                                                                            524

           SEPARATE OPINION OF JUDGE ABRAHAM

[Translation]

   Agreement with the operative clause of the Judgment — Disagreement with
reasoning by means of which the Judgment dismisses the argument that Serbia
does not have standing to take part in the proceedings — Question of the scope
of Article 35 of the Statute — Two possible interpretations : conditions appli-
cable to both Parties, or only to the Applicant — Better founded and more
numerous arguments in favour of the second interpretation — Textual argu-
ments — Analysis of the travaux préparatoires — Analysis of the judicial prac-
tice and prior jurisprudence of the Court — Rationale and purpose of the
text — Principle of the equality of the States parties to a treaty containing a
compromissory clause — Conclusion : invalidity of arguments in the Judgment
seeking to demonstrate that the Respondent had access to the Court for the pur-
pose of the proceedings, on the basis of Article 35, paragraph 1, of the Stat-
ute — Date when fulfilment of conditions for the Court’s jurisdiction must be
assessed — Principle : conditions which must be fulfilled on the date when pro-
ceedings are instituted — Exception arising from the decision in the Mavrom-
matis case — Incorrect application by the Court of that decision in the case —
Need to rule on the applicability on the present date of Article IX of the Geno-
cide Convention in relations between the Parties — Reservation accompanying
Serbia’s alleged “accession” to the Convention in 2001 devoid of legal effect.

  1. To convince the Court to declare that it lacked jurisdiction to hear
Croatia’s Application, Serbia relied on two arguments, each of which
would, in its opinion, be sufficient to justify a ruling on a complete lack
of jurisdiction. First, it contended, the Court was not “open” to Croatia
within the meaning of Article 35, paragraph 1, of the Statute on the date
when the Application was filed (2 July 1999), thus no proceedings could
be brought before it since it could not appear before the Court even as a
respondent. Second, it was not a party, on that date, to the Genocide
Convention, and was not thus bound by the compromissory clause in its
Article IX relied upon by Croatia as the basis for jurisdiction — a clause
by which, moreover, it has never been bound, having been careful on its
accession to the Convention in 2001 to make a reservation to exclude it.

  2. The Court has dismissed all those arguments and found that it has
jurisdiction to hear the case on the basis of the compromissory clause
invoked by the Applicant.
  I wholly approve of the operative clause of the Judgment. However, I
only approve the reasoning in part.
  While, overall, I agree with the reasons for which the Court has dis-
missed the second limb of the objection to jurisdiction — the one con-
cerning the fact that Serbia was allegedly not a party to the Genocide
Convention, including its Article IX, in 1999 — on the other hand, the

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        APPLICATION OF GENOCIDE CONVENTION (SEP. OP. ABRAHAM)            525

reasons given in the Judgment to justify the dismissal of the first part of
the objection do not satisfy me at all, since, in my opinion, they are not
supported by a correct analysis of the applicable law.
   3. The Court’s task was to answer the objection, portrayed by the
Respondent as absolute, deriving from the fact that, not being a party to
the Statute of the Court in 1999 — and not becoming one until 1 Novem-
ber 2000 — that Serbia did not have standing to validly appear before the
Court, the latter not being “open” to it within the meaning of Article 35
of the Statute.
   Such an objection was not unfamiliar ground for the Court. No one
has forgotten that in 2004 it was precisely because Serbia and Montene-
gro was not a Member of the United Nations, nor therefore a party to
the Statute of the Court, until 1 November 2000, that eight Applications
filed by that country in 1999 against eight NATO Member States were
dismissed due to the resulting lack of jurisdiction (see the Judgments
delivered on 15 December 2004 in the cases concerning Legality of Use of
Force (Serbia and Montenegro v. various NATO member States), I.C.J.
Reports 2004 (I, II, III), pp. 279-1450).
   4. In the present proceedings, however, Serbia has not come before the
Court as an Applicant, as in the aforementioned cases. It appears as a
Respondent and itself pleads its lack of standing as a party to the Statute
of the Court in order to avoid its jurisdiction. From the fact that the
Court was not “open” to it under Article 35 of the Statute it seeks here to
draw the, for it, favourable conclusion — that it would be safe from the
compulsory jurisdiction of the Court — whereas in 2004 an unfavourable
conclusion was drawn against it : it was not allowed to use the Court to
set out its claims.
   Nevertheless, the Judgment does not appear to take account of this dif-
ference in situation. The Court examines the issue of whether the
Respondent fulfils the conditions to which Article 35 of the Statute
makes “access” to the Court subject, as if those conditions were uni-
formly applicable to an applicant and to a respondent. At the end of its
reasoning, to which I will return below, as it does not seem to be entirely
rigorous, the Court answers in the affirmative, without however contra-
dicting its 2004 Judgments : Serbia does indeed fulfil the conditions for
access to the Court, for the purposes of the present proceedings, because
it was accepted as a Member of the United Nations on 1 November 2000
and became a party to the Statute on that date.
   5. I consider that the long and complex arguments which the Court
devotes to the question of Serbia’s “access to the Court”, in the light of
Article 35 of the Statute (in paragraphs 57 to 92 of the Judgment), were
in fact pointless. The reason is that, in my opinion, the conditions in Arti-
cle 35 of the Statute do not apply to the respondent in proceedings, but
only to the party which brings the case to the Court. It is true that Croatia
itself, which might nevertheless have derived benefit from it, did not
argue in favour of such an interpretation, which was hardly likely to
encourage the Court to adopt such an approach. But, as it was a matter

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        APPLICATION OF GENOCIDE CONVENTION (SEP. OP. ABRAHAM)            526

of interpreting its Statute, it was for the Court to rule ex officio, without
being bound by the arguments of the parties in a given case. In addition,
the Court had explicitly reserved this question in its Judgment on the
merits in the Application of the Convention on the Prevention and Pun-
ishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and
Montenegro) case (I.C.J. Reports 2007 (I), p. 102, para. 141), rightly
indicating (paragraph 141 of the Judgment) that “[t]his matter, being one
of interpretation of the Statute, would be one for the Court to deter-
mine”.
   I will now set out the reasons why I at least have come to the above
conclusion regarding the interpretation of Article 35 of the Statute. To
do so I must begin with the relevant provisions, whose intrinsic logic I
shall endeavour to reveal.
   6. Taking the expression in the broad sense, the capacity (or standing)
to take part in proceedings before the Court is subject to conditions
which are defined in Articles 34 and 35 of the Statute.
   Article 34 in principle reserves the right to appear before the Court to
States, while in certain conditions authorizing public international organi-
zations to submit observations in certain cases.

  Article 35 further reserves access to the Court to States which :
— either are parties to the Statute (which is the case of all United
  Nations Member States and non-Member States which have decided
  to become parties to it under the conditions laid down in Article 93,
  paragraph 2, of the Charter) — which is what is stated in Article 35,
  paragraph 1 ;
— or, though not parties to the Statute, have complied to the conditions
  laid down in a Security Council resolution, “subject to the special
  provisions contained in treaties in force” — which is what is stated in
  paragraph 2. The resolution in question (S/RES/9 (1946) of 15 Octo-
  ber 1946) provides that the Court shall be open to any State which is
  not a party to the Statute having deposited a declaration by which it
  undertakes to accept the jurisdiction of the Court and the authority
  of its decisions, either in general or in a particular case.
  7. It is certain that the condition laid down by Article 34 for a legal
entity to be able to take part in proceedings before the Court (namely
that that entity must be a State under international law) applies equally
to the applicant and the respondent (and to both if the case has been
brought before the Court jointly by a special agreement).

   8. The scope of application of Article 35, however, is debatable. While
it is clearly apparent from the wording itself that paragraph 3 of Arti-
cle 35 — which gives the Court the power to fix the amount to be con-
tributed to the cost of proceedings by a State which is not a Member of
the United Nations — applies to any State in the situations so defined, be
it an applicant or a respondent, a simple reading of paragraphs 1 and 2 of

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        APPLICATION OF GENOCIDE CONVENTION (SEP. OP. ABRAHAM)            527

that same Article 35 does not make it easy to reach such a certain conclu-
sion.
   9. In this connection, two interpretations may be defended (and have
moreover been so defended both in scholarly works and in the practice of
the Court prior to the present Judgment).
   According to one interpretation, paragraphs 1 and 2 have the same
scope of application as paragraph 3, the result being that the conditions
established by these two paragraphs would apply equally to the applicant
State and the respondent State, the Court being unable to exercise its
jurisdiction unless both of them, in one way or another, fulfil those con-
ditions. Thus, for example, even if the applicant State is a Member of the
United Nations, the Court would also not be able to exercise its jurisdic-
tion if the respondent State were not a party to the Statute and had also
not deposited the declaration of acceptance provided for by the Security
Council resolution of 15 October 1946 (unless between the two States
concerned, there was a “treaty in force” within the meaning of Article 35,
paragraph 2, that is to say a treaty which was already in force on the date
when the Statute came into force, as the Court pointed out in its Judg-
ments of 15 December 2004 in the cases concerning Legality of Use of
Force).
   But a second interpretation is possible whereby, in order to ensure that
it is in a position to exercise its jurisdiction, the Court merely has to
verify that the applicant State, and it alone, fulfils the conditions — the
alternative ones — mentioned in Article 35, paragraphs 1 and 2.

   10. It should be noted here and now that if, as I believe it should, the
second interpretation were to be upheld, that would clearly not mean
that the Court would be justified in exercising its jurisdiction with respect
to a respondent State which had not, one way or another, consented to
its jurisdiction. Irrespective of the interpretation of Article 35 adopted,
consent to the jurisdiction of the Court must be verified, both with
respect to the applicant State and to the respondent State. The conse-
quence of the second interpretation is only that, where the respondent
State is concerned, it would be sufficient to verify that it is bound vis-à-
vis the applicant State by a treaty containing a clause attributing jurisdic-
tion to the Court, which clause would establish its consent to jurisdiction
(or any other form of jurisdiction), without there being any need also to
wonder whether it is a Member of the United Nations or party to the
Statute of the Court or, failing that, whether it has made the declaration
laid down by the 1946 resolution — the latter conditions only being rele-
vant, and only requiring verification, with respect to the applicant State.
   11. It is immediately clear that the choice between the above two inter-
pretations is not purely academic. It can have decisive consequences
regarding the possibility for the Court to exercise its jurisdiction in the
following situation : the two States in dispute are bound by a treaty con-
taining a compromissory clause attributing jurisdiction to the Court to
settle such a dispute, but it is not a “treaty in force” within the meaning

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        APPLICATION OF GENOCIDE CONVENTION (SEP. OP. ABRAHAM)             528

of paragraph 2, because it post-dates the Statute ; seisin of the Court is
made by way of a unilateral application ; the applicant State is a Member
of the United Nations (or, failing that, it is party to the Statute of the
Court, or has filed the declaration laid down by the 1946 resolution) ; the
respondent State, by contrast, is not a Member of the United Nations, is
not a party to the Statute of the Court, and has not signed — and does
not wish to sign — the above declaration.
   In that case, the choice of the first interpretation of Article 35 prevents
the Court from exercising its jurisdiction, notwithstanding the comprom-
issory clause binding the two States. The choice of the second interpreta-
tion on the other hand enables the Court to exercise its jurisdiction.
   12. Such a situation is unlikely to arise often before the Court.

  It does, however, happen to correspond to the Bosnia and Herze-
govina v. Serbia and Montenegro and the Croatia v. Serbia cases, at least
providing Serbia (then the FRY) on the one hand, and the two applicant
States on the other, are regarded as being bound, on the dates when the
Applications were filed, by the Genocide Convention and its Article IX,
and providing we confine ourselves, where the conditions of Article 35
are concerned, to the situation prevailing on those dates, when the
Respondent did not fulfil any of the said conditions, according to what
the Court ruled in its 2004 Judgments cited above.
  13. There is no doubt that there are sound arguments in favour of
each of the two above interpretations. On reflection, even though the pre-
vailing academic view appears to indicate the contrary if anything, I have
come to the conclusion that the most numerous and sounder arguments
weigh in favour of the interpretation whereby the conditions mentioned
in Article 35, paragraphs 1 and 2, are required of the applicant State
alone when a unilateral application is brought before the Court on the
basis of a compromissory clause applicable to relations between the
applicant and the respondent.
  I will endeavour to summarize below the reasons which lead me to this
conclusion, and which are based upon :
(a) the actual text of the Statute ;
(b) the travaux préparatoires ;
(c) practice and jurisprudence ; and lastly
(d) the rationale of the provisions being interpreted.

                         (A) TEXTUAL ARGUMENTS

  14. Paragraph 1 of Article 35 contains the phrase : “The Court shall be
open.” The same phrase is repeated in paragraph 2 : “The conditions
under which the Court shall be open to other States shall . . . be laid
down by . . .”
  In itself, the expression which has passed into current legal usage as
“access to the Court”, which is its exact equivalent from the opposite per-

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        APPLICATION OF GENOCIDE CONVENTION (SEP. OP. ABRAHAM)             529

spective, that of the State, quite clearly suggests that what is at issue here
is defining the conditions under which a party to a dispute can bring it
before the Court and address it in order to uphold what it considers to be
its rights.
   The “ordinary meaning” of the terms used, to borrow the expression in
Article 31, paragraph 1, of the Vienna Convention, does not at first sight
point towards a “symmetrical” interpretation of the text, according to
which the conditions laid down would also have to be fulfilled by the
respondent. Yet the respondent is not seeking access to the Court, since
in any number of cases, it seeks, on the contrary, to evade its jurisdiction
by, rightly or wrongly, challenging it. As it is not the one trying to push
open the door of the Court, it is hard to see why conditions of entrance
should be imposed on it (or on it as well).

   In the admittedly to some extent specific field of international human
rights law, the “right of access to a court” (a national one) defined as a
fundamental component of the right to a “fair trial”, guaranteed by Arti-
cle 14 of the International Covenant on Civil and Political Rights and
Article 6 of the European Convention on Human Rights, has always
been understood as a person’s right to seise a court in order to put his or
her claims to it, thus a right as applicant and not as respondent. Nat-
urally, that does not mean that, once the proceedings have commenced,
the requirements of a “fair trial” (impartiality and independence of the
Court, etc.) will not apply just as much for the applicant as for the
respondent , and the two parties must be treated equally in the proceed-
ings.
   This is the “ordinary meaning” of the words.
   15. This first impression is supported by a comparison of the terms
contained in paragraphs 1 and 2 of Article 35 with those in Article 34 and
Article 35, paragraph 3.
   The latter two provisions show that when the authors of the Statute
wished to establish a rule applicable to both parties to proceedings, they
carefully indicated it by unequivocal wording. Hence, Article 34 provides
that “[o]nly States may be parties in cases before the Court” and Arti-
cle 35, paragraph 3, refers to a State which “is a party to a case”. In con-
trast, the terminology used in paragraphs 1 and 2 of Article 35 (“The
Court shall be open”) does indeed seem to suggest that it is referring to
something else : the party, and only that party, which takes the initiative
of bringing a case before the Court — both parties in the event of joint
seisin ; but only one of them in the event of a unilateral application.

             (B) ANALYSIS OF THE TRAVAUX PRÉPARATOIRES
  16. Reference should be made, as the Court did in its Judgments of
15 December 2004 (see, for example, paragraphs 103 to 108 of the Judg-
ment in the Legality of Use of Force (Serbia and Montenegro v. Bel-
gium) case (Preliminary Objections, Judgment, I.C.J. Reports 2004 (I),
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        APPLICATION OF GENOCIDE CONVENTION (SEP. OP. ABRAHAM)              530

pp. 319-321), to the travaux préparatoires of Article 35 of the Statute of
the Permanent Court of International Justice, which contained provi-
sions in substance identical to those in Article 35 of the present Statute.
   17. There is, so it seems, only one indication concerning the scope of
the terms “The Court shall be open . . .” ; but it is a particularly clear one.

   18. The first draft of the provision which was to become Article 35
(then number 32) was the fruit of the work of the Advisory Committee of
Jurists in 1920. That provision contained a first subparagraph drafted as
follows : “The Court shall be open of right to the States mentioned in the
Annex to the Covenant, and to such others as shall subsequently enter
the League of Nations.”
   When the preliminary draft was considered by the sub-committee of
the Third Committee of the first Assembly of the League of Nations, one
of the members of the sub-committee, Sir Cecil Hurst, pointed out that
“under the Treaties of Peace the Central Powers would often be Parties
before the Court” and that “[t]he text of the draft does not take sufficient
account of this fact”. In other words, he feared that the requirement, for
access to the Court by a State that had taken part in the creation of the
League of Nations or subsequently become a Member of it, might pre-
vent disputes implicating the Central Powers, who did not meet those
requirements, from being submitted to the Court.
   The answer given by the Chairman of the subcommittee was perfectly
clear : “the Article applie[s] only to the plaintiff Parties” (see League of
Nations, Permanent Court of International Justice, Documents concern-
ing the action taken by the Council of the League of Nations under Arti-
cle 14 of the Covenant and the adoption by the Assembly of the Statute of
the Permanent Court, p. 141).
   In the rest of the travaux préparatoires of the Statute of the Permanent
Court, there does not appear to be any other comment on this question
to invalidate or contradict the one just mentioned.

  As for the travaux préparatoires of the Statute of the International
Court of Justice, they would seem to contain no further comment.

        (C) ANALYSIS OF JUDICIAL PRACTICE AND JURISPRUDENCE
   19. The practice of the Permanent Court appears to have been a little
unclear.
   In the first case in which the question of the interpretation of Article 35
arose, the Court appears, in its practice, to have abided by the interpreta-
tion according to which the conditions of access to the Court apply to the
Applicant alone.
   If we are to give credence to the generally well informed commentary
on the Statute and the Rules of the Permanent Court of International
Justice published in Berlin in 1934 under the aegis of the Institute for
Public International Law:
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       APPLICATION OF GENOCIDE CONVENTION (SEP. OP. ABRAHAM)                531

       “In the S.S. ‘Wimbledon’ case, brought before the Court under
    Article 386 of the Treaty of Versailles, Germany, which at that point
    had yet to become a Member of the League, was the Respondent. A
    declaration was not considered as necessary, on the one hand, in
    light of the reservation contained in Article 35, paragraph 2, of the
    Statute which concerns in particular — as is apparent from the
    drafting history of the article — certain provisions of the Peace
    Treaties, and on the other hand, in those proceedings Germany was
    the Respondent and the article — as also seems apparent from its
    drafting history — only concerns the applicant parties.” [Translation
    by the Registry.] (B. Schenk von Stauffenberg, Statut et Règlement
    de la Cour permanente de justice internationale : éléments
    d’interprétation, Carl Heymanns Verlag, Berlin, 1934, p. 234 ; empha-
    sis added.)
   20. A few years later the question arose again when the Rules of Court
were revised in 1926. It was then decided to add a provision making it an
obligation for a State not a Member of the League of Nations to deposit
the declaration provided for by the resolution of the League Council of
17 May 1922 with the Registry of the Court. During the meeting on
25 June 1926, the Registrar recalled in that connection “the decision
taken by the Court in the Wimbledon case. At that time, it had been
decided that the obligation in question could only be imposed on the
applicant Party, and not on the respondent.” (Publications of the Perma-
nent Court of International Justice, Series D, Acts and Documents con-
cerning the Organization of the Court, Addendum to No. 2, Revision of
the Rules of Court, p. 75.)
   21. However, at the meeting on 21 July 1926, during which that provi-
sion of the revised Rules was considered, the President said that :

      “It [is] quite natural that States that wish . . . to profit by the insti-
    tution established by the League of Nations . . . have to accept the
    conditions fixed by the Covenant, and that States which, for one rea-
    son or another, [have] not yet done so should accept them by means
    of this declaration, whether they appear . . . before the Court as
    Applicant or Respondent.” (Ibid., p. 106.)
  22. Eventually, the Court adopted a neutral phrase, worded as follows
(Art. 35) :
       “(2) The declaration provided for in the Resolution of the Council
    of the League of Nations of May 17, 1922 (Annex), shall, when it is
    required under Article 35 of the Statute, be deposited with the Reg-
    istry not later than the time fixed for the deposit of the first document
    of the written procedure.” (Op. cit., von Stauffenberg, p. 235 ; empha-
    sis in original.)
  As was observed in the aforementioned commentary on the Statute
and the Rules of the Permanent Court :

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       APPLICATION OF GENOCIDE CONVENTION (SEP. OP. ABRAHAM)            532

       “The text adopted left the question of the circumstances in which
    the declaration is necessary entirely unresolved, and preserved the
    freedom of the Court to rule in each individual case on the necessity
    of the declaration ;
    . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
       The provision adopted by the Court did not settle the matter of
    whether the obligation to make a declaration also extended to States
    appearing before the Court as respondents either.” (Op. cit., von
    Stauffenberg, pp. 235-236 ; emphasis added.)
   23. The practice of the International Court of Justice in the matter at
hand provides little in the way of enlightenment. We appear to find the
same uncertainties as before.
   In support of one of the two interpretations (the one I referred to as
“symmetrical” above) the Corfu Channel case should be mentioned. In its
Order of 31 July 1947 to fix the time-limits for the submission of the first
two written pleadings, the President held that “the . . . note of the Alba-
nian Government may be regarded as constituting the document men-
tioned in Article 36 of the Rules of Court” (I.C.J. Reports 1947-1948,
p. 5). Article 36 of the Rules of Court dealt precisely with the case of
States which were not parties to the Statute, but which had access to the
Court under Security Council resolution 9 of 1946, which for that pur-
pose, as mentioned above, required the filing of a declaration. In those
proceedings, Albania was the Respondent : we may deduce from this
that, in the view of the President, both the respondent and the applicant
were subject to the conditions of “access to the Court” laid down by Arti-
cle 35 of the Statute.
   24. But conversely, it must be noted that the Rules of Court, having
initially retained a neutral phrase on the point concerned — that is, one
which did not permit a final decision as between the two possible inter-
pretations of Article 35 of the Statute — following on in this respect from
the Rules of the former Permanent Court, moved away from that posi-
tion as of the Revised Rules of 1978. Indeed, in Article 36 and Article 39
respectively, the 1946 and the 1972 Rules of Court contained an (identi-
cal) provision, the actual wording of which did not indicate whether the
declaration provided for by Security Council resolution 9 of 1946 was
required of the applicant State alone or of each of the two States parties
to the proceedings, when either, or even both, were not parties to the
Statute. On the other hand, the Rules of Court in force since 1978 con-
tain an Article 41 worded as follows :
       “The institution of proceedings by a State which is not a party to
    the Statute but which, under Article 35, paragraph 2, thereof, has
    accepted the jurisdiction of the Court by a declaration made in
    accordance with any resolution adopted by the Security Council
    under that Article, shall be accompanied by a deposit of the declara-
    tion in question, unless the latter has previously been deposited with
    the Registrar . . .” (Emphasis added.)

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       APPLICATION OF GENOCIDE CONVENTION (SEP. OP. ABRAHAM)            533

    As was noted by Shabtai Rosenne, who appears very hesitant on the
point concerned, “The Rules contain no parallel provision regarding the
filing of a declaration by a respondent which is not a party to the Stat-
ute.” (The Law and Practice of the International Court, 1920-2005,
Fourth Edition, Vol. II, Jurisdiction, p. 619.)
    The silence of the Rules of Court regarding a respondent State which is
not party to the Statute, when an express provision obliges an applicant
State in such a situation to prove that it meets the conditions of “access
to the Court” laid down in Article 35, paragraph 2, constitutes a fairly
clear indication in favour of the interpretation restricting the scope of
that Article to the applicant.
    25. The foregoing considerations concern what I have termed the
“judicial practice” of the former and the existing Courts : we can see that
the practice has varied.
    It is another matter to ascertain whether the point under discussion has
been settled by the jurisprudence as such, that is to say by an analysis of
the judicial decisions rendered by the Court itself prior to the present
Judgment. It would not appear so.
    26. It must be said that the Order of 8 April 1993 on the Request for
provisional measures in the case concerning Application of the Conven-
tion on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Yugoslavia) was fairly clearly, albeit implicitly,
inspired by the “symmetrical” interpretation of Article 35. After express-
ing its doubts on whether Yugoslavia was then a Member of the United
Nations and, as such, a party to the Statute of the Court (I.C.J. Reports
1993, p. 14, para. 18), and citing Article 35, paragraph 2, of the Statute,
the Court went on to assert that
    “the Court therefore considers that proceedings may validly be insti-
    tuted by a State against a State which is a party to such a special
    provision in a treaty in force, but is not a party to the Statute, and
    independently of the conditions laid down by the Security Council in
    its resolution 9 of 1946” (ibid., para. 19),
before concluding that Article IX of the Genocide Convention could be
regarded prima facie as such a provision and thus provide sufficient basis
for jurisdiction in that case (ibid.). The reasoning thus deployed presup-
poses at least tacitly that the conditions of “access to the Court” in Arti-
cle 35 are equally applicable to the respondent : if not, since in that case
it was only the Respondent’s standing as party to the Statute that was in
doubt, not the Applicant’s, the Court would not have needed to fall back
on the notion of “treaty in force” within the meaning of paragraph 2 and
find that such a treaty was binding on both Parties to the proceedings.

   But the Order of 1993 certainly did not aim to settle the issue def-
initively, its conclusions were only prima facie and the passage cited
above was, moreover, partly contradicted by the Court, following more
detailed consideration of the term “treaties in force” in its Judgments

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        APPLICATION OF GENOCIDE CONVENTION (SEP. OP. ABRAHAM)             534

of 15 December 2004 on the cases concerning Legality of Use of
Force.
   27. The Judgment of 11 July 1996 on the preliminary objections in the
same case shed no new light on the point under discussion. As the FRY
argued that it lacked standing as a party to the Statute in order to chal-
lenge the jurisdiction of the Court, the Court did not have to consider the
question, nor therefore the prior question of whether the conditions of
access to the Court in Article 35 are also applicable to a respondent
State. And while it must be borne in mind that, by declaring its jurisdic-
tion to hear the dispute on the basis of Article IX of the Genocide Con-
vention, the Court must be assumed, by deduction, to have considered
that all the conditions of “access to the Court” mentioned in Articles 34
and 35 of the Statute had been met, it is, however, impossible to logically
construe that it did so on the basis of either of the two possible interpre-
tations of the scope of application of Article 35.

   28. Finally, the Judgments of 15 December 2004 do not provide any
more decisive indications : true, the Court found that it lacked jurisdic-
tion to hear the Applications by Serbia and Montenegro on the ground
that that State did not meet the conditions of Article 35, but it was the
applicant State. None of the wording used by the Court in its Judgments
in those cases clearly indicates either that the conditions of Article 35
applied to the applicant State alone, and that the Court only considered
them in those cases because it was the Applicant who allegedly did not
fulfil them, or, on the contrary, that those conditions applied to the
Respondents as much as to the Applicant, for as Members of the United
Nations, there is no doubt that the former fulfilled them.
   In short, the Court had no need to settle the question of whether a
respondent must fulfil the “conditions of access” and it did not do so.
   As I said above, it even expressly reserved the question in its 2007
Judgment delivered in the case concerning Application of the Convention
on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro).

                (D) RATIONALE AND PURPOSE OF THE TEXT
  29. More than the above arguments, it is the arguments derived from
the rationale of the text to be interpreted and its ultimate purpose, or
what must be supposed to be its ultimate objective, which seem to me to
point in favour of one of the two interpretations.
  30. The actual situation in which the difficulty of interpretation we are
seeking to resolve is likely to arise should not be forgotten.

  That situation presupposes a combination of two factors.
  First, a dispute must arise between two States, between which a com-
promissory clause assigning jurisdiction to the Court is in force : if this is
not so, and because, moreover, at least one of those States is not, let us
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        APPLICATION OF GENOCIDE CONVENTION (SEP. OP. ABRAHAM)            535

suppose, a party to the Statute, the Court cannot have jurisdiction and
no other question arises.
   Second, at least one of the two States concerned must not fulfil the
conditions of “access to the Court” in Article 35 of the Statute : that State
is not a party to the Statute, and it has not signed the declaration
required by Security Council resolution 9 of 15 October 1946. Indeed, it
is obvious that if the two States in dispute satisfy the conditions of access
to the Court, either under paragraph 1 or under paragraph 2 of Arti-
cle 35, the question of whether these conditions apply only to the appli-
cant State or to both States parties to the case is irrelevant, and, in that
event, the case could equally well be brought before the Court jointly by
way of a special agreement or by a unilateral application by either one of
the two States concerned.
   31. Let us suppose then that the two above conditions are both met : it
is then that the question of choosing one of the two possible interpreta-
tions of Article 35 regarding its scope of application arises. The advan-
tages and disadvantages of each of them must be considered, in particu-
lar with regard to their consequences.
   32. The principal objection which comes to mind when considering the
interpretation whereby the conditions of access apply only to the appli-
cant and do not have to be fulfilled by the respondent, without this mean-
ing that the Court is prevented from exercising its jurisdiction, is that of
the dissymmetry, imbalance, or even inequality it appears to create
between the two opposing States.
   33. One can indeed recall, in response to this objection, that whatever
the solution chosen, once proceedings have begun, in procedural terms,
the two parties will and must be treated with strict equality by the Court.
While this is true, it does not wholly answer the objection.

   34. The consequence of an “asymmetrical” interpretation of Article 35
appears to be that, for two States bound by a compromissory clause,
where one of them fulfils the conditions of access but the other not, the
former could take the initiative to bring the latter before the Court (since
it has standing to do so), while the converse will not apply : is that not a
breach of the fundamental principles of the equality but also as the reci-
procity of the rights of States, principles which must be applied as much
in bringing a case before the Court as in the course of the proceedings ?

    35. However, on further reflection, that objection is not convincing at
all, since the inequality which it exposes is merely apparent. Indeed, there
is nothing to stop a State which is a party to a treaty containing a com-
promissory clause and which seeks to apply it in order to resolve a given
dispute from positioning itself so as to have access to the Court by ful-
filling the conditions laid down by Article 35, paragraph 2, and the Secu-
rity Council resolution to which that paragraph refers.

  To do so, that State, which we are assuming is not a party to the Stat-

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        APPLICATION OF GENOCIDE CONVENTION (SEP. OP. ABRAHAM)             536

ute, merely has to file with the Registry of the Court a declaration by
which it accepts the jurisdiction of the Court and undertakes to comply
with its decision (resolution 9, para. 1). Such a declaration may be signed
for the purposes of resolving a particular dispute which has already
arisen (ibid., para. 2). It can be submitted at any time and takes immedi-
ate effect.
   36. Thus, in the “asymmetrical” interpretation of Article 35, there is
no real inequality between the two States bound by a compromissory
clause : the one which does not already fulfil the conditions of “access to
the Court” but which seeks to bring a dispute before it can — and it
alone can decide this — enable itself to do so.

   37. Let us now consider the disadvantages which, conversely, the
“symmetrical” interpretation of Article 35 would entail, the one which
prevents the Court from exercising its jurisdiction solely because the
respondent does not fulfil the conditions of access to the Court.
   38. Two States are bound by a compromissory clause ; let us suppose
that one of them fulfils the conditions of access to the Court (because, for
example, it is a Member of the United Nations, and therefore a party to
the Statute of the Court), while the other does not.
   The second State could, at any point, implement the compromissory
clause against the first by, for the purposes of the case, filing the declara-
tion laid down by resolution 9 of 1946. But the first State could not solely
of its own volition bring the second before the Court : all the respondent
would need to do, if it did not want such proceedings, would be to plead
that it did not fulfil the conditions of access to the Court in order to put
itself beyond its compulsory jurisdiction, notwithstanding the comprom-
issory clause.
   39. Two highly prejudicial consequences would flow from this.
   40. First, what we have termed the “symmetrical” interpretation of
Article 35, which a large section of scholarly opinion (and possibly the
Court itself) appears to favour, owing to its symmetrical nature, actually
creates real inequality between the States.
   It is symmetrical in appearance only : in reality it leads (or can lead) to
dissymmetrical consequences.
   41. Second, it enables a State which is not a party to the Statute, but
which is nonetheless bound by a treaty containing a compromissory
clause attributing jurisdiction to the Court in the event of a dispute (there
is no contradiction or legal impossibility in such a situation), not to com-
ply with that compromissory clause every time that it chooses not to, by
refraining from satisfying the conditions of access to the Court. In other
words, this interpretation of Article 35 enables a State to comply or not
to comply, as it sees fit, with a treaty clause, compliance with which none-
theless constitutes an international legal obligation.
   Can we reasonably suppose that those who drafted Article 35 of the
Statute sought to achieve such a result or simply to make it possible ?

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        APPLICATION OF GENOCIDE CONVENTION (SEP. OP. ABRAHAM)               537

   Can we accept an interpretation of a treaty provision (Article 35 of the
Statute) which ultimately means stripping other treaty provisions (the
compromissory clauses of treaties to which States not parties to the Stat-
ute of the Court are parties) of any actual meaning ?
   In short, can we accept an interpretation of the law which enables a
State not to honour a legal obligation?
   That would, as I see it, be seriously illogical. Yet it is what is suggested,
reading between the lines, by the Judgment which the Court has just
delivered.
   42. It might be objected that compliance with a compromissory clause
by States which are parties to the treaty in which it is contained is one
thing, while the application by the Court of the conditions of jurisdiction
arising from its Statute is another ; and that, consequently, regrettable
though the conduct of a respondent which does not accept the jurisdic-
tion of the Court though bound vis-à-vis the applicant by a compromis-
sory clause may be, nonetheless that does not authorize the Court to
uphold its jurisdiction if the respondent is not a party to the Statute and
has not signed the declaration provided for by resolution 9 of 1946 and
that the said Statute makes the jurisdiction of the Court subject to the
fulfilment of one or other of those conditions.
   I would be willing to accept such an argument, despite its highly
abstract and formalistic character and the regrettable nature of the con-
sequences stemming from it, if Article 35 of the Statute was sufficiently
clear and categorical as to leave no reasonable room for any interpreta-
tion other than the one which requires both parties to fulfil the conditions
laid down in it for the Court to be able to exercise its jurisdiction. But,
precisely, I believe I have shown above that this is certainly not the case :
both the actual text and the travaux préparatoires tend, if anything, to
support the opposite interpretation.
   43. Let us pursue this line of reasoning. If we accept, for the time
being, the opposite interpretation of Article 35 to the one I propose, it
follows that the conduct of the respondent which is not a party to the
Statute of the Court and which refrains from filing the declaration laid
down by resolution 9 of 1946 (which it is always free to do), when it is
bound by a compromissory clause attributing jurisdiction to the Court,
constitutes a violation, by that respondent, of the compromissory clause,
as it seeks to foil the jurisdiction of the Court which the respondent never-
theless accepted as an obligation on becoming a party to the treaty.
Faced with such a situation, should the Court, by declaring that it lacks
jurisdiction, agree to allow this unlawful conduct to produce the very
outcome which the perpetrator of that conduct (our hypothetical, or per-
haps not so hypothetical, respondent) seeks to attain ? I venture to sug-
gest that would be allowing a little too much rein to jurists’ natural
propensity for abstract reasoning, were that to lead to consequences at
variance with the elementary requirements of the law and common sense
combined.
   44. I thus come to the following conclusions :

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        APPLICATION OF GENOCIDE CONVENTION (SEP. OP. ABRAHAM)            538

  The fundamental rule laid down by Article 34 of the Statute obviously
applies to both the applicant and the respondent : in order to appear
before the Court as a party to proceedings in any capacity whatever, a
party must be a State.
  However, the “conditions of access” defined by Article 35, paragraphs 1
and 2, apply to :
— both parties to the dispute, if the case is brought before the Court
    jointly by them ;
— to the respondent alone, if the case is brought before the Court by a
    unilateral application.

                                   * * *
   45. In the present Judgment, the Court could have chosen to follow
the path I have outlined. Two, in my view, positive consequences would
have followed. In the first place, the Court would not have needed to
enter into the particularly complex question of whether and for what rea-
sons the fulfilment of the conditions of “access to the Court” (which, as
the Judgment notes, the Respondent did not meet on the date when the
Application was filed) could be evaluated in the present case by viewing
them from the perspective of a later date, when, as a general rule, juris-
prudence requires that the conditions governing the jurisdiction of the
Court must be fulfilled at the time when proceedings are initiated. Sec-
ond, the solution we suggest would have made it possible to demonstrate
that, contrary to the thoughts and writings of numerous commentators,
there was no contradiction between the position adopted by the Court in
its 1996 Judgment on the preliminary objections in the Bosnia and Herze-
govina v. Serbia and Montenegro (then known as the FRY) case and the
position adopted in the 2004 Judgments, also on preliminary objections,
in the cases between Serbia and Montenegro and various NATO Mem-
ber States. If the Court had found that it had jurisdiction in the first case
and not in the second raft of cases, it could not be criticized for contra-
dicting itself, bearing in mind that the condition which was not met by
Serbia, the applicant State in the cases examined in 2004, was simply not
applicable to that State, in its capacity as the Respondent, in the case on
which the Court ruled in 1996. On the contrary, the reasoning adopted
by the Court in the present Judgment inevitably reveals the erroneous-
ness of the Judgment delivered in 1996 on its jurisdiction in the case con-
cerning Application of the Convention on the Prevention and Punishment
of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia, Pre-
liminary Objections, Judgment, I.C.J. Reports 1996 (II), p. 595). Indeed
if the condition of “access to the Court’ within the meaning of Article 35
of the Statute is as applicable to the respondent as it is to the applicant,
which is what the present Judgment quite clearly suggests, without
expressly saying so, the Court should have ruled that it lacked jurisdic-
tion in 1996, as (1) the FRY was not on that date a party to the Statute,
and did not fulfil any of the conditions of access to the Court ; (2) as the

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       APPLICATION OF GENOCIDE CONVENTION (SEP. OP. ABRAHAM)            539

question was one of ordre public, the Court should have raised it ex offi-
cio, as is apparent from the reasoning of the 2007 Judgment on the merits
in the same case, as recalled in paragraph 68 of the present Judgment ;
and (3) the lack of “access to the Court” for a party to which that
requirement applies prevents the Court from having jurisdiction.
   46. We could of course say that if the Court was mistaken in 1996, it
was because there were certain reasons at that time for not clearly appre-
ciating the status of the FRY, not the least of which was the fact that the
Respondent itself at that point claimed a status which it did not possess,
or rather one that it was subsequently (but retrospectively) revealed not
to possess.
   Nonetheless, I regret that the Court refrained in the present case from
adopting a solution which, besides being supported by the sound legal
arguments set out above, would have enabled it to avoid depicting as
erroneous one of its prior, and not least significant judgments, as it was
on the res judicata of that decision that the Court subsequently based
itself to rule on the merits and, for the first time, find that a State bore
international responsibility for violating the Genocide Convention.

   47. However, the path which the Court has decided to follow to justify
its jurisdiction in the present case, based on the implicit (and, as will be
apparent, in my view mistaken) premise that the respondent must also
fulfil the conditions of “access to the Court”, does not seem to me open
to criticism as such. However, I consider that the Court did not follow its
reasoning through to the end, and has thus opened the door to the danger
of a challenge to one of the best-established principles of its jurispru-
dence with respect to jurisdiction. Let me explain.
   48. The Respondent did not have “access to the Court” on the date
when the proceedings were instituted, on 2 July 1999, as it was not on
that date a party to the Statute of the Court, either as a Member of the
United Nations (which it had yet to become), or in any other capacity.
That is the starting-point of the reasoning, in accordance with the Judg-
ments delivered in 2004 in the case between Serbia and Montenegro and
eight NATO Members. Whatever criticisms might have been levelled at
those Judgments at the time (and we know that some of those criticisms
came from within the Court itself), it is legitimate for the Court, at
present, not to wish to call into question a solution that was carefully
considered and so recently adopted. I can only approve of the desire for
continuity in the jurisprudence, which should only yield in the face of
particularly cogent reasons, which the Court did not find here, rightly so
in my view.
   49. But the Court was then confronted with an important principle,
namely that the conditions for its jurisdiction must be met on the date
when the proceedings are instituted. They only need to exist on that date
(no matter if all or some of them subsequently evaporate) ; they must,
however, do so on that date — as a general rule, it is not enough for them
to be satisfied at a later point, namely during the course of the proceed-

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        APPLICATION OF GENOCIDE CONVENTION (SEP. OP. ABRAHAM)            540

ings. This is what is very clearly explained by paragraphs 79 and 80 of the
Judgment. To abide by that principle, the Court would have had to
declare that it lacked jurisdiction, as the Respondent did not acquire
standing to take part in proceedings (“access to the Court”) until
1 November 2000, that is, after the date when proceedings were insti-
tuted.
   50. However, the Court refers to a strand of its case law originating in
the Judgment delivered on 30 August 1924 by the Permanent Court of
International Justice in the Mavrommatis Palestine Concessions (Judg-
ment No. 2, 1924, P.C.I.J., Series A, No. 2) case, which allows for
greater flexibility in the application of the aforementioned principle, in
the interests of realism and the sound administration of justice. This deci-
sion is thoroughly analysed in paragraphs 82 to 87 of the Judgment. In
short, when the conditions governing the jurisdiction of the Court are not
met, or not met in full, on the date when proceedings are instituted, but
are met later, before the Court has ruled on its jurisdiction, the Court
does not uphold the objection to its jurisdiction and does not dismiss the
application, out of a concern for “judicial economy” — with a view to
preventing “the needless proliferation of proceedings” (as indicated in
paragraph 89 of the Judgment). For, dismissing an application in such
circumstances would result in obliging the applicant to file a new applica-
tion, to which no objection could be made as, on the date of its filing, the
conditions of jurisdiction initially lacking would be met. It would be a
pointless waste of time : ultimately, the Court would be obliged to hear
the case on the merits anyway —the sound administration of justice dic-
tates that it should agree to do so forthwith.
   51. It is from this decision that the Court has sought inspiration in the
present case, the Judgment says so explicitly. But in my opinion it did not
follow its reasoning through to the end.
   To be able to apply the “Mavrommatis doctrine”, the Court should
have established that Croatia could now, if it so wished, submit a fresh
application against Serbia, identical in substance to the previous one, and
which would not meet with any objection concerning the jurisdiction of
the Court. It is in fact that possibility, and that possibility alone, which
justifies the derogation from the fundamental principle, whereby jurisdic-
tion is assessed on the date when the proceedings are instituted, since that
derogation is aimed at dispensing with fresh proceedings, which would
prolong the duration of the dispute to no real purpose.
   For that, the Court would have had to conclude that, at present, not
only are Croatia and Serbia both parties to the Statute of the Court — a
fact as undeniable as it is undiscussed — but also that they are both
bound by Article IX of the Genocide Convention, which Serbia strongly
disputes.
   52. But for reasons which for me remain inexplicable, the Court did
not consider that it had to rule on this last point, which would have
required it to take a position on the legal effects of the act of “accession”
to the Convention by the FRY on 6 March 2001, accompanied by a res-

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        APPLICATION OF GENOCIDE CONVENTION (SEP. OP. ABRAHAM)              541

ervation designed to deny Article IX any effect with respect to that coun-
try. On the contrary, the Judgment expressly states, without, however,
clearly explaining why, that “[i]t is thus not necessary for the Court to
make a finding as to any legal effect of the notification of accession to the
Convention by Serbia dated 6 March 2001” (Judgment, para. 96).
   53. Instead of that, the Judgment confines itself to noting that Serbia
became a party to the Statute of the Court on 1 November 2000, which is
indisputable, and that on the same date, it was bound by Article IX of
the Genocide Convention, since, according to the analysis of the Court,
the FRY became a party to the Convention without reservations through
succession in 1992. On 1 November 2000, then, all the conditions for the
jurisdiction of the Court were met, and, according to the Judgment, were
so irrevocably : there is no need to wonder whether they continue to do so
at present.
   54. This reasoning has two major shortcomings.
   First, it is not consistent with the decision in the Mavrommatis case,
which is only justified by a concern to avoid the fruitless institution of
new proceedings which would not give rise to any objection, the condi-
tions for the jurisdiction of the Court now being fulfilled. In other words,
while claiming to base itself on the strand of case law deriving from the
Mavrommatis Judgment, the Court erroneously applies it and gives it
completely new scope.
   What is more serious, however, is that with the reasoning adopted by
the Court in this case, nothing remains of the principle — to which, how-
ever, the Judgment pays strong tribute in paragraphs 79 and 80 —
according to which jurisdiction is normally assessed on the date when the
proceedings are instituted. And it follows from the reasoning adopted
that, for the Court to declare that it has jurisdiction, the conditions for its
jurisdiction must and need only have been met at some point following
the institution of proceedings. So much the better if they were met on the
latter date ; but if not, they need only have been met subsequently, in the
course of proceedings, even if only briefly. In other words, the conditions
for jurisdiction may not have been met at the start of the proceedings ;
they may no longer exist on the date when the Court rules on its juris-
diction ; it will suffice that they were met at some point between those two
dates. That is exactly what the Court contents itself with here : the Judg-
ment shows that the conditions were not met on the date when the pro-
ceedings were instituted ; they may no longer be met now, since the Court
does not rule out the possibility that Serbia’s reservation to Article IX
may have had legal effect from 2001 ; but it is sufficient that they were
met on 1 November 2000, even if they ceased to be so the following day
(or a few months later).
   What we have here is no longer a reasonable exception to the rule
whereby jurisdiction is assessed on the date when the proceedings are
instituted. It is a new rule : the previous one has been abolished. There is
no point in seeking (or claiming to seek) a possible derogation from an
established principle in the Mavrommatis decision. Having abolished the

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        APPLICATION OF GENOCIDE CONVENTION (SEP. OP. ABRAHAM)             542

principle, the derogation becomes pointless, even if the Court persists in
asserting, mistakenly, that it falls within the continuity of its jurispru-
dence.
   55. I think that the Court could easily have reached the same result,
while following the rationale on which the “Mavrommatis doctrine” is
based. The Court could simply have concluded that, as Serbia had been
bound by the Genocide Convention from 1992 without reservations (by
succession : see Judgment, paragraph 111), it could not claim to “accede”
to that treaty by its notification of 12 March 2001, as no State can accede
to a treaty to which it is already a party, and consequently the alleged
accession was ineffective, as was the reservation to Article IX which
accompanied it. Even supposing that that reservation could be regarded,
at the outside, as a “belated reservation” to a treaty by which the State
making the reservation had already long been bound, it could not pro-
duce any legal effect, at least in relations between Serbia and Croatia, the
latter having objected to it.
   It follows thus that today Croatia could, if it wished, file a fresh appli-
cation against Serbia, identical in substance to the previous one, and this
justifies the willingness of the Court, in application of the jurisprudence
of the Mavrommatis decision, to overlook the fact that the conditions for
its jurisdiction were not fulfilled on the date when the proceedings were
instituted.
   56. Of course, the above thoughts are offered only as obiter dicta, for
I believe the Court would have been better advised to set aside Serbia’s
objection derived from its lack of “access to the Court” in July 1999 on
the sole ground that the conditions laid down in Article 35 of the Statute
are not applicable to a respondent.
   That is why I had no hesitation in voting in favour of the operative
clause of the Judgment.

                                             (Signed) Ronny ABRAHAM.

                                                                          134


                      481

                                     OPINION DISSIDENTE DE M. LE JUGE SALAM

                         1. Je suis au regret de ne pouvoir m’associer aux conclusions de la
                      majorité concernant la compétence prima facie de la Cour pour indiquer
                      des mesures conservatoires, ainsi que le demande le Qatar qui cherche, en
                      l’espèce, à fonder cette compétence sur l’article 22 de la convention inter-
                      nationale sur l’élimination de toutes les formes de discrimination raciale
                      (ci‑après, la « CIEDR »).
                         2. Je suis persuadé que la Cour n’a pas prima facie compétence ratione
                      materiae dans la mesure où le différend entre les Parties n’apparaît pas
                      concerner l’interprétation et l’application de la CIEDR. En effet, il ressort
                      de l’article premier de la CIEDR que cette convention s’applique à « toute
                      distinction, exclusion, restriction ou préférence fondée sur la race, la cou-
                      leur, l’ascendance ou l’origine nationale ou ethnique ». Or, la discrimina-
                      tion fondée sur la « nationalité », objet des griefs de la demanderesse, ne
                      s’y trouve pas mentionnée.
                         3. De plus, lorsque je lis cette disposition à la lumière de l’article 31 de
                      la convention de Vienne sur le droit des traités de 1969 qui appelle à une
                      interprétation « de bonne foi suivant le sens ordinaire à attribuer aux
                      termes », « dans leur contexte » et « à la lumière de [l’]objet et [du] but [du
                      traité] », je ne peux m’empêcher d’observer que :

                      a) Les termes « origine nationale ou ethnique » utilisés par la convention
                         diffèrent, selon leur sens ordinaire, de celui de nationalité.
                      b) Quant au contexte, j’observe que la CIEDR a été adoptée dans le cadre
                         historique de la décolonisation et de la postdécolonisation et s’inscrit
                         dans cet effort pour éliminer toute forme de discrimination et de ségré-
                         gation raciale. En effet, son préambule affirme :
                                 « Considérant que les Nations Unies ont condamné le colonialisme
                             et toutes les pratiques de ségrégation et de discrimination dont il s’ac-
                             compagne, sous quelque forme et en quelque endroit qu’ils existent,
                             et que la Déclaration sur l’octroi de l’indépendance aux pays et aux
                             peuples coloniaux, du 14 décembre 1960 [résolution 1514 (XV) de
                             l’Assemblée générale], a affirmé et solennellement proclamé la néces-
                             sité d’y mettre rapidement et inconditionnellement fin,
                             ��������������������������������������������������������������������������������������������������������������
                                 Convaincus que toute doctrine de supériorité fondée sur la diffé-
                             renciation entre les races est scientifiquement fausse, moralement
                             condamnable et socialement injuste et dangereuse et que rien ne sau-
                             rait justifier, où que ce soit, la discrimination raciale, ni en théorie ni
                             en pratique,

                      79

7 Ord 1145.indb 154                                                                                11/06/19 14:31

                      482 	                   application de la ciedr (op. diss. salam)

                             ��������������������������������������������������������������������������������������������������������������
                                 Alarmés par les manifestations de discrimination raciale qui
                             existent encore dans certaines régions du monde et par les poli-
                             tiques gouvernementales fondées sur la supériorité ou la haine
                             raciale, telles que les politiques d’apartheid, de ségrégation ou de
                             séparation. »
                      c) Le but de la CIEDR est donc de mettre fin, dans le prolongement de
                         la décolonisation et de la postdécolonisation, à toutes les manifesta-
                         tions et politiques gouvernementales de discrimination fondées sur la
                         supériorité ou la haine raciale, et ne concerne pas les questions se rat-
                         tachant à la nationalité.
                      d) Ce sont donc les formes de discrimination « raciale » qui constituent
                         l’objet spécifique de la convention, et non toute forme de discrimina-
                         tion « en général ». Sinon, il y aurait été question d’autres types de
                         discrimination grave fondée sur un marqueur d’identité de groupe,
                         comme ceux basés sur la religion par exemple, ce qui n’est pas le cas
                         en l’espèce. En outre, ce sont d’autres instruments internationaux qui
                         s’intéressent aux questions relatives à la nationalité, ou à la discrimi-
                         nation en général comme la Déclaration universelle des droits de
                         l’homme ainsi que les deux pactes internationaux de 1966 1.
                         4. Par ailleurs, je note que, dans l’affaire de l’Application de la conven-
                      tion internationale pour la répression du financement du terrorisme et de la
                      convention internationale sur l’élimination de toutes les formes de discrimi-
                      nation raciale (Ukraine c. Fédération de Russie), le différend concernait la
                      question de discrimination raciale contre les Tatars et les Ukrainiens de
                      souche — et non les ressortissants ukrainiens — en Crimée (en anglais :
                      « ethnic Ukrainians ») (mesures conservatoires, ordonnance du 19 avril
                      2017, C.I.J. Recueil 2017, p. 120, par. 37). De même, dans l’affaire de
                      l’Application de la convention internationale sur l’élimination de toutes les
                      formes de discrimination raciale (Géorgie c. Fédération de Russie), les par-
                      ties se sont opposées sur la question de savoir si les événements qui se
                      sont déroulés en Ossétie du Sud et en Abkhazie ont été accompagnés
                      d’actes de discrimination raciale contre les habitants de souche géor-
                      gienne — et non les ressortissants géorgiens — de ces régions (en anglais
                      « ethnic Georgians ») (mesures conservatoires, ordonnance du 15 octobre
                      2008, C.I.J. Recueil 2008, p. 387, par. 111). La Cour n’a donc eu l’occa-
                      sion de se prononcer que sur des affaires concernant la discrimination
                      fondée sur l’origine ethnique et non l’« origine nationale ». Ainsi, elle n’a
                      pas eu à traiter de la question de la distinction ou non de cette notion
                      avec celle de la « nationalité ».
                         5. Cette question de la distinction entre « nationalité » et « origine
                      nationale » ne devrait, à mon avis, point permettre de confusion. Il s’agit
                      de deux notions différentes. Un exemple qui illustre bien cette différence

                         1 Voir notamment article 13 du Pacte international relatif aux droits civils et

                      politiques.

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                      est celui du cas notoire de l’internement des citoyens américains d’origine
                      japonaise, à la suite de l’attaque de Pearl Harbor durant la seconde guerre
                      mondiale. Bien qu’ayant la nationalité américaine, ces citoyens ont fait
                      l’objet de discrimination raciale fondée sur leur « origine nationale » et
                      non leur nationalité, et furent regroupés dans les « War Relocation
                      Camps » 2. Un sort de discrimination similaire basé sur l’« origine natio-
                      nale » a également touché un grand nombre de personnes d’origine alle-
                      mande « indépendamment de la nationalité qu’elles portaient alors », dans
                      plusieurs pays, après la première guerre mondiale ainsi que durant et
                      après la seconde.
                         6. Je tiens à souligner aussi que la distinction qui s’impose entre
                      « nationalité » et « origine nationale » est confirmée par les travaux prépa-
                      ratoires de la CIEDR et particulièrement les amendements proposés sur
                      la rédaction de son article premier 3.
                         7. En tout état de cause, si les Etats avaient voulu dire « nationalité »
                      au lieu d’« origine nationale » à l’article premier de la CIEDR, ils auraient
                      pu ainsi l’énoncer. Egalement, ils auraient pu employer le terme « natio-
                      nalité et origine nationale » si leur intention était d’inclure ces deux caté-
                      gories, ce qu’ils n’ont pas fait.
                         8. Je note aussi que, indépendamment de la « grande considération » qui
                      devrait être accordée aux travaux d’un « organe indépendant » tel que le
                      Comité pour l’élimination de la discrimination raciale (voir Ahmadou Sadio
                      Diallo (République de Guinée c. République démocratique du Congo), fond,
                      arrêt, C.I.J. Recueil 2010 (II), p. 664, par. 66), il demeure que les recom-
                      mandations de ce comité ne peuvent être considérées comme une expres-
                      sion d’une pratique ultérieure des parties à la CIEDR (au sens de
                      l’article 31 3) b) de la convention de Vienne sur le droit des traités de 1969).
                         9. Pour conclure, bien que, à mon avis, le différend qui oppose les Par-
                      ties n’entre pas dans le champ d’application de la CIEDR, je note que,
                      dans l’affaire de la Licéité de l’emploi de la force (Yougoslavie c.
                      Royaume‑Uni), la Cour, tout en considérant qu’elle n’avait pas prima facie
                      compétence pour connaître de la requête de la Yougoslavie et qu’« elle
                      ne saurait dès lors indiquer quelque mesure conservatoire que ce soit »
                      (mesures conservatoires, ordonnance du 2 juin 1999, C.I.J. Recueil 1999 (II),
                      p. 839, par. 37), a souligné « que les Etats, qu’ils acceptent ou non la
                      juridiction de la Cour, demeurent en tout état de cause responsables des
                      actes contraires au droit international, y compris au droit humanitaire,
                      qui leur seraient imputables » (ibid., par. 40). Dans cette perspective, elle
                      a demandé aux parties de « veiller à ne pas aggraver ni étendre le diffé-
                      rend » (ibid., par. 41). La Cour a adopté la même démarche dans l’affaire

                         2 Pour l’historique de la question, voir le rapport de la commission du congrès améri-

                      cain « on Wartime Relocation and Internment of Civilians » (CWRIC), publié le 24 février
                      1983 et intitulé « Personal Justice Denied » : https://www.archives.gov/research/japanese-
                      americans/justice-denied.
                         3 Voir, entre autres, Nations Unies, doc. A/C.3/SR.1304 ; Nations Unies, doc. A/C.3/

                      SR.130 et Nations Unies, doc. A/6181.

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                      des Activités armées sur le territoire du Congo (nouvelle requête : 2002)
                      (République démocratique du Congo c. Rwanda) où, tout en se déclarant
                      également incompétente prima facie pour indiquer des mesures conserva-
                      toires (mesures conservatoires, ordonnance du 10 juillet 2002,
                      C.I.J. Recueil 2002, p. 249, par. 89), elle a souligné « la nécessité pour les
                      Parties à l’instance d’user de leur influence pour prévenir les violations
                      graves et répétées des droits de l’homme et du droit international huma-
                      nitaire encore constatées récemment » (ibid., p. 250, par. 93).
                         10. Dans le même esprit, et tenant compte de l’allégation du Qatar de
                      vulnérabilité de la situation à laquelle font face nombre de ses ressortissants
                      aux Emirats arabes unis depuis le 5 juin 2017, bien que j’estime que la Cour
                      aurait dû se déclarer prima facie incompétente pour indiquer des mesures
                      conservatoires, cela ne l’aurait toujours pas empêchée, dans son raisonne-
                      ment, de souligner la nécessité pour les Parties de ne pas aggraver ou étendre
                      le différend et de veiller à prévenir toute atteinte aux droits de l’homme.
                         11. La conclusion à laquelle je suis parvenu m’amène à ne pas avoir à
                      traiter des autres conditions mentionnées à l’article 22 de la CIEDR.

                      (Signé) Nawaf Salam.

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