                                   DISSENTING OPINION OF JUDGE YUSUF

       1. The Court has thrown wide open the gates of the Convention on the Elimination of Racial
Discrimination (hereinafter “CERD” or the “Convention”) to all kinds of claims that have nothing to
do with its provisions or with its object and purpose. Through this Order, claims under humanitarian
law have been given a home in CERD, whereas the law on the safeguarding of cultural heritage has
been brought within the scope of CERD. This unprecedented approach risks transforming the
Convention into a “fourre-tout”; a receptacle in which all sorts of asserted rights may be stuffed. It
may also turn the Convention into an all-encompassing instrument for those trying to establish the
jurisdiction of the Court whenever other legal grounds cannot be found for that purpose. This is the
reason for my dissent, which is further elaborated below.

        2. According to Article 41 of the Statute, provisional measures are to be indicated by the Court,
if it considers that circumstances so require, “to preserve the respective rights of either party”. To
this end, the Court does not need to establish definitively the existence of the rights claimed. The
Court must, however, satisfy itself that the rights sought to be protected may plausibly be grounded
in the applicable legal instrument or in the legal rules under which the claim is made. In other words,
and with regard to the present case, the acts complained of must plausibly constitute acts of racial
discrimination within the meaning of Article 1, paragraph 1, of the Convention, and must be capable
of falling within the scope of CERD.

       3. This is not the case, in my view, with respect to two distinct rights claimed by Armenia and
dealt with in the first and third subparagraphs of the dispositif: the right of “all persons captured in
relation to the 2020 Conflict who remain in detention” to be protected from violence and bodily
harm; and the right to have “Armenian cultural heritage, including but not limited to churches and
other places of worship, monuments, landmarks, cemeteries and artefacts” protected from acts of
vandalism and desecration.

       4. These rights are certainly worthy of protection. I am personally very sensitive to the humane
treatment of prisoners of war and other persons arrested by State authorities, whether it is in relation
to an armed conflict or not, as well as the safeguarding and preservation of cultural heritage sites.
However, these matters fall under the scope of other instruments of international law, not CERD. As
such, they raise questions of law over which the Court has no jurisdiction under Article 22 of CERD.

       5. Armenia requested the Court to indicate provisional measures for the release and
repatriation as well as for the protection from alleged inhuman treatment or bodily harm of the
persons it identified as Armenian prisoners of war and civilian detainees taken by the Azerbaijani
forces during the armed conflict of 2020. To this end, Armenia has provided the Court with a list of
45 persons detained by Azerbaijan, whom it characterizes as “All Armenian nationals”, “prisoners
of war and civilians of Armenian ethnicity and nationality” 1 or “Armenian servicemen and
civilians” 2 (emphases added).

       1 See Annex 68 of Additional Annexes filed by Armenia, “Letter from Yeghishe Kirakosyan, Representative of the

Republic of Armenia before the European Court of Human Rights to the Registrar of the International Court of Justice
(6 October 2021), attaching Table of 45 POWs and civilians acknowledged by Azerbaijan as of 6 October 2021”. By a
letter dated 22 October 2021, the Agent of Armenia informed the Court that “on 19 October 2021, five out of the
45 prisoners of war and civilians whose captivity has been acknowledged by the authorities of Azerbaijan were repatriated
to the Republic of Armenia”.
       2 Application of Armenia, paras. 105-106 and 111. See also CR 2021/20, p. 58, para. 12 (Martin); CR 2021/22,

pp. 19-20, paras. 3-8 (Murphy) (referring to “Armenian soldiers”).

                                                             -2-

       6. Both Armenia and Azerbaijan are parties to the Third Geneva Convention relative to the
Treatment of Prisoners of War (hereinafter the “Third Geneva Convention”) and the Fourth Geneva
Convention relative to the Protection of Civilian Persons in Time of War (hereinafter the “Fourth
Geneva Convention”). The Third Geneva Convention regulates in detail the release, repatriation and
treatment of prisoners of war, while the Fourth Geneva Convention deals with the internment or
detention of “protected persons”. The provisions of both Conventions prohibit adverse distinctions
between these individuals based, in particular, on “race” or “nationality” 3. International humanitarian
law also provides specific mechanisms for monitoring compliance with these obligations 4. Indeed,
both Parties have indicated that the International Committee of the Red Cross has been monitoring
the treatment of the Armenian detainees 5.

       7. The Order correctly concludes in paragraph 60 that the release and repatriation of the
Armenian detainees is not a right that is plausibly protected under CERD, but is governed by the
relevant rules of international humanitarian law. It also recalls that “measures based on current
nationality do not fall within the scope of CERD”, and states that “Armenia has not placed before
the Court evidence indicating that these persons continue to be detained by reason of their national
or ethnic origin”.

       8. The same considerations, as well as the same conclusion, should logically apply to the
alleged mistreatment of the same detainees, since, as rightly stated in the Order, Armenia has not
provided the Court with evidence that these persons “continue to be detained by reason of their
national or ethnic origin”. This is all the more true in view of the non-applicability of the CERD to
the treatment of such detainees who are being held, according to the Order itself, on the basis of their
current nationality 6.

       9. However, the Order contradicts itself, and simply asserts at the end of the same paragraph
that “the Court finds plausible the right of such persons not to be subjected to inhuman or degrading
treatment based on their national or ethnic origin while being detained by Azerbaijan”. No reasons
are given and no explanation whatsoever is provided on how the Court has arrived at such an
internally inconsistent and incoherent conclusion with regard to the same persons and on the basis of
the same factual record. If the Court is not satisfied that these persons are being detained by reason
of their national or ethnic origin, it is difficult to understand by what means it has come to be
persuaded, even prima facie, that the same persons are allegedly being mistreated because of their
national or ethnic origin.

         3 Article 16 of the Third Geneva Convention (“any adverse distinction based on race, nationality . . . or any other

distinction founded on similar criteria”); Article 13 (“any adverse distinction based, in particular, on race [or] nationality”)
and Article 27, paragraph 3, of the Fourth Geneva Convention (“without any adverse distinction based, in particular, on
race”).
        4 CR 2021/21, p. 31, para. 24 (Lord Goldsmith), citing Azerbaijan’s Annex 17, Armenia v. Azerbaijan, ECHR

Application No. 42521/20, Letter ECHR–LE2.1aG from Johan Callewaert, Deputy Grand Chamber Registrar, to
Mr. Çingiz Әsgǝrov, Agent of the Government of the Republic of Azerbaijan, dated 9 June 2021 (“as was already noted in
the Court’s letter of 3 November 2020, there exist other international mechanisms which are better placed for continuous
monitoring of the conditions of detention of people captured during armed conflicts, and both Armenia and Azerbaijan are
therefore strongly advised to resort to these mechanisms”).
        5 CR 2021/21, p. 22, para. 24 (Lowe), citing Azerbaijan’s Annex 19, Letter from Ogtay Mammadov, Acting Head

of Penitentiary Service, Major-General of Justice, to Sabina Aliyeva, Human Rights Commissioner (Ombudsman) of the
Republic of Azerbaijan, regarding dates of ICRC visits to detainees, dated 17 September 2021. See also CR 2021/20, p. 40,
para. 29 (Murphy). See further CR 2021/21, p. 35, para. 38, and fn. 91 (Lord Goldsmith), with further references.
        6 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v.

United Arab Emirates), Preliminary Objections, Judgment of 4 February 2021, paras. 88 and 105.

                                                       -3-

      10. The Court goes even further and decides in subparagraph 1 (a) of the dispositif that
Azerbaijan shall “[p]rotect from violence and bodily harm all persons captured in relation to the
2020 Conflict who remain in detention, and ensure their security and equality before the law”
(emphasis added). The reference in the dispositif and in paragraph 92 of the Order to “all persons”
captured in relation to the 2020 Conflict by Azerbaijan is surprising, since it differs from the
description of the persons whose rights are found plausible by the Court in paragraph 60 of the Order.

      11. The reference to “all persons” substantially broadens the category of those persons who
were considered under paragraph 60 to consist only of “persons that Armenia identifies as prisoners
of war and civilian detainees taken captive during the 2020 Conflict or in its aftermath”, i.e. those
included in the list of 45 detainees provided by Armenia. Consequently, it appears that, through
paragraph 92 of the Order and subparagraph 1 (a) of the dispositif, the rights to be protected by
Azerbaijan are now extended to “all persons” captured in relation to the conflict, without any
indication in the Order of who these persons are and whether the Court has received information
from any source on the identity of those who may be included in such a sweeping reference to “all
persons”.

       12. It is my view that neither the simple assertion of the existence of a plausible right, without
indicating a reason why it is so, and without demonstrating that it may possibly fall within the scope
of CERD, nor the extension of such right to “all persons”, with regard to whom a claim was not made
by the requesting party, can provide justifiable grounds for the Court to exercise the powers granted
it by Article 41 of the Statute in the present case. Regardless of the alleged unlawfulness of
Azerbaijan’s conduct with respect to Armenian detainees under the applicable rules of international
humanitarian law, the obligation imposed upon it through an order on provisional measures on the
basis of CERD must be grounded on the provisions of this specific legal instrument and the rights
protected by it.

       13. The above statement applies equally to the conclusions of the Court with regard to the
protection of cultural and religious sites. In my view, there is no plausible right under CERD over
the preservation of cultural heritage. Considerations of race and racial discrimination cannot and do
not apply to monuments, groups of buildings, sites and artifacts. The provisions of CERD, which is
an instrument on human rights, are intended to safeguard the basic rights and fundamental freedoms
of human beings. Conversely, the protection of cultural monuments, religious sites and other
buildings falls within the ambit of other instruments aimed at protecting these buildings and artifacts
as the “cultural heritage of mankind” or on the basis of their historical, cultural and religious
significance to States and to the national identity of their peoples.

       14. This includes, in particular, the Hague Convention for the Protection of Cultural Property
in the Event of Armed Conflict of 1954 and its two additional protocols of 1954 and 1999, to which
both Armenia and Azerbaijan are parties. That instrument provides the appropriate legal framework
for the protection of cultural heritage in the context of armed conflicts, as recognized by the
United Nations Security Council 7. This is confirmed by the fact that UNESCO and the
intergovernmental Committee of the 1954 Hague Convention have already been seised of the
preservation of cultural sites in and around “Nagorno-Karabakh” pursuant to the 1954 Hague

      7 United Nations Security Council, resolution 2347 (2017), 24 March 2017, paras. 5-7.

                                                        -4-

Convention, and the Parties have engaged in consultations with these organs in relation to these
matters 8.

       15. Article 5, paragraph (e) (vi), of CERD protects the enjoyment of “[t]he right to equal
participation in cultural activities”. This right is to be read together with the chapeau of Article 5
which provides that “States parties undertake to prohibit and to eliminate racial discrimination in all
its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or
ethnic origin, to equality before the law”. It is not therefore a self-standing provision which is
disconnected from racial discrimination. It has to be analysed and understood through the prism of
acts or actions which make distinctions on the basis of race, colour, or national or ethnic origin. Such
acts or actions are not identified anywhere in the Order.

       16. It should also be recalled that the United Nations Committee on Economic, Social and
Cultural Rights, in its Comment No. 21 on Article 15, paragraph 1 (a), of the International Covenant
on Economic, Social and Cultural Rights does not establish a direct link or consequential relationship
between the broader and unqualified “right of everyone to take part in cultural life” and the protection
of cultural and religious sites by State authorities. The European Court of Human Rights also could
not find such a link between the provisions of the European Convention on Human Rights and claims
relating to cultural heritage sites or artefacts 9. It follows that an obligation for States to prevent and
punish acts of vandalism and desecration of cultural heritage and religious sites does not arise from
the requirement, in Article 5, paragraph (e) (vi), of CERD, of equality before the law in the
enjoyment of the “right to equal participation in cultural activities”.

       17. Moreover, it is not tenable, in my view, to assert that “religious heritage”, in the sense of
churches, cathedrals or other places of worship are plausibly protected under CERD
(cf. paragraphs 63, 66-67, 72, 75, 79, and 92 of the Order). It is well known that the drafters of CERD
decided not to address religious discrimination or religious intolerance in this Convention, and
Article 1, paragraph 1, of CERD does not list religion or creed amongst the prohibited grounds for
the purposes of “racial discrimination”. It is therefore erroneous, in my view, to refer to a plausible
right under the Convention for the protection of religious sites or places of worship.

       18. Paragraph 84 of the Order appears to seek support for the possible existence of a risk of
irreparable damage to cultural sites in the Court’s jurisprudence by reference to the case concerning
the Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple
of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand), where the Court indicated
provisional measures for free access to the Temple, which had been inscribed in the UNESCO World
Heritage List 10. This case, however, is distinguishable from the present circumstances, in so far as
the Court’s prima facie jurisdiction there was premised on a much wider jurisdictional basis.

       8 UNESCO,     “UNESCO is awaiting Azerbaijan’s Response regarding Nagorno-Karabakh mission”,
21 December 2020, available at https://en.unesco.org/news/unesco-awaiting-azerbaijans-response-regarding-nagorno-
karabakh-mission, accessed 28 Nov. 2021.
       9 See, for example, ECtHR, Ahunbay et autres c. Turquie, Requête no. 6080/06, décision, 21 février 2019,

paras. 23-25; ECtHR, Syllogos ton Athinaion v. the United Kingdom, Application no. 48259/15, Decision, 31 May 2016.
        10 Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear

(Cambodia v. Thailand) (Cambodia v. Thailand), Provisional Measures, Order of 18 July 2011, I.C.J. Reports 2011 (II),
pp. 548 and 555, paras. 48 and 69 (B) (1)-(3).

                                                        -5-

       19. In the Temple of Preah Vihear case, Thailand and Cambodia had originally made
declarations recognizing the compulsory jurisdiction of the Court under Article 36, paragraph 2, of
the Statute. In 2011, the Court considered that, by virtue of Article 60 of the Statute, it could entertain
a request for the interpretation of the Judgment that it had previously rendered. Thus, the Court had
a much wider scope of authority to preserve the respective rights of the parties under the entirety of
the relevant rules of international law applicable between them, which of course included the
different instruments on the protection of cultural heritage 11. In the present case, however, the Court’s
power to indicate provisional measures under Article 41 of the Statute is limited to the “respective
rights of either party” that may be subsequently adjudged to belong to them under CERD. The CERD
does not, however, incorporate any rights relating to the protection of cultural or religious sites.

       20. In light of the above considerations, it is my considered opinion that CERD does not
provide legal grounds for the indication of provisional measures in the present case with regard to
the alleged mistreatment by Azerbaijan of the persons identified by Armenia as prisoners of war or
civilian detainees or, for that matter, the other persons who are apparently included in the reference
to “all persons” in the dispositif of the Order. Nor is such legal basis afforded by CERD with respect
to the protection of cultural and religious sites. The Court’s indication of provisional measures in
relation to these two claims by Armenia is not, in my view, legally justified.

                                                                 (Signed) Abdulqawi A. YUSUF.

                                                  ___________

       11 Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear

(Cambodia v. Thailand) (Cambodia v. Thailand), Judgment, I.C.J. Reports 2013, pp. 317-318, para. 106.


45

SEPARATE OPINION OF JUDGE KOROMA

Agree with dispositif — But need to make distinction between justiciability of
a dispute and jurisdiction of the Court — Court forbidden to exercise jurisdic-
tion where parties not given consent — Judgment not an abdication but a reflec-
tion of system within which Court called upon to render justice — Judicious to
remind parties of obligation to settle disputes by peaceful means.

I entirely agree with the dispositive findings of the Court in this phase
of the proceedings and the reasoning which underpins them. There is,
however, one aspect of the matter which, in my view, also deserves a
response in the light of the importance of this dispute. Pakistan, in its
Memorial and in the course of the oral hearings, contended that the
destruction of its aircraft by India on 10 August 1999, with the attendant
loss of life, and the violation of its territorial integrity by India were in
breach of the United Nations Charter, the relevant rules of customary
international law and treaties, and accordingly rendered the dispute
justiciable.

Thus formulated, there can be no doubt that the acts complained of by
Pakistan, and their consequences, raise legal issues involving a conflict of
the rights and obligations of the Parties, a conflict capable of being
settled by applying international law, which the Court, as a court of
law, would have been entitled to do were it competent to do so (Article 38
of the Statute).

However, it is to be observed that it is one thing whether a matter
before the Court is justiciable and quite another whether that matter is
properly before the Court for it to be entitled to exercise its jurisdiction.
In this regard, whether the Court should perform its judicial function in
a given dispute or whether it should adjudicate such a dispute on its
merits depends entirely on the consent of the parties, which they must
have given prior to the institution of the proceedings or in the course
of the proceedings themselves.

In other words, the issue whether there is a conflict of legal rights and
obligations between parties to a dispute and the application of interna-
tional law (justiciability) is different from whether the Court has been
vested with the necessary authority by the parties to a dispute to apply
and interpret the law in relation to that dispute. The Court is forbidden
by its Statute and jurisprudence from exercising its jurisdiction in a case
in which the parties have not given their consent. It is on this basis that
the Court has reached its Judgment. Accordingly, although the function

37
46 AERIAL INCIDENT (SEP. OP. KOROMA)

of the Court is to apply the law, it cannot impose its jurisdiction on
parties. As Judge Lachs stated in another case which came before the
Court, such judgment should not be seen as an abdication of the Court’s
function, but rather a reflection of the system within which the Court is
called upon to render justice (Questions of Interpretation and Application
of the 1971 Montreal Convention arising from the Aerial Incident at
Lockerbie (Libyan Arab Jamahiriya v. United States of America), Pro-
visional Measures, Order of 14 April 1992, I C.J. Reports 1992, separate
opinion of Judge Lachs, p. 139). On the other hand, the Court is an
integral part of the United Nations system; it is entitled to contribute
to the peaceful settlement of disputes. Guided by the Charter and its
jurisprudence, the Court has judiciously reminded the Parties of the
obligation to settle their disputes by peaceful means.

(Signed) Abdul G. KOROMA.

38


271

                      DISSENTING OPINION
                OF JUDGE AD HOC AL-KHASAWNEH

   Dissent is confined to land delimitation — Importance of putting to rest a long
running dispute — Ambiguity of 1858 Treaty — Producing no less than
six arbitrations — And bilateral commissions — And negotiations — Court
dealing with various aspects of dispute since 2005 — 2015 Judgment and present
Judgments are res judicata — In conflict with earlier res judicata decisions —
Caribbean shore in general retreat — New point chosen by Court ephemeral —
And unjustified — Alexander Point submerged by sea but still identifiable — Mouth
of river was not crucial for territorial delimitation — Discontinuous, elongated
lagoons suggest a recently disappeared caño — Represent border between
Parties — Harbor Head Lagoon and land barrier under Nicaraguan sovereignty —
But no maritime entitlements — Lack of reasoning and based on hope —
Clarification as to voting on dispositif.

  I am essentially in agreement with my learned colleagues with regard to
the maritime delimitation eﬀected in the Caribbean Sea and the Paciﬁc
Ocean. A diﬀerence of opinion with the majority with respect to the scope
of the concept of equity on delimitation in the Paciﬁc warrants a separate
declaration and will be enunciated therein.

  It is on land that I regrettably part company with my colleagues, as I
am unconvinced of their ﬁndings and remain unpersuaded by the reason-
ing underlying those ﬁndings. I must therefore dissent.

   Before explaining in detail the reasons that led me to take this position,
I wish to make some general introductory remarks.
   It is incontestable that the aim of any judicial settlement is to put to
rest, on the basis of law, an existing dispute before a judicial body. In the
case of the Court, the principal judicial organ of the United Nations, a
solution of an extant dispute on the basis of international law helps also
in the preservation of international peace — which is one of the highest
aims of the Organization — and in preventing or at least minimizing con-
ﬂict between its Member States.

  This consideration assumes a special pertinence in the present case(s)
given a long history of conﬂict, centring mainly on territorial disputes
between the Parties, that started even before the conclusion of the Treaty
of Limits of 1858 between them. It says much about the “creative” ambi-
guity of that Treaty that it has since generated no less than six Awards on

136

272 maritime delimitation and land boundary (diss. op. al-khasawneh)

its interpretation and application, a number of bilateral commissions, and
stalled bilateral negotiations right up to the ﬁrst recourse to the Court in
2005 1. The Court itself has had to deal with various aspects of this ongo-
ing territorial dispute, in the course of which it eﬀected, in its 2015 Judg-
ment, a partial and imprecise delimitation of the area in question, the
northern part of Isla Portillos. That partial delimitation, curiously made
in the context of a case on State responsibility, has undoubtedly the force
of res judicata. Moreover, the ﬁndings in the present Judgment are largely
predicated on those of the 2015 Judgment where, as a primary example,
the Court chose the mouth of the San Juan River, as it stood then, as the
boundary between the two States rather than the original starting-point
of the land boundary ﬁxed by General Alexander, which is now long sub-
merged at sea. The latter is nevertheless still identiﬁable and capable of
providing a starting-point for territorial delimitation by linking it to the
nearest point on shore (see ﬁgures 84 and 85 of the Report of the Court-
Appointed Experts, reproduced below).

   Thus, in eﬀect, we are faced with two sets of conﬂicting decisions, each
possessing the force of res judicata: on the one hand, the Cleveland Award
of 1888 and the ﬁrst and second Alexander Awards of 1897 and, on the
other hand, the 2015 Judgment, in which the Court, at paragraph 92,
concluded that “the territory under Costa Rica’s sovereignty extends to
the right bank of the Lower San Juan River as far as its mouth in the
Caribbean Sea” and the present Judgment, which ﬁxes the starting-point
for territorial delimitation at the sandspit at the mouth of the river
(para. 71).
   Had the shore as it stands today displayed any inclination to stability,
there could have been some justiﬁcation to choose the new point(s), but
the geographical and geomorphic realities of the shore of the Caribbean
in question attest that there has been an ongoing coastal retreat over the
last 160 years since the conclusion of the 1858 Treaty. How literally true
is Shakespeare’s sonnet:

        “. . . I have seen the hungry ocean gain
        Advantage on the kingdom of the shore” 2.
  This general coastal retreat will most probably continue. Both the
Court-appointed experts acknowledged this much and the Court con-
curred, resorting to a ﬁxed hinge point at sea to ensure against medium
and long-term changes to the mouth of the river. Thus — and this is not
without irony — a point at sea possessing a long pedigree, which is
described precisely in the 1858 Treaty, the Cleveland Award, and the ﬁrst

   1 Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Appli-

cation instituting proceedings ﬁled by Costa Rica on 29 September 2005.
   2 William Shakespeare, Sonnet 64 (1609).

137

273 maritime delimitation and land boundary (diss. op. al-khasawneh)

Figure 84. Distances between the location estimated for Punta de Castilla to the
closest land point on a satellite image from 22 January 2016 and points Plw and
Ple measured during the ﬁrst site visit.

Figure 85. Distances between the location estimated for Punta de Castilla to the
closest land point on a satellite image from 22 January 2016 and points Plw2
and Ple2 measured during the second site visit.

138

274 maritime delimitation and land boundary (diss. op. al-khasawneh)

and second Alexander Awards, has been replaced by another point linked
to a hinge point at sea, the location of which varies according to where
the mouth of the river is presently situated. But we can safely predict that
the mouth of the river is ephemeral and may revert to empty again into
Harbor Head Lagoon 3. Would not the cause of the stability and perma-
nence of boundaries, a concept of paramount importance to an interna-
tional society made of sovereign States, have been better served, had the
Court not abandoned the original delimitation fortiﬁed by the force of res
judicata in favour of a shifting river and an ongoing general coastal
retreat? And, should the existence of a lagoon enclosed from the sea by a
sandbar and recognized by both Parties to be under Nicaraguan sover-
eignty not have alerted the Court to the fact that the area in dispute had
been under Nicaraguan sovereignty before the river shifted to the north-
west and that a priori the sea-abutting shore between it and the location
of the mouth of the river must be under Nicaraguan sovereignty?

  It is to these issues that I shall now turn. I start by acknowledging that,
had the Court in its 2015 Judgment, and consequently in the present one,
opted to commence the land boundary at the original Alexander Point,
this would not coincide with the mouth of the river at its right bank. It
would have left Nicaragua in possession of land on both sides of the river,
but this is neither a calamitous occurrence nor one not contemplated by
the two Arbitrators, President Cleveland and General Alexander. Thus,
when President Cleveland was called upon to decide on “various points of
doubtful interpretation communicated by Nicaragua”, he decided, in
point 3 (I) of his 1888 Award that:

         “The boundary line between the Republics of Costa Rica and Nic-
       aragua, on the Atlantic Side, begins at the extremity of Punta de
       Castilla, at the mouth of the San Juan de Nicaragua River, as they
       both existed on the 15th day of April 1858. The ownership of any
       accretion to said Punta de Castilla is to be governed by the laws
       applicable to that subject.” (Award in regard to the Validity of the
       Treaty of Limits between Costa Rica and Nicaragua of 15 July 1858
       (22 March 1888), United Nations, Reports of International Arbitral
       Awards (RIAA), Vol. XXVIII, p. 209; emphasis added.)

  Almost ten years later, when, in 1897, it had become clear that Punta
de Castilla was already submerged under the sea, General Alexander
ﬁxed the starting-point of the land boundary by reference to that point.
As Nicaragua points out in its written pleadings 4, he was not looking for

   3 Report of the Court-Appointed Experts, CRNIC-CRNIP 2017/18, p. 77, para. 195.
   4 Dispute concerning the Land Boundary in the Northern Part of Isla Portillos (Costa
Rica v. Nicaragua), Counter-Memorial of the Republic of Nicaragua, 18 April 2017, p. 25,
para. 3.22.

139

275 maritime delimitation and land boundary (diss. op. al-khasawneh)

the mouth of the river, which would have been a much easier task than
trying to ﬁnd out where Punta de Castilla was located, because he recog-
nized the latter to be where the ﬁxed starting-point for the border was to
be found.
   Any lingering doubt that General Alexander was looking for the mouth
of the river is dispelled by the operative part of his ﬁrst Award. He
expressly determined that the coast of the eastern extremity of Harbor
Head Lagoon was Punta de Castilla, and that from there “the boundary
line shall turn to the left, or south-eastward, and shall follow the water’s
edge around the harbor until it reaches the river proper by the ﬁrst channel
met” 5 (emphasis added). It is abundantly clear that the starting-point was
not the river mouth.

  There is also ample evidence that, in the bilateral commissions that
met after the rendering of the Award, both Parties viewed the original
Alexander Point as the starting-point of land delimitation and strove to
identify and repair the ﬁrst marker placed by General Alexander, which
had been submerged by the sea, by linking the Alexander Point to points
further inland.

   Indeed, when one assesses the position of the Parties over the past
120 years since the Alexander Award was rendered, one cannot but notice
that there had been long-term acceptance by the Parties of the original
starting-point of boundary delimitation and that this state of aﬀairs
remained so until recently when the Court started to be seised by the dis-
putes between the Parties.
   Turning to the question of whether there is a water channel connecting
the river and Harbor Head Lagoon, I diﬀer with my learned colleagues in
drawing ﬁrm conclusions from the existence of “elongated . . . coast-
parallel lagoons”.
   While there is no continuous water channel connecting the lagoon and
the river at present, the experts indicated that “in the recent past” (empha-
sis added), there was a “channel-like water gap between the spit and ﬁrm
land, and that the Los Portillos/Harbor Head Lagoon was connected to
the sea via the San Juan River” 6. Given this, I respectfully believe that
the ﬁrm inference my colleagues made somewhat hastily from the fact
that, at the time of their visit, the experts found this channel to be discon-
nected, does not lead to the conclusion that the shore abutting the Carib-
bean and the partly dried channel is under Costa Rican sovereignty.

  It is worth recalling that in arid parts of the world it is common to
delineate boundaries by reference to dried or partly dried riverbeds. I am

   5 First Award of the Engineer-Umpire, under the Convention between Costa Rica and

Nicaragua of 8 April 1896 for the Demarcation of the Boundary between the Two Republics
(30 September 1897), RIAA, Vol. XXVIII, p. 220.
   6 Report of the Court-Appointed Experts, CRNIC-CRNIP 2017/18, p. 26, para. 100.

140

276 maritime delimitation and land boundary (diss. op. al-khasawneh)

Figure 41. Report of the Court-Appointed Experts, CRNIC-CRNIP 2017/18,
p. 35.

strongly inclined to the view that those elongated but discontinuous
lagoons running parallel to the Caribbean shore were what was meant by
the experts when they spoke of a channel-like water gap between the pit
and the ﬁrm land that existed “in the recent past” 7.

   This I believe is the boundary between the Parties. The majority how-
ever dismissed this evidence and chose to believe that such a caño had
been submerged by the sea. But this conclusion is not supported by any
evidence and remains pure conjecture.
   Turning to the sand barrier separating the water of the lagoon from the
sea, which is recognized by Costa Rica to be under Nicaraguan sover-
eignty “in so far as [it] remains above [sea level]” 8, the Judgment came to
the conclusion that it does not generate maritime entitlements.
   This conclusion is totally unreasoned. No analysis is oﬀered as to why
a piece of terra firma abutting the shore should not have maritime entitle-
ment, not even in the territorial sea where judicial discretion is expressly
constrained. It is self-evident that this conclusion has no basis in law and
is no more than a necessary consequence of the wrong decision on the
appurtenance of the shore from the end of the sand barrier till the mouth
of the river to Costa Rica.

  Not knowing what to do with this inconvenient fact, the Court decided
to do nothing in the hope that the hungry waves and the sands would

  7 Report of the Court-Appointed Experts, CRNIC-CRNIP 2017/18, p. 26, para. 100.
  8 CR 2017/14, p. 27, para. 10 (2) (a) (Ugalde Alvarez, Final submissions in the Land
Boundary case).

141

277 maritime delimitation and land boundary (diss. op. al-khasawneh)

rectify what the Court did not do, thus giving a new and literal meaning
to a line by Hafez of Shiraz: “The house of hope is built on sand.” 9
   It is equally possible that the early demise of the sand barrier will not
meet the Court’s expectations and that through sedimentation or human
actions the lagoon itself will transform into terra firma enclosed in Costa
Rica’s territory, but not entitled to a maritime space. The Court’s deci-
sion carries the seed of a future dispute.
   Before ending this dissenting opinion, I wish to make two clariﬁcations:

   First, paragraph 2 of the dispositif amalgamates two proposals that are
in reality eminently separable, namely Costa Rican sovereignty over the
whole northern part of Isla Portillos, including its coast and, as an excep-
tion, Nicaraguan sovereignty over the Harbor Head Lagoon and the
sandbar separating it from the Caribbean. I had no choice but to vote
against the paragraph as a whole. This vote in no way detracts from my
opinion that the lagoon and sandbar appertain to Nicaragua.

   Secondly, I voted in favour of paragraph 3 (b) of the dispositif which
ﬁnds that Nicaragua must remove its military camp from Costa Rican
territory. This vote reﬂects my view that notwithstanding my continued
opinion that the area in question is not Costa Rican, in view of the earlier
ﬁnding of the Court in paragraph 2 of the dispositif, the withdrawal of the
military camp is a necessary consequence of that ﬁnding.

                                               (Signed) Awn Al-Khasawneh.

    9 Shams-ud-din Mohammed, better known as Hafez of Shiraz (born circa 1320 ad)

is one of the greatest poets not only of Iran and Islam but of humanity at large. The full
quotation is:
        “The house of hope is built on sand,
        And life’s foundations rest on air.”

142


18

INDIVIDUAL OPINION BY M. ANZILOTTI.
[Translation]

Very much to my regret I do not concur in the opinion
of the Court and it is my duty to say so. Since, in my
view, a dissenting opinion should not be a criticism of that
which the Court has seen fit to say, but rather an exposition
of the views of the writer, I shall confine myself to indicating
as briefly as possible what my point of view is and the
grounds on which it is based.

1—If the actual terms of the question put are taken and
if regard is had to the fact that it has its origin in an
application by the Free City of Danzig for admission to the
International Labour Organization, the natural inference is
that this question relates in the first place to the admission
of the Free City into that Organization.

Since the International Labour Organization is governed by
Part .XIII of the Treaty of Versailles, it is in this Part that
the provisions dealing with the admission of Members to the
Organization and prescribing the qualifications required in
order to become. a Member of it, must be sought. The only
provision relating to the admission of Members and the quali-
fications required for such admission is paragraph 2 of Article 387,
according to which ‘the original Members of the League of
Nations shall be the original Members of this Organization,
and hereafter membership of the League of Nations shall
carry with it membership of the said Organization”. As there
is no other article of Part XIII of the Treaty of Versailles
relating directly or indirectly to the membership of the Inter-
national Labour Organization, it is permissible, prima facie, to
conclude that membership of the Organization is merely the
corollary of that of Member of the League of Nations. |

2.—It should however be observed that the request seems
to proceed from a different hypothesis, namely, that it would
be possible for the Free City to become a Member of the |
International Labour Organization independently of its admission
INDIVIDUAL OPINION BY M. ANZILOTTI - 19

to the League of Nations. This is pointed to by the fact
that the application of the Free City is addressed to the
Labour Organization; the discussions which took place in the
Governing Body of the International Labour Office and the
written and oral statements submitted to the Court would
also seem to confirm it. .

As the hypothesis assumed by the request relates to a point
of law, the Court cannot accept it without first ascertaining
whether it is sound or not. It is clear that the Court cannot
give an opinion based on a hypothesis which is contrary to
treaties in force. .

The first question to be decided therefore is: Does Part XIII
of the Treaty of Versailles allow membership of the
International Labour Organization to be acquired by other
means than admission to the League of Nations?

3.—My answer is definitely in the negative. To my mind
there is no doubt that the intention of the Parties to the
Treaty of Versailles was that membership of the League of
Nations and that of Member of the International Labour
Organization should coincide, and to prevent a State or poli-
tical community from becoming a Member of the Inter-
national Labour Organization without at the same time being
a Member of the League of Nations.

i am prepared to admit that Article 387, paragraph 2,
taken literally, confines itself to indicating two categories of
Members of the Organization and does not explicitly exclude
the possibility of there being others. But since this clause
is the only one in the whole of Part XIII which deals with
membership of the International Labour Organization, and
since it is impossible to adhere to a treaty except in the
circumstances and under the conditions laid down for such
adherence, the only possible conclusion is that there is no
way of entering the International Labour Organization other .
than that indicated by Article 387, paragraph 2.

Moreover, it is hardly conceivable that the authors of the
Treaty of Versailles would have preserved absolute silence in
regard to the numerous and difficult questions to which the
admission of new Members to the International Labour Organ-
ization would give rise, if such admission were possible other-
wise than in the case contemplated by Article 387, paragraph 2,

3
INDIVIDUAL OPINION BY M. ANZILOTTI 20

which case is governed by Article 1 of the Covenant of the
League of Nations. On the other hand, the Treaty of Versailles
contains many indications in favour of the interpretation of
Article 387, paragraph 2, set out above. Mention may be
made of Article 23, letter a, of the Covenant of the League
of Nations; paragraph zr of the Preamble to Part XIII;
Article 392; Article 422, etc.; from all these provisions it
clearly appears that the International Labour Organization was
conceived as an association between the Members of the League
of Nations for the fulfilment of a mission indissolubly bound
up with the mission of the League itself.

4.—In this way I reach the conclusion that the hypothesis
upon which the request proceeds cannot be accepted by the
Court, because it is in contradiction with the Treaty of Versailles.

Having stated this, the Court should, in my opinion,
have declared that it could not give the opinion for which it
was asked. To my mind, it is equally inadmissible for the
Court to comply with a request based on a hypothesis which
is legally unsound or for the Court to modify the request in
order to bring it into harmony with what the Court holds
to be the law in force. It would have been for the Council
to alter the request in accordance with the Court’s indications,
if it thought fit to ask for an opinion on the basis of such
indications.

This conclusion also seems indicated by considerations of
another order. If it be granted that the only way of becom-
ing a Member of the International Labour Organization is by
admission to the League of Nations, the question which arises
is whether the special legal status of the Free City of Danzig
is such as to enable the Free City to become a Member of the
League of Nations. Membership of the International Labour
Organization being merely a necessary consequence of admis-
sion to the League of Nations, the question put by the request
would be a preliminary or incidental question in the procedure
for the admission of the Free City to the League of Nations.
But the admission of Members is a matter falling within the
exclusive jurisdiction of the Assembly ; it would therefore seem
that the Assembly alone could ask the Court for an advisory
opinion on the question thus envisaged.
INDIVIDUAL OPINION BY M. ANZILOTTI 21

5.—The foregoing are the conclusions which follow if the
request be construed in accordance with its natural meaning and
the circumstances which led to the adoption of its wording.

It is however a matter for consideration whether the ques-
tion put to the Court cannot be interpreted as though, leaving
aside the matter of the admission of the Free City into the
International Labour Organization, it only related to the com-
patibility of the features peculiar to the legal status of the
Free City with the exercise by the Free City of the rights and
the fulfilment by it of the obligations of Members of the Inter-
national Labour Organization.

Although, as has been said above, the request seems to
proceed from a different point of view, it is not perhaps
altogether impossible to limit in this way the question sub-
mitted to the Court. At all events, only by adopting this :
standpoint could the Court deal with it.

6.—The question whether the special legal status of the Free
City is compatible with membership of the International Labour
Organization is in substance the question whether the fact
that the Free City is placed under the protection of the League
of Nations and that the conduct of its foreign affairs is
in the hands of Poland is calculated to prevent. the Free City
from exercising the rights and performing the obligations
attaching to membership of the Organization.

Nevertheless, the question must first be considered whether
a State or political community the foreign relations of which
are conducted by another State and which, therefore, does not
enjoy absolute freedom in the field of international relations,
is not, on this ground alone, unable to be a Member of the
International Labour Organization.

There seems little room for doubt that the answer to this
question is in the negative. Whatever interpretation be
placed on paragraph 2 of Article 387 of the Treaty of Ver-
sailles, it is certain that, by the combined action of this
clause and of the second paragraph of Article 1 of the Cov-
enant of the League of Nations, not only States but also
Dominions and Colonies which are fully self-governing are
already and may become Members of the International Labour
Organization.
INDIVIDUAL OPINION BY M. ANZILOTTI 22

This also follows from paragraph 1 of Article 421 of the
Treaty of Versailles, which obliges Members of the Interna-
tional Labour Organization to apply conventions to which
they have adhered “‘to their colonies, protectorates and pos-
sessions which are not fully self-governing’. This restriction,
which is unaccompanied by any other clause designed to ensure
the application of conventions in the territories in question, is
only reconcilable with the principle of the potential univer-
sality of the Organization formulated in paragraph 3 of the
Preamble of Part XIII, because colonies, possessions or
protectorates which are fully self-governing are able to become
Members of the Organization.

Now what distinguishes Dominions and Colonies which are
fully self-governing from States is, above all, the fact that
such Dominions and Colonies, though enjoying a very wide
measure of self-government, do not or do not necessarily
possess the right themselves to conduct their foreign relations.
The right of self-government which Article 1 of the Covenant
considers as a condition necessary for admission to the League
of Nations and on which Article 421, paragraph 1, of the
Treaty of Versailles is based, can therefore only be a right
relating to internal affairs, for otherwise the interpretation of
this article would lead to absurd or contradictory results.

In the face of provisions so clear and definite, the only
possible conclusion is that the fact that the Free City only
enjoys a limited freedom in the field of international relations
is not in itself incompatible with membership of the Inter-
national Labour Organization.

7—On the other hand, there is hardly room for doubt
that the Free City can only be a Member of the International
Labour Organization if Poland were to consent to its admission
and if the competent organs of the League of Nations were
not to make use of their right of veto. Whatever the juridi-
cal nature of the act whereby the Free City might enter the
International Labour Organization, it is certain that this act
would create international obligations for the Free City;
accordingly, the provisions of Chapter I of the Convention of
November gth, 1920, are applicable.

INDIVIDUAL OPINION BY M. ANZILOTTI 23

It follows that any discussion as to the compatibility of
any particular provision appertaining to the status of the
Free City with Part XIII of the Treaty of Versailles must set
out from the assumption that the Free City were a Member
of the International Labour Organization with the consent of
Poland and without opposition on the part of the competent
organs of the League.

8.—It seems possible to understand this consent in two
different ways.

In the first place, it may be thought that the question
simply relates to the consent to be given by Poland to the
admission of the Free City to the International Labour
Organization, subject to all stipulations at present in force.
In that case the question to be decided would be the follow-
ing: Would such consent have the effect of placing the Free
City in a position to take part in the activities of the Inter-
national Labour Organization and to fulfil the obligations
incumbent on its Members? This amounts to asking whether
all the provisions which at present govern the relations be-
tween the Free City and Poland, more especially as regards
the conduct of foreign relations, are compatible with the
provisions of Part XIII of the Treaty of Versailles. It
is easy to see that there are cases in which this compatibility
is at least doubtful.

But this does not seem to be the question put. For it
must be remembered that this question refers to the special
legal status of the Free City as a whole; that is to say, also
to the question whether that status permits or does not
permit of modifications. This standpoint seems also to be in
accordance with the views and wishes of the Parties concerned.
It is certain that the representatives of Poland and of the
Free City and the Director of the International Labour Office
emphasized that there was no question of deciding a dispute,
but of throwing light upon an obscure legal situation and of
finding some way of enabling the Free City to benefit by the
advantages of the International Labour Organization. For this
reason I think that Poland’s consent—if given—to the admis-
sion of the Free City to that Organization should be con-
sidered from a more general standpoint.

INDIVIDUAL OPINION BY M. ANZILOTTI 24

Two questions thus arise: (a) Has Poland the right to consent
to the admission of the Free City to the International Labour.
Organization, even if such consent must involve a modification
of the special legal status of the Free City as at present in
force? (6) If so, what would, generally speaking, be the effects
of such consent in regard to the special legal status of the
Free City?

g.—Ad (a) The representatives of the Polish Government con-
. tended before the Court that the Convention of Paris rested on
Article 104 of the Treaty of Versailles, and that consequently
Poland and the Free City could not modify the Convention in
such a way as to overstep the limits fixed by that article.

This contention seems to me to be unjustified. Article 104
of the Treaty of Versailles entrusts to the Principal Allied
and Associated Powers the negotiation of the terms of a
convention between the Polish Government and the Free City,
and indicates the points with which the convention should deal
or the objects which it should be designed to attain. Now
this Convention—which is the Convention of Paris of Novem-
ber gth, 1920—expressly provides, in Article 40, paragraph 1,
for the possibility of modifications by agreement between
Poland and the Free City. There is therefore nothing to prevent
Poland from exercising the rights conferred upon her by this
Convention ; these rights, moreover, have been conferred upon
her in her own interests, the interests of the Free City being suffi-
ciently safeguarded by the protection of the League of Nations.

10.—Ad (b) This point having been established, and since the Free
City would be a Member of the International Labour Organ-
ization with the consent of Poland—which consent, it is assumed,
would not have been opposed by the League of Nations—the
question which arises is no longer whether the present legal
.status of the Free City is compatible with membership of the
International Labour Organization, but rather what modifica-
tions such membership would involve in the Free City’s status
as it is at present.

In regard to this, the following observations are called for.

There is no doubt that membership of the International Labour
Organization involves the fulfilment of all the obligations
INDIVIDUAL OPINION BY M. ANZILOTTI 25

laid by Part XIII of the Treaty of Versailles upon Mem-
bers of that Organization. Poland’s consent, therefore, could
not be given subject to limitations or reservations which
would make it impossible for the Free City to fulfil any
particular obligation. Rather may it be said that consent
validly given would have the effect of authorizing the Free
City to do all that is necessary to fulfil its duties, even if that
implied a limitation of the rights at present belonging to
Poland with regard to the conduct of Danzig’s foreign relations.
A consent which did not have this effect would not amount to
consent.

On the other hand, when the fulfilment of obligations is not
in question, but when it is a question of the exercise of rights
which each Member is free to exercise or not, there is nothing
to prevent Poland from retaining in relation to the Free City
the powers and prerogatives conferred upon her by the stipu-
lations in force. When a Member is free to do or to refrain from
doing something, he must abstain from doing it if obligations
validly entered into require it. Moreover, there is no reason
why Poland’s consent should be construed as going beyond an
authorization to fulfil the duties of a Member; only an unequi-
vocal expression of an intention of Poland could have effects
going beyond such an authorization.

Of course, all this in no way prevents the question from
being settled—subject to the League of Nations right of veto
—by previous agreements between Poland and the Free City.
I have simply intended to indicate what might be the general
lines of such agreements and what would be the principles
applicable if such agreements did not exist or did not deal
with some particular point. On these lines the Court might
have given the interested Parties the indications for which
they asked and which alone would perhaps have enabled
practical results to be reached.

11.—A general study of the question must necessarily stop
at this point. I will merely refer by way of example or as
an instance of application to some of the questions which have
been discussed by the interested Parties.
INDIVIDUAL OPINION BY M. ANZILOTTI 26

It is, for instance, clear that from the standpoint which I
have adopted, it is useless to consider whether participation
in the General Conference of Members does or does not fall
within the sphere of ‘‘foreign relations” within the meaning
of Article 104 of the Treaty of Versailles and the Convention
of Paris. One thing is certain, namely that the Members of
the International Labour Organization must be able to take
part in the General Conference and, should: occasion arise,
in the Governing Body of the International Labour Office.
It is also certain that such participation must be in accordance
with the rules laid down in Articles 389 and 393. Supposing
that Danzig were to become a Member of the Organization
with the consent of Poland, the latter could certainly not
invoke against Danzig the rules at present in force regarding
the representation of the Free City at international conferences
in order to prevent it from appointing its own delegates—
and this holds good even if it be admitted that the General
Conference of Members falls within the category of interna-
tional conferences. On the other hand, there is nothing to
prevent the Free City from undertaking to submit the
appointment of its own delegates for previous approval by
the Polish Government.”

Similarly, as regards the judicial settlement of disputes,
if it be held that the jurisdiction established by Article 423
of the Treaty of Versailles takes precedence of any other juris-
diction provided for by particular agreements between Members,
it must be admitted that Poland, by giving her consent to
the admission of the Free City to the International Labour
Organization, would in so doing consent to the substitution
of the jurisdiction of the Court for that provided for in
Article 103 of the Treaty of Versailles and Article 39 of the
Convention of Paris, of course only as regards the disputes to
which Article 423 relates. And the League of Nations, by not
exercising its right of veto, would also renounce its right to
raise any objection based on Article 103 of the Treaty of
Versailles.

On the other hand, no modification seems necessary in so
far as concerns the ratification of draft conventions prepared
by the General Conference of representatives of Members and
the filing of complaints under Article 411. It is certain thet
INDIVIDUAL OPINION BY M. ANZILOTTI 27

each Member is free to ratify or not; it is also certain that
the reason why a convention is not ratified has no juridical
importance. The Senate of the Free City, to which the
right of ratification belongs, could therefore always ascertain
whether Poland consented and should refuse to approve a
draft convention if Poland’s consent were not given. Similarly,
there is nothing to prevent the Free City from abstaining
from filing a complaint with the International Labour Office
against. another Member, if this cannot be done with the con-
sent and through the intermediary of the Polish Government.

12.—Subject to the reservations and with the restrictions
resulting from the foregoing, the conclusion at which I have
arrived therefore is that the special legal status of the Free
City of Danzig is such as to enable the Free City to be a
Member of the International Labour Organization.

(Signed) D. ANZILOTTI.


                    393

                                     Declaration of Judge Keith

                      1. I agree with the conclusions the Court reaches, essentially for the
                    reasons it gives. This declaration addresses one aspect of those reasons.

                       2. For nearly 90 years, the International Court of Justice and its prede-
                    cessor, the Permanent Court of International Justice, have had the power
                    to permit a State, not a party to the main proceeding before it, to inter-
                    vene in the proceeding if the State persuades the Court that it has “an
                    interest of a legal nature which may be affected by the decision in the
                    case” (Article 62 of the Statute). If permission is granted, the intervening
                    State is supplied with copies of the pleadings and may submit a written
                    statement to the Court and its observations in the oral proceedings, with
                    respect to the subject‑matter of the intervention (Rules of Court, Arti-
                    cle 85). Of the 15 requests that have been made in 12 cases since 1923, two
                    have been granted, one without objection and the other in part only.
                       3. Until today, the Court has not attempted to provide a definition or
                    an elaboration of the expression “an interest of a legal nature” as it appears
                    in Article 62 of the Statute. Rather, having considered the evidence and
                    submissions presented to it by the requesting State and the parties to the
                    main proceeding, it has determined whether “in concreto and in relation to
                    all the circumstances of a particular case” the requesting State has demon-
                    strated what it asserts including showing that its interest may be affected
                    (Land, Island and Maritime Dispute (El Salvador/Honduras), Application
                    for Permission to Intervene, Judgment, I.C.J. Reports 1990, pp. 117‑118,
                    para. 61).
                       4. There are, I think, good reasons for the Court’s practice to date of
                    keeping closely to the statutory test laid down in Article 62 and not
                    attempting to elaborate on a single phrase within that test. I begin with the
                    nature of the power which the Court exercises under Article 62. It is of
                    a preliminary, procedural, interlocutory character. In terms of its legal
                    or binding effect, it does no more than to allow (or not) the requesting
                    State to participate in the process. It involves the Court in making a future‑
                    looking, speculative assessment about the possible impact of the decision
                    in the main proceeding on the interest asserted by the requesting State.
                    That assessment is whether the decision “may”, not “will” or “is likely” to
                    affect that interest.

                       5. The principal features of the power of the Court to make its decision
                    in the main proceeding differ sharply from those of the Article 62 power.
                    The parties have much more extensive opportunities, in written and oral

                    49

7 CIJ1019.indb 94                                                                                13/06/13 16:02

                    394 	      territorial and maritime dispute (decl. keith)

                    proceedings, to make their case and answer the case against them. They
                    must have given their consent in one form or other to the Court having
                    jurisdiction over the case. The Court makes a final decision on the merits
                    which is binding on the parties and without appeal. In the course of making
                    that decision, the Court determines the existence or not of rights under
                    law and whether those rights have been breached. That process of fact
                    finding will in general be backward looking. The party asserting a fact in
                    support of its case usually has the burden of establishing it on the balance
                    of probabilities — a standard which is plainly more demanding than that
                    stated in Article 62.
                       6. It is true that one of the differences in the elements to be found in
                    the two functions is that between a (legal) right and an interest of a legal
                    nature, but the two preceding paragraphs suggest that that difference has
                    a very small role. The problematic character of that difference is to be
                    seen in the definition which the Court gives to “an interest of a legal
                    nature” and the consequences it draws from the difference. The Court
                    defines today “an interest of a legal nature”, as opposed to an “estab-
                    lished right”, as “a real and concrete claim . . . based on law” (Judgment
                    on Application by Costa Rica, para. 26 ; Judgment on Application by
                    Honduras, para. 37). If the claim is based on law and is real and concrete,
                    is it not a claim of a right (or a liberty or a power) recognized by the law?
                    Is the Court drawing a real distinction?

                       7. The Court draws two consequences from its definition : an estab-
                    lished right has greater protection and the requirement of proof is not as
                    demanding in the case of an interest of a legal nature. But those conse-
                    quences are a result of the full range of contrasting features of the two
                    powers set out in paragraphs 4 and 5 above. They do not arise simply and
                    solely from any difference between an established right and an interest of
                    a legal nature.

                       8. The elusive character of the difference is further demonstrated by
                    the practice of States requesting permission to intervene. They do not
                    appear to find assistance in any such distinction. To take the two cases
                    being decided today, Costa Rica, at the outset of its Application, stated
                    that its “interests of a legal nature which could be affected by a decision
                    in this case are the sovereign rights and jurisdiction afforded to Costa Rica
                    under international law and claimed pursuant to its constitution” (empha-
                    sis added). It said essentially the same at the end of the proceedings in
                    answering a question from a judge. Similarly, as the Court records in the
                    Honduras case, that State, to demonstrate that it has an interest of a legal
                    nature, contends that it is entitled to claim sovereign rights and jurisdic-
                    tion over a certain maritime area (Judgment, paras. 16 and 18).

                      9. That close linking of interests of a legal nature to rights under inter-
                    national law has appeared from the outset to the present day :

                    50

7 CIJ1019.indb 96                                                                                13/06/13 16:02

                    395 	       territorial and maritime dispute (decl. keith)

                    — In the S.S. “Wimbledon” case, Poland referred to “violations of the
                      rights and material advantages guaranteed to Poland by Article 380
                      of The Treaty of Versailles” ; it changed its request to one under Arti-
                      cle 63 and the Court accepted it (S.S. “Wimbledon”, Judgments, 1923,
                      P.C.I.J., Series A, No. 1 (Question of Intervention by Poland), p. 13).

                    — In the Nuclear Tests cases, Fiji in its request having referred to the
                      claims made by Australia and New Zealand — respectively, that the
                      testing was not consistent with applicable rules of international law or
                      constituted a violation of New Zealand rights under international
                      law — contended that “[I]t will be evident from the facts set out above
                      that Fiji is affected by French conduct at least as much as [Australia]
                      New Zealand and that similar legal considerations affect its position.”
                      (I.C.J. Pleadings, Nuclear Tests (New Zealand v. France), Applica-
                      tion for Permission to Intervene Submitted by the Government of
                      Fiji, p. 91.) The Court did not rule on the substance of this request
                      (Nuclear Tests (New Zealand v. France), Application for Permission to
                      Intervene, Order of 20 December 1974, I.C.J. Reports 1974, p. 536.

                    — While Malta in the Tunisia/Libya case used the terms of Article 62 in
                      its request it at once defined its “interest of a legal nature” as rights
                      under the law :
                             “There can be no doubt that Malta’s interest in her continental
                          shelf boundaries is of a legal character since the continental shelf
                          rights of States are derived from law, as are also the principles and
                          rules on the basis of which such areas are to be defined and delimited.
                          In other words these rights are created and protected by law, and
                          the question of the proper spatial extent of the regions over which
                          they can be exercised by any given State is also a matter of law.”
                          (I.C.J. Pleadings, Continental Shelf (Tunisia/Libyan Arab Jama‑
                          hiriya), Application for Permission to Intervene by the Government
                          of the Republic of Malta, p. 258, para. 7.)
                    — Italy in its request in the Libya/Malta case under the heading l’intérêt
                      d’ordre juridique similarly referred to its rights and legal title, as it saw
                      them, in areas of continental shelf off its coast, the relevant areas
                      being within 400 nautical miles of the relevant coasts (I.C.J. Plead‑
                      ings, Continental Shelf (Libyan Arab Jamahiriya/Malta), Vol. II,
                      Application for Permission to Intervene, pp. 422‑424, paras. 6‑13).

                    — Nicaragua in the El Salvador/Honduras case stated two objects for its
                      intervention :
                             “First, generally to protect the legal rights of the Republic of Nica
                          ragua in the Gulf of Fonseca and the adjacent maritime areas by all
                          legal means available.

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                              Secondly, to intervene in the proceedings in order to inform the
                           Court of the nature of the legal rights of Nicaragua which are in
                           issue in the dispute. This form of intervention would have the con-
                           servative purpose of seeking to ensure that the determinations of the
                           Chamber did not trench upon the legal rights and interests of the
                           Republic of Nicaragua, and Nicaragua intends to subject itself to
                           the binding effect of the decision to be given.” (Land, Island and
                           Maritime Frontier Dispute (El Salvador/Honduras : Nicaragua inter‑
                           vening), Application for Permission to Intervene by the Government
                           of Nicaragua, p. 4, paras. 5‑6.)
                     — In Cameroon v. Nigeria, Equatorial Guinea, again under a heading
                       using the terms of Article 62, recalled what the Court had said in its
                       judgment on preliminary objections in that case and continued by ref-
                       erence to the law :
                              “In fact, Equatorial Guinea has claimed an exclusive economic
                           zone and territorial sea under its own domestic law, in terms which
                           it believes consistent with its entitlements under international law.
                           The maritime area thus claimed would produce a boundary in the
                           north‑east corner of the Gulf of Guinea, based upon median line
                           principles, which would be both an exclusive economic zone bound-
                           ary and — in some circumstances — a territorial sea boundary with
                           Cameroon for a limited distance.” (Land and Maritime Boundary
                           between Cameroon and Nigeria (Cameroon v. Nigeria : Equatorial
                           Guinea intervening), Application for Permission to Intervene by the
                           Government of Equatorial Guinea, pp. 6‑8.)
                          It further developed this position by reference to the detail of its
                          national law and said this :
                           “in accordance with its national law, Equatorial Guinea claims the
                           sovereign rights and jurisdiction which pertain to it under interna-
                           tional law up to the median line between Equatorial Guinea and
                           Nigeria on the one hand, and between Equatorial Guinea and Cam-
                           eroon on the other hand. It is these legal rights and interests which
                           Equatorial Guinea seeks to protect.” (Ibid., p. 8.)
                     — In the Request for an Examination of the Situation in Accordance with
                       Paragraph 63 of the Court’s Judgment of 20 December 1974 in the
                       Nuclear Tests (New Zealand v. France) Case, Australia, also under a
                       heading based on Article 62, began with two New Zealand claims :

                             “If, as New Zealand claims, the rights . . . are of an erga omnes
                           character in the sense described above, it necessarily follows that the
                           New Zealand claim against France puts in issue the rights of all
                           States, including Australia. Assuming that France is subject to the
                           corresponding erga omnes obligations invoked by New Zealand (a
                           matter which will fall to be determined by the Court at the merits

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                            stage of the proceedings), Australia, in common with New Zealand
                            and all other States, has — in the words of the Court in the Barcelona
                            Traction case — a ‘legal interest’ in their observance by France.

                               As indicated above, New Zealand argues that these obligations
                            ‘by their very nature, are owed to the whole of the international
                            community, and it makes no sense to conceive of them as sets of
                            obligations owed, on a bilateral basis, to each member of that com-
                            munity’. If so, it must follow that a decision by the Court on the
                            merits of the New Zealand claim would not be a decision as to bilat-
                            eral rights and obligations of France and New Zealand, capable of
                            being considered in isolation from identical bilateral rights and obli-
                            gations existing between France and every other member of the
                            international community.” (Request for an Examination of the Situ‑
                            ation in Accordance with Paragraph 63 of the Court’s Judgment of
                            20 December 1974 in the Nuclear Tests (New Zealand v. France)
                            Case, Application for Permission to Intervene under the Terms of
                            Article 62 of the Statute submitted by the Government of Australia,
                            p. 9, paras. 18‑19.)
                          Again the basis for the intervention is rights which Australia claims.
                          Its reference to “legal interest” from Barcelona Traction may be
                          noted — a reference relating to the capacity of a State to bring a claim
                          rather than to the substantive character of the right or interest, a mat-
                          ter apparently distinct from the “interest of a legal nature” to be
                          assessed in determining a request for intervention.

                          The Solomon Islands, the Federated States of Micronesia, the Mar-
                          shall Islands and Samoa made requests in similar terms, invoking Arti-
                          cle 63 as well as Article 62. On the latter, they comment that “disputes
                          about obligations owed erga omnes have an inherent unity . . .” (Request
                          for an Examination of the Situation in Accordance with Paragraph 63
                          of the Court’s Judgment of 20 December 1974 in the Nuclear Tests
                          (New Zealand v. France) Case : Application for Permission to Inter-
                          vene under Article 62 — Declaration of Intervention under Article 63
                          Submitted by the Government of Solomon Islands, p. 6, para. 19 ;
                          Application for Permission to Intervene under Article 62 — Declara-
                          tion of Intervention under Article 63 Submitted by the Government of
                          the Federated States of Micronesia, p. 6, para. 19 ; Application for
                          Permission to Intervene under Article 62 — Declaration of Interven-
                          tion under Article 63 Submitted by the Government of the Marshall
                          Islands, p. 6, para. 19 ; Application for Permission to Intervene under
                          Article 62 — Declaration of Intervention under Article 63 Submitted
                          by the Government of Samoa, p. 6, para. 19).
                          The Court did not rule on the five requests made in this case (Request
                          for an Examination of the Situation in Accordance with Paragraph 63

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                     398 	       territorial and maritime dispute (decl. keith)

                       of the Court’s Judgment of 20 December 1974 in the Nuclear Tests
                       (New Zealand v. France) Case, Order of 22 September 1995,
                       I.C.J. Reports 1995, pp. 306‑307, para. 67).
                     — In Sovereignty over Pulau Ligitan and Pulau Sipadan the Philippines
                       stated the following objects for its request :
                           “(a) First, to preserve and safeguard the historical and legal rights
                                of the Government of the Republic of the Philippines arising
                                from its claim to dominion and sovereignty over the territory
                                of North Borneo, to the extent that these rights are affected, or
                                may be affected, by a determination of the Court of the ques-
                                tion of sovereignty over Pulau Ligitan and Pulau Sipadan.

                             (b) Second, to intervene in the proceedings in order to inform the
                                 Honourable Court of the nature and extent of the historical
                                 and legal rights of the Republic of the Philippines which may
                                 be affected by the Court’s decision.” (Sovereignty over Pulau
                                 Ligitan and Pulau Sipadan (Indonesia/Malaysia), Application
                                 for Permission to Intervene by the Government of the Philip-
                                 pines, p. 4, para. 5.)
                        10. I now turn to the Court’s decisions on intervention under Article 62,
                     beginning with one of the two cases in which the application was granted.
                     In that case, Nicaragua was successful in respect of the legal régime of the
                     waters of the Gulf of Fonseca. Honduras was not opposed to that part of
                     its request, saying that a special legal regime was called for in terms of the
                     community of interest of the coastal states ; the Chamber of the Court,
                     noting that El Salvador had claimed by the time of the proceedings that
                     the waters were subject to a condominium of the three coastal states,
                     allowed the request for intervention in that respect (Land, Island and
                     Maritime Frontier Dispute (El Salvador/Honduras), Application for
                     Permission to Intervene, Judgment, I.C.J. Reports 1990, pp. 120‑122,

                     paras. 69‑72). It did not however allow the Application in respect of mari-
                     time delimitation within the Gulf and outside it (ibid., pp. 123‑128,
                     paras. 74‑84). Those refusals are the significant findings for the purpose
                     of the present cases. Along with the other two failed delimitation inter-
                     vention requests (Continental Shelf (Tunisia/Libyan Arab Jamahiriya),
                     Application for Permission to Intervene, Judgment, I.C.J. Reports 1981,
                     p. 20, para. 37 ; Continental Shelf (Libyan Arab Jamahiriya/Malta),
                     Application for Permission to Intervene, Judgment, I.C.J. Reports 1984,
                     pp. 26‑28, paras. 42‑43, 47), those refusals may be related to two common
                     features of the Court’s decisions in maritime delimitation cases. One was
                     recalled by the Chamber in its decision on Nicaragua’s request (Land,
                     Island and Maritime Frontier Dispute (El Salvador/Honduras), Applica‑
                     tion for Permission to Intervene, Judgment, I.C.J. Reports 1990, p. 124,
                     para. 77) : delimitations between two States, I would add by treaty as well
                     as by third‑party decision, often take account of the coasts of one or

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                     399 	       territorial and maritime dispute (decl. keith)

                      more States. The second feature is that the Court in drawing delimitation
                      lines takes care to ensure that they stop short of the rights or interests of
                      third States (e.g., Continental Shelf (Tunisia/Libyan Arab Jamahiriya),
                      Judgment, I.C.J. Reports 1982, pp. 93‑94, para. 133 ; Continental Shelf
                      (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports 1985,
                      pp. 25‑28, paras. 21‑22 ; Maritime D  elimitation and Territorial Questions
                      between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment,
                      I.C.J. Reports 2001, pp. 115‑117, paras. 250‑252 ; Land and Maritime
                      Boundary between Cameroon and Nigeria (Cameroon v. Nigeria : Equato‑
                     rial Guinea intervening), Judgment, I.C.J. Reports 2002, p. 448,
                     paras. 306‑307 ; Territorial and Maritime Dispute between Nicaragua and
                     Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment,
                     I.C.J. Reports 2007 (II), pp. 756‑759, paras. 312‑319 ; Maritime Delimita‑
                     tion in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports
                     2009, p. 131, para. 219). As this practice suggests, the parties do appear
                     to provide the Court with the necessary information about the interests of
                     third States. That information has sometimes indeed been invoked in
                     support of an objection to jurisdiction or admissibility based on the

                     Monetary Gold principle ; see the submissions of Nigeria in Cameroon v.
                      Nigeria (I.C.J. Pleadings, Land and Maritime Boundary between Came‑
                      roon and Nigeria (Cameroon v. Nigeria : Equatorial Guinea intervening),
                      Preliminary Objections of the Federal Republic of Nigeria,
                      paras. 4.1‑4.11, 8.11‑8.17) and of Nicaragua in El Salvador/Honduras
                      (I.C.J. Pleadings, Land, Island and Maritime Frontier Dispute (El Salva‑
                      dor/Honduras : Nicaragua intervening), Vol. III, pp. 737‑738, paras. 9‑12 ;
                      ibid., Vol. VI, pp. 3‑27).

                        11. The one successful application for intervention in respect of mari-
                     time delimitation was that by Equatorial Guinea in Land and Maritime
                     Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Applica‑
                     tion for Permission to Intervene, Order of 21 October 1999, I.C.J. Reports
                     1999 (II), p. 1029. Several features of that decision lessen its significance
                     for today’s cases : the Court in its jurisdictional judgment had suggested,
                     when rejecting a Monetary Gold argument, that certain third States may
                     wish to intervene (Land and Maritime Boundary between Cameroon
                     and Nigeria (Cameroon v. Nigeria), Preliminary Objections, Judgment,
                     I.C.J. Reports 1998, pp. 323‑324, paras. 115‑116) ; only one of them,
                     Equatorial Guinea, in fact applied to intervene ; that application was not
                     opposed and was accepted by way of an order, not a judgment, of the
                     Court ; and the Court, in the judgment in the main proceeding, said that
                     in fixing the maritime boundary it must ensure that it did not adopt any
                     position which might affect the rights of Equatorial Guinea and Sao
                     Tome and Principe (Land and Maritime Boundary between Cameroon and
                     Nigeria (Cameroon v. Nigeria : Equatorial Guinea intervening), Judgment,
                     I.C.J. Reports 2002, p. 421, para. 238). The latter State had not applied to
                     intervene and obtained exactly the same protection as the State that did

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                     400 	      territorial and maritime dispute (decl. keith)

                     apply ; and the Court refers to the “rights” and not to the “interests” of
                     the two States (I.C.J. Reports 2002, p. 421, para. 238).

                        12. In summary, I have three difficulties with the Court’s elaboration of
                     the distinction between “the rights in the case at hand” and “an interest of
                     a legal nature”. Those terms or concepts are being taken out of context.
                     The definition given to the second is problematic. And, to the extent that
                     it exists, the distinction does not appear to be useful in practice.

                                                                   (Signed) Kenneth Keith.

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