PUBLICATIONS DE LA COUR PERMANENTE DE JUSTICE
INTERNATIONALE

SERIE B — N° 18
‘Le 26 août 1930

RECUEIL DES AVIS CONSULTATIFS

LA VILLE LIBRE DE DANTZIG ET
L'ORGANISATION INTERNATIONALE
DU TRAVAIL

PUBLICATIONS OF THE PERMANENT COURT
: OF INTERNATIONAL JUSTICE.

SERIES B.— No. 18
August 26th, 1930

COLLECTION OF ADVISORY OPINIONS
FREE CITY OF DANZIG
. AND INTERNATIONAL LABOUR
ORGANIZATION

LEYDEN
A. W. SIJTHOFF’S
PUBLISHING COMPANY
1930

LEYDE
SOCIÉTÉ D’EDITIONS
A. W. SIJTHOFF
1930

PERMANENT COURT OF INTERNATIONAL JUSTICE

1930.

EIGHTEENTH (ORDINARY) SESSION | nen a

; Docket XVIII. 2.
Present :
MM. ANZILOTTI, President,
HUBER, Vice-President,

LODER,
NYHOLM,
DE BUSTAMANTE,
ALTAMIRA, \ Judges,
ODA,
FROMAGEOT,

Sir CECIL Hurst,

M. Yovanovitcu, Deputy- Judge.

ADVISORY OPINION No. 18.

FREE CITY OF DANZIG
AND INTERNATIONAL LABOUR ORGANIZATION.

On May 15th, 1930, the Council of the League of Nations
adopted the following Resolution :

“The Council of the League of. Nations has the honour
to request the Permanent Court of International Justice,
in accordance with Article 14 of the Covenant, to give
an advisory opinion upon the following question:

‘Is the special legal status of the Free City of
Danzig such as to enable the Free City to become
a Member of the International Labour Organization ?’

The Council authorizes the Secretary-General to sub-
mit the present request to the Court, to give all assist-
ance necessary in the examination of the question and,
if necessary, to take steps to be represented before the

’ Court.
ADVISORY OPINION No. 18 5

The International Labour Office is requested to afford
the Court all the assistance which it may require in the
consideration of the question hereby submitted.”

In pursuance of this Resolution, the Secretary-General sub-
mitted to the Court, also on May 15th, a Request for an
advisory opinion in the following terms:

“The Secretary-General of the League of Nations,

in pursuance of the Council Resolution of May 15th,
1930, and in virtue of the authorization given by the
Council,

has the honour to submit to the Permanent Court of
International Justice an application requesting the Court,
in accordance with Article 14 of the Covenant, to give
an advisory opinion to the Council on the question which
is referred to the Court by the Resolution of May 15th,
1930 (see attached text). |

The Secretary-General will be prepared to furnish any
assistance which the Court may require in the examina-
tion of this matter, and will, if necessary, arrange to be
represented before the Court.”

The Request was accompanied by the text of the report
upon which the Council adopted its Resolution above men-
tioned.

Subsequently, the. Secretary-General also sent the minutes
of the meeting at which this Resolution was adopted, and
further—at the request of the Director of the International
_ Labour Office—the text of the documents in the possession of
that Office concerning the desire of the Free City to become
a Member of the International Labour Organization, namely :
two memorials emanating from the Danzig Senate; two letters
from the Polish member of the Governing Body of the Inter-
national Labour Office to the Director of the Office, and
extracts from the minutes of two meetings of the Governing
Body.

In conformity with Article 73, No. 1, paragraph 1, of the
Rules of Court, the Request was communicated to the Members
of the League of Nations and to States entitled to appear
before the Court. The Registrar further sent to the Senate
of Danzig, to the Polish Government and to the Director of
the International Labour Office, which were regarded by the
ADVISORY OPINION. No. 18 6 .

President of the Court—the latter not being in session—as
likely, in accordance with the terms of Article 73, No. 1,
paragraph 2, of the Rules, to be able to furnish information
on the question in regard to which the Court’s opinion was
sought, a special and direct. communication informing them
that the Court was prepared to receive from them written
statements and, if desired, to hear oral statements made on
their behalf at a public hearing to be held for this purpose.

The Registrar also addressed, on May 28th, 1930, to all
States or Members of the League stated by the Director of the
International. Labour Office to be, at that date, Members of
the International Labour Organization, a communication draw-
ing their attention to their rights under Article 73, No. 1,
paragraph 3, of the Rules of Court!

By an order made on May roth, 1930, the President of the
Court fixed Monday, June 30th, 1930, as the date by which
written statements, if any, were to be filed with the Registry of
the Court; at the request of the Free City of Danzig, this
time was extended, by means of an order dated June 28th,
1930, until Thursday, July roth, 1930. By that date, written
statements had been deposited with the Registry on behalf of
the Senate of the Free City, of the Polish Government and
of the International Labour Office. |

The Court, in the course of public sittings held on August 4th,
5th, 6th and 7th, heard the oral arguments of M. Kaufmann
on behalf of the Danzig Senate, M. Rundstein on behalf of
the Polish Government, and MM. Albert Thomas and Morellet
on behalf of the International Labour Office. —

in addition to the statements and observations of the
Governments and Organization concerned, and to the docu-
ments transmitted by the Secretary-General of the League of
Nations, as mentioned above, the Court has had before it
the collection of documents relating to the preparation of the
Convention concluded between the Free City and Poland

1 “Should any State or Member referred to in the first paragraph have
failed to receive the communication specified above, such State or Member
may express a desire to submit a written statement, or to be heard; and
the Court will decide.”
ADVISORY OPINION No, 18 7

on November gth, 1920, the collection of international agree-
ments concluded by or on behalf of the Free City, and lastly
the collection of decisions rendered by the High Commissioner
of the League of Nations at Danzig.

I.

The above-mentioned Request for an advisory opinion was
submitted to the Court in the following circumstances :

As early as the first half of 1929, the Senate of the Free
City of Danzig would seem to have taken steps with a view
to the admission of the Free City as a Member of the Inter-
national Labour Organization.

In fact, the documents submitted to the Court include a
memorial dated May rith, 1929, emanating from the Danzig
Senate and purporting to set forth the considerations which
actuated the Senate in taking certain steps—to which refer-
ence is made--with a view to obtaining membership of
the International Labour Organization. These considerations
were, in the first place, its wish to adhere to certain agree-
ments prepared by International Labour Conferences, and in
the second place its conviction that unless the Free City
were a Member of the Organization, if it did so adhere, the
effect of such adhesion would be merely that of a Danzig
local legislative measure.

However that may be, by a letter dated January 2oth,
1930, the Polish member of the Governing Body of the
International Labour Office requested the Director of the
Office to place on the agenda for the forty-seventh Session
of the Governing Body an item concerning the ‘request
of the Free City of Danzig to be allowed to adhere to the
International Labour Organization’; to this letter the Danzig
memorandum of May 11th, 1929, was attached.

By a further letter, dated March 27th, 1930, the Polish
member sent the Director a further memorial by the Scnate
of the Free City, dated March 15th, 1930, setting forth the
legal grounds on which the Free City based its request for
admission.
ADVISORY OPINION No. 18 8

In his two letters, the Polish member reserved the right

to submit to the Governing Body a detailed statement of
the question at issue, or to give his opinion on the conten-
tions set forth in the memorials filed on behalf of the Free
City. .
The request of Danzig was duly placed on the agenda
for the forty-seventh Session of the Governing Body, and the
matter came up for discussion there on February 3rd, 1930.
On that occasion it was understood that a legal memorandum
on the question of the admission of the Free City of Danzig
would be submitted by the Office to the Governing Body
at its forty-eighth Session.

This memorandum has been communicated to the Court
by the Polish Government; subsequently, the Director of
the International Labour Office, being apprised of this fact,
filed with the Court an extract from a letter which he had
received from the German member of the Governing Body
‘and in which certain reservations and observations were made
in respect of the contents and conclusions of the memorandum
‘emanating from the International Labour Office.

The Labour Office memorandum submitted that the question
whether, from the legal point of view, the Free City possessed
the capacity to become a Member of the Labour Organiz-
ation should be referred to the Court, which alone was
capable of solving the difficult legal problem involved. It
‘was also submitted that this course could be adopted in
view of the wide terms of Article 423 of the Versailles Treaty,
and that the precise terms of the question to be placed before
the Court might be as follows:

“Is the special legal status of the Free City of Danzig
such as to enable the Free City to become a Member
of the International Labour Organization ?”

The matter again came before the Governing Body of the
International Labour Office at its forty-eighth Session, and,
on April 26th, 1930, it decided, after a discussion—no member
voting against the motion—to cause the question set forth
in the Labour Office memorandum to be submitted to the
Court for an advisory opinion.

Accordingly, the Director of the International Labour Office
sent to the Secretary-General of the League of Nations the
ADVISORY OPINION No. 18 9

same day a letter in which, after stating that the Governing
Body “‘had unanimously decided, in conformity with Article 423
of the Treaty of Versailles’, to submit to the Court
the question reproduced above, the Director requested the
Secretary-General to bring the decision of the Governing
Body before the Council of the. League of Nations with a
view to obtaining. from the Court an advisory opinion on
the question above quoted.

The Council of the League of Nations dealt with the
matter during its fifty-ninth Session and adopted, on May 15th,
1930—the President of the Danzig Senate, the High Commis-
sioner of the League at Danzig and the Director of the Inter-
national Labour Office having been invited to take their
places at the Council table—the Resolution reproduced at the
outset of this Opinion.

IT.

Attention must first be drawn to two points in connection
with the wording of the question upon which the Court
is asked to give an advisory opinion.

Firstly, it is the special legal status of the Free City of
Danzig upon which the stress is laid. It is the effect which
that special legal status may have upon the admissibility of
the Free City to the Labour Organization which is the sub-
ject of the question. The Court has therefore concluded
that it is only difficulties arising from circumstances. which are
peculiar to the status of the Free City that it is asked to
take into consideration:

Secondly, the question is so worded as to ask only whether
the Free City can become a Member of the Labour Organ-
ization. The Court has assumed that it is not intended
thereby to limit the question to that of the admissibility
of the Free City to the Organization, but to include the
question whether the Free City, if admitted, could participate
in the activities of the Labour Organization and fulfil the
duties incumbent upon its Members. .

The International Labour Organization was established by
Part XIII of the Treaty of Versailles of June 28th, 1019. It
ADVISORY OPINION No. 18 IO

is in that part of the Treaty that one would, therefore, expect
to find the rules regulating the admission of Members to the
Organization and prescribing the qualification for membership.
The only provision however connected with the admission and
qualification of Members is the second paragraph of Article 387,
which reads as follows:

“The original Members of the League of Nations shall
be the original Members of this Organization, and here-
after membership of the League of Nations shall carry
with it membership of the said Organization.”

It is not impossible that the intention of the Parties to
the Treaty of Versailles was that membership of the League
of Nations and membership of the Labour Organization should
coincide, and that no State or community should be a Member
of the Labour Organization unless it was also a Member of
the League. This question, however, is not one which is
connected with the special legal status of Danzig. It has not
been dealt with in the written statements nor in the oral
arguments addressed to the Court, and therefore the Court
has not taken it into consideration for the reasons given
above. The case has been considered solely from the point
of view of whether the special legal status of the Free. City
is compatible with membership of the Labour Organization.
But the fact that the Court has given its answer to the ques-
tion upon this basis must not be taken as prejudging in any
way its opinion upon the larger question, if at any time that
question should be put to it.

The Free City of Danzig came into being as a result of the
peace settlement effected by the Treaty of Versailles.

By Article 102, the Principal Allied and Associated Powers
agreed to establish the territory there defined as a Free City,
and declared that it was to be placed under the protection
of the League of Nations.

By Article 103, provision was made for the elaboration of
a constitution for the Free City in agreement with a High
Commissioner to be appointed by the League. This constitu-
tion was to be placed under the guarantee of the League.

By Article 104, the Principal Allied and Associated Powers
pledged themselves to negotiate a treaty, to which Poland
ADVISORY OPINION No. 18 CII

and the Free City were to be the Parties, and which was
to come into force simultaneously with the establishment of
the Free City, for the purpose of securing to Poland certain
rights, mainly of an economic character, within the territory
of the Free City. Paragraph (6) of this article stated that
the treaty was to provide that the Government of Poland
should undertake the conduct of the foreign relations of
the Free City.

The Treaty referred to in Article 104 was in fact concluded
between Poland and Danzig and is dated November gth, 1920.
It is known as the Treaty or Convention of Paris. Its provi-
sions repeat and amplify in some respects the stipulations _
of Article 104 of the Treaty of Versailles; but, so far as
concerns provisions which are to be found in both Treaties,
their repetition in the Treaty of Paris does not vary the fact
that the Treaty of Versailles is the source of the rights con-
ferred on Poland in accordance with Article 104, nor does it
alter the fact that, so far as these rights involve a limitation
on the independence of the Free City, they constitute organic
limitations which are an essential feature of its political
structure. °

The special juridical status of the Free City is seen from
the above to comprise two elements: the special relation to
the League of Nations, by reason of its being placed under
the protection of the League and by reason of the guarantee
of the constitution, and the special relation to Poland, by
reason of the conduct of the foreign relations of the Free
City being entrusted to the Polish Government.

The Principal Allied and Associated Powers carried out
their mandate under Article 102 of the Treaty of Versailles
and constituted the Free City of Danzig, ‘on the terms and
conditions laid down in the said Treaty”, by a decision which
was dated October 27th and was to come into force on Novem-
ber 15th, 1920; it was accepted by the representatives of
Danzig on November oth. |

The constitution of the Free City had meanwhile been
elaborated by a Constituent Assembly in agreement with the
High Commissioner of the League, and on November 17th
of the same year a decision was taken by the Council of the
League placing the Free City under the protection of the

2
ADVISORY OPINION. No. 18 I2

League and giving the guarantee of the League to its consti-
tution, as provided in Articles 102 and 103 of the Treaty of
Versailles. At the same time, the Council directed certain
amendments to be introduced into the constitution, in order
to make it plain that the provisions of the constitution did
not override the right of Poland, under Article 104 (6) of
the Treaty of Versailles, to conduct the foreign relations of
the Free City.

The precise scope of the protection of the Free City by
the League and of the guarantee of its constitution have
not been exhaustively defined.

The’ general effect of the reports ‘and resolutions adopted
by the Council of the League, such as those of November 17th,
1920, and March 2nd, 1921, is to show that the duty of the
League is to ensure the continued existence of the Free City
on the footing on which it was established in accordance
with the Treaty of Versailles, and that it was in order to
enable the League to achieve this purpose that the Free
City was placed under its protection and the constitution
placed under its guarantee. Accordingly, the Council has
declared that it is bound to ensure orderly, peaceful and stable
government at Danzig, to protect it from outside aggression
and to see that without the consent of the League no funda-
mental change is made in the Treaty of Paris, nor any
change in the constitution of the Free City. The protection
of the Free City and the guarantee of its constitution would
justify such claims. They would not prevent the Free City
from becoming a Member of the Labour Organization.

No detailed stipulations were inserted in the Treaty of
Paris regulating the conduct by the Polish Government
of the foreign relations of the Free City. The principle
laid down in Article 104 (6) of the Treaty of Versailles was
repeated. In consequence, many differences of opinion as to
foreign affairs arose between Poland and the Free City, but
a practice, which seems now to be well understood by both
Parties, has gradually emerged from the decisions of the
High Commissioner and from the subsequent understandings
ADVISORY OPINION No. 18 13

and agreements arrived at between the Parties under. the
auspices of the League.

It is now common ground between Poland and the Free
City that the rights of Poland as regards the conduct of the
foreign relations of the Free City are not absolute. The
Polish Government is not entitled to impose a policy on the
Free City nor to take any step in connection with the foreign
relations of the Free City, against its. will.

On the other hand, the Free City cannot call upon Poland
to take any step in connection with the foreign relations of
the Free City which are opposed to her own policy. As the .
High Commissioner said in his decision of December r7th,
1921, if Poland were obliged to do so, she would come under
the domination of the Free City, and this was certainly not
contemplated by the Treaty of Versailles. .

The result is that, as regards the foreign relations of the
Free City, neither Poland nor the Free City are completely
masters of the situation. The Free City is entitled to care
for. her own interests and to see that nothing is done which
is prejudicial to them. Poland is entitled to care for her
own interests and to refuse to take any action which would
be prejudicial to them.

Other decisions of the High Commissioner and agreements
between Poland and the Free City have regulated the repre-
sentation of the Free City at international conferences and
_ the manner in which correspondence between the Free City
and foreign States is to be conducted. It has also been agreed
that where, with the concurrence of the Polish Government,
the Free City has become a Party to a convention which
provides for direct correspondence or intercourse between the
technical organizations of the contracting States, the Polish
concurrence in the Free City becoming a Party to the conven-
tion implies Polish consent to direct communication between
the technical organizations of the Free City and those of other
States. | |

The way in which the International Labour Organization
carries on its work has been explained to the Court in broad
ADVISORY OPINION No. 18 14

outline in the written Statement filed by the International
Labour Office and in the oral argument of the Director. It
is clear that the activities of the Labour Organization cover
a wide field, and that the lines on which they are carried on
are novel in character.

The nomination of delegates to a Labour Conference, the
way in which such delegates vote at a Conference, the method
by which majority decisions of a Conference are embodied in
recommendations or draft conventions, the duty imposed on
Members to submit such draft conventions to the “competent
authorities’. of their country and to ratify the draft conven-
tions if they are approved by these “competent authorities’,
the method by which failure to observe the provisions of a
convention can be made the subject of representations or
complaints, of enquiry by a commission, of legal proceedings
and of sanctions, all present features which differ from the
proceedings of the ordinary diplomatic conference, from the
way in which conventions drawn up at such conferences are
brought into force and from the method by which a contract-
ing Party to any such convention can secure redress if his
interests are prejudiced by a violation of its terms by another
Party.

The arrangements now in force as to the representation
of the Free City at international conferences, as to the con-
duct of correspondence and as to direct contact between tech-
nical organizations in the Free City and in other States,
show that at the time when these decisions of the High
Commissioner were given, or when the subsequent agreements
were concluded, neither Party had in view the participation
of the Free City in the work of the Labour Organization.
These arrangements could not as they stand be made applic-
able to any such participation, and they cannot be regarded
as applying to the circumstances which would arise if the
Free City were admitted to the Labour Organization.

The question whether the special juridical status of the Free
City is compatible with membership of the Labour Organization
ADVISORY OPINION No. 18 15

must, therefore, be considered without reference to the
above arrangements, and must be dealt with on the footing
that, as the result of the Treaty of Versailles, the conduct
of the foreign relations of the Free City is entrusted to the
Government of Poland, and that in consequence the Free
City is not in a position to oblige the Polish Government
to take any action in the conduct of those foreign relations
which is contrary to the interests of Poland herself.

It is unnecessary for the Court, even if it were in a posi-
tion to do so, to make an exhaustive analysis of the various
activities of the Labour Organization in order to determine
which of them fall within the category of foreign relations.
A proportion may be assumed to fall wholly within the dom-
estic sphere, but it is impossible to avoid the conclusion that
some of the steps which a Member of the Labour Organization
would take—some even which it might be bound to take—in
pursuing the normal activities of membership would fall within
the sphere of foreign relations. Such acts as the ratification
of a draft convention or the filing of a complaint against
another Member State for failure to observe the provisions
of a convention must clearly belong to the field of foreign
relations. The Free City as a Member of the Labour Organ-
ization could not take any such steps itself. It would be
obliged to use the Polish Government as its intermediary,
and therefore in all such cases Polish consent would be
necessary, because the Polish Government would be entitled
to refuse to take these steps on behalf of the Free City if
they were prejudicial to important interests of the Polish
State.

The Court has not found any provision in Part XIII
which absolves a Member of the Labour Organization from
complying with the obligations of membership or excuses it
from participating in the normal activities of the Organization
if it cannot first obtain the consent of some other Member of
the Organization. Apart therefore from any such possible diffi-
culties as those referred to at the beginning of this Opinion,
ADVISORY .OPINION No. 18 16

the Court considers that the Free City of Danzig could |
not participate in the work of the Labour Organization until
some arrangement had been made ensuring in advance that
no objection could be made by the Polish Government to
any action which the Free City might desire to take as a
Member of that Organization.

If such an agreement were concluded between Poland and
the Free City of Danzig, the fact that the conduct of the
foreign relations of the Free City is entrusted to the Polish
Government would not constitute an obstacle to the Free
City becoming a Member of the Labour Organization.

It is not for the Court to indicate the provisions which
should be inserted in any such agreement, but it is neces-
sary to point out that, if the agreement involved any modi-
fication of the special legal status of the Free City, it might
be subject to a veto under Article 6 (2) of the Treaty of
Paris, and therefore it might be desirable that it should not
be concluded without the concurrence of the Council of the
League. .
= No such agreement exists at the present moment, and
the Court feels bound to answer the question upon which it
is asked to give an advisory opinion on the basis of the
existing situation. |

FOR THESE REASONS,
The Court,

by six votes to four,
is of opinion

that the special legal status of the Free City of Danzig

is not such as to enable it to become a Member of the Inter- .

national Labour Organization.

Done in English and in French, the English text being
authoritative, at the Peace Palace, The Hague, this twenty-
sixth day of August, nineteen hundred and thirty, in two
copies, one of which is to be deposited in the archives of the
ADVISORY OPINION No. I8 | 17

Court, and the other to be forwarded to the Council of the
League of Nations.

(Signed) D. ANZILOTTI,
President.

(Signed) À. HaMMARSKJOLD, |
Registrar.

MM. Anzilotti, President, and Huber, Vice-President, declar-
ing themselves unable to concur in the Court’s opinion, and
availing themselves of the right conferred by Article 71 of
the Rules of ‘Court, have delivered the separate opinions
which follow. .

M. Loder, former President, availing himself of the right
conferred by Article 71 of the Rules of Court, has attached
to the opinion this statement of his dissent.

(Initialled) D. A.
(Initialled) À. H.


                            COUR INTERNATIONALE DE JUSTICE

                                RECUEIL DES ARRÊTS,
                         AVIS CONSULTATIFS ET ORDONNANCES

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                            ORDONNANCE DU 7 AVRIL 2021

                                   2021
                            INTERNATIONAL COURT OF JUSTICE

                              REPORTS OF JUDGMENTS,
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                     LAND AND MARITIME DELIMITATION
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                               ORDER OF 7 APRIL 2021

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                                                  Official citation:
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                                                    ORDONNANCE

                    DÉLIMITATION TERRESTRE ET MARITIME
                        ET SOUVERAINETÉ SUR DES ÎLES
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                     LAND AND MARITIME DELIMITATION
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                                                    7 APRIL 2021

                                                      ORDER

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                    192

                                    COUR INTERNATIONALE DE JUSTICE

        2021                                         ANNÉE 2021
       7 avril
     Rôle général
                                                       7 avril 2021
       no 179

                        DÉLIMITATION TERRESTRE ET MARITIME
                            ET SOUVERAINETÉ SUR DES ÎLES
                                       (GABON/GUINÉE ÉQUATORIALE)

                                                   ORDONNANCE

                    Présents : Mme Donoghue, présidente ; M. Gevorgian, vice-président ;
                               MM. Tomka, Abraham, Bennouna, Cançado Trindade,
                               Yusuf, Mmes Xue, Sebutinde, MM. Bhandari, Robinson,
                                Crawford, Salam, Iwasawa, Nolte, juges ; M. Gautier,
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                        La Cour internationale de Justice,
                       Ainsi composée,
                       Après délibéré en chambre du conseil,
                       Vu les articles 40 et 48 du Statut de la Cour et les articles 39, 40, 44, 46
                    et 48 de son Règlement,
                       Vu le « compromis entre la République gabonaise et la République de
                    Guinée équatoriale » conclu le 15 novembre 2016 (ci‑après le « compro-
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                        internationales invoqués par les Parties font droit dans les relations
                        entre la République gabonaise et la République de Guinée équatoriale
                        s’agissant de la délimitation de leurs frontières maritime et terrestre
                        communes et de la souveraineté sur les îles Mbanié, Cocotiers et
                        Conga » ;

                    4

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                    193 	    délimitation et souveraineté (ordonnance 7 IV 21)

                        Considérant que l’article 6 du compromis dispose que « [l]e présent
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                    Règlement de la Cour, le Gouvernement de la République gabonaise a
                     fait savoir à la Cour qu’il avait nommé comme agent S. Exc. Mme Marie‑
                     Madeleine Mborantsuo et comme coagents M. Guy Rossatanga‑Rignault,
                     M. Guillaume Pambou Tchivounda, S. Exc M. Serge Thierry Mickoto
                     Chavagne et S. Exc. Mme Liliane Massala, et que le Gouvernement de la
                     République de Guinée équatoriale a informé la Cour qu’il avait pour sa
                     part désigné S. Exc. M. Carmelo Nvono Nca en qualité d’agent ;
                        Considérant que, aux termes du paragraphe 1 de l’article 3 du compro-
                     mis, les Parties
                        « conviennent, sans préjudice de la charge de la preuve, que le nombre
                        et l’ordre de présentation des pièces de procédure seront régis par les
                        dispositions suivantes :
                        a) Une des Parties dépose la première pièce de procédure au plus tard
                            sept mois après la date de notification du présent compromis au
                            greffier de la Cour ;
                        b) L’autre Partie dépose la deuxième pièce de procédure au plus tard
                            sept mois après avoir reçu du greffier communication de la pre-
                            mière pièce de procédure en copie certifiée conforme ;
                        c) La Partie qui a déposé la première pièce de procédure dépose la
                            troisième pièce de procédure au plus tard cinq mois après avoir
                            reçu du greffier communication de la deuxième pièce de procédure
                            en copie certifiée conforme ;
                        d) La Partie qui a déposé la deuxième pièce de procédure dépose la
                            quatrième pièce de procédure au plus tard cinq mois après avoir
                            reçu du greffier communication de la troisième pièce de procédure
                            en copie certifiée conforme » ;
                       Considérant que, au cours d’une réunion que la présidente de la Cour
                    a tenue par liaison vidéo avec les agents des Parties le 30 mars 2021,
                    conformément à l’article 31 du Règlement, l’agent de la République gabo-
                    naise a indiqué que son gouvernement était d’avis que la République de
                    Guinée équatoriale serait mieux disposée à déposer la première pièce de
                    procédure et que la République gabonaise déposerait la deuxième pièce ;
                    et que l’agent de la République de Guinée équatoriale a fait savoir que
                    son gouvernement acceptait de déposer la première pièce ;
                       Compte tenu de l’accord des Parties,
                      Fixe comme suit les dates d’expiration des délais pour le dépôt des pre-
                    mières pièces de la procédure écrite :

                    5

4 Ord_1223.indb 6                                                                                4/08/22 08:31

                    194 	     délimitation et souveraineté (ordonnance 7 IV 21)

                      Pour le mémoire de la République de Guinée équatoriale, le 5 octobre
                    2021 ;
                      Pour le contre-mémoire de la République gabonaise, le 5 mai 2022 ;
                        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 sept avril deux mille vingt et un, 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 gabo-
                    naise et au Gouvernement de la République de Guinée équatoriale.

                                                                            La présidente,
                                                                 (Signé) Joan E. Donoghue.
                                                                              Le greffier,
                                                                  (Signé) Philippe Gautier.

                    6

4 Ord_1223.indb 8                                                                                4/08/22 08:31

                     ISBN 978-92-1-003885-0

4 Ord_1223.indb 12                            4/08/22 08:31


113

OPINION INDIVIDUELLE COMMUNE DE MM. LES JUGES
KOROMA ET VERESHCHETIN

[Traduction]

Objet de la demande en indication de mesure conseïvatoire du Congo —
« Circonstances» déterminantes à prendre en considération au titre de lar-
ticle 41 — Degré de validité de la distinction établie entre le préjudice causé aux
droits allégués en tant que tels et les conséquences de leur violation — Nécessité
de tenir compte de tous les aspects de la question en litive.

1. Nous avons voté en faveur de l'ordonnance en dépit de nos réserves,
dont certaines sont exposées ci-après.

2. Dans sa requête, la République du Congo affirme que l'ouverture
de procédures pénales contre les responsables du maintien de l’ordre
public sur son territoire, ainsi que contre son chef d Etat, emporte viola-
tion de ses droits en tant qu’Etat souverain et de l’immunité de juridic-
tion dont jouit un chef d’Etat dans un pays tiers, tels que reconnus par le
droit international et la jurisprudence de la Cour.

3. Le Congo, qui ne cherche pas seulement à obtenir l’annulation de
ces actes de procédure, a également demandé à la Cour d’indiquer une
mesure conservatoire tendant à faire ordonner la sispension immédiate
des procédures pénales ouvertes par la France. A cet égard, le Congo a
fait valoir que leur poursuite pourrait entrainer un préjudice irréparable
sous la forme d’un coup d'Etat masqué, d’une déstabilisation de ses ins-
titutions nationales et de la reprise d’une guerre don: le pays vient à peine
de sortir.

4. Selon nous, la Cour n’a pas accordé suffisamment de poids au
risque de «préjudice irréparable» qui pourrait être sorté au Congo dans
l'éventualité où il ne serait pas mis fin aux poursuites pénales. La Cour
s’est contentée d'indiquer que

«il [iui] apparaît ... au vu des éléments d’inforraation qui lui ont été
soumis, qu’il n'existe a l'heure actuelle, en ce qui concerne le prési-
dent Sassou Nguesso, aucun risque de préjudice irréparable justifiant
l'indication d'urgence de mesures conservatoires ; et que, en tout état
de cause, il n’est pas davantage établi qu’un te: risque existe pour le
ministre de l’intérieur du Congo, le général Oba, pour lequel le
Congo fait également valoir des immunités dans sa requête» (ordon-
nance, par. 35).

La Cour a également dit que «le préjudice irréparable dont se prévaut le
Congo ... ne serait pas causé [aux droits invoqués dans la requête] en tant
que tels», tout en reconnaissant que «ce préjudice pourrait, dans les cir-
constances de l’espèce, être tel qu’il affecterait de manière irréparable les

15
CERTAINES PROCÉDURES PÉNALES (OP. IND. COM.) 114

droits énoncés dans la requête». La Cour a notamment relevé qu’elle
n'avait pas été informée de la manière dont, concrètement, l’ouverture de
procédures pénales avait pu affecter la stabilité interre du Congo (ordon-
nance, par. 29). Pour ces raisons, elle n’a pas fait droit à la demande en
indication de mesures conservatoires.

5. Cette conclusion donne selon nous à penser que la Cour n’a pas
prêté une attention suffisante aux «circonstances» visées à l’article 41 du
Statut, lequel impose à la Cour de prendre en considération tous les
aspects, y compris les conséquences qui seraient susceptibles de résulter
du défaut d'indication de mesures conservatoires.

6. Certes, il ressort tant de l'esprit que de la lettre cle l’article 41 du Sta-
tut que toute décision en matière d'indication de mesures conservatoires
doit, en règle générale, être guidée par le souci de sauvegarder les droits
susceptibles d'être reconnus lors de l’examen au fond. Il n’en reste pas
moins que le préjudice risquant de résulter de la violation de ces droits peut
avoir des conséquences et des répercussions d’une portée autrement plus
vaste sur les intérêts politiques et juridiques de l'Etat en cause, dépassant
largement ses effets négatifs sur les seuls droits invoqués. Dans ces circons-
tances, l'indication de mesures conservatoires peut s'imposer non pas tant
au vu de l’imminence d’un préjudice irréparable susceptible d’être causé aux
droits invoqués qu’en raison des graves conséquence: que risquerait d’en-
traîner leur violation. Ce sont de telles considératioris qui nous semblent
avoir dans une large mesure fondé les décisions rendues par la Cour dans
nombre d’affaires où des mesures conservatoires ont été indiquées expres-
sément aux fins de prévenir l'«aggravation», l'«extension» ou l’«exacerba-
tion» du dommage déjà causé aux droits invoqués, alors même que le
risque de préjudice irréparable et immédiat aux droits en question n'était
pas toujours aussi évident qu’il ne l’est en l'espèce. Il ressort en outre de la
jurisprudence récente de la Cour qu'il est parfois inalaisé de distinguer
entre le préjudice causé par les conséquences de la violation des droits
invoqués et le préjudice porté aux droits eux-mêmes Les ordonnances en
indication de mesures conservatoires rendues par la Cour dans l'affaire de
la Convention de Vienne sur les relations consulaires (Paraguay c. Etats-
Unis d'Amérique), l'affaire LaGrand (Allemagne ©. Etats-Unis d'Amé-
rique) et l'affaire Avena et autres ressortissants mexica‘ns (Mexique c. Etats-
Unis d'Amérique), où des vies étaient en jeu, en fournissent une illustration.

7. Pour l’ensemble des raisons qui viennent d'être exposées, nous
nourrissons certaines réserves quant à la distinction que la Cour a, dans
les circonstances de la présente espèce, établie entre le préjudice porté aux
droits susceptibles d’être ultérieurement reconnus au Congo et le préju-
dice consécutif à la violation de ces droits (ordonnance, par. 29). Nous
n’entendons pas affirmer par là que la Cour aureit érigé une barrière
insurmontable entre ces deux catégories de préjudice ou de dommage,
car, comme elle l’a elle-même noté:

«ce préjudice [à savoir le dommage qui aurait été causé à «l’honneur
et à la considération des plus hautes autorités du Congo, ainsi qu'à

16

CERTAINES PROCÉDURES PÉNALES (OP. IND. COM.) 115

la stabilité interne du Congo, au crédit international de celui-ci et
aux relations d'amitié franco-congolaises» (ordonnance, par. 27)]
pourrait, dans les circonstances de l'espèce, être tel qu'il affecterait
de manière irréparable les droits énoncés dans la requête» (ordon-
nance, par. 29).

8. Selon nous, la Cour doit, lorsqu'elle examine une demande en indi-
cation de mesures conservatoires, peser tous les aspects pertinents de la
question dont elle est saisie, y compris la portée des conséquences préju-
diciables susceptibles d’être entraînées par la violation du droit invoqué.

{ Signé) Abdul G. Koroma.
(Signé) Vladler. S. VERESHCHETIN.

17


116

DISSENTING OPINION OF JUDGE CHAGLA

In my opinion the fifth and sixth objections of India should
prevail and the Court should hold that it has no jurisdiction to
entertain Portugal’s Application.

Fifth Objection

With regard to the fifth objection in my opinion it is now only
of academic importance, and I have nothing to add to what I have
already stated in my dissenting opinion on the Preliminary
Objections.

Sixth Objection

I have very little to add to what I said in my dissenting opinion
on the Preliminary Objections. I can sum up the objection in one
sentence. The real dispute is with regard to the obligation of India,
not with regard to her violation of that obligation; and the source
of that dispute is the conflicting views taken by India and Portugal
as to the true legal effect of the events from 1779 onwards. Thus’
put, it is clear that the situations and facts for the purpose of this
objection took place prior to 1930.

Further the Court has no jurisdiction to adjudicate upon facts
and situations which arose prior to the relevant date. Three aspects
of the matter may be considered. Parties may not be at divergence
with regard to these facts and situations, in which case no adjudi-
cation is called for as in the case of the Electricity case where there
was no dispute as to the Awards of the Tribunal. The second aspect
is where the facts and situations may be only part of ves gestae and
may not have any causal connection with the dispute. In this case
also adjudication in the strict sense is not called for. But the third
case is the case we have here. If there is a causal connection
between the facts and situations and the dispute or the facts and
situations are the source of the dispute, then the Court would be
adjudicating upon something which the State submitting to the
jurisdiction of the Court has expressly excluded from the Decla-
ration accepting the jurisdiction of the Court. This was the case in
the Morocco Phosphates case where the dahiy of 1921 was outside
the relevant period.

The object of this reservation ratione temporis is clearly to keep
ancient disputes outside the jurisdiction of the Court. In this case
the Court is being called upon to adjudicate upon the divergent
view of the Parties with regard to situations and facts which go
back 200 years. Let us take a practical view of the matter. India
is fortunately in a position to produce a vast volume of documentary

II4
117 RIGHT OF PASSAGE (DISS. OPIN. OF JUDGE CHAGLA)

evidence to resist Portugal’s claim and to demonstrate its hollowness.
But India would have been seriously prejudiced if the evidence had
not been preserved or had been destroyed. When India made her
Declaration in 1940 she definitely did not intend that matters and
situations which arose before 1930 and went back 200 years would
come before the International Court and she would be called upon
to explain and give an account with regard to them.

This is precisely the reason why the Court in the Phosphates in
Morocco case observed: “to preclude the possibility of the sub-
mission to the Court by means of an application of situations or
facts dating from a period when the State whose action was im-
pugned was not in a position to foresee the legal proceedings to
which these facts and situations might give rise”.

Portugal has sought to draw a distinction between source of right
and source of dispute—and she says that facts and situations prior
to 1930 deal with the source of Portugal’s right. There is a clear
fallacy in this argument. If there is a divergence or difference
between the Parties as to the very sources of the right claimed, then
it is clear that this divergence or differénce constitutes the source
of the dispute which is before the Court. In the Electricity case the
source of the right was the Awards of the Mixed Tribunal. There
was no difference or divergence between the parties with regard to
these Awards. It is precisely because of this that the Court held
that the date of the Awards was irrelevant for the purpose of
considering the ratione temporis limitation.

It is incorrect to suggest, as suggested by Portugal, that for the
purpose of the ratione temporis limitation the only factor that is
legitimate to consider is the unlawful acts of India about which
Portugal complains. These alleged unlawful acts are only the inci-
dents which brought the matter to a head and forced Portugal to
come to this Court. They can have no bearing on the controversy
between the Parties. And if the controversy goes back further than
1930, then the jurisdiction of the Court is clearly excluded.

Portugal urges that the dispute is about the right of passage and
its violation. That is strictly not correct. The substantial dispute
is about the right of passage. The question of violation is only
ancillary to the question of right. If there is no right, there can be
no violation. Violation merely constitutes the accrual of the cause
of action which entitled Portugal to come to Court.

Counsel for Portugal gave the instance of a debt and the failure
to pay the debt. In my opinion, if the debt was contracted before
the relevant date and the Court has to pronounce upon its validity,
then clearly the Court would have no jurisdiction by reason of
ratione temporis. If the debt was not disputed; then the position
would be different.

II5
118 RIGHT OF PASSAGE (DISS. OPIN. OF JUDGE CHAGLA)

It is contended by Portugal that such a wide construction of the
ratione temporis reservation would deprive the Court of jurisdiction
in most cases, because under international law most legal titles
arise before 1930, the date selected by most countries accepting the
compulsory jurisdiction of the Court. The fallacy underlying this
contention is that in most cases, legal titles are not disputed, as—
to refer once more to the Electricity case—the Awards of the Mixed
Tribunal were not disputed. '

It is unnecessary for me to point out the innumerable instances
prior to 1930 where Portuguese access to the enclaves gave rise to
divergence of opinion and even to actual disputes. Let me only
quote from a letter of the Governor of Goa dated 12 September 1859
(p. 175, Indian Annex to Counter-Memorial): “The ever-mooting
disputes which have for so long troubled the British and Portuguese
Governments.”

On the merits, in my opinion, India has substantially won. Al-
though I take the view that Portugal has no right of passage
whatever, inasmuch as the Court has found in favour of Portugal
a very limited right confined to private persons, goods and civil
officials, and inasmuch as India herself has stated that she has no
objection to the passage of private persons and goods, and the right
regarding civil officials is of little consequence and is also subject to
the regulatory power of the Government of India, I think that the
Judgment of the Court in the main vindicates the attitude taken
up by India in the controversy between herself and Portugal over
the question of the right of passage.

I should like briefly to state the reasons why I have come to the
conclusion that Portugal has failed to establish that she has any
right of passage as claimed by her.

The claim put forward by Portugal in this case is an extraordinary
and unprecedented one. She claims a right of transit from Daman
to her enclaves in Dadra and Nagar-Aveli through Indian territory.
She concedes that her right is without immunities—direct or in-
direct. She admits the complete and absolute sovereignty of India
over the territory over which she claims a right of transit. Her case
is that the right she claims does not lead to the dismemberment of
India’s sovereignty but only the acceptance by India of certain
obligations towards Portugal in the exercise of her sovereignty.
Portugal has refused to define the extent or the content of this right.
The purpose of this right, according to her, is to make it possible
to exercise her sovereignty in the enclaves and for that purpose to
maintain a liaison between Daman and the enclaves. She is unable
to tell the Court what the conditions or modalities of this right
should be—this, according to her, is for India to lay down, so long
as these do not conflict with her fundamental right to maintain a

116
119 RIGHT OF PASSAGE (DISS. OPIN. OF JUDGE CHAGLA)

liaison between Daman and the enclaves. The right she claims is
like a geometrical line between two points without any breadth.

It will be noticed that the subtle distinction drawn by Portugal
between dismemberment of sovereignty and limitation in the exer-
cise of sovereignty is difficult to substantiate. To the extent that
India is sovereign she must have complete, absolute and unrestricted
right to regulate the passage of goods, men and traffic—and
regulation must include complete prohibition. To the extent that
Portugal claims that India cannot prohibit her passage to the
enclaves it must inevitably mean the dismemberment of her sover-
eignty—it must involve a restraint and limitation of her sovereignty.

It is also difficult to understand how any right of transit can be
without any immunities whatever. This concession makes the right
even more unsubstantial than it already is. Portugal says that she
has no right to object to the manner in which India can regulate
this right. She can impose customs duties. She can prohibit the
entry of certain types of goods, she can insist on prior authorization
before arms or armed men can enter or leave the enclaves. These
are all immunities which are under the sole competence of India—
but she cannot completely cut off Portugal’s communications with
her enclaves. When one analyses the situation, in the ultimate
analysis, Portugal is in fact claiming a right of transit with immuni-
ties. She is claiming certain immunities which India cannot change
or abolish. India can prohibit this or that, she can regulate this or
that, but she cannot prohibit or regulate something else. What else
can this be except a claim of a right of transit with immunities,
however limited or restricted they may be? It is merely a futile
exercise in dialectics to say that Portugal does not wish to interfere
with India’s right to regulate the right of transit so long as India
does not make the exercise of that right impossible.

There is one further difficulty about the right which Portugal
claims. In order that the Court should award her that right, the
Court must be in a position clearly to define it—so that it would be
capable of being enforced on the one hand and of being complied
with on the other. But the right claimed by Portugal is a vague,
shadowy, unsubstantial and indefinite right—whose content and
modalities would change from time to time and whose enforceability
would depend upon circumstances as they change from day to day.
India would determine to what extent the right should be allowed
and even in certain eventualities to suspend it altogether. It would
then be for Portugal to complain of an unlawful act on the part of
India and bring the matter before the Court. So we have a grim

II7
120 RIGHT OF PASSAGE (DISS. OPIN. OF JUDGE CHAGLA)

prospect of unending litigations in this Court. May I be permitted
to quote a passage from Judge Lauterpacht’s latest book, which
very succinctly and very appropriately describes what I have just
been saying:

“It is in accordance with the true function of the Court that
the dispute submitted to it should be determined by its own
decision and not by the contingent operation of an attitude of
accommodation on the part of the disputants.”

One thing is clear—if Portugal gets from this Court what she is
asking, the dispute between India and Portugal will not be deter-
mined by its own decision. The Court will only be sowing seeds for
future disputes and discords.

The Court has consistently emphasized the necessity of finally
settling a dispute (see the case of Certain German Interests in Polish
Upper Silesia and also the Corfu Channel case).

The right claimed by Portugal lacks precision for another reason.
You have to reconcile it between the needs of Portugal to exercise
sovereignty and the regulating power of India to control and
regulate it.

Needs of Portugal is an entirely subjective concept and it is
impossible for the Court to declare a right which can be exercised,
not according to any criterion laid down by the Court, but according
to the subjective determination of Portugal, which determination
may vary from time to time and according to varying circumstances.

On the question of local custom it is undoubtedly true that
throughout the material period there was in fact transit between
Daman and the enclaves—there was a constant and almost con-
tinuous traffic of goods and men. If the establishment of a local
custom depends merely on a piling up of a large number of instances,
then undoubtedly local custom can be said to be established in this
case. But local custom under international law requires much more
than that. It is not enough to have its external manifestation proved ;
it is equally important that its mental or psychological element
must be established. It is this all-important element that dis-
tinguishes mere practice or usage from custom. In doing something
or in forbearing from doing something, the parties must feel that
they are doing or forbearing out of a sense of obligation. They must
look upon it as something which has the same force as law. If I
might put it that way, there must be an overriding feeling of
compulsion—not physical but legal. That is what the jurisprudence
on the subject calls the conviction of necessity. I do not wish to go
into the subtleties of this jurisprudence. But the language of the
Statute of the Court is clear and binding upon the Court. Article 38
(1) (2) lays down one of the sources of international law which the
Court shall apply in deciding disputes before it. It says: international
custom, as evidence of a general practice accepted as law.

118
I21I RIGHT OF PASSAGE (DISS. OPIN, OF JUDGE CHAGLA)

Now, from 1818 right down to 1954, there is not a single instance
on record where Portugal has claimed the transit or passage as a
right, or where Britain or Indie has admitted an obligation on their
part to grant it. When one goes through the details—set out in such
wealth in the pleadings—it is a case of permission or authcrization
granted by the Indian authorities, of permission or authorization
modified or even permission or authorization revoked and even
transit of certain types of goods and certain kinds of personnel
completely prohibited.

The record contains several instances of complete prohibition of
certain kinds of goods, and also of goods being made subject to the
payment of customs duty. See, for instance, the prohibition of salt
from Daman, the prohibition in British India of country liquor
and other articles connected with its manufacture from any Portu-
guese territory, and the complete prohibition of all imports by land
into Daman during the war years of 1939-1945.

The Barcelona Conference is important for the fact that, under
Article 14 of the Convention, it was implicit that separate and
special provisions with regard to enclaves, including the enclaves
we are considering in this case, were to be made by the countries
concerned. There was no suggestion at this Conference, by Por-
tugal, that she had any right of transit. The question was to be
regulated, not on the basis of any right but on the basis of an
agreement to be arrived at between Portugal and India.

It may be that Portugal realized the necessity of maintaining a
liaison with her enclaves. But Portugal’s necessity does not consti-
tute the conviction of necessity required for a local custom to which
effect can be given. There must be an equally clear realization on
the other side of an obligation to respect this necessity. And we
seek in vain to find any such realization in the whole of the record,
from 1818 till 1954, when both the enclaves were lost to Portugal.
Concessions were made from time to time, both by the British and
Indian Governments, but they were on the basis of either reciprocity
or good-neighbourliness; but never on the basis of accepting a past
practice as having the force of law.. The record clearly shows that
it was British interests, not a sense of obligation to the Portuguese,
that guided Indian officials. They were prepared to help the Portu-
guese but only if it was convenient to do so. When they did so
they were granting a request, not respecting a right.

At best and at the highest, Portugal has only established a series
of revocable acts of courtesy and accommodation on the part of
the British authorities.

The basis of the passage, as stated by Portugal herself, was the
rule of good neighbourhood and international co-operation—moral

IIg
I22 RIGHT OF PASSAGE (DISS. OPIN. OF JUDGE CHAGLA)

principles which lack a legal content (see the Portuguese Note to
Government of India of 11/2/54—Annex 40 to the Portuguese
Memorial). :

In my opinion, therefore, Portugal has failed to establish any
local custom even with regard to a limited right of passage. In the
result, she is not entitled to any relief and her Application should
be dismissed.

(Signed) M. C. CHAGLA.

120