de la question de
savoir si elle a compétence pour connaître des demandes de l’Iran se rap-
portant à des violations alléguées des articles III, IV et V du traité d’ami-
tié reposant sur le traitement réservé à la banque Markazi, question sur
laquelle elle ne pourra statuer que dans la phase suivante de la procé-
dure —, et que ladite requête était recevable,
   Vu l’ordonnance du 13 février 2019, par laquelle la Cour a ﬁxé au
13 septembre 2019 la date d’expiration du délai pour le dépôt du contre-
mémoire des Etats-Unis,
   Vu l’ordonnance du 15 août 2019, par laquelle le président a prorogé
ledit délai jusqu’au 14 octobre 2019,
   Vu le contre-mémoire des Etats-Unis déposé dans le délai ainsi
prorogé ;
   Considérant que, lors d’une réunion que le président de la Cour a tenue
avec les agents et représentants des Parties le 14 novembre 2019, l’agent de
l’Iran a déclaré que, eu égard au contenu du contre-mémoire des Etats-Unis
et aux arguments présentés dans celui-ci, son Gouvernement souhaitait que
la possibilité lui soit oﬀerte d’y répondre et demandait qu’un délai de neuf
à dix mois lui soit accordé pour la préparation de sa réplique ; que l’agent
adjoint des Etats-Unis a déclaré que son Gouvernement n’objectait pas à la
tenue d’un second tour d’écritures, et que, compte tenu de la complexité de
l’aﬀaire, un délai suﬃsamment long serait nécessaire pour la préparation
par les Etats-Unis de leur duplique ; et qu’il a ajouté que son Gouverne-
ment s’en remettait à la Cour pour en déterminer la durée précise ;
   Compte tenu des vues des Parties,
  Autorise la présentation d’une réplique par la République islamique
d’Iran et d’une duplique par les Etats-Unis d’Amérique ;
  Fixe comme suit les dates d’expiration des délais pour le dépôt des
pièces de la procédure écrite :
    Pour la réplique de la République islamique d’Iran, le 17 août 2020 ;
    Pour la duplique des Etats-Unis d’Amérique, le 17 mai 2021 ;
   Réserve la suite de la procédure.
   Fait en français et en anglais, le texte français faisant foi, au Palais de
la Paix, à La Haye, le quinze novembre deux mille dix-neuf, en trois exem-
plaires, dont l’un restera déposé aux archives de la Cour et les autres
seront transmis respectivement au Gouvernement de la République isla-
mique d’Iran et au Gouvernement des Etats-Unis d’Amérique.

                                                   Le président,
                                      (Signé) Abdulqawi Ahmed Yusuf.
                                                     Le greﬃer,
                                          (Signé) Philippe Gautier.

5


               84

                              COUR INTERNATIONALE DE JUSTICE

   2005                                      ANNÉE 2005
 16 février
Rôle général
  no 125                                     16 février 2005

                                     AFFAIRE
                            DU DIFFE
                                   u REND FRONTALIER
                                           (BE
                                             u NIN/NIGER)

                                           ORDONNANCE
                                   COMPOSITION DE LA CHAMBRE

               Présents : M. SHI, président ; M. RANJEVA, vice-président ; MM. KOROMA,
                          VERESHCHETIN, Mme HIGGINS, MM. PARRA-ARANGUREN,
                          KOOIJMANS, REZEK, AL-KHASAWNEH, BUERGENTHAL, ELARABY,
                          OWADA, SIMMA, ABRAHAM, juges ; M. COUVREUR, greffier.

                   La Cour internationale de Justice,
                  Ainsi composée,
                  Après délibéré en Chambre du conseil,
                  Vu l’article 26, paragraphes 2 et 3, de son Statut et les articles 17, 18
               et 31 de son Règlement,
                  Vu l’ordonnance en date du 27 novembre 2002, par laquelle la Cour a
               notamment déclaré dûment constituée pour connaître de la présente
               affaire la Chambre composée comme ci-après : M. Guillaume, président
               de la Chambre ; MM. Ranjeva et Kooijmans, juges ; et MM. Bedjaoui et
               Bennouna, juges ad hoc ;
                  Considérant que M. Guillaume, président de la Chambre, a démis-
               sionné de la Cour à compter du 11 février 2005 ; et que, en conséquence,
               une vacance s’est produite au sein de la Chambre ;
                  Considérant que les Parties ont été de nouveau consultées au sujet de la

               4

85           DIFFÉREND FRONTALIER (ORDONNANCE 16 II 05)

composition de la Chambre, conformément à l’article 17, paragraphe 2,
du Règlement,
   Déclare que, lors d’une élection tenue le 16 février 2005, M. Abraham
a été élu membre de la Chambre pour occuper le siège devenu vacant par
suite de la démission de M. Guillaume et que, en conséquence de cette
élection, la Chambre se trouve ainsi composée :
     M. Ranjeva, président ;
    MM. Kooijmans,
        Abraham, juges ;
    MM. Bedjaoui,
        Bennouna, juges ad hoc.

   Fait en français et en anglais, le texte français faisant foi, au Palais de
la Paix, à La Haye, le seize février deux mille cinq, en trois exemplaires,
dont l’un restera déposé aux archives de la Cour et les autres seront
transmis respectivement au Gouvernement de la République du Bénin et
au Gouvernement de la République du Niger.

                                                        Le président,
                                                (Signé) SHI Jiuyong.
                                                         Le greffier,
                                            (Signé) Philippe COUVREUR.

5


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DE LA BARCELONA
TRACTION, LIGHT AND POWER
COMPANY, LIMITED

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

ORDONNANCE DU 24 MAI 1968

1968

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING
THE BARCELONA TRACTION, LIGHT
AND POWER COMPANY, LIMITED

(NEW APPLICATION: 1962)
(BELGIUM y. SPAIN)

ORDER OF 24 MAY 1968
Mode officiel de citation:

Barcelona Trattion, Light and Power Company, Limited,
ordonnance du 24 mai 1968, C.I.J. Recueil 1968, p. 13.

Official citation:

Barcelona Traction, Light and Power Company, Limited,
Order of 24 May 1968, I.C.J. Reports 1968, p. 13.

Sales nmber 32.2

13

COUR INTERNATIONALE DE JUSTICE

ANNÉE 1968
-1968 :
24 mai .
Rôle général 24 mai 1968
n° 50

AFFAIRE DE LA BARCELONA
TRACTION, LIGHT AND POWER
COMPANY, LIMITED

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

ORDONNANCE

Présents: M. BUSTAMANTE Y RIivERO, Président; M. KORETSKY, Vice-
Président; sir Gerald FiTzMAURICE, MM. TANAKA, JESSUP,
MORELLI, PADILLA NERVO, GROS, AMMOUN, BENGZON, PETRÉN,
LACHS, ONYEAMA, Juges; M. AQUARONE, Greffier.

La Cour internationale de Justice,

Ainsi composée,
Après délibéré en chambre du conseil,

Vu l’article 48 du Statut de la Cour et l’article 37 du Règlement de la
Cour,

Vu l'ordonnance du 15 septembre 1967 reportant au 31 mai 1968 la
date d’expiration du délai pour le dépôt de la duplique du Gouverne-
ment espagnol,

4
14 BARCELONA TRACTION (ORDONNANCE 24 V 68)

Rend l’ordonnance suivante:

Considérant que, par lettre du 10 mai 1968, l’agent du Gouvernement
espagnol a, pour les raisons par lui indiquées, demandé à la Cour de
reporter d’un mois la date d’expiration du délai pour le dépôt de la
duplique;

Considérant que le 10 mai 1968 copie certifiée conforme de ladite
lettre a été communiquée à l’agent du Gouvernement belge, qui a été
invité à faire connaître les vues de son gouvernement à cet égard;

Considérant que, par lettre du 17 mai 1968, l’agent du Gouvernement
belge a fait connaître que son gouvernement ne voyait pas d’objection à
l'égard de la demande de prorogation;

Constatant avec regret que les délais initialement fixés par la Cour
pour le dépôt des pièces de la procédure écrite n’ont pas été observés et
que cette procédure a été par là considérablement allongée,

LA COUR

Reporte néanmoins au ler juillet 1968 la date d'expiration du délai
fixé pour le dépôt de la duplique du Gouvernement espagnol.

Fait en français et en anglais, le texte français faisant foi, au palais de
la Paix, à La Haye, le vingt-quatre mai mil neuf cent soixante-huit, en
trois exemplaires, dont l’un restera déposé aux archives de la Cour et
dont les autres seront transmis respectivement au Gouvernement belge
et au Gouvernement espagnol.

Le Président,
(Signé) J, L. BUSTAMANTE R.

Le Greffier,
{Signé) S. AQUARONE.


                          INTERNATIONAL COURT OF JUSTICE

                            REPORTS OF JUDGMENTS,
                         ADVISORY OPINIONS AND ORDERS

                     QUESTION OF THE DELIMITATION
                       OF THE CONTINENTAL SHELF
                   BETWEEN NICARAGUA AND COLOMBIA
                       BEYOND 200 NAUTICAL MILES
                      FROM THE NICARAGUAN COAST
                            (NICARAGUA v. COLOMBIA)

                           ORDER OF 8 DECEMBER 2017

                                 2017
                          COUR INTERNATIONALE DE JUSTICE

                              RECUEIL DES ARRÊTS,
                       AVIS CONSULTATIFS ET ORDONNANCES

                      QUESTION DE LA DÉLIMITATION
                        DU PLATEAU CONTINENTAL
                   ENTRE LE NICARAGUA ET LA COLOMBIE
                      AU‑DELÀ DE 200 MILLES MARINS
                      DE LA CÔTE NICARAGUAYENNE
                            (NICARAGUA c. COLOMBIE)

                        ORDONNANCE DU 8 DÉCEMBRE 2017

2 CIJ1128.indb 1                                           5/04/18 11:09

                                                 Official citation :
                     Question of the Delimitation of the Continental Shelf between Nicaragua
                      and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast
                              (Nicaragua v. Colombia), Order of 8 December 2017,
                                           I.C.J. Reports 2017, p. 361

                                            Mode officiel de citation :
                       Question de la délimitation du plateau continental entre le Nicaragua
                      et la Colombie au-delà de 200 milles marins de la côte nicaraguayenne
                            (Nicaragua c. Colombie), ordonnance du 8 décembre 2017,
                                            C.I.J. Recueil 2017, p. 361

                                                                                1128
                                                                 Sales number
                   ISSN 0074-4441                                No de vente:
                   ISBN 978-92-1-157326-8

2 CIJ1128.indb 2                                                                               5/04/18 11:09

                                                  8 DECEMBER 2017

                                                       ORDER

                     QUESTION OF THE DELIMITATION
                       OF THE CONTINENTAL SHELF
                   BETWEEN NICARAGUA AND COLOMBIA
                       BEYOND 200 NAUTICAL MILES
                      FROM THE NICARAGUAN COAST
                        (NICARAGUA v. COLOMBIA)

                       QUESTION DE LA DÉLIMITATION
                        DU PLATEAU CONTINENTAL
                   ENTRE LE NICARAGUA ET LA COLOMBIE
                      AU-DELÀ DE 200 MILLES MARINS
                       DE LA CÔTE NICARAGUAYENNE
                        (NICARAGUA c. COLOMBIE)

                                                  8 DÉCEMBRE 2017

                                                   ORDONNANCE

2 CIJ1128.indb 3                                                    5/04/18 11:09

                                                                                361

                                  COUR INTERNATIONALE DE JUSTICE

                                                  ANNÉE 2017
                                                                                2017
                                                 8 décembre 2017                                  8 décembre
                                                                                Rôle général
                                                                                no 154
                         QUESTION DE LA DÉLIMITATION
                          DU PLATEAU CONTINENTAL
                      ENTRE LE NICARAGUA ET LA COLOMBIE
                         AU‑DELÀ DE 200 MILLES MARINS
                         DE LA CÔTE NICARAGUAYENNE
                                        (NICARAGUA c. COLOMBIE)

                                                ORDONNANCE

                      Présents : M. Abraham, président ; M. Yusuf, vice-président ;
                                  MM. Owada, Tomka, Cançado Trindade, Greenwood,
                                  Mme Xue, M. Gaja, Mme Sebutinde, MM. Bhandari,
                                  Robinson, Gevorgian, juges ; M. Couvreur, greffier.

                      La Cour internationale de Justice,
                       Ainsi composée,
                       Après délibéré en chambre du conseil,
                       Vu l’article 48 du Statut de la Cour et les articles 31, 44, 45, para‑
                    graphe 2, 48 et 49 de son Règlement,
                       Vu la requête déposée au Greffe de la Cour le 16 septembre 2013, par
                    laquelle la République du Nicaragua a introduit une instance contre la
                    République de Colombie concernant un différend relatif à « la délimita‑
                    tion entre, d’une part, le plateau continental du Nicaragua s’étendant
                    au‑delà de 200 milles marins des lignes de base à partir desquelles est
                    mesurée la largeur de la mer territoriale du Nicaragua et, d’autre part, le
                    plateau continental de la Colombie »,

                                                                                4

2 CIJ1128.indb 13                                                                                5/04/18 11:09

                       délimitation du plateau continental (ordonnance 8 XII 17) 362

                       Vu la première demande formulée par le Nicaragua dans sa requête,
                    par laquelle la Cour a été priée de déterminer « [l]e tracé précis de la fron‑
                    tière maritime entre les portions de plateau continental relevant du Nica‑
                    ragua et de la Colombie au‑delà des limites établies par la Cour dans son
                    arrêt du 19 novembre 2012 », et sa deuxième demande, par laquelle la
                    Cour a été priée de déterminer « [l]es principes et les règles de droit inter‑
                    national régissant les droits et obligations des deux Etats concernant la
                    zone de plateau continental où leurs revendications se chevauchent et
                    l’utilisation des ressources qui s’y trouvent, et ce, dans l’attente de la déli‑
                    mitation de leur frontière maritime au‑delà de 200 milles marins de la
                    côte nicaraguayenne »,
                       Vu l’ordonnance en date du 9 décembre 2013, par laquelle la Cour a
                    fixé au 9 décembre 2014 et au 9 décembre 2015 les dates d’expiration des
                    délais pour le dépôt, respectivement, du mémoire de la République du
                    Nicaragua et du contre‑mémoire de la République de Colombie,
                       Vu les exceptions préliminaires d’incompétence de la Cour et d’irrece‑
                    vabilité de la requête qui ont été soulevées par le Gouvernement de la
                    République de Colombie le 14 août 2014,
                       Vu l’arrêt en date du 17 mars 2016, par lequel la Cour a déclaré qu’elle
                    avait compétence, sur la base de l’article XXXI du pacte de Bogotá, pour
                    connaître de la première demande formulée par le Nicaragua dans sa
                    requête, et que cette demande était recevable, la deuxième demande étant
                    irrecevable,
                       Vu l’ordonnance en date du 28 avril 2016, par laquelle le président a
                    fixé au 28 septembre 2016 et au 28 septembre 2017, respectivement, les
                    nouvelles dates d’expiration des délais pour le dépôt du mémoire de la
                    République du Nicaragua et du contre-        mémoire de la République de
                    Colombie,
                       Vu le mémoire et le contre-mémoire dûment déposés par les Parties
                    dans les délais ainsi fixés ;
                       Considérant que, au cours d’une réunion que le président de la Cour a
                    tenue avec les agents des Parties le 29 novembre 2017, l’agent du Nicara‑
                    gua a indiqué que son gouvernement estimait le dépôt d’une réplique
                    nécessaire pour répondre, notamment, aux points techniques soulevés
                    dans le contre-mémoire de la Colombie, et a demandé un délai de neuf
                    mois pour la préparation de ladite réplique ; et que l’agent de la Colombie
                    a déclaré que son gouvernement n’avait pas d’objection à la tenue d’un
                    second tour de procédure écrite, mais souhaitait que des délais plus brefs
                    fussent fixés à cet effet, de l’ordre de quatre à six mois, pour chaque pièce
                    additionnelle, à compter de la date de dépôt du contre-mémoire de la
                    Colombie ;
                       Compte tenu des vues des Parties ainsi exprimées et des circonstances
                    de l’espèce,
                      Autorise la présentation d’une réplique par le Nicaragua et d’une
                    duplique par la Colombie ;

                                                                                5

2 CIJ1128.indb 15                                                                                5/04/18 11:09

                       délimitation du plateau continental (ordonnance 8 XII 17) 363

                      Fixe comme suit les dates d’expiration des délais pour le dépôt de ces
                    pièces de procédure écrite :
                      Pour la réplique de la République du Nicaragua, le 9 juillet 2018 ;
                      Pour la duplique de la République de Colombie, le 11 février 2019 ;
                      Réserve la suite de la procédure.

                      Fait en anglais et en français, le texte anglais faisant foi, au Palais de la
                    Paix, à La Haye, le huit décembre deux mille dix-sept, en trois exem‑
                    plaires, dont l’un restera déposé aux archives de la Cour et les autres
                    seront transmis respectivement au Gouvernement de la République du
                    Nicaragua et au Gouvernement de la République de Colombie.

                                                                           Le président,
                                                                  (Signé) Ronny Abraham.
                                                                              Le greffier,
                                                                 (Signé) Philippe Couvreur.

                                                                                6

2 CIJ1128.indb 17                                                                                5/04/18 11:09


                                    13 JUILLET 2006

                                    ORDONNANCE

USINES DE PA
           | TE A
                v PAPIER SUR LE FLEUVE URUGUAY
           (ARGENTINE c. URUGUAY)

      PULP MILLS ON THE RIVER URUGUAY
           (ARGENTINA v. URUGUAY)

                                       13 JULY 2006

                                         ORDER

                                                                   156

             INTERNATIONAL COURT OF JUSTICE

                             YEAR 2006                                       2006
                                                                            13 July
                                                                          General List
                             13 July 2006                                  No. 135

         CASE CONCERNING PULP MILLS
           ON THE RIVER URUGUAY
                   (ARGENTINA v. URUGUAY)

                               ORDER

Present : President HIGGINS ; Judges KOROMA, PARRA-ARANGUREN,
          BUERGENTHAL, OWADA, SIMMA, TOMKA, KEITH, SEPÚLVEDA-
          AMOR, BENNOUNA, SKOTNIKOV ; Judge ad hoc TORRES BERNÁRDEZ ;
          Registrar COUVREUR.

  The International Court of Justice,
   Composed as above,
   After deliberation,
   Having regard to Article 48 of the Statute of the Court, and to
Articles 44 and 45, paragraph 1, of the Rules of Court,
   Having regard to the Application filed in the Registry of the Court
on 4 May 2006, whereby the Argentine Republic instituted proceedings
against the Eastern Republic of Uruguay for the alleged breach by Uru-
guay of obligations under the Statute of the River Uruguay, which was
signed by Argentina and Uruguay on 26 February 1975 and entered into
force on 18 September 1976, in respect of “the authorization, construc-
tion and future commissioning of two pulp mills on the River Uruguay”,

  Having regard to the Order of 13 July 2006 whereby the Court
adjudicated upon the request for the indication of provisional measures
submitted by Argentina on 4 May 2006 ;

                                                                     4

                      PULP MILLS (ORDER 13 VII 06)                      157

  Taking account of the views of the Parties, as expressed by their
Agents at a meeting held between them and the President of the Court on
13 July 2006,
  Fixes the following time-limits for the filing of the written pleadings :

 15 January 2007 for the Memorial of the Argentine Republic ;
 20 July 2007 for the Counter-Memorial of the Eastern Republic of
Uruguay ; and
 Reserves the subsequent procedure for further decision.

  Done in French and in English, the French text being authoritative, at
the Peace Palace, The Hague, this thirteenth day of July, two thousand
and six, in three copies, one of which will be placed in the archives of the
Court and the others transmitted to the Government of the Argentine
Republic and the Government of the Eastern Republic of Uruguay,
respectively.

                                           (Signed) Rosalyn HIGGINS,
                                                       President.
                                          (Signed) Philippe COUVREUR,
                                                         Registrar.

                                                                          5


326

DISSENTING OPINION OF JUDGE AGO
[Translation]

1. I deeply regret being unable to associate myself with the Judges who
have voted in favour of the present Judgment. I regret it all the more since I
am certainly no less sensitive than my colleagues to the frustration felt by
the Nauruans when they gaze upon the present state of their small island’s
territory. I also hope with all my heart that it will be possible for this
people once again to find in its country of origin conditions of life favour-
able to its development.

But these perfectly justified emotional reactions should not blind us to
the fact that the questions we have to consider in this preliminary phase
are very specific questions of law and that it is by reference to the law, and
only to the law, that they have to be answered.

2. My reason for taking the position I have indicated and for writing
this opinion is that I am compelled to take note of an insurmountable con-
tradiction between two facts. There is, on the one hand, the fact that the
Government of Nauru has brought proceedings, against Australia alone,
for the purpose of enforcing its claims with respect to the “rehabilitation”
of its territory. But it is, on the other hand, equally unquestionable that
first the League of Nations and then the United Nations entrusted the task
of administering Nauru jointly to three distinct sovereign entities, namely
the United Kingdom, Australia and New Zealand. This authority was
conferred on a basis of complete legal equality between the three Powers.
To be sure, the participation of one of them, Australia, in the discharge of
the tasks involved in administering the territory under the joint Trustee-
ship of three States might, in point of fact, be more substantial than that of
the two others. But this could in no way affect the fundamental situation
of equality of rights and obligations between the three partners, a situa-
tion which, in addition, was particularly guaranteed as regards the mining
of phosphate deposits.

3. It is by reason of the contradiction referred to above that, in consid-
ering all the preliminary objections raised by Australia in the present case,
T have felt unable to avoid ascribing decisive importance to one, namely
the objection based on the fact that two of the three Powers to which Trus-
teeship over Nauru had been jointly assigned were not parties to the pro-
ceedings. I wish to make it perfectly clear that I am referring to that
objection alone, since, in the case of all the others, I fully concur with the
majority of the Court in considering that they should be rejected.

4. I do not know for what reasons the newly independent State of
Nauru elected to sue Australia alone. The Judgment to which the present

90
PHOSPHATE LANDS IN NAURU (DISS. OP. AGO) 327

opinion is appended correctly points out, in paragraph 33, that on the very
day of the proclamation of the Republic, the Head Chief and future Presi-
dent of Nauru, Mr. DeRoburt, told the press that:

“We hold it against Britain, Australia and New Zealand to recog-
nize that it is their responsibility to rehabilitate one third of the
island.”

In the same context it should also be noted that in 1968 this same
Mr. DeRoburt had taken the initiative of proposing a meeting between the
representatives of the three Governments that formerly had together
made up the Administering Authority of the trust territory and represen-
tatives of the Nauruan Government

“to work out how best [an] airstrip could be constructed as a rehabili-
tation project and to determine the degree of financial and technical
assistance the partner Governments would be able to offer” (Memo-
rial of Nauru, Vol. 4, Ann. 76; emphasis added).

5. There was therefore every reason to think that, if an application was
to be submitted to the Court, it would be directed against the three States
jointly. In my opinion the prerequisites for this were duly fulfilled. New
Zealand and the United Kingdom had, like Australia, accepted the com-
pulsory jurisdiction of the Court. The terms of New Zealand’s acceptance
were, in essence, the same as those of Australia’s. As for the United King-
dom, its declaration did, it is true, diverge in certain respects from those of
the two other States. But, had New Zealand as well as Australia been par-
ties to the proceedings, it could fairly safely have been assumed that the
United Kingdom would not have left its two former partners in the admin-
istration of Nauru and the exploitation of its mineral resources on their
own. It is therefore most likely that it would not, by itself, have raised
insurmountable obstacles. Particularly since the clause excluding from
the acceptance of the compulsory jurisdiction of the International Court
of Justice disputes with States Members of the Commonwealth — a clause
originally inserted in the declaration in anticipation of the establishment
of a special court for the Commonwealth — could easily have been
regarded as obsolete, since that expectation has never been fulfilled.
Furthermore, although Nauru had been admitted to the Commonwealth,
the conditions of its admission did not make it a full member.

6. Nauru would therefore, at least, have had every reason to seek to
bring an action before the Court against the three States affected by the
claim it intended to put forward.

But, whatever may have been the reasons that led it to proceed other-
wise, the fact remains that it did so. Its Government elected to bring pro-

91
PHOSPHATE LANDS IN NAURU (DISS. OP. AGO) 328

ceedings against Australia alone in respect of the obligation it claims to
exist to “rehabilitate” the part of its territory worked out, prior to its inde-
pendence, by the three States that had made up the “Administering
Authority”. Having taken this course, the Nauruan Government must
face the consequences of that choice. It has thus placed the Court before a
difficulty that is, in my opinion, insurmountable, namely that of determin-
ing the possible obligations of Australia in the area in question without at
the same time ipso facto determining those of the other two States that are
not parties to the proceedings. For otherwise the Court would manifestly
overstep the limits of its jurisdiction.

The Judgment to which this opinion is appended expressly admits that:

“In the present case, a finding by the Court regarding the existence
or the content of the responsibility attributed to Australia by Nauru
might well have implications for the legal situation of the two other
States concerned . . .” (Para. 55.)

I welcome this admission. But surely, having made it, one cannot con-
sider its consequences avoided by the mere assertion that

“no finding in respect of that legal situation will be needed as a basis
for the Court’s decision on Nauru’s claims against Australia” (ibid.;
emphasis added).

In fact, it is precisely by ruling on these claims against Australia alone
that the Court will, inevitably, affect the legal situation of the two other
States, namely, their rights and their obligations. If, when dealing with the
merits of the case, the Court were to recognize that responsibility and
accordingly seek to determine the share of the responsibility falling upon
Australia, it would thereby indirectly establish that the remainder of the
responsibility would fall upon the two other States. Even ifthe Court were
to decide — on what would, incidentally, be an extremely questionable
basis — that Australia was to shoulder in full the responsibility in ques-
tion, that decision would, equally inevitably and just as unacceptably,
affect not only the “interests” but also the legal situation of two States that
are not parties to the proceedings. In either case, the exercise by the Court
of its jurisdiction would be deprived of its indispensable consensual basis.

These are the reasons that have led me to conclude that the preliminary
objection raised in this respect by Australia was well founded and should
have been upheld by the Court.

(Signed) Roberto AGo.

92


39

DISSENTING OPINION BY JUDGE LEVI CARNEIRO
[Translation] |

I have voted in favour of the first finding of the Judgment but
am, to my regret, unable to agree with the second.

My opinion has been arrived at in view of certain considerations
which the Court, in drafting its Judgment, has not regarded as
relevant. So far as the first finding is concerned, I do not think
that more need be said. But with regard to the second, the consider-
ations which I have referred to were dictated by the necessity of
maintaining proper procedural order in the present case and by my
conception of the duty and the function of the Court, and I there-
fore find myself obliged to seek to justify them.

2. By its second Submission in the Application, Italy requested
the Court to adjudge and declare

“that Italy’s right to receive the said share of monetary gold must
have priority over the claim of the United Kingdom to receive
the gold in partial satisfaction of the Judgment in the Corfu Channel
case”.

By the terms of the Washington Statement, Italy was given an
opportunity to make an application to

“the International Court of Justice for the determination of the
question whether, by reason of any right which she claims to possess
as a result of the Albanian law of 13th January 1945, or under the
provisions of the Italian Peace Treaty, the gold should be delivered
to Italy rather than to Albania”

and an opportunity

“to accept the jurisdiction of the Court to determine the question
whether the claim of the United Kingdom or of Italy to receive
the gold should have priority, if this issue should arise’.

Might not the provision as drafted mean that Italy might adopt
two different attitudes or take two different steps, in relation to the
two separate questions involved : in respect of the first, to “make
an application to the Court”, in respect of the second, ‘‘to accept
the jurisdiction of the Court’? Do not these two expressions
indicate two attitudes ?

However, the Italian Application presented the two questions
at the same time and asked the Court to adjudicate upon both of
them.

It is true that the Italian Government, in its Application,
incidentally said:

24
MONETARY GOLD (Diss. OPIN. BY JUDGE LEVI CARNEIRO) 40

**.... once it has been established that Italy is entitled to damages
from Albania .... Italy’s claim to the gold in question should have
priority over the claim of the United Kingdom....”’.

This statement did not mean that the Court could not decide the
priority issue before the claim had been held to be well-founded ;
the Applicant, at the time of making the application, set out the
grounds on which it based its claim to priority and indeed to
preference. Thus, it presented the two questions at the same time
and in the same proceedings, making, in its Application, two Sub-
missions relating to the two separate questions. These Submissions
were put forward without any link between them, they are entirely
distinct, and the second is in no way subordinate to the first. There is
not even any form of conjunction between them. Nor, and this to
my mind is decisive, is the word “‘substdiaivement” (alternatively)
used, as it invariably is, when it is desired to indicate that a question
is subordinate to another which has already been raised, and as
in fact was done by the United Kingdom Government in the present
case, in the Submissions which are set out in the Judgment. Yet
the three ‘“‘Allied Governments concerned”’, in their written Obser-
vations on the Preliminary Question, nowhere indicated that the
Application had improperly raised the two questions.

It was after filing its Application that the Italian Government
raised the “‘Preliminary Question’’, and asked the Court to decide
as to its competence to adjudicate upon “the first Submission’.
Although it indicated that the second question would arise only
after the first had been decided, it referred nevertheless to the first
Submission only. It never said, either when it raised its objection
to the jurisdiction or in its arguments in its written Observations
that, as a result, the present Judgment of the Court should relate
to the second question as well. Again, its Submissions presented
at the end of the oral arguments related exclusively to the first
Submission in the Application.

The second Submission was not, and could not be, discussed in
the course of the hearings. Here, in particular, the complete independ-
ence of the two questions, from the point of view of their judicial
determination, was made clear.

3. In the written Statement which it submitted to the Court,
the Government of the United States said:

‘it seems doubtful whether Albania must have accepted the
jurisdiction of the Court.and have become a party in the present
case before the Court can properly adjudicate on the claims of
Italy vis-a-vis the United Kingdom concerning the gold here in
question”.

It seems to me that the second Submission in the Application
has precedence over the first. Counsel for the Italian Government
{at the hearing on May xzoth) correctly interpreted this statement
when he said:

25
MONETARY GOLD (DISS. OPIN. BY JUDGE LEVI CARNEIRO) 4I

“It is therefore proposed that the priority issue should be consid-
ered quite separately from the issue relating to the international
responsibility of Albania resulting from the Albanian law.”

This, indeed, is what was being done—I think correctly—
because the second Submission involves the question which ought
first to be decided by the Court. Therefore, even in the absence of
finding in favour of Italy on the first Submission, the Court would,
in the subsequent proceedings, have to adjudicate upon the second
Submission. It has been asked to do so, and there is no reason why
it should not.

In the written Observations the French Government said nothing
to indicate that it considered the two Submissions interdependent :
it merely sought to show that the Court was competent to deal with
them. The oral arguments of its Agent merely related to the juris-
diction of the Court to adjudicate upon a question of international
law—the effects of the Albanian Nationalization Law.

It was indeed the United Kingdom Agent who, in his written
Observations and in his oral arguments, asserted the complete
dependence of the second Submission upon the first. He asked the
Court to hold that, by reason of the objection to the jurisdiction
raised by Italy, the Italian Application no longer conformed to
the conditions and intentions of the Washington Statement ; that
it had become invalid and void. To justify such a conclusion, it
would be necessary to consider that if the Court could not deal
with the first Submission in the Italian Application, it would
likewise be unable to pass upon the second Submission. Accordingly,
the Agent of the United Kingdom Government said (at the hearing
on May 12th) that the priority issue—the issue raised in the second
Submission—would not arise if the Court should refuse to consider
and to adjudicate upon the first Submission relating to Italy’s
claim.

This did not, however, prevent the United Kingdom Agent from
saying at the hearing on May 14th that the issue which arose in the
present case was whether a certain quantity of gold should be
transferred to the United Kingdom or to Italy—that is to say, the
second question raised by the Application,

In his Submissions at the close of the hearings, the United King-
dom Agent asked the Court to find “‘that, if the Court holds, contrary
to the contentions of the United Kingdom, that the Italian Appli-
cation is still valid and subsisting, the Court has jurisdiction to
determine on their merits the questions put to the Court in the
Italian Application”. Here he was clearly not saying that the Court
could not adjudicate upon the second Submission until it had
adjudicated upon the first.

4. Counsel for the Italian Government, for his part, in his first
address to the Court, on May roth—while not modifying the

26
MONETARY GOLD (DISS. OPIN. BY JUDGE LEVI CARNEIRO) 42

Submissions contained in the Application, which I have already
referred to—said that he agreed with the United Kingdom Govern-
ment that the second Submission was dependent upon the first
and could not be dealt with before adjudication upon the first.
However, he refused to accept the consequence which the Agent
of the United Kingdom Government contended flowed therefrom,
namely, that the Italian Application was in effect cancelled or
withdrawn.

In his last address to the Court, on May 13th, Counsel for the
Italian Government was much less categorical when he referred
to the alleged dependence of the second Submission on the first ;
he in fact said:

“The second claim is distinct from the first. In the Washington
Statement it is said that the question of priority would be submitted
to the Court if this issue should arise. Consequently, it would seem
that according to the Statement itself this second question is
dependent upon the first. In any event, if the Court considers
that the question of Priority between the respective rights of the
United Kingdom and Italy can be examined in a hypothetical
form, independently of the examination of the first Italian claim,
the awn Government, for its part, would have no objection” (my
italics).

At the same time, Counsel insisted upon the fact that the Appli-
cation had not been withdrawn.

5. It has been pointed out that the Washington Statement, with
reference to the question of priority, uses the words “‘if this issue
should arise’. It has been contended that, in the view of the
draftsmen of the Statement, the priority issue could only arise
after the Italian claim had been held to be well-founded. This is
not so. The Statement provided for the possibility of the question
being put, but it did not specify when it would arise. The Italian
Government has in fact submitted the question to the Court at
the same time as the other, and the Respondents have raised no
objection to this course, as I have already pointed out.

6. The only way of ensuring that neither question is dealt with
—with the unevitable consequence of setting aside both questions—
would be to regard the Application as cancelled or to reject it.
It was because the United Kingdom Agent realized this that he
asked the Court to hold that, by reason of the interdependence
of the two questions, the whole Application was cancelled. The
Court has indeed held that the questions are interdependent, but
it has refused to regard the Application as cancelled. It has finally
refrained from adjudication upon the second Submission in the
Application, on the ground that the Parties themselves had asserted
the dependent character of this Submission.

27
MONETARY GOLD (DISS. OPIN. BY JUDGE LEVI CARNEIRO) 43

The statements of the Parties have not, however, led me to a
similar interpretation. In my opinion, if the two questions were
inseparably interlinked, the presence of Albania would be just as
necessary to make it possible for the Court to deal with the first
as with the second. But this proposition was not stated either by
the Italian Government, by the Respondent Governments or in the
Judgment of the Court.

I do not, in any event, consider that the Court would be obliged
to follow any agreement in this connection thought to have been
arrived at by the Parties. The Court, having unequivocally decided
that the Application has neither been withdrawn nor cancelled,
retains full freedom to decide for itself the question of the inter-
dependence of the two Submissions in this Application.

7. If anything remains of the Application, it is its second
Submission. If the Court is without jurisdiction in respect of the
question raised by the first Submission—on the ground that Italy
has not even named Albania, which is directly interested in this
question as a Respondent—in respect of the second Submission,
Albania has no interest. whatsoever.

In short, the priority issue has been submitted—and remains
submitted—-to the Court, and the only States directly interested
in its decision on this question are before the Court. In my opinion,
the Court cannot now refuse this decision on the ground that it
lacks jurisdiction to decide another and quite separate question
raised by the same Application. At the present stage of the proceed-
ings, the Court, in my opinion, having simply to decide the Prelim-
inary Question of its competence to adjudicate upon the first
Submission in the Application, is not entitled to go beyond this
and to hold, at the same time, that it has no jurisdiction to deal
with the second Submission.

Counsel for the Italian Government himself, in the document
entitled ‘Preliminary Question”, has indeed said that “the second
question would raise no problem concerning the jurisdiction of the
International Court of Justice”. At the same time, he asserted
that the Application had not been withdrawn, that is to say, that
its second Submission remained even if, at this stage of the pro-
ceedings, the first should be set aside.

8. Procedural considerations would have provided the Court
with a good reason for not at present setting aside the second
Submission of the Application; but there was a better ground
available to it for reserving consideration of, and a decision on, this
other question, that is, the question of priority. The question of
priority does not perhaps involve any dispute as to facts, but is
to be resolved simply in the light of legal rules. The Court could
have decided it, not by basing itself upon a hypothesis, but by

28
MONETARY GOLD (DISS. OPIN. BY JUDGE LEVI CARNEIRO) 44

dealing with it as a question of abstract law. It could have done
so, subject at most to one condition. It could have decided it quite
simply by recognizing the character of the two claims, without
prejudging the question of the validity of the claim which has not
as yet been established.

I think it unnecessary to recall the widespread and valuable
practice of “declaratory judgments” which is adopted in the United
States and many other countries. It will be enough to point out
that in all civilized countries there are laws governing the classifica-
tion of creditors—in cases of bankruptcy, concursus creditorum
following upon insolvency and what in France and other countries
is called “liquidation judiciaire” (compulsory winding-up). The
law strictly lays down orders of priority and of preference. In the
present case, the Court should determine whether there is any
ground for preference and the basis for priority. It would thus
indicate the legal rule to be applied.

In the majority of cases at least, priority is based neither upon
the date nor the amount of the debt, nor even upon the character
of its title, but rather on the nature of the right itself, its origin,
or the specific relationship which may exist between it and the
property of the debtor. In the present case, the Italian Government
alleges that the two competing rights are identical in origin and
of the same nature; it has already set out in the Application,
with great precision and clarity, the only argument which it
invokes in support of its claim to priority: it is that Albania’s
wrongful act as against Italy was earlier in date than Albania’s
wrongful act as against the United Kingdom. The Italian Govern-
ment further alleges that its right must benefit from a privilege
by virtue of Article 25 of the Convention of March 15th, 1925.
That is all. In the subsequent proceedings an opportunity would
have been given to the respondent Governments to contest these
allegations, and Albania might have decided to intervene (although
that country is not directly interested) and the Court could have
adjudicated upon the alleged right to priority even without having
previously recognized the validity of the Italian claim.

g. Such a decision would have provided a valuable contribution
to the solution of the controversy provoked by the question of the
allocation of the monetary gold. It would have been all the more
useful for having been given before the decision on the first question,
that of the validity of the Italian claim, which involves a number
of questions of fact and of law. Such a course might have avoided
the necessity for evidence and argument which would have ceased
to be relevant.

Anyone who studies the terms of the Submissions in the Appli-
cation of Italy must come to the conclusion that the second Sub-
mission must, as I have said, be adjudicated upon before the first.
How could the Court hold that the gold should be ‘‘delivered to

29
MONETARY GOLD (DISS. OPIN. BY JUDGE LEVI CARNEIRO) 45

Italy’—and that is what is asked in the Application—without
having previously found in favour of the right of the Italian claim
to priority ?

Moreover, whatever might have been the Court’s decision on the
second Submission, that decision would have provided the ‘‘Allied
Governments concerned” with a very valuable orientation. If the
Court had found that the United Kingdom claim was entitled to
priority, the question raised in the first Submission of the Appli-
cation would have lost all practical interest, since, according to
statements which have not been disputed, the amount of the United
Kingdom claim is more than twice the value of the gold in question.
If, on the other hand, the Court had upheld the right to priority
of the Italian claim, it would have given the three Powers the
assurance (for which they have asked in one sense or the other)
that the delivery of the gold to the United Kingdom could not
be validly effected before final adjudication upon the merits of the
Italian claim. Finally, there was a third possible solution, that
neither claim might be held to be entitled to priority ; in that case,
if the Italian claim were held to be well-founded, there would be a
proportionate allocation of the gold between the two creditors, it
then being possible to deliver at once to the United Kingdom such
portion as was due to it.

In any event, the Court, by adjudicating upon the second
Submission in the Application, would make the solution of the
dispute more simple, clearer and more straightforward. On the
other hand, I fear that its refusal to intervene in any way, after
the three “Allied Governments concerned” have addressed them-
selves to the Court ‘asking it to give them guidance’, may well
give rise to a deadlock or aggravate the difficulties.

(Signed) LEvI CARNEIRO.

30