133

DISSENTING OPINION OF JUDGE ODA

TABLE OF CONTENTS

Paragraphs

I. INTRODUCTION |
Il. A UNILATERAL APPLICATION BUT Nor A UNILATERAL NOTIFICATION OF

A SPECIAL AGREEMENT 2-5

III. NEITHER THE “1987 AGREEMENT” NOR THE “1990 AGREEMENT”
CONFER JURISDICTION UPON THE COURT TO ENTERTAIN THE QATARI

APPLICATION 6-17
IV. Errorts TO Draw Up a SPECIAL AGREEMENT AND THE FAILURE OF

THOSE EFFORTS 18-35
V. CoNCLUSION 36

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134 MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (DISS. OP. ODA)

I. INTRODUCTION

1. To my profound regret but anxious to remain true to my legal con-
science, I find myself unable to vote for the present Judgment as my views
essentially differ from those of the Court. Although I have voted against
each of the operative paragraphs, my objection is in fact directed to the
Judgment as a whole, or to the way in which the Court determined that
it had been seised of the present case. It appears to me that the Court,
instead of determining whether it has jurisdiction to deal with the dispute
referred to in the Application filed by Qatar on 8 July 1991, has been led
to substitute, for that unilateral Application. a supposition that it was
seised with the dispute referred to it by agreement and to have assumed
that Qatar had proceeded to the Court on the basis of such an agreement,
albeit misinterpreted by that Party. This has led the Court to order the
redrafting of submissions in the present Judgment.

I]. A UNILATERAL APPLICATION BUT NOT A UNILATERAL NOTIFICATION
OF A SPECIAL AGREEMENT

2. In my view the Court should not have transformed a unilateral
Application into a unilateral filing of an agreement which it found to
have been improperly drafted, but should rather have answered “yes” or
“no” to the Application unilaterally filed by Qatar. If the Court was
unable to find that the documents referred to in operative clause (1) con-
stituted a treaty or a convention such as to authorize the unilateral filing
of an application by one of the Parties under Article 36 (1) of the Statute,
it should have declared that it lacked jurisdiction to entertain the present
Application. If, as is suggested in operative clauses (3) and (4), the
“whole of the dispute” could have been presented by Qatar to the Court
at the outset, Bahrain would not have opposed the Application. Rather,
Qatar and Bahrain together could have jointly submitted the dispute by
concluding a special agreement, and it would not have been the subject of
a unilateral application. It is a fact that nut the “whole of the dispute”
but only certain aspects of it (as selected by Qatar) were referred to the
Court unilaterally.

3. It appears that the Court is now attempting to render an interlocu-
tory judgment — which is not unusual in domestic legal systems — for
the first time in the history of this Court and its predecessor. In my view,
the application of this concept of domestic law to the jurisprudence of the
International Court of Justice is most inappropriate. In a municipal legal
system there is generally no problem of the court’s jurisdiction and it is
competent to hand down an interlocutory judgment since its jurisdiction

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135 MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (DISS. OP. ODA)

has been established without question. Sometimes, however, the inter-
locutory judgment itself is handed down in order to dispose of the issue
of jurisdiction before entering into the merits phase. On the other hand,
the present Court is now confronted by a question as to whether or not it
has the jurisdiction to entertain the Application of Qatar. Without hav-
ing disposed of this jurisdictional issue, the Court cannot hand down an
interlocutory judgment. What the Court should do at the present stage is
to state clearly whether or not it has jurisdiction to entertain certain
limited aspects of the “whole” dispute, as submitted by Qatar.

4. Operative clause (4) of the Judgment seems to impose upon both
Parties an obligation to “take action to this end”. However, Qatar could
only reconsider its own claim within the framework of a fresh case,
brought either by a unilateral application or by the notification of a
special agreement, and this would only be conceivable if the Court were
to find that it lacked jurisdiction to entertain the claim as submitted at
present. On the other hand, Bahrain is not in a position to receive an
order from the Court, unless the Court’s jurisdiction is first established.
For the kind of order given in operative clause (4) of the Judgment to
have any effect the Court must have been validly seised of the present
dispute. I fail to understand how the Court envisages the follow-up to its
decision, if the Parties are not willing to “take action” pursuant to opera-
tive clause (4). If the Parties do not “take [that] action”, will it be
accepted that either Qatar, or both Qatar and Bahrain, have not com-
plied with the present Judgment? Or will the Court simply decide to dis-
continue the present case which has already been entered in the General
List and of which it will assume that it has been seised? It seems to me
that actually the Court is simply making a gesture of issuing an invita-
tion, in the guise of a Judgment, to the Parties to proceed to the submis-
sion of a new case independently of the present Application.

5. The present Judgment cannot, in my view, be seen as the type of
decision that the Court should hand down at a preliminary stage of
the case concerned with the questions of the jurisdiction of the Court
to entertain the dispute and the admissibility of the Application. If the
Court does not find it possible to entertain the present Application
as it stands, then it should reject it. The Court's desire to have the
two Parties refer to it the “whole of the dispute”. whether unilaterally or
jointly, must be seen as a different matter. My dissent does not mean
that I am opposed to the Court’s desire to have the Parties come
before it once again to submit the “whole of the dispute”, and the
Court's wishes could have been conveyed to the Parties if the present
Application had been rejected. The Court should have taken a clear posi-
tion on the matter of whether or not it was able to exercise its jurisdiction
to deal with the Application unilaterally filed by Qatar under Article 38 (1)
of the Rules of Court. By avoiding the essential point, the Court
seems to be playing a role of conciliator rather than acting as a judicial
institution.

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136 MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (DISS. OP. ODA)

II]. NEITHER THE “1987 AGREEMENT” NOR THE “1990 AGREEMENT”
CONFER JURISDICTION UPON THE COURT TO ENTERTAIN THE
QATARI APPLICATION

6. The Application instituting proceedings brought by Qatar against
Bahrain was submitted to the Court “in accordance with Article 40 (1) of
the Statute of the Court read with Article 38 of the Rules of Court”
(Application, para. 1). This is without any doubt “a written application
addressed to the Registrar” (Statute, Art. 40 (1)) or “proceedings
{brought] before the Court . . . instituted by means of an application”
(Rules. Art. 38 (1)). The present case cannot be seen as a case brought
before the Court “by the notification of the special agreement” (Statute,
Art. 40 (1)), or as “proceedings ... brought before the Court by the noti-
fication of a special agreement” (Rules, Art. 39 (1)). This is, in my view,
so self-evident that there is no need for argument. I must emphasize this
point, however, since in my view the present Judgment has been drafted
so as to hold that the present submission was not the one agreed upon by
the Parties in dispute. The Court may be validly seised of the present case
only if proceedings were instituted by means of an application filed by
Qatar, concerning disputes which fell within the category of “matters
specially provided for... in treaties and conventions in force” (Statute,
Art. 36 (1)).

7. As has been clearly indicated in the submissions of both Parties, the
Court is requested to determine whether it has jurisdiction to entertain
the dispute to which reference is made in the Application unilaterally
filed by Qatar. The question raised is whether the Court is competent to
exercise its jurisdiction on the grounds that the matters in dispute are
“matters specially provided for . . . in treaties and conventions in force”,
within the meaning of Article 36 (1) of the Statute. This provision of the
Statute is meant to refer to the so-called “compromissory clause” which
provides that, in the event of one party's referring a dispute to the Court,
the other party is bound to accept the Court’s jurisdiction to deal with it.

8. In its Application, Qatar appears to take both “the agreements
of December 1987 and December 1990” as the grounds upon which the
Jurisdiction of the Court to adjudicate upon the dispute is said to be
based (Application, para. 40). In fact, however, the relevant provision of
the Qatari Application is ambiguous to an extent that permits of an inter-
pretation that this submission is based on an agreement of the Parties. It
is obvious, however, that Qatar might not have wished to contend that it
had attempted to refer to the Court disputes, the content of which had
been agreed upon, as otherwise this could not have been a unilateral
application under Article 38 (1) of the Rules of Court, as it so clearly
was. Bahrain, on the other hand, requested at the very outset that Qatar’s
Application should not be entered in the General List of the Court,
apparently on the ground that there was no treaty or convention to pro-
vide a basis for the jurisdiction of the Court to deal with that unilateral

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137 MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (DISS. OP. ODA)

Application. In Bahrain’s view, Qatar’s Application could not be any-
thing other than a request under Article 38 (5) of the Rules or, in other
words, a request for the application of forum prorogatum. Subsequently,
Bahrain, however, did not press this contention since it agreed that there
should be a proceeding addressed to the questions of the jurisdiction of
the Court to entertain the dispute and of the admissibility of the Appli-
cation (Order of 11 October 1991).

9. In the present case the question is whether the “1987 Agreement” or
the “1990 Agreement”, or both, which Qatar invokes as a basis for the
jurisdiction of the Court, are of the nature of “treaties and conventions in
force” within the meaning of Article 36 (1) of the Statute, 1.e., whether
they contain a compromissory clause.

*
Agreement of December 1987

10. Of what does the “Agreement of December 1987” consist? There
exists a letter dated 19 December 1987 from the King of Saudi Arabia
addressed to the Amir of Qatar in which the former presented proposals
as a basis for settling the relevant disputes. A letter in reply was trans-
mitted by the Amir of Qatar to the King of Saudi Arabia on 21 Decem-
ber 1987, expressing his full agreement with the proposals set out in the
King’s letter. A letter identical to Saudi Arabia’s letter to Qatar was des-
patched by the King of Saudi Arabia to Bahrain also on 19 December
1987, but Bahrain’s response to Saudi Arabia was not sent until 26 Decem-
ber 1987. It should be emphatically noted that there was no exchange of
letters directly between Qatar and Bahrain at that time. How could the
two separate exchanges of letters, as described above, constitute a legally
binding “international agreement concluded . . . in written form” (Vienna
Convention on the Law of Treaties, Art. 2 (1) /a)) between Qatar and
Bahrain ?

11. Reference is also made to a “draft of the announcement made pub-
lic on 21 December 1987” (quoted in part in paragraph 17 of the Judg-
ment), which I quote below in paragraph 21. This text is incorporated
into Qatar’s Application but it is not known from the documents
presented by Qatar whether this announcement, which is reported simply
as “a draft”, was actually made or not. If tt was in fact made on 21 Decem-
ber 1987, this was, strange to relate, five days in advance of the despatch
of a letter from Bahrain addressed to Saudi Arabia on 26 December
1987, in which Bahrain agreed to accept the Saudi Arabian offer. The
“draft of the announcement” certainly was not signed by either Qatar or
Bahrain and cannot constitute a legally binding document.

12. One may ask how a “treaty” which may be defined as “an inter-
national agreement concluded between States in written form and gov-
erned by international law” (Vienna Convention on the Law of Treaties,
Art. 2 (1) f/a)) was concluded between Qatar and Bahrain solely on the

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138 MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (DISS. OP. ODA)

basis of this chain of events? I fail to understand how the “Agreement
of December 1987” can be regarded as one of the “treaties [or] conven-
tions in force” contemplated by Article 36 (1) of the Statute. I have a
rather firm view that there was, in December 1987, no treaty or conven-
tion within the meaning of Article 36 (1) of the Statute.

13. It may further be noted that Qatar, which regards the December
1987 Agreement as a basis of the Court’s jurisdiction, did not register
that “agreement” with the United Nations Secretariat, whereas the “1990
Agreement” was registered in June 1991. While it may not be necessary
to discuss the effect of the registration of “every treaty and every inter-
national agreement” with the United Nations Secretariat (Charter,
Art. 102), this fact may lead one to doubt whether Qatar has always
regarded the December 1987 Agreement as a treaty in the true sense of
the word.

*

Agreement of December 1990

14. Qatar’s Application takes the “Agreement of December 1990” as a
basis for the exercise of jurisdiction by the Court (Application, para. 40).
Qatar did register the “1990 Agreement” with the United Nations Secre-
tariat on 28 June 1991, just a few weeks before it filed its Application in
the Registry of the Court. Bahrain, which did not regard this document
as an international agreement, protested against that registration on
9 August 1991 and that protest was also duly registered.

15. Qatar uses the term “1990 Agreement” to denote the Minutes of a
meeting on 25 December 1990 between the respective Ministers for For-
eign Affairs of Saudi Arabia, Qatar and Bahrain which took place during
the 1990 session of the Gulf Co-operation Council (GCC) summit in
Doha (Application, Ann. 6). It is stated in these Minutes that, at the time
of the GCC summit, consultations took place between the Foreign Min-
isters of Bahrain and Qatar and were attended by Saudi Arabia’s Foreign
Minister, and that certain items were agreed by the three Ministers, who
signed the Minutes.

16. In fact, the three Foreign Ministers, in attestation of that agree-
ment, did sign the Minutes of the meeting (i.e., the agreed record of the
discussion that had taken place during that tripartite meeting) and, in my
view, they certainly did so without the slightest idea that they were sign-
ing a tripartite treaty or convention. It is clear from what is described in
paragraph 26 of the Judgment that at least the Minister for Foreign
Affairs of Bahrain never thought that he was signing an international
agreement. Given what we know of “the preparatory work of the treaty
and the circumstances of its conclusion” which, according to the Vienna
Convention on the Law of Treaties (Art. 32) is to be used as a supple-
mentary means of interpretation of a treaty, as those “circumstances” are

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139 MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (DISS. OP. ODA)

reflected in the statement made by the Minister for Foreign Affairs of
Bahrain, these Minutes cannot be interpreted as falling within the
category of “treaties and conventions in force” which specially provide
for certain matters to be referred to the Court for a decision by means
of a unilateral application. Whether a document signed by the Foreign
Minister in disregard of constitutional rules relating to the conclusion of
treaties can or cannot be considered a legally binding treaty is not at
issue. Quite simply, the Foreign Minister of Bahrain signed the Minutes
without so much as thinking that they were a legally binding interna-
tional agreement.

*

17. Thus, it may properly be concluded that neither the 1987 Agree-
ment nor the 1990 Agreement constituted a treaty or convention within
the meaning of Article 36 (1) of the Statute.

IV. EFFORTS TO Draw UP A SPECIAL AGREEMENT AND THE FAILURE
OF THOSE EFFORTS

18. If neither the December 1987 document nor the December 1990
document are to be seen as constituting a treaty or convention containing
a compromissory clause, what were Qatar and Bahrain then in fact trying
to achieve in the negotiations by endorsing those documents? It may be
pertinent in this regard to make a recital of the negotiations which had
been going on for more than two decades and of which, in my view, the
present Judgment has not necessarily provided a sufficient reflection.

19. The “Principles of the Framework for Reaching a Settlement” of
the disputes between Qatar and Bahrain, originally drafted in 1978 by
Saudi Arabia, were amended in 1983 after Saudi Arabia had received cer-
tain comments from Qatar. The amended principles (which are quoted in
paragraph 16 of the Judgment) read in part:

“Firstly: All issues of dispute between the two countries, relating
to sovereignty over the islands, maritime boundaries and territorial
waters, are to be considered as complementary, indivisible issues, to
be solved comprehensively together.

Fourthly: Formation of a Committee from both sides, to be
attended by a representative of the Kingdom of Saudi Arabia, with
the aim of reaching solutions acceptable to the two parties on the
basis of justice, good neighbourhood, balance of interests and secu-
rity requirements of both parties.

Fifthly: In case that the negotiations provided for in the fourth

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140 MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (DISS. OP. ODA)

principle fail to reach agreement on the solution of one or more of
the aforesaid disputed matters, the Governments of the two coun-
tries shall undertake, in consultation with the Government of Saudi
Arabia, to determine the best means of resolving that matter or mat-
ters, on the basis of the provisions of international law. The ruling
of the authority agreed upon for this purpose shall be final and
binding.” (Memorial of Qatar, Ann. IL.10: Counter-Memorial of
Bahrain, Ann. I.1.)

Those principles did not include any reference to the International Court
of Justice.
20. On 15 July 1987 Saudi Arabia suggested to Qatar that:

“[an effort to end the issues in dispute] should be based on the joint
realisation that the difference of views between the brothers should
be resolved by accord and brotherly understanding aimed at achiev-
ing the common interest in accordance with a common conviction
that such a solution cannot be reached without a joint brotherly and
sincere co-operation that accounts for an equal reduction of some
claims, thus ensuring a compromise and bringing views closer”
(Memorial of Qatar, Ann. II.13).

On 24 August 1987 Qatar replied to that suggestion by pointing out that:

“as our dispute with our brothers in Bahrain is related to the right of
sovereignty over the disputed areas, it can only be settled if either
party comes to the conviction that this right belongs to the other
party, in such a manner as to admit the same willingly and intelli-
gibly. Failing this, the duty of keenness shared by the two brotherly
countries to maintain the fraternal relations that join them, and
observance of their interests and the higher common interests of all
of us, requires them to search, through international arbitration, for
the just solution to their dispute which shall be binding on both of
them.” (/bid., Ann. 11.14.)

In this exchange of letters between Saudi Arabia and Qatar, no mention
is made of a reference of the dispute to the International Court of Justice.
Neither Qatar’s documents nor Bahrain’s documents tell us whether
a similar correspondence was exchanged between Saudi Arabia and
Bahrain.

*

GCC Summit in December 1987

21. Against this background, the GCC summit for the year 1987 was
held in Riyadh in December of that year. On 19 December 1987, as I
mentioned in paragraph 10 above, Saudi Arabia sent the letters to Qatar
and Bahrain which are quoted in part in paragraphs 17 and 31 of the
Judgment. These read in part as follows:

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141 MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (DISS. OP. ODA)

“Firstly: All the disputed matters shall be referred to the Interna-
tional Court of Justice, at The Hague, for a final ruling binding
upon both parties, who shall have to execute its terms.

Thirdly: Formation of a committee comprising representatives
of the States of Qatar and Bahrain and of the Kingdom of Saudi
Arabia for the purpose of approaching the International Court of
Justice, and satisfying the necessary requirements to have the dispute
submitted to the Court in accordance with its regulations and instruc-
tions so that a final ruling, binding upon both parties, be issued.”
(Application, Ann. 4 (A).)

The idea of a possible reference to the International Court of Justice of
the matters in dispute between Qatar and Bahrain appeared for the first
time in those letters, the main aim of which was to set up a Tripartite
Committee

“for the purpose of approaching the International Court of Justice,
and satisfying the necessary requirements to have the dispute sub-
mitted to the Court in accordance with its regulations and instruc-
tions”.

Both Qatar and Bahrain responded on 21 and 26 December, respectively,
by accepting the aforementioned proposals of Saudi Arabia, as reflected
in a “draft of the announcement made public on 21 December 1987”
which was prepared by Saudi Arabia and to which [ referred in para-
graph 11 above:

“The contacts carried out by the Kingdom of Saudi Arabia with
the two sisterly States have resulted in a proposal, submitted by the
Kingdom of Saudi Arabia and sanctioned by the two countries, that
the matter be submitted for arbitration, in pursuance of the prin-
ciples of the framework for settlement which had been agreed by the
two sisterly States, particularly the fifth principle which reads:

‘The Governments of the two parties undertake to consult with
the Government of the Kingdom of Saudi Arabia to determine the
best means of resolving that matter or matters on the basis of the
provisions of International Law. The decision of the authority
agreed upon for this purpose shall be final and binding upon both
parties.”

Accordingly, it has been agreed by the two parties, under the five
principles, to set up a committee comprising representatives of the
State of Bahrain, the State of Qatar and the Kingdom of Saudi
Arabia for the purpose of approaching the International Court of
Justice and meeting the requirements to have the dispute submitted

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142 MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (DISS. OP. ODA)

to the Court according to its rules and instructions, so that a final rul-
ing binding upon both parties be issued.” (Application, Ann. 4 (B).
N.B.: The fifth principle quoted herein, which is not identical to the
text of the “amended principles” of 1983, as quoted in paragraph 19
above, must be the same in the original Arabic.)

22. During the summit meeting in December 1987 (but apparently
after the Saudi Arabian letter of 19 December 1987), Bahrain prepared a
“draft procedural agreement concerning the formation of the joint com-
mittee” (the precise date of which has not been reported), of which the
relevant passage reads as follows:

“1. A Committee shall be formed of representatives of the State
of Qatar and the State of Bahrain and representatives of Saudi
Arabia with the aim of reaching a special agreement to submit the
disputed matters between the parties to the International Court of
Justice for a final judgment binding upon the Parties.” (Counter-
Memorial of Bahrain, Ann. 1.5. N.B.: This is the text of a translation
by Qatar which appears in the Counter-Memorial of Bahrain,
although another, different, translation is incorporated in Qatari
document Ann. If.17, Memorial of Qatar; emphasis added.)

It is believed that this document remained as a draft and was later
reintroduced at the first session of the Tripartite Committee, as I explain
in paragraph 24 below. Reference ts also made only in Qatar’s documents
submitted to the Court to “Qatar’s draft letter to the Registrar of the
Court dated 27 December 1987”, according to which the Court was to be
informed of differences between Qatar and Bahrain (which incidentally
did not refer to the question of Zubarah) and to the agreement between
the Ministers for Foreign Affairs of both Qatar and Bahrain, to the effect
that they were

“1. To submit their aforesaid differences, to the International
Court of Justice (or a chamber composed of five judges thereof), for
settlement in accordance with International Law.

2. To open negotiations between them with a view to preparing
the necessary Special Agreement in this respect, and transmitting to
you a certified copy thereof when it is concluded.” (Memorial of
Qatar, Ann. 11.18; emphasis added.)

The letter was not, in fact, sent to the Registrar of the Court. In any
event, one is led to conclude that Qatar as well as Bahrain recognized
that they would have to prepare jointly a special agreement for submis-
sion of the dispute to the Court.

23. In my view, if any mutual understanding was reached between
Qatar and Bahrain in December 1987 (albeit not in the form of a treaty

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143 MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (DISS. OP. ODA)

or convention), this was simply an agreement, if ] may quote the relevant
passage once more, to form a Tripartite Committee

“for the purpose of approaching the International Court of Justice,
and satisfying the necessary requirements to have the dispute sub-
mitted to the Court in accordance with its regulations and instruc-
tions”,

as stated in paragraph 21 above. Moreover, to repeat what has already
been said, the purpose of the Tripartite Committee was to facilitate the
drafting of a special agreement whereby the disputes could be submitted
to the Court.

*

Tripartite Committee Meetings in 1988

24. The Tripartite Committee came into being at the time of the GCC
summit in December 1987. The Committee met six times during 1988.
“Bahrain's revised draft agreement (procedural agreement concerning the
formation of the joint committee)” submitted at the first meeting of the
Tripartite Committee on 17 January 1988 seems to have been identical to
the draft presented by Bahrain to the summit meeting in December 1987,
which I refer to in paragraph 22 above (Memorial of Qatar, Ann. 11.19).
The aim of the Committee was clearly to reach a special agreement to
submit the disputed matters to the Court for a final judgment. Whether
this so-called “revised” text of the agreement was actually signed by the
representatives of the three countries is not known.

25. It is reported that as of 15 March 1988 Qatar prepared a draft
special agreement according to which both Parties would have agreed
upon the following provisions:

“Article I

The parties submit the questions stated in Article I] of the present
Agreement to the International Court of Justice for decision in
accordance with international Jaw.

Article II
The questions for the decision of the Court in accordance with
Article I are:

1. To which of the two States does sovereignty over Hawar
Islands belong?

2. What is the legal status of the Dibal and Jaradeh shoals? In
particular, does either State have sovereignty, if any, over the Dibal
or Jaradeh shoal or any part of either shoal?

3. ... Does [the] median line [drawn by the British Political Agent

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144 MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (DISS. OP. ODA)

on 23 December 1947] represent the right boundary between the
[respective] continental shelves ?

4. ... what should be the course of the boundary or boundaries
between the maritime areas appertaining respectively to the State of
Qatar and the State of Bahrain?” (Memorial of Qatar, Ann. IL21:
Counter-Memorial of Bahrain, Ann. I.8.)

In parallel, Bahrain prepared as of 19 March 1988 a draft special agree-
ment according to which:

“Article I
The parties shall submit the question posed in Article II to the
International Court of Justice.

Article I
1. The parties request the Court

(a) to draw a single maritime boundary between the respective
maritime areas of Bahrain and Qatar; such boundary to pass
between the easternmost features of the Bahrain archipelago
including most pertinently the Hawar Islands, Fasht ad Dibal
and other adjacent or neighbouring features and the coast of
Qatar, and to preserve Bahrain’s rights in the pearling banks
which lie to the north east of Fasht ad Dibal, and in the fish-
eries between the Bahrain archipelago and Qatar.

(b) to determine the rights of the State of Bahrain in and around
Zubara.

2. The Court is requested to describe the course of the maritime
boundary . . .” (Memorial of Qatar, Ann. If.22; Counter-Memorial
of Bahrain, Ann. 1.9.)

26. Qatar and Bahrain both apparently endeavoured to draft a special
agreement by which they could jointly refer the matters in dispute to the
International Court of Justice. A letter of Qatar dated 25 March 1988
addressed to Saudi Arabia (Memorial of Qatar, Ann. IT.23), as well as a
Memorandum of Qatar of 27 March 1988 addressed to Saudi Arabia
concerning comments on the draft special agreement by Bahrain (ibid.,
Ann. 11.24; Rejoinder of Bahrain, Ann. 1.2), together pointed to the
efforts made by both Parties to agree on the text of a special agreement
to be filed in the Registry of the Court. The intent of both countries was
clear and their aim was to achieve an agreement on the matters to be
referred to the International Court of Justice, in other words, on Ar-
ücle II of the respective draft special agreements as mentioned above. In
both the draft special agreements prepared by Qatar and Bahrain, respec-
tively, the matters which each Government wanted the Court to decide
seem to have been quite different, in particular with regard to whether
the question of Zubarah would be included or not.

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145 MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (DISS. OP. ODA)

27. At the fourth meeting of the Tripartite Committee held in Jeddah
on 28 June 1988, texts of a revised Article I] were presented by both
Qatar and Bahrain. The Qatari text read as follows:

I

“Article IT

2. The parties request the Court to decide . . . on the following
questions:

(a)
(b)

(c)

(d)

To which of the two States does sovereignty over the Hawar
Islands belong ?

What is the legal status of Dibal and Jaradeh shoals? In par-
ticular, does either State have sovereignty, if any, over the
Dibal and Jaradeh shoals or any part of either shoal?

Does the line described in the letter of 23 December 1947 rep-
resent the correct boundary between the continental shelves of
the State of Bahrain and the State of Qatar?

Having regard to the answers of the Court to questions (a),
(b) and fe), what should be the course of the boundary or
boundaries between the maritime areas appertaining respec-
tively to the State of Bahrain and the State of Qatar?” (The
Meetings of the Tripartite Committee deposited by Qatar with
the Registry, Doc. 7.)

The text of Bahrain's Article II read as follows:

“The Court is requested:

(1)

(2)

(3)

(4) ..

to determine the extent to which the two States have exercised
sovereignty over the Hawar Islands and have thus established
such sovereignty;

to determine the legal status of and sovereign and other rights of
both States in any features, other than Fasht ad Dibal and the
Bahraini island of Qitat Jaradah in the Bahrain archipelago, or
in any natural resources both living and non-living which may
affect the delimitation referred to in paragraph (4) below;

to determine any other matter of territorial right or other title or
interest claimed by either State in the land or maritime territory
of the other;

. to draw a single maritime boundary . . .” (Memorial of
Qatar, Ann. H.27.)

The Amir of Qatar gave King Fahd of Saudi Arabia some explanations
regarding this situation in a letter dated 9 July 1988:

“Since the previous three meetings had failed in making any
progress with regard to agreeing on a text of the Special Agreement,
the Qatari delegation presented to the fourth meeting of the Tripar-
tite Committee a brief memo on the reasons which led to this situa-

37
146 MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (DISS. OP. ODA)

tion, with the hope of joining our efforts to make the Committee suc-
ceed in its task.” (Memorial of Qatar, Ann. 11.28; emphasis added.)

That letter continues:

“Since Article Two in the Draft Special Agreements presented by
the Governments of the State of Qatar and Bahrain is the basic
article in both drafts, which states that upon referring the subjects of
dispute to the Court it has been agreed that each side would come
forth with proposals for the amendment of this article in the light of
the discussions on it which were recorded in the minutes of the Tri-
partite Committee, and in such a manner as to close the gap between
the viewpoints through the exclusion from this article in either draft
of any provisions that are unacceptable due to their being contrary
to the principles on which this article must be based, namely history,
right, logic and law, and the consideration of remarks expressed on
them on the basis of those principles.” (/bid. ; first emphasis added.)

28. Some months elapsed after the fourth meeting and on 26 October
1988 Bahrain submitted a “Bahraini formula” (which is quoted in para-
graph 18 of the Judgment), which was related to Article II of either
Qatar’s draft or Bahrain’s draft, that is to say, the matters in dispute to
be referred to the Court, and which read:

“The Parties request the Court to decide any matter of territorial
right or other title or interest which may be a matter of difference
between them; and to draw a single maritime boundary between
their respective maritime areas of seabed, subsoil and superjacent
waters.” (Application, Ann. 5.)

At the fifth meeting held at Riyadh on 15 November 1988 Qatar wel-
comed the opportunity to discuss the Bahraini formula as a possible basis
for negotiations but expressed strong reservations on the matter of
whether Bahrain’s claim to Zubarah should be considered as falling
within the framework of the dispute. In other words, it was still difficult
for Qatar and Bahrain to agree on the subject of the disputes to be
referred to the International Court of Justice — even at the fifth meeting
of the Tripartite Committee in November 1988.

29, At the sixth meeting on 6 December 1988 Qatar proposed an
amendment of the Bahraini formula so that it would read as follows:

“[Qatar and Bahrain] submit to the International Court of Justice,
under its Statute and the Rules of Court, for decision in accordance
with international law, the existing dispute between them concerning
sovereignty, territorial rights or other title or interest, and maritime
delimitation.” (Memorial of Qatar, Ann. IL.31.)

38
147 MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (DISS. OP. ODA)

The Minutes of this session read:

“(1) There followed a discussion aimed at defining the subjects to
be submitted to the Court, which shall be confined to the following
subjects:

Hawar Islands, including Janan Island

Dibal shoal and Qit’at Jaradah

Archipelago base lines

Zubarah

Fishing and Pearling areas and any other matters related to mari-
time boundaries.

we wry>

(2) The two parties agreed on these subjects. Qatar's delegation
proposed that the agreement which would be submitted to the Court
should have two annexes, one Qatari and the other Bahraini. Each
State would define in its annex the subjects of dispute it wants to
refer to the Court. The Bahraini delegation stated that the Qatari
proposal that there be two separate annexes would be studied along
with the Qatari amendment of the general formula of the proposed
Bahraini question. Therefore, the Bahraini delegation asked for
enough time to study the proposed amendment.

(3) The Qatari delegation also enquired what was meant by the
content of the dispute regarding Zubarah. It stated that if the con-
tent of the dispute regarding Zubarah related to sovereignty over the
area, then it would not agree in its inclusion in the subjects to be
referred to the Court. But if the content relates to private rights in
Zubarah, then Qatar’s delegation would not object.

The Bahraini delegation responded that their claims regarding
Zubarah which would be submitted to the Court would represent
the most unrestricted maximum possible claims, and that it should
be left to the Court to decide on this matter according to legal evi-
dence and arguments submitted by Bahrain.” (Memorial of Qatar,
Ann. JT.31.)

After all, the Parties seem to have agreed on the inclusion of the question
of Zubarah but to have differed as to how that question would be com-
prised within the subjects of the disputes to be submitted to the Court.

30. It is important to note that the task of the Tripartite Committee in
1988 related to the form of words of a special agreement which certainly
should have defined the matters in dispute to be referred to the Court.
The Tripartite Committee was unable to produce an agreed draft of a
special agreement to be notified to the Court.

39
148 MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (DISS. OP. ODA)

Doha Meeting in December 1990

31. After the sixth meeting of the Tripartite Committee in December
1988, which did not produce any useful result, very little progress was
made until the end of the year 1990 — the time of the signature of the
“Doha Minutes” of the tripartite meeting in December, to which I
referred in paragraph 15 above.

32. To what did the signatories then in fact agree in Doha in Decem-
ber 1990? The indications provided by the Doha Minutes read:

“The following was agreed:

(1) to reaffirm what was agreed previously between the two
parties ;

(2) to continue the good offices of [Saudi Arabia] between the two
countries till the month of... May of the next year 1991. After the
end of this period, the parties may submit the matter to the Interna-
tional Court of Justice in accordance with the Bahraini formula,
which has been accepted by Qatar, and the proceedings arising
therefrom. Saudi Arabia’s good offices will continue during the sub-
mission of the matter to arbitration;

(3) should a brotherly solution acceptable to the two parties be
reached, the case will be withdrawn from arbitration.” (Application,
Ann. 6; Counter-Memorial of Bahrain, Ann. [.20; emphasis added.)

The United Nations translation of paragraph 2 is given here below for
clarity:

“2. The good offices of [Saudi Arabia], in addressing the dispute
between the two countries shall continue until [May 1991]. Once that
period has elapsed, the two parties may submit the case to the Inter-
national Court of Justice, in accordance with the Bahraini formula
accepted by the State of Qatar and the arrangements relating thereto.
The good offices of the Kingdom of Saudi Arabia may continue dur-
ing the period in which the case is referred to arbitration.” (Counter-
Memorial of Bahrain, Ann. I.20; emphasis added.)

33. It was agreed by the three Foreign Ministers in these tripartite
talks that after May 1991 “the parties [the two parties — United Nations
translation] may submit the case to the International Court of Justice”.
This must be interpreted as indicating that the good offices of Saudi Ara-
bia aimed at finding some concrete solution to the dispute between Qatar
and Bahrain were to be continued until May 1991 after which time, and
in the event of the failure of those good offices, Qatar and Bahrain would
be able to come to the Court. This conclusion may be confirmed if one
looks at the letter dated 30 December 1990 and sent by Qatar to Saudi
Arabia, in which Qatar stressed its confidence that its dispute with Bah-
rain could be settled “whether through your good offices or through the
International Court of Justice” (Memorial of Qatar, Ann. II.33). In other

40
149 MARITIME DELIMITATION AND TERRITORIAL QUESTIONS (DISS. OP. ODA)

words, reference to the International Court of Justice was to be an alter-
native to Saudi Arabia’s good offices to be continued until May 1991 for
the solution of the disputes between Qatar and Bahrain. This did not
imply any authorization such as to permit one party to make an approach
to the Court by unilateral application, ignoring “what was agreed previ-
ously between the two parties” (Doha Minutes), that is to say, the sub-
mission of the matter to the Court in accordance with the Bahraini for-
mula which could itself have constituted Article I] of a special agreement.

ok

After the Doha Meeting

34. In May 1991, namely, after the lapse of this five-month period
allowed for the resumed good offices of Saudi Arabia, Qatar and Bahrain
could then have continued negotiations to work out a draft of a special
ugreement. In fact, in September 1991, Saudi Arabia suggested a draft
special agreement to both countries (Counter-Memorial of Bahrain,
Ann. 1.24) and a draft special agreement was also drawn up by Bahrain
on 20 June 1992 (Rejoinder of Bahrain, Ann. 1.7).

35. Qatar arrived at a different interpretation of the 1990 Doha Min-
utes and took steps to seise the Court by unilaterally addressing a written
Application to the Registrar of the Court on 8 July 1991 and requested
the Court to adjudge and declare what it had already stated in Article II
of its March 1988 draft special agreement (as quoted in paragraph 25
above). Qatar took this action without due regard to the discussions held
with Bahrain on the text of Article II contained in both Qatar’s and Bah-
rain’s draft special agreements at the ensuing sessions of the Tripartite
Committee.

V. CONCLUSION

36. | am confident that neither the “1987 Agreement” nor the
“1990 Agreement” can be deemed to constitute a basis for the juris-
diction of the Court in the event of a unilateral application under
Article 38 (1) of the Rules of Court and that the Court is not empowered
to exercise jurisdiction in respect of the relevant disputes unless they are
jointly referred to the Court by a special agreement under Article 39 (1)
of the Rules which, in my view, has not occurred in this case. The Court
has nonetheless opted for the role of conciliator instead of finding, as I
believe it ought to have done, that it lacks jurisdiction to entertain the
Application filed by Qatar on 8 July 1991.

(Signed) Shigeru Opa.

41


DISSENTING OPINION OF VICE-PRESIDENT KORETSKY

To my great regret, I am unable to concur in the Court’s Judgment, for
the reasons which I state below.

*
* *

The Judgment denies the possibility of applying Article 6, paragraph 2,
of the Geneva Convention on the Continental Shelf to these cases on a
purely conventional basis. It is a fact that the Federal Republic of
Germany has not ratified the Convention. Therefore, despite the Fede-
ral Government’s having recognized the doctrine of the continental
shelf as embodied in Articles | to 3 of the Convention, despite its
reliance thereon in proclaiming its sovereign rights over the con-
tinental shelf, despite its having announced a bill for ratification, and
despite its conclusion with the Netherlands and Denmark of respective
treaties that fix partial continental shelf boundaries following “to some
extent... the equidistance line” or adopting a “seaward terminus...
equidistant from” the coasts concerned (Memorials, para. 60) and are
thus more than consistent with paragraph 2 of Article 6, the Federal
Republic of Germany has disputed the possibility of regarding that
provision as binding upon it. It may be noted that, during the negotia-
tions which took place with the Netherlands and Denmark, the Federal
Republic contested this possibility only after a certain delay, and that it
was not consistent in doing so, since it even assumed as an alternative
possibility in its final Submissions that the rule contained in the second
sentence of paragraph 2 of Article 6 could be applicable between the
Parties, adding that “special circumstances within the meaning of that
rule would exclude the application of the equidistance method in the
present case”. In this Submission (No. 2) the Federal Republic linked the
principle of equidistance (though calling it a ‘“‘method’’) with the ‘special
circumstances” rule, and it may be recalled that, during the oral pro-
ceedings, Counsel for Denmark and the Netherlands had combined them
in the form of the “equidistance’special-circumstances”’ rule.

The Judgment acknowledges that “such a rule was embodied in Article
6 of the Convention, but as a purely conventional rule’ (paragraph 69).
However, as the Federal Republic has not ratified the Convention, the

155
155 CONTINENTAL SHELF (DISS. OP. KORETSKY)

Judgment considers that ‘qua conventional rule . . . it is not opposable to
the Federal Republic of Germany” (ibid.). It may be regretted that the
Judgment did not deal fully with the question as to whether “special
circumstances”’ could in fact be established with regard to the maritime
boundaries between the Federal Republic and the Netherlands, and
between the Federal Republic and Denmark, respectively.

In its first finding, the Judgment uses the following words in respect of
each case: “(A) the use of the equidistance method of delimitation not
being obligatory as between the Parties.” It thus disjoins the equidistance
principle from the other two components of the triad: agreement-special
circumstances-equidistance. These three interconnected elements are
embodied in the Convention, as also in the Convention on the Territorial
Sea and the Contiguous Zone, and have entered into the province of the
general principles of international law, being consolidated as a combined
principle of customary international law. Each of these three elements
plays its part in the determination of a boundary line between two
maritime areas, such as areas of the continental shelf in particular.

Agreement is deemed to constitute the principal and most appropriate
method of determining the boundaries of the areas of any continental
shelf. This is confirmed by the practice of States. The Convention itself
gives it pride of place, and this was quite natural, as the issue was one
concerning the geographical limits of the sovereign rights of States. It
was unnecessary to prescribe at that stage any directives as to the con-
siderations on the basis of which parties ought to arrive at agreement.
Provided there is no encroachment on the sphere of the sovereign rights
of any other State, parties are free to agree on whatever terms they wish
for the delimitation of boundaries, bearing in mind, generally, both legal
and non-legal considerations: relevant political and economic factots,
related considerations of security and topography, the relations (“‘good-
neighbourly”’ or otherwise) between the States concerned, and whatever
imponderables may escape hard and fast classification. The assessment
of such considerations is a political and subjective matter, and it is not
for the Court as a judicial organ to concern itself with it unless the parties
submit to it a dispute on a question or questions of a really legal character.

The next element of the triad—the “special circumstances” situation—
is, however, an objective matter, concerning as it does, for instance, the
unusual geographical configuration of the coastline to either side of a
frontier, and a disagreement as to whether or not a certain situation
could be regarded as a case of “special circumstances” justifying an
appropriate boundary line would be a justiciable dispute.

And it is only after the failure of these two elements of the triad, in
the event of a deadlock, that the third element—the equidistance prin-
ciple—makes its appearance as the last resort, offering a way out of the
impasse in a geometrical construction which introduces a mathematical

156
156 CONTINENTAL SHELF (DISS. OP. KORETSKY)

definitude and a certainty of maritime boundaries. The Judgment itself
agrees that “it would probably be true to say that no other method of
delimitation has the same combination of practical convenience and
certainty of application” (paragraph 23).

*
* *

If it be held that the principles and rules inseparably embodied in
paragraph 2 of Article 6 of the Convention are no more than treaty
provisions and are not, as such, opposable to the Federal Republic,
then one may ask whether these principles and rules are or have become
an institution of international law, either as general principles developed
in relation to the continental shelf, or as an embodiment of international
custom. There are sufficient grounds for considering them to qualify in
both these ways, but 1 am inclined to consider them rather as principles
of general international law, seeing that established doctrine lays much
stress on the time factor as a criterion of whether a given principle belongs
to customary international Jaw: by and large, customary international
Jaw turns its face to the past while general international law keeps abreast
of the times, conveying a sense of today and the near future by absorbing
the basic progressive principles of international law as soon as they are
developed.

Contemporary international law has developed not only quantitatively
but more especially qualitatively.

There has been far-reaching development of the work of the codifica-
tion of international law which has been organized in the United Nations
on a hitherto unknown scale. In the first stage, drafts of international
multilateral conventions were prepared by the International Law Com-
mission, composed of jurists “of recognized competence in international
law”, which in response to its request, received numerous comments and
observations from almost all governments. There followed, upon the
themes of those drafts, an increased amount of special literature (books
or articles) and the work of universities and research institutes, including
the Institute of International Law, and various learned societies (e.g., the
International Law Association). Then came the discussions in the General
Assembly of the reports and drafts prepared by the International Law
Commission. This preparatory work led finally to the convocation of
special intergovernmental conferences in which the great majority of
States participated. The scale and thoroughness of this process for the
forming and formulation of principles and rules of international law
should lead to the consideration in a new light of what is accepted as the
result of such work of codification.

Where it used to be considered indispensable, for determining certain

157
157 CONTINENTAL SHELF (DISS. OP. KORETSKY)

general principles of international law, to gather the relevant data brick
by brick, as it were, from governmental acts, declarations, diplomatic
notes, agreements and treaties, mostly on concrete matters, such prin-
ciples are now beginning to be crystallized by international conferences
which codify certain not inconsiderable areas of international law. Elihu
Root, the well-known jurist and statesman, one of the framers of the
Statute of the Permanent Court of International Justice, wrote (in his
Prefatory Note to the Texts of the Peace Conferences at The Hague, 1899
and 1907, Boston 1908):

“The question about each international conference is not merely
what it has accomplished, but also what it has begun, and what it has
moved forward. Not only the conventions signed and ratified, but
the steps taken towards conclusions which may not reach practical
and effective form for many years to come, are of value.”

Elihu Root wrote this in connection with the Peace Conferences of 1899
and 1907. Certain principles which were embodied in The Hague Con-
ventions at that time have been acknowledged as principles of general
international law, though States have been slow to put them into practice.

The 1958 Conference on the Law of the Sea, with the Conventions
adopted there, among them the Convention on the Continental Shelf,
introduced substantial definitude in this field of international law; and
the principles and rules of the international law of the sea formulated
therein have become the general principles of that law with almost un-
precedented rapidity.

The rapid technical progress in the exploration and exploitation of
submarine oil and gas resources has entailed the necessity for correspond-
ing legal principles and rules. The practice of States has predetermined
the course of development of the doctrine as also of the principles and
rules of international law relating to the continental shelf.

The Anglo-Venezuelan Treaty Relating to the Submarine Areas of the
Gulf of Paria, 1942 (U.N. Legislative Series: Laws and Regulations on the
Régime of the High Seas, Vol. I (1951), p. 44) was followed in a com-
paratively short time by numerous unilateral governmental acts, such as
the Presidential Proclamation concerning the policy of the United States
with respect to the natural resources of the subsoil and seabed of the
continental shelf (1945), the Presidential Declaration (of Mexico) of the
same year with respect to the continental shelf, and decrees, laws and
declarations by almost all the other Latin American States (in the
period 1946-1951), and by the Arab States, Pakistan and others (U.N.
Legislative Series, Laws and Regulations on the Régime of the High Seas,
ST/LEG/SER.B/1).

As a result of the inclusion in the work of the United Nations of the
task of determining the principles and rules of international law relating

158
158 CONTINENTAL SHELF (DISS. OP. KORETSKY)

to the continental shelf, the general principles of the law of the continental
shelf had already taken shape before the Conference, though not in a
finally “polished”? form, on the basis of governmental acts, agreements
and scientific works. The Geneva Conference of 1958, in the Convention
on the Continental Shelf which was adopted, gave definite formulation
to the principles and rules relating thereto. These were consolidated in
subsequent practice in a growing number of governmental acts, interna-
tional declarations and agreements (as mentioned in the written and oral
proceedings), which in most cases referred to the Convention or, when
they did not do so, made use of its wording. All this has led to the develop-
ment, in great measure organized and not spontaneous, of the general
principles of international Jaw relating to the continental shelf, in not
only their generality but also their concreteness. Thus, by a kind of
coalescence of the principles, a genuine communis opinio juris on the
matter has come into being. States, even some not having acceded to the
Convention, have followed its principles because to do so was for them a
recognition of necessity, and have thereby given practical expression to
the other part of the well-known formula opinio juris sive necessitatis.

And this conclusion might be reached also by deducing these principles
as “direct and inevitable consequences” of the premises and considering
their binding force to be that of historically developed logical principles
of law (see Lotus, Dissenting Opinion by Judge Loder, P.C.LJ., Series A,
No. 10, p. 35).

This finds confirmation in the doctrine which regards the continental
shelf as being an actual continuation of the submarine areas of the territo-
rial sea, which, in its turn, is a continuation of the mainland of the coastal
State. The United States Presidential Proclamation of 1945, asserting the
right of the United States to exercise jurisdiction over the natural resources
of the subsoil and seabed of the continental shelf, regarded that shelf “as
an extension of the land-mass of the coastal nation and thus naturally ap-
purtenant toit”. In 1946 an Argentine decree stated : “The continental shelf
is closely united to the mainland bothin a morphological and a geological
sense.” The Peruvian Presidential Decree of 1947 stated that ‘‘the continen-
tal submerged shelf forms one entire morphological and geological unit
with the continent”, and the decrees of almost all other Latin American
countries employ virtually identical expressions. (U.N. Legislative Series,
Laws and Regulations on the Régime of the High Seas, ST/LEG;SER.B/1).
The Judgment also recognizes that the submarine areas of the continental
shelf” may be deemed to be actually part of the territory over which
the coastal State already has dominion—in the sense that, although
covered with water, they are a prolongation or continuation of that
territory, an extension of it under the sea” (paragraph 43).

159
159 CONTINENTAL SHELF (DISS. OP. KORETSKY)

But what conclusion can be drawn from this premise—in relation to
principles and rules of international law which govern or should govern
the delimitation of a given part of the continental shelf? Bearing in mind
that the continental shelf constitutes, as is stated in the operative part of
the Judgment, under (C) (1), ‘a natural prolongation of” each Party’s
“land territory into and under the sea” (including, may I add, the
territorial sea appertaining to the same coastal State), the question might
be asked as to whether there exist, for the delimitation of the continental
shelf as between “‘adjacent’’ States, any special principles and rules
different from those which have been established (in State practice,
treaties, agreements, etc.) in relation to the delimitation of such maritime
areas as the territorial sea. Concerning any possible connection between
the conceivable principles—whether similar or different—governing the
delimitation, respectively, of the territorial sea and of the continental
shelf, it may be noted, in the first place, that the sovereign rights of a
coastal State over its territorial sea and over the continental shelf are
different in scope.

In relation to the territorial sea three “strata” (to use that term) may
be distinguished: (a) the maritime area, (b) the seabed and its subsoil and
(c) the air-space. The sovereignty of a coastal State extends to all three of
these strata with regard to the territorial sea adjacent to its coast.

In relation to a contiguous zone the coastal State has ceitain rights
in connection with a delimited maritime area.

In relation to the continental shelf, that is to say, to the seabed and
subsoil of submarine areas adjacent to a given coast, but outside the
area of the territorial sea (ergo, submarine areas of the contiguous zone
included), the coastal State has “sovereign rights for the purpose of
exploring it and exploiting its natural resources”, not affecting “the
legal status of the superjacent waters as high seas, or that of the air-
space above these waters”.

Thus, there has occurred some kind of bifurcation of the legal régimes
of the territorial sea and of the continental shelf. The maritime and air
“strata” over the continental shelf are outside the sphere of the rights
of a given coastal State. But the continental shelf itself is within the
sphere of the special territorial (though limited) rights of the coastal
State to which it is appurtenant, on the ground of the close physical
relationship of the continental shelf with the mainland (via the submarine
area of its territorial sea), as being its natural prolongation, as was
recognized by the Court and has become the generally recognized concept
of international law. Although Bracton might have considered the sea
coast “quasi maris accessoria’, which was historically understandable,
not only the territorial sea but also the continental shelf may now be
considered as “accessories” of or, in the words of the Judgment in the

. Fisheries case, as “appurtenant to the land territory” (1.C.J. Reports
1951, p. 128; in French, more explicitly, “comme accessoire du territoire

160
160 CONTINENTAL SHELF (DISS. OP. KORETSKY)

terrestre”) !, To apply the old adage accessorium sequitur suum principale,
this appurtenance may be considered as entailing common principles for
the delimitation of maritime spaces, that is to say for both the territorial
sea and the continental shelf.

This explains why, in the International Law Commission, almost
from the beginning, it was frequently said that the question of the delimi-
tation of the continental shelf is, in the words of M. Cordova, a former
Judge of the International Court, “closely bound up with the delimitation
of territorial waters” (Z.L.C. Yearbook, 1951, Vol. 1, p. 289).

The starting-point for determining the boundaries of a continental
shelf is formed by the definitive boundaries of the territorial sea of a
given State (Article 1 of the Convention on the Continental Shelf defines
the continental shelf, as has been recalled, as adjacent to the coast but
outside the area of the territorial sea), and it was for that reason that
Professor François, the rapporteur of the International Law Commission,
was able to state as follows in 1951:

“It seems reasonable to accept, as demarcation line between the
continental shelves of two neighbouring States, the prolongation of
the line of demarcation of the territorial waters” (A'CN.4;42, p. 717).

The Committee of Experts, which was composed not of mere draftsmen
but of very experienced specialists acquainted with the practice of States
in the matter of the determination and delimitation of maritime bound-
aries, who were the representatives of cartography as a science within
the field of political geography whichis intimately connected with “public
law”, stated in their report, in answer to, inter alia, the question of how
the lateral boundary line should be drawn through the territorial sea of
two adjacent States:

“The committee considered it important to find a formula for
drawing the international boundaries in the territorial waters of
States, which could also be used for the delimitation of the respective
continental shelves of two States bordering the same continental
shelf” (A'CN.4/61, Add. 1, Annex, p. 7).

It will be observed that the two Geneva Conventions of 1958—that on the
Territorial Sea and the Contiguous Zone and that on the Continental

! Cf. Grisbadarna award: ‘‘the fundamental principles of the law of nations, both
ancient and modern, according to which the maritime territory is essentially an
appurtenance of a land territory” /translation by the Registry]. (U.N.R.LA.A., XI,
p. 159.)

161
161 CONTINENTAL SHELF (DISS. OP. KORETSKY)

Shelf—formulated very similar and, in substance, even identical principles
and rules for the delimitation of both the territorial sea and the continental
shelf 1. It is particularly noteworthy in this respect that Article 6 of the
Soviet/Finnish Agreement concerning boundaries in the Gulf of Finland
actually provides for the boundary of the territorial sea to constitute
that of the continental shelf (U.N. Treaty Series, Vol. 566, pp. 38-42).

If both the territorial sea and the continental shelf are regarded as a
natural prolongation of a given mainland and if, in this sense, it is
considered that they have a territorial character, it must be still borne
in mind that their delimitation should be effected not in accordance with
the principles and rules applicable to the delimitation of land territories
themselves, but in accordance with those applicable to the delimitation
of maritime areas covering such a prolongation of a territory.

Until recently, attention was mainly directed to the delimitation of the
territorial sea and contiguous zone and, to some extent, of the continental
shelf, in a seaward direction, since the complexities of inter-State relations
and contradictions gave rise to problems concerning the correlation of the
freedom of the high seas with the sovereignty of coastal States over their
territorial sea and, associated therewith, problems of navigation, innocent
passage, fisheries, etc. Questions of policy and, in the words of Article 24
of the Convention on the Territorial Sea and the Contiguous Zone,
questions concerning the prevention of infringements of a given State’s
customs, fiscal, immigration or sanitary regulations, committed within its
territory, or within its territorial sea, gave rise to certain problems con-
cerning lateral boundaries. When the exploitation of the natural resources
of the subsoil of the sea became a real possibility, and the problems
connected with the delimitation of the continental shelf area not only
in a seaward direction but more especially between neighbouring States
whose continental shelf is adjacent to their coasts, became more acute,
the character of the “territoriality” of the sovereign rights of a coastal
State called for more certainty and more definiteness and almost, indeed,
for mathematical precision.

Inevitably, the definition of the boundary of a given part of the con-
tinental shelf must be effected not on the shelf itself but on the waters
which cover it. This entails the application to the delimitation of the
continental shelf of principles and rules appropriate to the delimitation

1 It may also be noted that the delegate of the Federal Republic of Germany to
the Geneva Conference of 1958, Professor Miinch, declared that he was in agreement
with the wording of Article 6, paragraphs 1 and 2, ‘‘subject to an interpretation of
the words ‘special circumstances’ as meaning that any exceptional delimitation of the
territorial waters would affect the delimitation of the continental shelf” (U.N.
Conference on the Law of the Sea, Official Records, VI, 4th Committee, p. 98).

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of sea areas and accordingly of the territorial sea, the boundaries of
which can be described as mathematically, geometrically constructed in
a manner that is as simple as is permitted by the configuration of the
coast or by the baselines.

Article 6, paragraph 2, of the Convention envisages cases where the
same continental shelf is adjacent to the territories of fo adjacent
States. It follows that when it is a question of delimiting the boundary of
the continental shelves of two coastal States in conformity with existing
principles and rules, and even if the presence of special circumstances is
observed and confirmed, those special circumstances can only justify a
deviation from the normal line if they are located comparatively near to
the landward starting-point of the boundary line of the continental shelf
adjacent to the territories of the two (and only two} adjacent States.
Moreover, the boundary line will generally be constructed with reference
to the baselines of the territorial sea, in the drawing of which due allow-
ance will already have been made for certain irregularities of configura-
tion. At all events, the factors concerned should be considered only in
relation to the determination of a single boundary line between two
adjacent States, while the influence of any special circumstances on both
must be taken into account. All “macrogeographical” considerations
are entirely irrelevant, except in the improbable framework of a desire
to redraw the political map of one or more regions of the world.

If “special circumstances’? were recognized to exist in relation to a
given part of the continental shelf, in what way would they affect the
application in these cases of the general principles governing the delimi-
tation of the boundary line? The Federal Republic of Germany maintains
that, within the meaning of the “special circumstances” rule, that rule
would exclude the application of the equidistance method. But the absence
of any mention of another principle to be regarded as alternative to the
one specified might be interpreted to mean that the equidistance principle
would not be eliminated, excluded or replaced, but rather modified or
inflected. This is to say that there may be a certain deviation from the
strict mathematical course of an equidistance line or that, still taking the
equidistance principle as the basis of the delimitation, the direction of the
boundary line, after initially taking the equidistant course, may be changed
after an appropriate point.

Thus the presence of special circumstances might introduce a corrective
or might only amend the principle which serves as the starting-point. It
is conceivable that in the middle, or towards the end—but not at the
beginning—of a boundary line, a change of direction, corrective of the
line, may be effected under the influence of special circumstances. This
could be the case if there were some geographical hindrance to continuing
the line in the same direction, so that a deviation in some section of the
line arose in conformity with the very nature of the special circumstance
involved. The possibility is not excluded of exercising a certain flexibility

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in the actual drawing of the line but without, of course, substituting an
alternative basis of delimitation.

*
* ke

The Judgment attaches special significance to the fact that, under
Article 12 of the Convention, any State may make a reservation in respect
of Article 6, paragraph 2, from which it concludes that Article 6, para-
graph 2, comes within the category of purely conventional rules and that
therefore the principles and rules embodied in it are excluded from the
province of the general principles and rules of international law and
from that of customary international law. The Judgment states this while
reasoning that the use of the equidistance method for the purpose of
delimiting the continental shelf which appertains to the Parties is not
obligatory as between them.

Jt must be noted once more that Article 6, paragraph 2, embodies not
only the principle of equidistance, but also two other principles concerning
respectively the determination of the boundary of the continental shelf
by agreement (and it would be impossible to imagine that anyone could
oppose this principle or wish to make a reservation with regard to it)
and the ‘‘special circumstances”’ clause as a corrective to the equidistance
principle. These three elements of Article 6, paragraph 2, are, as 1
have already noted, intimately interconnected in constituting a normal
procedure for the determination of a boundary line of the continental
shelf as between adjacent States. It is therefore impossible to apply to this
provision the logical method of separability, just as it is impossible to
separate the principles and rules of Article 6, paragraph 2, from the
general doctrine of the continental shelf as enshrined in the first three
articles of the Convention.

From a consideration of the reservations—comparatively few in
number—which were made by governments to Article 6, paragraph 2, it
will be seen that not one of the governments opposed in any general way
the principles and rules embodied in this Article. They stated only (as
in the instances of Venezuela and France) that, in certain specific areas off
their coasts, there existed ‘‘special circumstances” which excluded the
application of the principle of equidistance.

Thus, for instance, the Government of the French Republic stated
that:

“In the absence of a specific agreement, the Government of the
French Republic will not accept that any boundary of the continental
shelf determined by application of the principle of equidistance shall
be invoked against it: ... if it lies in areas where, in the Govern-
ment’s opinion, there are ‘special circumstances’ within the meaning

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164 CONTINENTAL SHELF (DISS. OP. KORETSKY)

of Article 6, paragraphs 1 and 2, that is to say: the Bay of Biscay, the
Bay of Granville, and the sea areas of the Straits of Dover and
of the North Sea off the French Coast” /translation by the Registry]
(Status of Multilateral conventions in respect of which the Secretary-
General performs depositary functions; ST/LEG/SER.D/1).

And the Government of Yugoslavia made a reservation in respect of
Article 6 of the Convention which can easily be understood in view of its
positive attitude to the principle of equidistance '. In its instrument of
ratification, the Government of Yugoslavia stated: “In delimiting its
continental shelf, Yugoslavia recognizes no ‘special circumstances’
which should influence that delimitation” (idem).

What are, in effect, the principles and what has been the practice, with
regard to the delimitation of the territorial sea?

Sovereign rights over the territorial sea, like all territorial rights, have
an inherent spatial reference, and every such right is subject to certain
limits which are determined by historically developed principles. The
territorial sea as a maritime space is inseparably connected with the land
territory of which it is an appurtenance.

As recalled above, the question of the boundaries of the territorial sea
arises mainly in connection with the measurement of its breadth, but the
lateral boundaries (as they have not given rise to the kind of serious
dispute so common in regard to the breadth, so that not all the documen-
tation on them has been published) are usually, as far as we know, deter-
mined in treaties, conventions, or in administrative agreements concerning,
particularly, customs jurisdiction and fisheries.

It has been estimated that there are some 160 places where international
boundaries have been extended from the coast, but the documentation in
this connection is scant. It is clear however, that there has been a very
general tendency in defining these boundaries to employ, for the sake
of clarity and certitude, virtually mathematical concepts expressed in the
use of geographical co-ordinates, parallels of latitude, geometrical
constructions, charts showing points connected by straight lines, per-

1 It is worthy of note that, at the conference on the Law of the Sea, the Delegation
of Yugoslavia proposed to delete from Article 72 (now Article 6) the words ‘‘and
unless another boundary line is justified by special circumstances” (A/CONF. 13/42,
p. 130) and the Delegation of the United Kingdom, in its amended draft of the same
Article, omitted the same words (ibid., p. 134).

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165 CONTINENTAL SHELF (DISS. OP. KORETSKY)

pendiculars, produced territorial boundaries, and even in such straight-
forward visual means as the alignment of topographical features. There
has also been a tendency to apply the principle of equidistance +, which
as a result had historically evolved. The principles and methods for deli-
miting the territorial sea have become—to use the expression of a well-
known specialist on boundary questions, S. Whittemore Boggs—
implicit in the concept of the territorial sea. These principles and methods
are summed up in Article 12 of the Convention on the Territorial Sea
and the Contiguous Zone, which premises the baseline from which the
breadth of the territorial sea of each of the two States concerned is
measured, the different questions connected with the method of deter-
mining baselines having been dealt with in Articles 3 to 9 of the same
Convention.

The Judgment (paragraphs 88 ff.) refers to the “rule of equity” as a
ground for the Court’s decision, and apparently understands the notion
of equity ina far wider sense than the restricted connotation given to it in
the Common Law countries. It states: “Whatever the legal reasoning of a
court of justice, its decisions must by definition be just, and therefore
in that sense equitable” (paragraph 88). Any judge might be pleased
with this statement, but the point it makes appears to me purely semantic.
The International Court is a court of law. Its function is to decide disputes
submitted to it “in accordance with international law” (Statute, Article
38, paragraph 1), and on no other grounds. It is true that the Court may
be given “power ... to decide a case ex aequo et bono”, but only “if the
parties agree thereto” (ibid., paragraph 2). It might be held that in such
circumstances the Court would be discharging the functions of an
arbitral tribunal, but the measure of discretion which the ex aequo et bono
principle confers upon a court of law as such is at all events something
which the International Court of Justice has never enjoyed. This principle
is accordingly nowhere to be found in the decisions either of the present
Court or of its predecessor, because there never has been any case in
which the parties agreed that the Court might decide ex aequo et bono.

1 A typical attitude is expressed in the following extract from a letter addressed
by the French Ministry of Foreign Affairs to the International Law Commission on
2 August 1953: “If... the International Law Commission were to deem indispens-
able a choice between the three definitions”’ it has ‘proposed, the French Govern-
ment considers that delimitation by means of a line every point of which is equidistant
from the nearest points on the coastline of each of the two adjacent States should be
chosen, as being likely to yield the best solution in the greatest number of cases”
[translation by the Registry] (Doc. A/CN./4/71/Add.2; I.L.C. Yearbook, 1953,
Vol. H, pp. 88 f., in fine).

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166 CONTINENTAL SHELF (DISS. OP. KORETSKY)

This negative fact seems to indicate that States are somewhat averse to
resorting to this procedure ! and it was not on this basis that the Court
was asked to give a decision in the present case. The Court itself states in
its Judgment that “Thereis. .. no question in this case of any decision ex
aequo et bono” (paragraph 88); nevertheless it may be thought to have
tended somewhat in that direction.

The notion of equity was long ago defined in law dictionaries, which
regard it as a principle of fairness bearing a non-juridical, ethical charac-
ter. Black, for example, cites: ‘Its obligation is ethical rather than jural
and its discussion belongs to the sphere of morals. It is grounded in the
precepts of the conscience, not in any sanction of positive law’ (4th
edition, 1951, p. 634) 2. The science of ethics has been and still is the
subject of somewhat heated debates and of ideological differences
concerning the content and meaning of equity and of what is equitable.
J feel that to introduce so vague a notion into the jurisprudence of the
International Court may open the door to making subjective and there-
fore at times arbitrary evaluations, instead of following the guidance of
established general principles and rules of international law in the settle-
ment of disputes submitted to the Court. Thus the question of the actual
size of the area of continental shelf which would fall to the Federal Repub-
lic on application of the equidistance principle is not in itself relevant for
the present cases, where the issues raised are, in the words of Lord
McNair, “issues which can only be decided on a basis of law” (Fisheries,
dissenting opinion, /.C./. Reports 1951, p. 158).

To demonstrate the necessity for applying the rule of equity, reference
has been made to the United States Presidential Proclamation of 1945,
which stated that: “In cases where the continental shelf extends to the
shores of another State, or is shared with an adjacent State, the bound-
ary shall be determined by the United States and the State concerned in
accordance with equitable principles”, but here this means nothing
more than calling upon neighbouring States to conclude agreements.

Certain other proclamations, while stating that boundaries will be
determined in accordance with equitable principles, use qualifying terms.
For example, the Royal Pronouncement of Saudi Arabia (1949) affirms

1 It may be recalled as an example that, in its letter to the International Law
Commission concerning the delimitation of the territorial sea, the Government of the
United Kingdom stated: “4, Where the adjacent States are unable to reach agreement
... Her Majesty’s Government consider that as a rule recourse should be had to
judicial settlement. Such settlement should be according to international law rather
than ex aequo et bono” U.L.C. Yearbook, 1953, Vol. I, p. 85).

2 Professor Max Huber understands it ‘‘as a basis independent of law” /trans-
lation by the Registry] (Annuaire de l’Institut de droit international, 1934, p. 233).

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167 CONTINENTAL SHELF (DISS. OP. KORETSKY)

that the boundaries ‘“‘will be determined in accordance with equitable
principles by Our Government} in accordance with other States ... of
adjoining areas”; the Proclamation of Abu-Dhabi (1949) places more
emphasis on the unilateral character of the delimitation: the Ruler
proclaims that the boundaries are to be determined “... on equitable
principles, by us after consultation’ with the neighbouring States”
(U.N. Legislative Series, Laws and Regulations on the Régime of the
High Seas, ST/LEG/SER. B/1).

*
* *

The Court, rejecting the application of the equidistance method? in
these cases and observing that there is no other single method of delimi-
tation the use of which is in all circumstances obligatory 3, has found
that “delimitation is to be effected by agreement in accordance with
equitable principles” (Judgment, paragraph 101 (C) (1)) thus envisaging
new negotiations (even though, before they requested the Court to
decide the dispute between them, the Parties had already carried on
somewhat protracted but unsuccessful negotiations).

At the same time, the Court has considered it necessary to indicate
“the factors to be taken into account” by the Parties in their negotiations
(paragraph 101 (D)). The factors which have been specified could
hardly, in my opinion, be considered among the principles and rules of
international law which have to be applied in these cases. The word
“factor” indicates something of a non-juridical character that does not
come “‘within the domain of law”. The Court has put forward considera-
tions that are, rather, economico-political in nature, and has given some
kind of advice or even instructions; but it has not given what I personally
conceive to be a judicial decision consonant with the proper function of
the International Court.

It may be appropriate to recall in this connection the observation
made by Judge Kellogg in the Free Zones case to the effect that the
Court could not “decide questions upon grounds of political and econo-
mic expediency” (P.C.L.J., Series A, No. 24, 1930, p. 34). Interpreting
Article 38 of the Statute, he noted that “it is deemed impossible to avoid
the conclusion that this Court is competent to decide only such questions
as are susceptible of solution by the application of rules and principles of

1 Italics supplied.

2 The Convention speaks of the equidistance principle but the Court uses the
term ‘‘equidistance method”, thereby reducing the significance of the principle to
that of a technical means.

3 It may be noted that the Court was asked to indicate not a method of delimitation
which could be applied in any or all circumstances, but the principles and rules of
international law which are applicable in the circumstances that were indicated in
these cases and referred to in the Special Agreements.

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168 CONTINENTAL SHELF (DISS. OP, KORETSKY)

law” (ibid., p. 38); and he cited the statement which was made by James
Brown Scott in his address at The Hague Peace Conference of 1907:
‘A court is not a branch of the Foreign Office, nor is it a Chancellery.
Questions of a political nature should ... be excluded, for a court is
neither a deliberative nor a legislative assembly. It neither makes laws
nor determines a policy. Its supreme function is to interpret and apply
the law to a concrete case . . . If special interests be introduced, if political
questions be involved, the judgment of a court must be as involved and
confused as the special interests and political questions +.”

*
* *%

Although I feel obliged to disagree with the whole of section (C) of the
operative part of the Judgment, I consider it necessary to refer here only
to sub-paragraph (2) of that section; in which the Court, envisaging a
case where “the delimitation leaves to the Parties areas that overlap’,
decides that such areas ‘‘are to be divided between them in agreed pro-
portions or, failing agreement, equally *’. Here, the Judgment goes
beyond the province of questions relating to the delimitation of the
continental shelf and enters upon that of questions of distribution,
despite the fact that the Court itself has earlier stated that “its task in
the present proceedings relates essentially to the delimitation and not the
apportionment of the areas concerned” (paragraph 18) >.

To draw a boundary line in accordance with the proper principles
and rules relating to the determination of boundaries is one thing, but
how to divide an area with an underlying “pool or deposit” is another
thing and a question which the Court is not called upon to decide in the
present cases.

It may be sufficient to recall that Article 46 of the Treaty between the
Kingdom of the Netherlands and the Federal Republic of Germany
concerning Arrangements for Co-operation in the Ems Estuary (Ems-
Dollard Treaty signed on 8 April 1960) stated:

“The provisions of this Treaty shall not affect the question of the
course of the international frontier in the Ems Estuary. Each
Contracting Party reserves its legal position in this respect” (United
Nations Treaty Series, Vol. 509, pp. 94 ff.).

1 See Proceedings of The Hague Peace Conferences. Conference of 1907, Vol. II,
New York, 1921, p. 319, where the text is given more fully.

2 Italics supplied.

3 It may be appropriate to mention here that, when analysing the former Judg-
ments of the Court on ‘‘Contestations relatives au tracé de la frontiére’’, Professor
Suzanne Bastid has noted that in them ‘‘can be discerned certain tendencies showing
that there is a distinction to be made between conflicts concerning frontiers and
those to do with the attribution of a territory” [translation by the Registry] (Recueil
des Cours de I’ Academie de droit international, Vol. 107 (1962), p. 452).

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169 CONTINENTAL SHELF (DISS. OP. KORETSKY)

And the Supplementary Agreement to this Treaty, signed on 14 May 1962
(ibid., p. 140), which was concluded with a view to co-operation in the
exploitation of the natural resources underlying the Ems Estuary, leaves
the existing frontiers of both parties intact. And, naturally, for the
exploitation, even in common, of a given part of the continental shelf it is
necessary first to know the boundaries of the continental shelf of each of
the parties. T need scarcely say that common exploitation does not
create common possession of the continental shelf, or common sovereign
rights in a given area.

Generally speaking, such agreements are in fact concluded with a view
to preserving the sovereign rights of the individual parties in a given
area of the continental shelf. Only in the unthinkable contingency of its
being desired to internationalize an entire continental shelf would a
departure from this standpoint appear apposite.

It would be as well to cite, in addition, Articles 4 of the two agreements
concluded by the United Kingdom with, respectively, Norway and
Denmark, concerning the delimitation of the continental shelf as between
each pair of countries (United Nations Treaty Series, Vol. 551. A/AC.
135/10; reproduced in Memorials, Annexes 5 and 12). Article 4 of the
Anglo-Norwegian Agreement reads:

“If any single geological petroleum structure or petroleum
field, or any single geological structure or field of any other mineral
deposit, including sand or gravel, extends across the dividing line
and the part of such structure or field which is situated on one side
of the dividing line is exploitable, wholly or in part, from the other
side of the dividing line, the Contracting Parties shall, in consultation
with the licensees, if any, seek to reach agreement as to the manner
in which the structure or field shall be most effectively exploited and
the manner in which the proceeds deriving therefrom shall be ap-
portioned” (United Nations Treaty Series, Vol. 551, p. 216).

Here we have a special rule which is concerned with relations between
licensees and with the possibility of bringing them together in a working-
arrangement, but not a rule concerning the actual boundary of a given
part of the continental shelf or the possibility of changing that boundary.

*
* *

In sum, I consider that the principles and rules of international law
enshrined in Article 6, paragraph 2, of the Convention on the Continental
Shelf ought to be applied in these cases at least gua general principles
and rules of international law.

But even if one does not agree that this provision is applicable in these
cases in its entirety or in part, it is nevertheless necessary that the prin-

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170 CONTINENTAL SHELF (DISS. OP. KORETSKY)

ciples and rules which are applied in the delimitation of a lateral boundary
of the continental shelf should have a natural connection with the three
interconnected principles and rules—agreement, special circumstances,
equidistance—which determine the boundaries of a territorial sea.

For, considering that it is a continuation, a natural prolongation of the
territorial sea (its bed and subsoil), the continental shelf is not unlimited
in extent, whether seaward or laterally, but lies within limits consistently
continuing the boundary lines of the territorial sea in accordance with
the same principles, rules and treaty provisions as provided the basis for
the determination of the territorial sea between the two given adjacent
States: that is, in these cases, between the Netherlands and the Federal
Republic of Germany on the one hand and between Denmark and the
Federal Republic of Germany on the other.

(Signed) V. KORETSKY.

171


222

SEPARATE OPINION OF JUDGE BEDJAOUI
[Translation]

To my regret, I was unable to vote in favour of the idea of giving a
hearing to the Republic of El Salvador.

As it had been shown to be impossible for the Court to proceed to a
separate examination, first of the question whether a hearing should be
held and, secondly, of that of the Application to intervene itself, it seemed
to me that under these circumstances a decision on the Application to
intervene would inevitably entail the same conclusion with regard to the
question of holding a hearing.

One cannot, at one and the same time, support the rejection of the
Application to intervene while agreeing to the holding of a hearing to
examine such an Application. Once the Court reached the conclusion that
the Application by El Salvador to intervene was inadmissible, to hold a
hearing became logically pointless, procedurally artificial and equivocal,
and dangerously likely to inspire El Salvador with vain hopes.

(Signed) Mohammed BEDJAOUI.

11