50

DISSENTING OPINION OF M. GUGGENHEIM,
JUDGE “AD HOC”

[Translation ]

Having, to my regret, been unable to concur in the Judgment of
the Court I feel it my duty to state my dissenting opinion.

In my view, the submission of the Government of Guatemala
that the claim of Liechtenstein should be declared inadmissible on
the ground that F. Nottebohm does not possess Liechtenstein
nationality should have been joined to the Merits and the pro-
ceedings adjourned to enable the Government of Liechtenstein to
obtain and collect documents in support of its observations on
the new documents produced by Guatemala. I have reached this
conclusion for the following reasons :

I

1. Every legal system itself lays down the requisite conditions :
for the validity of municipal legal acts. This also applies to the
legal system of Liechtenstein with respect to the grant of its
nationality ; from the point of view of the Court, that is a procedure
under municipal law. Naturalization is a fact which has to be
proved for the purposes of international proceedings and the Court
is entitled to ascertain, at least up to a certain point, whether the
facts relied upon correspond to the real and effective situation,
that is to say whether the naturalization is genuine and effective
from the point of view of municipal law. The power of enquiring
into the circumstances of a naturalization is not therefore limited
to an examination of certain conditions, as was maintained, for
example, in the Salem case in the dissenting opinion of the American
arbitrator, Nielsen, who considered that the researches of an
international tribunal should be confined exclusively to the question
whether the certificate of naturalization was obtained by fraud or
favour (see Reports of International Arbitral Awards, United Nations,
Volume II, pp. 1204 et sqg.). According to the prevailing view in
international judicial decisions, there is no doubt that an inter-
national tribunal is entitled to investigate the circumstances in
which a certificate of nationality has been granted. This view was
adopted in the decision of the German-Rumanian Mixed Arbitral
Tribunal, of November 6th, 1924, in the case of Meyer-Wildermann
v. Stinnes heirs and others (Reports of the Decisions of the Mixed
Arbitral Tribunals, Volume IV, p. 842). Indeed the Tribunal in
this case expressly reserved its right to investigate the circum-
stances of the official recognition of nationality. Among the many
decisions supporting the right of international courts and arbitral

50
NOTTEBOHM CASE (DISS. OPIN. OF M. GUGGENHEIM) SI

tribunals to examine certificates of nationality, reference may also
be made to the decision of Commissioner Nielsen in the case of
Hatton v. United Mexican States (Reports of International
Arbitral Awards, United Nations, September 26th, 1928, Volume IV,
p. 331) which rightly places emphasis on the obligation to furnish
proof of nationality. “Convincing proof of nationality is requisite
not only from the standpoint of international law, but as juris-
dictional requirement.”

2. These decisions are in accordance with a more general rule:
the rule requiring proof of nationality is only a particular applica-
tion of the rule that an international tribunal is competent to
decide upon the validity of a rule or an act under municipal law
if such rule or act is relévant to the international dispute under
examination. The rule or act under municipal law is to be regarded
merely as a fact but such facts may be proved “by means of any
researches which the Court may think fit to undertake or to cause
to be undertaken”. (P.C.1.J., Brazilian Loans case, Series A 20/21,
p. 124). Moreover the same decision states: ‘‘all that can be said
in this respect is that the Court may possibly be obliged to obtain
knowledge regarding the municipal law which has to be applied”.
Cf. also P.C.I.J., Series A, No. 7, p. 19; Series A, Nos. 20/21,
p. 46 ; Series A/B, No. 62, p. 22 ; Series A/B, No. 76, p. 19.

3. An international tribunal is not therefore bound to confine :
itself to the statements of national authorities relating to their
application of the rules of municipal law. Accordingly it may
consider the facts in a manner different from that of municipal
courts. But an international tribunal must never lose sight of
the fact that it is called upon to consider municipal law for the
purpose of exercising a competence conferred on it by inter-
national law.-It is not its function to decide upon the domestic
validity of municipal law, that is to say, to exercise the powers
of a court of appeal with regard to municipal law. What then is
its function ? An international tribunal must only be concerned
with municipal law and, in particular, with nationality, as a
fact determining the admissibility of a claim brought before an
international judicial organ. The plaintiff must therefore prove
that nationality has been conferred by means of a valid act in
accordance with the municipal law of the claimant State; and
the defendant, if he disputes this, must establish the contrary
(P.C.L.J., Series A, No. 5, p. 30).

4. I have reached the conclusion that it was for the Court to
determine whether F. Nottebohm validly and effectively acquired
nationality in accordance with the municipal law of Liechtenstein
in such a manner that the validity and effectiveness of the natura-
lization cannot be the subject of any doubt.

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NOTTEBOHM CASE (DISS. OPIN. OF M. GUGGENHEIM) 52

In this connexion, however, the Court must confine itself within
certain clearly defined limits, This limitation upon the competence
of the Court is based on two entirely different considerations : on
the one hand, when investigating the application of the municipal
law by the municipal authorities, the Court must confine itself
to examining whether such application is in accordance with the
obligations which international law imposes on the State in
question ; on the other hand, having regard to the fact that,
according to the practice of international law, municipal law does
not form part of the body of legal rules which it applies directly,
the Court is obliged to reach a decision in regard to municipal
law on the basis of evidence submitted to it in the proceedings.
It cannot freely examine the application and interpretation of
municipal law but can merely enquire into the application of
municipal law as a question of fact, alleged or disputed by the
parties and, in the light of its own knowledge, in order to determine
whether the facts are correct or incorrect.

5. Since the law of Liechtenstein applies primarily within the
national sphere, it is the competent State authorities, and these
authorities alone, which are entitled to determine whether the
law relating to naturalization has been correctly applied, that is
to say, whether, in the present case, sufficient reasons existed for
waiving the requirement that the applicant must have ‘ordinarily
resided in the territory of the Principality of Liechtenstein at
least three years’ and whether the application for naturalization
was “deserving [of] special consideration’’ and also whether the
applicant could be exempted from this requirement “by way of
exception” (see Art. 6 of the Liechtenstein Law on the Acquisition
and Loss of Nationality of 4th January, 1934). Even the State
Court of Liechtenstein is incompetent to review the considerations
of expediency upon which legal acts, decided upon and applied
by virtue of a discretionary power of the administrative authorities,
are based. This is in accordance with the generally recognized
principles of Swiss and German administrative law. It has,
moreover, received confirmation in the judicial decisions of the
State Court of the Principality, as is shown by its decision of
20th July, 1950, concerning the grant of a concession for a hotel
( Gastbewerbehaus-Konzession). (See Rapport de Gestion of the
Princely Government to the Diet for the year 1950, pp. 83 ef sqq.)
It was there stated that, in accordance with Article 40 of the
Law relating to the State Court, the latter could only give decisions
on questions of law and not with regard to the discretionary
power of administrative authorities. In my opinion the Court is
not entitled to assume the functions of a supervisory judicial
body which does not exist under the domestic law.

6. If the question of F. Nottebohm’s acquisition of Liechtenstein
nationality is considered from this angle, it is beyond doubt that

52
NOTTEBOHM CASE (DISS. OPIN. OF M. GUGGENHEIM) 53

he must be regarded as a national of the Principality. A naturaliza-
tion to which the supreme organs of the Principality, the Reigning
Prince and the Diet, have given their consent, in accordance with
Article 12 of the Law on the Acquisition and Loss of Nationality—
as they did in the case of F. Nottebohm—is a valid naturalization.
Moreover there is also a presumption juris and de jure in favour of
the validity of the acts of these supreme authorities, since Liechten-
stein law does not provide for the judicial control of acts performed
by these authorities in the exercise of their discretionary power.

7. Moreover, in order to determine the validity of a naturaliza-
tion, an international tribunal must also bear in mind that, from
the moment of his naturalization, Liechtenstein has never ceased to
regard F. Nottebohm as one of its nationals ; this attitude was like-
wise adopted by Switzerland, the Power representing Liechtenstein
interests abroad, as appears from the Certificate of the Swiss Clear-
ing Office of 24th July, 1946 (Reply, Annex 18, p. go), and probably
also by Guatemala, at least until a date which it is difficult to deter-
mine from the documents. Finally, F. Nottebohm, who in fact lost
his German nationality in consequence of his naturalization, has
never invoked the protection of any State other than Liechtenstein ;
he returned to Liechtenstein in 1946 and never changed his residence
thereafter.

IT

1. In addition to the question whether Liechtenstein nationality
was validly and effectively granted to F. Nottebohm according to
Liechtenstein law, a further question arises, as is stated in one of
the Conclusions of Guatemala, namely, whether Liechtenstein
nationality was granted to F. Nottebohm in accordance with the
generally recognized principles in regard to nationality. In my
opinion, however, it is not this abstract problem which calls for con-
sideration in the present case, but rather the more concrete problem
of determining whether diplomatic protection resulting from the
grant of Liechtenstein nationality can be relied upon as against
Guatemala in virtue of the general rules of international law.

2. For this diplomatic protection by Liechtenstein might be
inoperative for two different reasons which must be clearly distin-
guished. In the first place, the nationality of F. Nottebohm may not
in itself be valid on the international level and this would entail its
invalidity, with the result that Liechtenstein could not exercise its
right of diplomatic protection. Alternatively, it is possible that the
nationality of F. Nottebohm might, in itself, be valid from the inter-
national standpoint but could not be relied upon as against States
in regard to which Liechtenstein might seek to exercise diplomatic
protection in the same circumstances as in regard to Guatemala.

53
NOTTEBOHM CASE (DISS. OPIN. OF M. GUGGENHEIM) 54

3. International law furnishes examples of situations in which the
grant of nationality is invalid, with the direct consequence that it
cannot form the basis of diplomatic protection. The inadmissibility
of a claim on the ground that diplomatic protection cannot be
invoked is then merely the result of the absence of the effects of
nationality on the international level. This also gives rise to other
consequences, such as the non-recognition of the personal status
which, being claimed on the basis of the grant of nationality, is held
to be null and void, or the loss of the right to claim the benefit of
treaty rights reserved to nationals of the State concerned. If, on the
international level, we examine the cases in which the absence of a
valid bond between the State and the individual to whom the State
has granted its nationality has been recognized in practice, it will be
found that such a bond has only been held to be lacking when the
person concerned possessed a second nationality or when his State of
adoption has granted its nationality by compulsion, that is to say,
without the consent of the person concerned, or without the State
whose nationality is to be lost having consented to the withdrawal
of its own nationality.

It is in such circumstances and in such circumstances alone, where
the bond between the State and the individual is Jacking to so great
an extent, that third States are not bound to recognize the naturaliza-
tion nor to accede to a claim to the right to exercise protection.
Thus third States are not bound to consider the children of foreign
diplomats born in the territory of a State which attributes its
nationality to them as nationals of that State (cf. Article 12 of The
Hague Convention of 1930 on Certain Questions relating to the Con-
flict of Nationality Laws). The ownership of land is not by itself a
sufficient legal title for the grant of nationality (cf. the awards of the
German-Mexican Claims Commission, American Journal of Inter-
national Law, 1933, p. 69). The Ordinance of the German Reich of
August 23rd, 1942, which authorized the grant of German nation-
ality to certain classes of the population in territories not subject to
German sovereignty but occupied by Germany, was not bound to be
recognized by third States because it was contrary to certain obli-
gations binding on Germany under general international law (cf.
Annuaire suisse de droit international, Vol. I, 1944, pp. 79 ét sqq.).
The compulsory reintegration of a former national resident abroad
is unlawful if the person concerned has lost his nationality by its
withdrawal and if a new bond has not been created between him
and the State wishing to reintegrate him in his former nationality
(Jugdments of the Swiss Federal Court, Vol. 72,1, p. 410; Vol. 74, I,
Pp. 346 et sqq.).

All these situations are, however, somewhat exceptional. In the
case of F. Nottebohm, the grant of Liechtenstein nationality did

54
NOTTEBOHM CASE (DISS. OPIN. OF M. GUGGENHEIM) 55

not fall within any of these categories, all the more so since he
voluntarily acquired Liechtenstein nationality and by so doing
automatically lost his German nationality by virtue of Article 25
of the German Nationality Law of 22nd July, 1913, a fact which is,
in my opinion, of vital importance for determining the “effective-
ness’ of Liechtenstein naturalization on the international level.
No proof has been furnished in the proceedings to the effect that
F. Nottebohm availed himself of the right granted by this Article,
according to which nationality was not lost by a person who,
before acquiring a foreign nationality, obtained from the competent
authorities of his State a written authorization to retain his original
nationality. On the contrary, the certificate of the Senate of the
Free Hanseatic City of Hamburg of 15th June, 1954, attests the
loss of German nationality by F. Nottebohm in consequence of his
naturalization in Liechtenstein (Reply, Annex 19, p. 91).

4. Are there other situations, apart from those which have been
referred to, in which third States are entitled to regard the natura-
lization of a foreign national as inoperative when the foreign
national has agreed to the grant of nationality and when his former
nationality has not been retained ? To be justified in saying so, it
would be necessary to point to repeated and recurrent acts on the
international level, which would establish that, in circumstances
identical with or similar to those in which naturalization was
granted to F. Nottebohm by Liechtenstein, third States have
refused to recognize the naturalization so that it can be said that
an established usage has developed displaying the characteristics
of a general practice accepted as law (Article 38, paragraph 1 (6),
of the Statute of the Court and P.C.I.J., Series A, No. 10, p. 28;
LC.J. Asylum case, Reports 1950, pp. 276 et sqq.). No evidence of
such a custom, which would forbid the grant of nationality in the
circumstances in which Liechtenstein granted her nationality to
F. Nottebohm, has been given in these proceedings. It is not suffi-
cient for this purpose merely to affirm—without any evidence—that
there is no other State law permitting naturalization in the circum-
stances in which it was granted to F. Nottebohm.

5. Moreover, none of the attempts made to define the ‘‘bond of
attachment”’ according to criteria other than those which have just
been mentioned and which are in accordance with existing inter-
national law, has succeeded. This failure to arrive at such a defini-
tion is not fortuitous. It arises from the fact that in order to define
the bond necessary to make naturalization binding, it is sought to
supplement the objective criteria (absence of compulsion in relation
to the applicant ; dual nationality ; the grant of nationality with-
out withdrawal of nationality by the State to which the naturalized
person formerly belonged) by subjective considerations such as the
“genuineness of the application”, “loyalty to the new State”,
“creation of a centre of economic interests in the new State’’, ‘‘the

55
NOTTEBOHM CASE (DISS. OPIN. OF M. GUGGENHEIM) 56

intention to become integrated in the national community”; or,
again, rules are stated which are in no way in accordance with
present international practice, or vague principles are formulated
which would open the door to arbitrary decisions. International law
does not, for example, in any way prohibit a State from claiming
as its nationals, at the moment of their birth, the descendants of
its nationals who have been resident abroad for centuries and
whose only link with the State which grants its nationality is to be
found in descent, without the requirement of any other element
connecting them with that State, such as religion, language, social
conceptions, traditions, manners, way of life, etc. (see, for example,
Swiss Civil Code, Art. 263, para. I, 270, 324, para. 1; and Art. 10
of the Federal Law on the Acquisition and Loss of Swiss Nationality
of September 29th, 1952; Art. 4 of the Liechtenstein Law on the
Acquisition and Loss of Nationality). It is difficult to see how it
can be maintained that the conditions necessary to render naturali-
zation valid and effective on the international level have only been
complied with if at the time of application for naturalization there
existed one of those subjective bonds of attachment which have
just been referred to.

6. In order to judge as to the bond between the State and its
national, that is to say, in order to ascertain whether this bond is
real and effective and not merely fictitious, international law only
has regard to the external elements of legal facts to which it attaches
certain consequences, without concerning itself with the mental
attitude of the legal person responsible for a juridical act such as the
act of naturalization, and without considering the motives (which it
is very difficult to determine), which have led the individual to apply
for naturalization. This view is in no way inconsistent with the pro-
visions of Article r of the Convention on Certain Questions relating
to the Conflict of Nationality Laws adopted by the Conference for
the Codification of International Law, held at The Hague in 1930.
According to this Article, the law enacted by a State for determining
who are its nationals “shall be recognized by other States in so far
as it is consistent with .... international custom and the principles of
law generally recognized with regard to nationality’’. This rule, the
correct interpretation of which has been the subject of dispute
among writers, contains no criterion requiring an “effective” bond in
the case of nationality. It merely refers to the rules of international
custom and the principles of law generally recognized with regard to
nationality, principles which do not forbid the grant of nationality
in the circumstances in which Liechtenstein granted its nationality
to F. Nottebohm. |

4. Nor is it possible to maintain that the bond established between
a State and its national is in all circumstances closer than that
existing between a State and an individual connected with it by
some other link, as, for example, permanent residence. When the

56
NOTTEBOHM CASE (DISS. OPIN. OF M. GUGGENHEIM) 57

development of modern law in civilized States is closely considered,
it is even possible to affirm that the rights and duties of an individual
vis-a-vis the State of his permanent residence, are frequently more
numerous than those which link him to the State of which he is a
national. There are certain rules of private law governing conflicts
of law which clearly illustrate this situation. In these circumstances,
the assertion that there exists an especially close link between the
State and its national can hardly bear the absolute character which
is frequently attributed to it. This link is, in any case, weakened
when nationality becomes dissociated from permanent residence as
well as in the case of dual nationality, where two or several States
claim a right to the attachment of the individual in question and
require him to fulfil the duties inherent in nationality, a situation
which is in no way contrary to general international law. Moreover,
international law contains no rule which makes the effectiveness of
nationality dependent upon a sentimental bond between the natur-
alizing State and the naturalized individual.

8. It has, however, been asserted, both in the written and oral
proceedings, that it is necessary to consider the problem of the
validity of the act of naturalization apart from the existence of a
specific rule of customary law prohibiting Liechtenstein from natur-
alizing F. Nottebohm in such circumstances, but that a more
general complaint could be levelled against Liechtenstein on the one
hand and Nottebohm on the other, namely, the absence of a real
and genuine intent which is a condition for the validity of legal acts
in international law, Nevertheless, it cannot be contended that the
naturalization of F. Nottebohm was vitiated by the absence of a
genuine intent on the part of Liechtenstein to naturalize him or on
the part of F. Nottebohm himself. The reality of the naturalization
cannot be called in question. There was no question of a fictitious
marriage between Liechtenstein and Nottebohm. In this connexion
it is necessary to have regard to the subsequent conduct of Notte-
bohm, which never varied after naturalization. He always behaved
exclusively as a Liechtenstein national and, in taking up the case of
its national, the Principality has shown the serious character of the
bond linking it with its national. The extent to which the Court can
consider the “génuineness”’ of naturalization as an element of proof
in regard to the reality and effectiveness of naturalization, is confined
within the limits which have just been stated.

Since F. Nottebohm was not himself subject to any duties based
on the principles of international law, it is also unnecessary to
consider whether he acted in ‘‘good faith’? when he applied for
naturalization. No rule of general international law—that is to say,
no customary rule nor general principle of law recognized by
civilized nations within the meaning of Article 38, 1 (b) and (c),

57
NOTTEBOHM CASE (DISS. OPIN. OF M. GUGGENHEIM) 58

of the Statute of the Court—lays down such a requirement and no
international responsibility can be incurred by the Principality for
not having considered the application for naturalization from this
point of view, which would render the naturalization wholly or
partly inoperative as against Guatemala, a neutral country at the
time of the naturalization of Nottebohm. It would be inadmissible
to seek to impose a requirement in this respect, that the naturalizing
State or applicant for naturalization should foresee uncertain events
which might take place in the future with a greater or lesser degree
of probability.

g. Even if it were admitted that the Court is entitled to enquire
into the motives which led F. Nottebohm to apply for Liechten-
stein nationality, it is necessary to point out that F. Nottebohm
in no way failed to observe the principles of good faith as defined
by the municipal law of civilized States and in particular by Arti-
cle 2 of the Civil Code of Liechtenstein of 1926. F. Nottebohm did
not conceal any essential or subordinate element for the considera-
tion of his application by the Liechtenstein authorities which could
therefore decide upon the application with full knowledge of the
facts. There was therefore no ‘‘lack of loyalty’? on the part of
F. Nottebohm, no failure to keep his word which, in certain circum-
stances, could render the legal act irregular for the purposes of
the application and interpretation of the Liechtenstein Law on the
Acquisition and Loss of Nationality. Only if it could be proved
that F. Nottebohm acted in a fraudulent manner, for example,
by concealing German property with the help of the naturalization,
might it be possible, if certain conditions were fulfilled, to speak
of a failure on the part of F. Nottebohm to observe the principle
of gaod faith vis-à-vis the Principality and perhaps also vis-à-vis
Guatemala. Such concealment might, as I shall show, justify the
non-recognition of Liechtenstein nationality. In such a case, how-
ever, it would not be the absence of good faith which would be the
decisive element in the fact that Liechtenstein nationality could
not be invoked, but the wrongful character of the fraudulent
transaction of concealment of which the acquisition of Liechten-
stein nationality would only be one of the constituent elements.

10. Is it possible to accept the validity of F. Nottebohm’s
nationality for the purposes of the municipal law of Liechtenstein
and yet to affirm that this nationality does not deploy all its inter-
national effects and that Liechtenstein is not, therefore, entitled
to exercise diplomatic protection should the latter be disputed by
Guatemala ? International law is indeed conversant with situations
in which the municipal effects and even some of the international |
effects of nationality are recognized but in which diplomatic protec-
tion exercised on the basis of the acquired nationality may be
successfully disputed. Thus, the individual who possesses two

58
NOTTEBOHM CASE (DISS. OPIN. OF M. GUGGENHEIM) 59

nationalities can only avail himself of the diplomatic protection
of one of the States of which he is a national vis-à-vis the other
and this is so wherever he may be resident. According to the pre-
vailing view, a State can only grant its diplomatic protection to
an individual who possessed its nationality at the time when the
event giving rise to the diplomatic protection took place, and who
has retained such nationality uninterruptedly up to the time when
the claim is presented. This dissociation of nationality from diplo-
matic protection is normally confined to situations in which the
individual has two nationalities—either cumulatively or in
succession—with the result that the right of protection may always
be exercised by one State, thus preserving the possibility of a claim
being asserted on the international level.

11. Nor is this statement of the position inconsistent with the
fact that the courts of third States and international tribunals
have, on many occasions, had to settle disputes in which two
States claimed the same individual as their national and that in
such cases the prevailing tendency has been to give preference to
the real and effective nationality, a view which forms the basis
of Article 5 of the Convention of 1930 relating to the Conflict of
Nationality Laws. The test of effective connection with respect to
nationality has only been laid down for the purpose of resolving
conflicts arising out of dual nationality, in regard to which third
States must choose between one nationality, held to be the more real
and effective one, and a second nationality held to be the less real
and effective. The test has also been applied between two States
each of which wishes to exercise diplomatic protection on behalf
of the same person.

As for the Bancroft Treaties, which were invoked during the
course of the proceedings, I consider it incorrect to regard these
Treaties as constituting a precedent for the case of F. Nottebohm.
Apart from the fact that these were bilateral treaties concluded in
1868 between the United States of America on the one hand and the
States of Wurtemberg, Bavaria, Baden, Hesse and the North German
Confederation on the other, they were abrogated on 6th April,
1917 (see Hackworth, Digest of International Law, Vol. III, p. 384),
at the time of the entry of the United States of America into the
first World War and cannot therefore be regarded as reflecting the
rules of general international law, since these provisions were
mainly concerned with the loss of nationality and the American diplo-
matic protection of persons of German origin, naturalized in the Uni-
ted States and taking up their residence again in Germany without
the intention of returning to the United States. The main purpose
of these treaties was to annul the effects of American nationality
granted to persons who had no wish to reside in the United States
and who returned to their country of origin frequently in order
to evade the obligations of military service. As regards persons

59
NOTTEBOHM CASE (DISS. OPIN. OF M. GUGGENHEIM) 60

possessing dual nationality—American nationality and the nation-
ality of one of the German States in question—the Bancroft
Treaties sought to give effect to the nationality of the country
of habitual residence (cf. Moore, A Digest of International Law,
Vol. IIT, pp. 358 ét sgg).

The present case is entirely different. F. Nottebohm was not a
Liechtenstein national who went to Guatemala and was naturalized
in that country and thereafter returned to Liechtenstein in order
to take up residence there. Moreover, no conflict of dual nationality
arises in his case. To allow Guatemala to hold that Liechtenstein’s
claim to exercise diplomatic protection is inadmissible against
Guatemala would lead to the consequence that F. Nottebohm,
having lost his German nationality by acquiring the nationality of
Liechtenstein, would no longer be able to invoke the diplomatic
protection of any State. Such a dissociation of nationality from
diplomatic protection is not supported by any customary rule nor
by any general principle of law recognized by civilized nations,
within the meaning of Article 38 (1) (b) and (c) of the Statute of
the Court. I consider that such a rule of international law could
only be applied, in the present case, especially on consideration
of a preliminary objection, with the consent of both parties, in
accordance with Article 38 (2) of its Statute.

12. Moreover, to dissociate the question of the validity-of nation-
ality from that of diplomatic protection leaves a further problem
unsolved. Is the question one of the general non-validity of the
naturalization on the international level, thus going beyond the
limited right of third States to deny the claim to exercise diplo-
matic protection, or does such non-validity merely affect the right
of Liechtenstein to exercise diplomatic protection as against
Guatemala ?

Since the reasons invoked for the purpose of denying the claim
to exercise diplomatic protection are inevitably based on the
manner in which F. Nottebohm acquired Liechtenstein nationality,
and not on any special reasons which Guatemala may have had
for refusing to recognize the effects of the nationality in the field
of diplomatic protection, any third State will be in a position to
draw conclusions going beyond the narrow limits of the right to
exercise diplomatic protection and will thus be led to disregard
other consequences, other effects of nationality on the interna-
tional level. There would, for example, be nothing to prevent them
from saying that the personal status of F. Nottebohm is that of a
stateless person, Nottebohm having in fact lost German nationality
without having validly acquired Liechtenstein nationality for
international purposes. The fact that the Judgment only applies to
the particular case and that the ves judicaia is not binding on third
States in no way detracts from the force of these considerations.

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NOTTEBOHM CASE (DISS. OPIN. OF M. GUGGENHEIM) 61

The scope of the judicial decision extends beyond the effects
provided for in Article 59 of the Statute.

13. On the other hand, the reasons relied on—namely the ab-
sence of a sufficient bond of attachment, which debarred Liechten-
stein from exercising diplomatic protection as against Guate-
mala—affect the claims relating to damage caused at the time
when F. Nottebohm had not yet established a permanent resi-
dence in the Principality. Even if these grounds are admitted,
however, I consider that there is nothing to prevent Liechtenstein
from putting forward claims relating to the period when F. Notte-
bohm took up permanent residence at Vaduz as from 1946 (see
Rejoinder, p. 45). Since the events giving rise to the damage
suffered by F. Nottebohm in respect of his property—as to which
damage, claims have been put forward against Guatemala—occurred
within the period subsequent to 1946, and in particular since
Liechtenstein’s application was presented to the Court on 17th De-
cember, 1951, and since the expropriation measures in regard to
which reparation is claimed by the Principality were only applied
after the year 1949, and in particular after the enactment of Legis-
lative Decree No. 630 of 13th July, 1949, relating to the Law on
the Liquidation of Matters arising out of the War (see Counter-
Memorial, Annex 39, p. 126), there is nothing to prevent F. Notte-
bohm’s nationality deploying its ordinary effects as against Guate-
mala, even if it is considered that factual ties stronger than those
created in 1939 by naturalization, are essential for the purpose
of enabling a State to exercise diplomatic protection on behalf of
its nationals.

It cannot be denied, if this reasoning, which I consider goes
beyond the requirement of general international law, is adopted,
that F. Nottebohm, after a permanent residence of more than
three years in Liechtenstein, is entitled to put forward certain of
his claims against Guatemala, and that Liechtenstein is entitled
to take up the case of its national. Since F. Nottebohm certainly
had Liechtenstein nationality, which was supported by a “‘bond”’
of residence at the time when the claim was addressed to Guatemala
(1951), Liechtenstein, in this connexion, fulfils all the requirements
which, in international practice, have been the subject of dispute,
as to the date which is to be preferred, that is to say, the date when
the national Government espouses the claim, the date when the
claim is presented to a representative of the defendant Govern-
ment, the date when it is brought before an international tribunal,
or even the date when the claim is settled (cf. E. Borchard,
Protection diplomatique des Nationaux à l'Etranger, Annuaire de
l’Institut de droit international, 1031, Vol. I, p. 284).

On the other hand there is no doubt that the events giving
rise to the dispute, that is to say, the damage suffered in respect

61
NOTTEBOHM CASE (DISS. OPIN. OF M. GUGGENHEIM) 62

of expropriated property, occurred at a time subsequent to the
final establishment of F. Nottebohm in Liechtenstein. In this
connexion it is also necessary to point out that all the strict tests
laid down for the purpose of determining the national character
of a claim, which were considered during the preliminary discus-
sions for the 1930 Conference on the Codification of International
Law, were complied with in the present case (cf. League of Nations,
Doc. C.75.M.69.1929.V., pp. 140 et sqq.).

The fact that the Guatemalan Law of 1949 on the Liquidation
of Matters arising out of the War, in accordance with Article 7
of Legislative Decree No. 630, regarded as enemy nationals those
persons who possessed the nationality of any of the States with
which Guatemala was at war or who had such nationality on
qth October, 1938, although they claimed to have acquired another
nationality after that date, does not further modify the essential
elements of the question under consideration, that is to say, that
the events giving rise to the dispute occurred at a time when
F. Nottebohm was a Liechtenstein national. It is not for a third
State to decide the validity of a foreign nationality for the purpose
of rendering inoperative the exercise of diplomatic protection,
with the possible exception of the special case of concealment of
enemy property, which will be dealt with under III below and
which, being a matter concerned with the merits of the case,
cannot be considered in connexion with a plea in bar.

Since no final measure of expropriation, in respect of which a
claim for reparation has been put forward by Liechtenstein, was
adopted before F. Nottebohm’s return to the State, of which he
was a national, in 1946, and since all these measures were only
carried out after he took up permanent residence in Liechtenstein,
I fail to see how it is possible to invoke the absence of any
bond of attachment between Liechtenstein and F. Nottebohm
(even if in this connexion one were to admit the existence of
requirements going beyond what is laid down by general inter-
national law on this question) for the purpose of denying that
Liechtenstein had the right to take up the case of its national
in 1951 with respect to unlawful acts alleged to have been com-
mitted after 1946.

14. A decision that Liechtenstein’s application is inadmissible
on the ground that F. Nottebohm does not possess effective nation-
ality, and that therefore the applicant State is not entitled to
exercise the right of diplomatic protection as against Guatemala
would involve three important consequences :

- {a) The rule of international law that nationality should not be
dissociated from diplomatic protection in cases where the
protected person has only ome nationality, and where the
facts giving rise to the dispute have occurred after the grant
of such nationality, would be modified retroactively sixteen

62
(6)

(c)

NOTTEBOHM CASE (DISS. OPIN. OF M. GUGGENHEIM) 63

years after F. Nottebohm’s naturalization in Liechtenstein.
This situation is all the more serious since the main facts
giving rise to the dispute only occurred after 1949, three
years after F. Nottebohm finally established himself in
Liechtenstein and, by prolonged residence there, created solid
bonds of attachment, the absence of which has been relied
upon by the respondent party in the written and oral proceed-
ings as a ground for the view that Liechtenstein is not
entitled to exercise diplomatic protection in favour of
F. Nottebohm against Guatemala. I consider that even if one
shared this view, one must at least recognize the right to
exercise diplomatic protection as regards the injury suffered
by F. Nottebohm after 1946, especially the injury resulting
from the measures taken following the enactment of Legis-
lative Decree No. 630 of July 13th, 1940.

Even if it be admitted that nationality can be dissociated
from diplomatic protection in the present case, there remains
the question as to what are the consequences of the total or
partial invalidity under international law of a nationality
validly acquired under municipal law. Is the invalidity
confined to the sphere of diplomatic protection, or does it
extend to the other effects of nationality on the international
level, for example, treaty rights enjoyed by the nationals
of a particular State in regard to monetary exchange, estab-
lishment and access to the municipal courts of a third
State, etc. ?

A refusal to recognize nationality and therefore the right to
exercise diplomatic protection, would render the application
of the latter—the only protection available to States under
general international law enabling them to put forward the
claims of individuals against third States—even more
difficult then it already is.

If the right of protection is abolished, it becomes impos-
sible to consider the merits of certain claims alleging a
violation of the rules of international law. If no other
State is in a position to exercice diplomatic protection, as
in the present case, claims put forward on behalf of an
individual, whose nationality is disputed or held to be inope-
tative on the international level and who enjoys no other
nationality, would have to be abandoned. The protection of
the individual which is so precarious under existing interna-
tional law would be weakened even further and I consider that
this would be contrary to the basic principle embodied in
Article 15 (1) of the Universal Declaration of Human Rights
adopted by the General Assembly of the United Nations on
December 8th, 1948, according to which everyone has the
right to a nationality. Furthermore, refusal to exercise protec-

63
NOTTEBOHM CASE (DISS. OPIN. OF M. GUGGENHEIM) 64

tion is not in accordance with the frequent attempts made at
the present time to prevent the increase in the number of
cases of stateless persons and to provide protection against
acts violating the fundamental human rights recognized by
international law as a minimum standard, without distinction
as to nationality, religion or race.

15. The finding that the Application is not admissible on the
grounds of nationality prevents the Court from considering the merits
of the case and thus from deciding whether the respondent State
is or is not guilty of an unlawful act as regards Liechtenstein and
its national, who has no other legal means of protection at his
disposal. Moreover, a preliminary objection must be strictly inter-
preted. It must not prevent justice from being done.

Il

As regards the criticism made during the written and oral
proceedings, that F. Nottebohm had sought Liechtenstein nation-
ality for the purpose of changing his status from a subject of a
belligerent State to that of a subject of a neutral State, it is neces-
sary to make the following observations :

1. There is no rational principle or judicial decision in either
private or public international law to justify the view that a new
nationality which has been acquired for the purpose of avoiding,
in the future, certain effects of a former nationality should be
regarded as invalid. Even if it were admitted, although this has
not been proved, that F. Nottebohm became a Liechtenstein national
with the object of evading the consequences of his German nation-
ality, it is necessary to point out that this change in his status
was not effected during the War between Guatemala and Germany
but long before that time. It is therefore impossible to speak of a
change in the status of a person from that of an enemy national
to that of a neutral national which might, in certain circumstances,
have been the case had the naturalization taken place while Guate-
mala and Germany were in a state of war.

2. On the other hand, could it be said that Nottebohm’s nation-
ality was fraudulent and defective if it had been proved that he
applied for naturalization in Liechtenstein, for the purpose of
using such naturalization as a cloak for the property of enemy
nationals in Guatemala ? It might be considered that a nationality
acquired for the sole purpose of claiming the diplomatic protection
of a neutral State cannot be invoked vis-à-vis the belligerent State
against which the acts of concealment of enemy property were

64
NOTTEBOHM CASE (DISS. OPIN. OF M. GUGGENHEIM) 65

directed, on the ground that a legal act may be vitiated by fraud
and that the respondent party is therefore justified in alleging
that it is a nullity.

The acquisition of nationality in such cases forms part of a
transaction which is to be regarded as generally fraudulent, with
the possible result that the injured belligerent State may refuse
to recognize the change of nationality, and not merely that diplo-
matic protection cannot be relied upon. Nevertheless, it will
always be difficult to prove the existence of such a fraudulent
operation.

3. Moreover, whatever the solution of this problem may be, it
would have been necessary, for the purpose of examining it and of
arriving at a solution, to consider the merits of the dispute. In
this connexion, the Court should have given the applicant party
the opportunity of collecting all the evidence with the object of
enabling the Court to ascertain whether, in the particular case,
the allegation of concealing property was justified and that there-
fore Guatemala was not bound to recognize the Liechtenstein
nationality of F. Nottebohm. Since proof of concealment of property
has not been adduced, I consider that the Court should have joined
the objection to the admissibility on the ground of nationality to
the merits. This should also have been the case as regards the two
other grounds of inadmissibility, since their fate is bound up with
the objection based on nationality. Indeed, if the latter objection
is upheld, it becomes unnecessary to consider Guatemala’s objection
to the admissibility on the ground of prior diplomatic negotiations
and non-exhaustion of local remedies.

4. Moreover, the decision of the Court given at the public sitting
of February 14th, 1955, expressly reserved the right of Liechten-
stein, under Article 48, paragraph 2, of the Rules of Court, to
submit documents in support of its comments on the new documents
produced by the other Party. The Court should therefore have
granted the application for an adjournment made by the Govern-
ment of the Principality of Liechtenstein.

(Signed) GUGGENHEIM.


                    557

                             DISSENTING OPINION OF PRESIDENT OWADA

                       With regret, I had to vote against the most cardinal section (subpara-
                    graph (B) (1)) in the operative part of the Order (para. 69). With a
                    view to clarifying my position as to why I had to vote against this most
                    cardinal part of the Order, I wish to state the reasons for my dissent in
                    this opinion attached to the main Order as follows :
                       1. A request for the indication of provisional measures is made by one
                    of the parties during the course of the proceedings in the main case as its
                    incidental proceedings. As such, the scope of the request and the jurisdic-
                    tion of the Court to deal with the request is limited by its very nature to
                    being incidental to the main case. The extent of competence of the Court
                    to deal with such a request and to indicate an order if it considers that
                    circumstances so require is to be determined by this fact, both in terms of
                    the scope of the measures that it can indicate and in terms of the jurisdic-
                    tion it has in indicating such measures.

                      2. It is my considered view that the present Order, where it indicates
                    that
                         “[b]oth Parties shall immediately withdraw their military personnel
                         currently present in the provisional demilitarized zone, as defined in
                         paragraph 62 of the present Order, and refrain from any military pres-
                         ence within that zone and from any armed activity directed at that
                         zone” (Order, para. 69 (B) (1) ; emphasis added),

                    goes beyond this limit inherent in this essential characteristic of the pro-
                    visional measures as being incidental to the main dispute.

                       3. The scope of the provisional measures that may be indicated by the
                    Court in the present proceedings and the jurisdiction to deal with the
                    request for provisional measures have their legal basis in the main case.
                    The main case brought by Cambodia before the Court is “a request for
                    interpretation of [the] Judgment [of the Court] of 15 June 1962 . . . in
                    which [the Court] decided the merits of the Temple of Preah Vihear case
                    between Cambodia and the Kingdom of Thailand” (Application, para. 1).
                    The present Order has found that it has jurisdiction to rule on the ques-
                    tion of interpretation, to the extent that, under Article 60 of the Statute
                    of the Court, “[i]n the event of dispute as to the meaning or scope of the
                    judgment, the Court shall construe it upon the request of any party”. This
                    is the basis of the jurisdiction of the Court for indicating provisional mea-
                    sures relating to the main case (Order, para. 21), which means that this

                    24

6 CIJ1023.indb 44                                                                                18/06/13 10:38

                    558 	        request for interpretation (diss. op. owada)

                    defines the limit of the jurisdiction of the Court in indicating provisional
                    measures.
                       4. It is true that the Court “shall have the power to indicate, if it consid-
                    ers that circumstances so require, any provisional measures which ought to
                    be taken to preserve the respective rights of either party” (Statute of the
                    Court, Art. 41, para. 1 ; emphasis added). In the past case law of the Court,
                    the Court indeed has often indicated, proprio motu, to both of the parties to
                    withdraw their forces from the area in dispute or in conflict, “with a view to
                    preventing the aggravation or extension of the dispute whenever it
                    consider[ed] that circumstances so require” (Frontier Dispute (Burkina Faso/
                    Republic of Mali), Provisional Measures, Order of 10 January 1986,
                    I.C.J. Reports 1986, p. 9, para. 18).
                       5. Out of a total of some 40 Orders of the Court on the indication of
                    provisional measures, there are three cases in which this issue of with-
                    drawal of forces of the parties in the case in question came about and in
                    which the Court did in fact indicate provisional measures to order both of
                    the parties to the dispute to disengage their respective armed forces from
                    potential or actual armed conflict and to withdraw their respective forces
                    from a certain zone specified in the Order. They are :
                    (a) the case concerning Frontier Dispute (Burkina Faso/Republic of Mali),
                        Provisional Measures, Order of 10 January 1986, I.C.J. Reports 1986,
                        p. 12, para. 32 ;
                    (b) the case concerning Land and Maritime Boundary between Cameroon
                        and Nigeria (Cameroon v. Nigeria), Provisional Measures, Order of
                        15 March 1996, I.C.J. Reports 1996 (I), p. 24, para. 49 ; and
                    (c) the case concerning Certain Activities Carried Out by Nicaragua in the
                        Border Area (Costa Rica v. Nicaragua), Provisional Measures, Order
                        of 8 March 2011, I.C.J. Reports 2011 (I), pp. 27‑28, para. 86.
                      6. However, in the past cases, the Court indicated, as a provisional
                    measure pending the final outcome of the decision of the Court on the
                    merits in the main case, that : “[b]oth Governments should continue to
                    observe the ceasefire instituted by agreement between [the two parties]”
                    (Frontier Dispute (Burkina Faso/Republic of Mali), Provisional Measures,
                    Order of 10 January 1986, I.C.J. Reports 1986, p. 12, para. 32 1 (C) ;
                    emphasis added) ;
                         “[b]oth Governments should withdraw their armed forces to such
                         positions, or behind such lines, as may, within twenty days of the date
                         of the present Order, be determined by an agreement between those
                         Governments, it being understood that the terms of the troop with-
                         drawal will be laid down by the agreement in question and that, fail-
                         ing such agreement, the Chamber will itself indicate them by means
                         of an Order (ibid., para. 32 1 (D)) ;
                    or that
                         “[b]oth Parties should ensure that the presence of any armed forces

                    25

6 CIJ1023.indb 46                                                                                18/06/13 10:38

                    559 	        request for interpretation (diss. op. owada)

                         in the Bakassi Peninsula does not extend beyond the positions in
                         which they were situated prior to 3 February 1996 (Land and Mari‑
                         time Boundary between Cameroon and Nigeria (Cameroon v. Nigeria),
                         Provisional Measures, Order of 15 March 1996, I.C.J. Reports
                         1996 (I), p. 24, para. 49 (3)) ;
                    or that
                         “[e]ach Party shall refrain from sending to, or maintaining in the dis‑
                         puted territory, including the caño, any personnel, whether civilian,
                         police or security” (Certain Activities Carried Out by Nicaragua in
                         the Border Area (Costa Rica v. Nicaragua), Order of 8 March 2011,
                         I.C.J. Reports 2011 (I), p. 27, para. 86 (1) ; emphasis added).

                        7. In none of these cases has the Court ever gone so far as to order the
                    parties to withdraw from a “provisional demilitarized zone” which is
                    devised artificially by the Court for the purposes of military disengage-
                    ment of the parties and which comprises part of the territories that indis-
                    putably belong to the sovereignty of one or the other of the parties, as it
                    is the case in the present situation.
                        8. I have no disagreement with the view of the Court adopted in this
                    Order that the Court has the power to indicate provisional measures,
                    which have the binding force upon the parties (LaGrand (Germany v.
                    United States of America), Judgment, I.C.J. Reports 2001, p. 506,
                    para. 109), provided that certain conditions under Article 41 of the
                    Statute, including the existence of prima facie jurisdiction to deal with
                     the case, are met. For this reason, I embrace the basic proposition of the
                     Court as developed in this Order, including its approach to indicate that
                     “[b]oth Parties shall immediately withdraw their military personnel cur-
                     rently present [in a certain specified zone],. . . and refrain from any mili-
                     tary presence within that zone and from any armed activity directed at
                     that zone” (Order, para. 69 (B) (1)), on the condition that that specified
                     zone is defined and delimited in a manner consistent with the principle of
                     sovereignty of the parties involved and with the extent of the jurisdiction
                     of the Court as conferred upon it in the specific context of the present case.
                        9. What I cannot accept, with great regret, is the way in which the
                     Court has decided in an artificial manner to demarcate this “provisional
                     demilitarized zone” without legitimate justification.
                        What is demarcated in paragraph 62 of the Order for the purpose of
                     setting up a “provisional demilitarized zone” is in my view devoid of legal
                     justification, intruding as it does into part of the territories which indis-
                     putably belong to the sovereignty of one or the other of the Parties. In
                     this sense, what this Order prescribes by way of establishing this “provi-
                     sional demilitarized zone” is qualitatively different as a legal régime from
                     all the other examples that I have referred to above, inasmuch as in all the
                     other precedents that I have cited, what the Court prescribed was to ask
                     the parties to withdraw from the areas the sovereignty of which was being

                    26

6 CIJ1023.indb 48                                                                                18/06/13 10:38

                    560 	        request for interpretation (diss. op. owada)

                    contested — the areas that constituted the very subject of the dispute in
                    issue. In such a situation where, pending the outcome of the final determi-
                    nation of the Court, the issue of to whom this piece of disputed territory
                    in question belongs is unclear, it is not just reasonable but also clearly
                    within the power and jurisdiction of the Court to indicate to the parties
                    such provisional measures as to disengage their forces only in relation to
                    this disputed piece of territory. By contrast, the present situation is differ-
                    ent in nature. The Court is ordering, with binding force, that each of the
                    Parties be compelled to withdraw its forces from a certain portion of its
                    own territory, even if on a provisional basis, over which no one disputes
                    that it has an unfettered sovereignty to exercise.
                       10. In my view, this clearly goes beyond the power of the Court in rela-
                    tion to the indication of provisional measures under the Statute and the
                    jurisdiction conferred upon the Court with regard to the indication of
                    provisional measures of protection.
                       11. The legal situation would be quite different, if such provisional
                    measures were taken by the Security Council under Chapter VII of the
                    United Nations Charter “[i]n order to prevent an aggravation of the situ-
                    ation” (Charter, Art. 40). The Security Council is expressly empowered to
                    take such “provisional measures” under the Charter, for the specific pur-
                    pose referred to in its Article 40. The International Court of Justice is not
                    the Security Council ; the Court is not empowered by its Statute, nor
                    authorized by the United Nations, to take measures, even on a provi-
                    sional basis, which would encroach upon the sovereignty of a State with-
                    out its consent, either explicit or implicit, even with the best of intentions.
                       12. I have no doubt whatsoever that the Court has acted in the present
                    case with the best of intentions, emanating from its serious concern that
                    the situation on the ground involved in the case, if unattended, would
                    bring about a real risk of irreparable prejudice which is present and immi‑
                    nent.
                       Indeed, the Order specifically refers to this concern that there is a real
                    risk
                         “[that] the area of the Temple of Preah Vihear has been the scene of
                         armed clashes between the Parties . . . ; [that] the Court has already
                         found that such clashes may reoccur ; [and that] it is for the Court to
                         ensure, in the context of these proceedings, that no irreparable dam-
                         age is caused to persons or property in that area pending the delivery
                         of its Judgment on the request for interpretation” (para. 61).

                      13. I share all these concerns of the Court. That is why I am in agree-
                    ment with the Order, to the extent that it indicates the establishment of
                    some “provisional demilitarized zone” compatible with its competence
                    and jurisdiction, as a mechanism for preventing this real risk from becom-
                    ing a reality. However, this has to be done within the legitimate compe-
                    tence of the Court as the court of law.

                    27

6 CIJ1023.indb 50                                                                                18/06/13 10:38

                    561 	        request for interpretation (diss. op. owada)

                       14. One view that may be advanced in favour of the establishment of
                    this quadrangular zone artificially drawn on the map rather than the more
                    classical exclusion zone based on the disputed territory is that given the
                    unique geomorphological characteristic of the terrain involved, the demili-
                    tarization of the territory in dispute between the Parties may be extremely
                    difficult, if not impossible, to enforce, whereas this artificially created
                    demilitarization zone takes into account the specific topographical fea-
                    tures of the area and is therefore more amenable to effective enforcement.
                       15. While I accept that rationale, I find it difficult to believe that the
                    approach of the proposed zone will be easier to implement — not to
                    enforce — than the approach based on the “territory in dispute” (see
                    paragraph 9 of this opinion). What appears to be reasonable on the map
                    may not necessarily be reasonable from the viewpoint of implementation
                    on the ground. To my mind, what is at issue in this situation is not the
                    question of enforcement of the demilitarized zone by a third party author-
                    ity, but the feasibility of implementation of the demilitarized zone by the
                    Parties. My own view is that as long as the Parties are willing to imple-
                    ment the Order of the Court — and there is no reason to think other-
                    wise — the respective boundaries as claimed by each of the Parties as its
                    own are well known to each of the Parties and easy to implement and
                    observe the injunction prescribed by the Court on demilitarization,
                    whereas the artificial line of demarcation to designate the provisional
                    demilitarization zone may be clear on the map but it may turn out to be
                    difficult for the Parties to implement.
                       16. In the final analysis, what in my view ensures the adherence of the
                    Parties to the provisional measures prescribed by the Court is not the
                    enforceability of the decision, but rather the legitimacy and persuasive-
                    ness based on the reasonableness of the proposition given by the Court.
                    From this point of view, it is regrettable that this quadrangular zone
                    includes more of the territory of one Party under its undisputed sover-
                    eignty than that of the other Party, although this imbalance may be
                    wholly explicable and understandable when account is taken of the geo-
                    morphological characteristics of the terrain. It is earnestly hoped that this
                    solution indicated by the Court will not lead to a misunderstanding of the
                    intention of the Court in creating a provisional demilitarization zone.

                                                                   (Signed) Hisashi Owada.

                    28

6 CIJ1023.indb 52                                                                                18/06/13 10:38


1933.
Le 2 décembre.
Réle général
n° 60.

AFFAIRE CONCERNANT LA RÉFORME AGRAIRE

201

COUR PERMANENTE DE JUSTICE INTERNATIONALE

ORDONNANCE RENDUE LE 2 DECEMBRE 1933

TRENTIEME SESSION (EXTRAORDINAIRE)

2 décembre 1933.

POLONAISE ET LA MINORITE ALLEMANDE

Présents : MM. ADATCI, Président; GUERRERO, Vice-Président ;
KEiLocG, le baron ROLIN-JAEQUEMYNS, le comte
RosTwoRowsk!I, MM. FROMAGEOT, DE BUSTAMANTE,
ANZILOTTI, sir CECIL Hurst, MM. SCHÜCKING,
NEGULESCO, Jhr. van Eysinca, M. WANG, juges.

La Cour permanente de Justice internationale,
ainsi composée,

après délibéré en Chambre du Conseil,

Rend l'ordonnance suivante :

Vu l’article 48 du Statut de la Cour;

Vu Particle 61 du Règlement de la Cour;

Vu la requête du rer juillet 1933 par laquelle le Gouverne-
ment allemand à introduit devant la Cour une instance contre
le Gouvernement polonais «concernant l'application de la
réforme agraire » polonaise « à la minorité allemande dans les
voivodies de Posnanie et de Pomérélie, ainsi que les questions
connexes », requête qui a été enregistrée au Greffe de la Cour
le 3 juillet 1933;

Vu la désignation, par le Gouvernement allemand, de
M. Viktor Bruns, professeur de droit à l’Université de Berlin,
directeur de l’Institut de Droit public comparé et de Droit des
gens, comme son agent; et la désignation, par le Gouverne-
ment polonais, de M. Thadée Sobolewski, docteur en droit,

4
202 RÉFORME AGRAIRE POLONAISE

conseiller supérieur à l'Office du contentieux de l'État, comme

son agent ;
Vu Vordonnance du 4 juillet 1933 par laquelle le Président
de la Cour — celle-ci n’étant pas en session — a fixé les

délais pour la présentation du Mémoire du Gouvernement
allemand et du Contre-Mémoire du Gouvernement polonais
dans l'affaire, la fixation des délais pour le dépôt des Réplique
et Duplique étant réservée ;

Vu Vordonnance du 2g juillet 1933 par laquelle la Cour a
rejeté la demande en indication de mesures conservatoires
présentée par le Gouvernement allemand avec sa requête
introductive d’instance du rer juillet 1933;

Vu les ordonnances des 19 août et 25 septembre 1933 par
lesquelles le Président de la Cour — celle-ci n’étant pas en
session — a prorogé les délais fixés par l’ordonnance du
4 juillet 1933;

Considérant que le délai fixé en dernier lieu pour la présen-
tation du Mémoire devait expirer le rer novembre 1933;

Considérant que, le 27 octobre 1933, le Greffier de la Cour
a reçu du ministre d'Allemagne à La Haye une note aux
termes de laquelle le Gouvernement allemand n'a pas l’inten-
tion de poursuivre l'affaire qu'il avait soumise à la Cour
concernant la réforme agraire polonaise ;

Considérant que, conformément aux dispositions du Règle-
ment, copie de cette communication a été transmise, à toutes
fins utiles, à l'agent du Gouvernement polonais ;

Considérant que, par lettre du 15 novembre 1933, ledit
agent a informé Ja Cour qu’en présence de l'attitude du
Gouvernement allemand résultant de sa note précitée, le
Gouvernement polonais ne fait aucune objection à ce que
la procédure dans ladite affaire ne soit pas poursuivie et, la
considérant ainsi comme close, « prie la Cour d’en donner
acte »;

Considérant que le désistement du Gouvernement allemand
et Vacceptation de ce désistement par le Gouvernement polo-
nais mettent fin à la procédure engagée ;

La Cour,

prenant acte de la communication reçue, le 27 octobre 1933,
du ministre d’Allemagne à La Haye, portant désistement du
Gouvernement allemand de l'instance introduite par sa requête
du rer juillet 1933;

donnant acte à l'agent du Gouvernement polonais de sa
déclaration du 15 novembre 1933 portant acceptation par
ledit Gouvernement de ce désistement ;

5
203 RÉFORME AGRAIRE POLONAISE

déclare close la procédure ouverte par la requête du Gouver-
nement allemand ;
dit que ladite affaire sera rayée. du réle de la Cour.

Fait en français et en anglais, le texte français faisant foi,
au Palais de la Paix, à La Haye, le deux décembre mil neuf
cent trente-trois, en trois exemplaires, dont l’un restera déposé
aux archives de la Cour et dont les deux autres seront trans-
mis respectivement au Gouvernement allemand et au Gouver-
nement polonais.

Le Président de la Cour:
(Signé) M. ADATCI.

Le Greffier de la Cour:
(Signé) A. HAMMARSKJOLD.


    COUR INTERNATIONALE DE JUSTICE

        RECUEIL DES ARRE| TS,
 AVIS CONSULTATIFS ET ORDONNANCES

IMMUNITE
       u S JURIDICTIONNELLES
          DE L’E
               u TAT
       (ALLEMAGNE c. ITALIE)

    ORDONNANCE DU 29 AVRIL 2009

           2009
    INTERNATIONAL COURT OF JUSTICE

      REPORTS OF JUDGMENTS,
   ADVISORY OPINIONS AND ORDERS

 JURISDICTIONAL IMMUNITIES
        OF THE STATE
        (GERMANY v. ITALY)

       ORDER OF 29 APRIL 2009

                    Mode officiel de citation :
    Immunités juridictionnelles de l’État (Allemagne c. Italie),
     ordonnance du 29 avril 2009, C.I.J. Recueil 2009, p. 136

                        Official citation :
    Jurisdictional Immunities of the State (Germany v. Italy),
       Order of 29 April 2009, I.C.J. Reports 2009, p. 136

                                           Sales number
SN 0074-4441
BN 978-92-1-071062-6
                                           No de vente :   953

                             29 AVRIL 2009

                            ORDONNANCE

IMMUNITE
       u S JURIDICTIONNELLES
          DE L’E
               u TAT
    (ALLEMAGNE c. ITALIE)

 JURISDICTIONAL IMMUNITIES
        OF THE STATE
     (GERMANY v. ITALY)

                             29 APRIL 2009

                                ORDER

             INTERNATIONAL COURT OF JUSTICE

                               YEAR 2009                                            2009
                                                                                29 April
                                                                                General List
                              29 April 2009                                       No. 143

          JURISDICTIONAL IMMUNITIES
                 OF THE STATE
                       (GERMANY v. ITALY)

                                 ORDER

esent : President OWADA ; Vice-President TOMKA ; Judges SHI,
        KOROMA, BUERGENTHAL, ABRAHAM, KEITH, SEPÚLVEDA-AMOR,
        BENNOUNA, CANÇADO TRINDADE, YUSUF, GREENWOOD ; Regis-
        trar COUVREUR.

The International Court of Justice,
Composed as above,
After deliberation,
Having regard to Article 48 of the Statute of the Court and to Arti-
 s 31, 44, 45, paragraph 1, 48 and 49 of the Rules of Court,
Having regard to the Application filed in the Registry of the Court on
  December 2008, whereby the Federal Republic of Germany instituted
oceedings against the Italian Republic in respect of a dispute originat-
g in “violations of obligations under international law” allegedly com-
 tted by Italy through its judicial practice “in that it has failed to respect
e jurisdictional immunity which . . . Germany enjoys under interna-
 nal law” ;
Whereas on 23 December 2008 a certified copy of the Application was
 nsmitted to the Italian Republic ;
  Whereas on 23 December 2008 the Federal Republic of Germany
 tified the Court of the appointment of H.E. Mr. Georg Witschel and

                                                                            4

r. Christian Tomuschat as Agents ; and whereas on 23 March 2009
e Italian Republic notified the Court of the appointment of
 E. Mr. Paolo Pucci di Benisichi as Agent and Mr. Giacomo Aiello as
o-Agent ;
 Whereas, at a meeting held by the President of the Court with the
gents of the Parties on 23 April 2009, the Agent of Germany indicated
at, in view of the time which had already passed since the Application
 s filed, his Government was prepared to file its Memorial within two
onths ; and whereas the Agent of Italy, referring to the complex nature
  the issue brought before the Court, indicated that his Government
shed to have a sufficiently long time at its disposal for the preparation
 its Counter-Memorial and requested a time-limit of 12 months for the
 ng of that pleading ;
 Whereas, in view of the above, the Court considers it appropriate to fix
nsecutive identical time-limits of six months from the date of the filing
 the Application for the filing of, respectively, a Memorial by Germany
 d a subsequent Counter-Memorial by Italy,
Fixes the following time-limits for the filing of the written pleadings :

23 June 2009 for the Memorial of the Federal Republic of Germany ;

23 December 2009 for the Counter-Memorial of the Italian Republic ;
d
Reserves the subsequent procedure for further decision.

Done in French and in English, the French text being authoritative, at
e Peace Palace, The Hague, this twenty-ninth day of April, two thou-
nd and nine, in three copies, one of which will be placed in the archives
 the Court and the others transmitted to the Government of the Fed-
al Republic of Germany and the Government of the Italian Republic,
 pectively.

                                         (Signed) Hisashi OWADA,
                                                     President.
                                       (Signed) Philippe COUVREUR,
                                                     Registrar.

                                                                       5


29

SEPARATE OPINION
OF M. BADAWI, VICE-PRESIDENT OF THE COURT
[Translation] |

The Court has found that it is without jurisdiction on the ground
of the reservation attached by the French Government to its
Declaration of March ist, 1949, on which the Norwegian Govern-
ment relied by virtue of the reciprocity provided for in its own
Declaration of November 16th, 1046.

By its nature, the first Objection, in the form of the reservation
concerning national jurisdiction, is conclusive when invoked by the
Respondent against an Applicant which has made its declaration
subject thereto. It has a formal and direct character which precludes
any argument.

The reservation constitutes, however, a subsidiary formulation
of the first Objection which, as conceived and presented by the
Norwegian Government throughout the proceedings, was that the
dispute falls within the domain of municipal law. The reservation is
relied on by the Norwegian Government only in the event of any
doubt remaining as to the character of the dispute being that of a
dispute within the domain of municipal law. In that event, it would
be considered that this character had not been established and the
Objection would consequently be rejected. It was in order to
obviate this consequence that the reservation was invoked by the
Norwegian Government which considered it more conclusive than
the Objection relating to municipal law.

Now, the characteristic feature of a subsidiary request is indeed
that it denotes a degree of certainty that the main request does not
evoke.

Further, notwithstanding certain elements that are common to
the Objection relating to municipal law and the reservation, the
latter is subjective in character, whereas the Objection is, by its
very nature, objective. They are therefore different in nature.

In point of fact, the reservation was not taken up again by the
Norwegian Government either in the pleadings or in the oral
prodeecings.

I am therefore of opinion that the Court should not base its
judgment on the reservation unless it considers that the objection
relating to municipal law is not an adequate ground for finding that
the Court has no jurisdiction——-unless, that is, doubts remain as
to the validity of that objection.

In its Judgment, however, the Court did not think it necessary
to undertake an examination of the municipal law character of
the dispute. As I consider that the dispute does possess that
character, I feel it necessary to give my reasons for this conclusion.

24
NORWEGIAN LOANS (SEP. OPIN. OF M. BADAWI) 30

The subject of the proceedings, as defined by the Application of
the French Government and maintained by that Government in the
pleadings and in the subsequent hearings—apart from the additional:
Submissions which are concerned with the rejection of the Objec-
tions put forward by the Norwegian Government—relates to the
construction to be placed on the loan contracts and the determi-
nation of the substance of the debt. Now, according to the generally
recognized rules of private international law, these questions are
governed by the law of the debtor (in this case, Norwegian law).

The Permanent Court of International Justice has already so
stated in the Serbian and Brazilian Loans cases. It found beyond
any possible doubt that these questions fall within the domain of
municipal law.

Quite apart from the considerations upon which the Permanent
Court relied in finding that it had jurisdiction and in applying
French law as interpreted by French jurisprudence, it is thus
obvious that, for the Court to have jurisdiction, it must be seised
of a claim relating to international law. The French Government
itself has recognized this requirement. Not only does it not dispute
it, but it seeks to prove that the claim falls within the provisions of
Article 36 of the Statute on two grounds, namely, that it comes
within categories {b} and fc) of that Article, i.e. (b) any question of
international law and fc} the existence of any fact which, if estab-
lished, would constitute a breach of an international obligation.

In order to show that the case brought before the Court consti-
tutes a dispute under international law, the French Government
claims that it possesses that character by virtue of the Second Hague
Convention, of October 18th, 1907, relating to arbitration. But it
is difficult to follow its reasoning in this connection. At times, the
argument based on the Convention is directed towards showing that
the action of Norway constitutes a breach of the obligation that
country accepted in respect of compulsory arbitration. At other
times, it is the very matter of the recovery of contractual debts by
a State taking up the case of its nationals which is claimed to be,
by its nature, a matter falling within the domain of international law.

“The refusal of arbitration is an act contrary to law. It relates
to the payment of the international loans of Norway, that is to say,
to the question which the Second Convention brought within the
sphere of international questions and within those matters which,
by their nature, fall under international jurisdiction.”

“The French Government holds that the policy adopted by the
Norwegian Government in regard to the payment of these inter-
national loans raises a problem of international law, namely, the
recovery of contractual debts, which is governed by the Second
Convention of 1907.” (Oral argument of May 14th, 1957.)

It may at once be noted that the contention that the question
of the recovery of the debts constitutes, by its nature, an inter-

25
NORWEGIAN LOANS (SEP. OPIN. OF M. BADAWI) 31

national dispute is a gratuitous assertion. There remains to be
considered whether the 1907 Convention established compulsory
arbitration in the matter of debts, and whether the refusal to
arbitrate in the dispute between France and Norway constitutes a
violation of an international undertaking such as would authorize
the French Government to bring the question of the debts before
the Court by means of an Application.

In the first place, is there compulsory arbitration in respect of the
recovery of debts?

The second paragraph of Article 1 of the 1907 Convention does
indeed refer to arbitration, but not for the purpose of imposing
upon the State charged as a debtor an obligation to arbitrate;
its purpose is merely to limit the undertaking not to resort to force.

Even if it be conceded that the 1907 Convention gives rise to
compulsory arbitration for the recovery of debts, the obligation
thereby established cannot have by way of sanction, in the
event of a refusal to arbitrate, the effect of changing the nature of
the original dispute itself by transforming it from a dispute
subject to settlement by arbitration to a dispute subject to judicial
settlement. Were such a transformation possible, all disputes in
respect of which arbitration is compulsory would, merely by reason
of a refusal to arbitrate, fall ipso facto within the compulsory
jurisdiction of the Court.

In fact, if the international dispute is constituted by Norway’s
refusal to comply with an obligation to accept arbitration on the
question of the construction to be placed on the loan contracts, the
breach of that international obligation, not the question to be
arbitrated, would be the only subject-matter of the international
dispute. The proceedings to be instituted before the Court by
means of an Application could be designed only to obtain from the
Court a decision to the effect that Norway was under an obligation
to accept arbitration and to proceed to the drafting of the special
agreement and to the appointment of arbitrators. Reference is
made in this connection to the Ambatielos case.

But the French Government, in order to establish the jurisdiction
of the Court, does not rely only on sub-paragraph (2) of Article 36.
It relies also on sub-paragraph (c) which relates to the existence
of any fact which, if established, would constitute a breach of an
international obligation. It does not, however, explain its meaning
on this point. It has raised it in its Reply and repeated it in its
final Submissions whithout, at any time, making it clear what was
the fact involved.

But since the present case has been presented by the French
Government as a reproduction of the two cases on the Serbian and
Brazilian Loans, it is necessary to note that the Permanent Court
upheld its jurisdiction in those cases by assimilating to disputes
of pure fact, disputes which had to be decided by the application of
national law.

25
NORWEGIAN LOANS (SEP. OPIN. OF M. BADAWI) 32

The Permanent Court had already held in its Judgment No. 7
that from the standpoint of international law and of the Court
which is its organ, municipal laws are merely facts which express
the will and constitute the activities of States. It regarded them
as such in the cases under reference, itself applying those laws.

Sub-paragraph (c) of Article 36 of the Statute relates to the
special case where the Parties are in agreement as to the rule of
international law or, more precisely, as to the international obliga-
tion, but are in disagreement as to the facts constituting a breach
thereof. For, if they are in disagreement as to the international
obligation itself, the case would fall within sub-paragraph (6), and
sub-paragraph (c) would merely be an unnecessary repetition.

Thus, if the application of a system of law were to be regardedasa
fact, as would seem to be envisaged in the present case, the Parties
would be deemed to be in agreement that international law contains
arule to the effect that the cancellation of the gold clause is not appli-
cable to international payments, but not to be in agreement as to
the interpretation of Norwegian law. France, basing herself on sub-
paragraph (c), would then have instituted these proceedings to obtain
from the Court an interpretation of Norwegian law to this effect.

However, Norway disputes the alleged rule of international law.
This is the very basis of the present case. This is therefore not the
case covered by sub-paragraph (c).

Obviously, it is still possible for France to hold that, if the
Norwegian law does not adopt this rule of international law, then
Norwegian law would itself constitute a case of denial of justice.
In that event, however, it would not be sub-paragraph (c) that
could be the ground for the Court’s jurisdiction, but sub-paragraph
(d) of Article 36.

Now, whilst postulating the denial of justice, the French Govern-
ment did not take that as its basis. According to its final Submissions
the international character of the dispute would, by virtue of
sub-paragraphs (6) and(c) of paragraph 2 of Article 36 of the Statute,
derive from the Second Hague Convention of 1907. But neither
of these sub-paragraphs, taken in conjunction with the Convention
of 1907, justifies this classification.

*
* *

It was asserted, however, that the case falls within the domain of
international law because the French Government has adopted
the cause of its nationals and is exercising diplomatic protection
on their behalf, thereby conferring an international character on
the case. It is hardly necessary to point out that this begs the
question, since the contention put forward in this Objection is,
in fact, that there were no grounds for the exercise of this protection.

It has also been asserted that the case comes both within the
domain of national law and within the domain of international law,
or that the question is doubtful.

lL
NI
NORWEGIAN LOANS (SEP. OPIN. OF M. BADAWI) 33

Questions concerning inter alia equality of treatment as between
aliens and nationals, the distinction between resident aliens and
non-resident aliens, discrimination as between different categories
of foreign creditors! —these questions are said to be raised by
this case and they are all said to be questions of international law.

But if these questions, apart from that of discrimination, were
raised, this was not done originally by the French Government,
whose Application and Memorial go no farther than to ask the
Court to interpret the loan contracts in the sense set forth in its
Submissions, relying on the doctrine of international payments and
on the gold clause.

In point of fact, they were raised as a means of defence by the
Norwegian Government. After seeking to establish the national
character of the Jaw governing the loan contracts, it led the way
in showing that its own interpretation does not constitute a denial
of justice—and, in this particular case, that would be the only
ground for claiming that there was a breach of an international
obligation justifying proceedings before the Court. In the subsequent
proceedings, the French Government felt it had to follow the
Norwegian Government in this line of argument in order to contro-
vert its contentions. But it would be very strange, and even para-
‘doxical, to consider that the denial of the international character
of a question of municipal law and the discussion entered into in
that connection confer on that very question an international
character.

The question of which the Court is seised is thus one which, by
its very nature, comes within the domain of municipal law. For
my part, I consider that, quite apart from the reservation, the Court
could and should have upheld the first Objection.

(Signed) A. BADAWI.

1 The question of discrimination between Swedish and Danish creditors, on the
one hand, and other foreign creditors, on the other hand, was introduced by the
French Government in the concluding phases of the proceedings and was invoked
at one time as giving the dispute an international character on the ground that it
constitutes a breach of international obligations, and at another time, in the final
Submissions, as a substantive claim.

It is clear, however, that, so far as the merits are concerned, this discrimination
iN no way effects the construction to be placed on the gold clause and that, further,
the French Government does not deduce the proper consequences from it since it
does not claim that the French creditors should be paid in Swedish crowns or
Danish crowns.

If this discrimination, which is alleged to be a breach of international! obligations,
were to be regarded as giving the dispute an international character, this would
conflict with the claim that there has been a breach of the obligation imposed by the
Second Convention of 1907. As the determination of the obligation the breach of
which gives rise to an international dispute is the very basis for international
proceedings, it would be impossible to admit for the same proceedings two bases
that are essentially incompatible.

28