                     591

                                 SEPARATE OPINION OF JUDGE SEBUTINDE

                        Two bases of jurisdiction invoked by Belgium — Cumulative preconditions for
                     the Court’s jurisdiction based on Article 30, paragraph 1, of the Convention — The
                     existence of a dispute concerning the interpretation or application of the
                     Convention — The precondition that the dispute “cannot be settled through
                     negotiation” has not been met — The preconditions of prior request for arbitration
                     and failure to agree on the organization of such arbitration within six months from
                     the date of the arbitration request have not been met — The Court cannot exercise
                     jurisdiction over the dispute on the basis of Article 30, paragraph 1, of the
                     Convention against Torture — Jurisdiction pursuant to the Parties’ declarations
                     under Article 36, paragraph 2, of the Statute of the Court — The dispute
                     concerning Senegal’s obligations under the Convention against Torture falls within
                     the scope of Court’s jurisdiction on the basis of Article 36, paragraph 2, of the
                     Statute — Court’s jurisdiction is not precluded by virtue of the Parties’ reservations
                     to their declarations pursuant to Article 36, paragraph 2, of the Statute — Court’s
                     jurisdiction pursuant to Article 36, paragraph 2, of the Statute does not extend to
                     the alleged violations by Senegal of its obligations other than those arising under
                     the Convention against Torture.

                       1. I have voted in favour of the operative part of the Judgment includ-
                     ing point (1) where the Court
                              “Finds that it has jurisdiction to entertain the dispute between the
                           Parties concerning the interpretation and application of Article 6,
                           paragraph 2, and Article 7, paragraph 1, of the United Nations Con-
                           vention against Torture and Other Cruel, Inhuman or Degrading
                           Treatment or Punishment of 10 December 1984, which the Kingdom
                           of Belgium submitted to the Court in its Application filed in the
                           Registry on 19 February 2009.”
                       2. That finding is premised upon the reasoning and conclusions of the
                     Court found in Part II of the Judgment, in particular that

                             “Given that the conditions set out in Article 30, paragraph 1, of
                           the Convention against Torture have been met, the Court concludes
                           that it has jurisdiction to entertain the dispute between the Parties
                           concerning the interpretation and application of Article 6, para-
                           graph 2, and Article 7, paragraph 1, of the Convention.
                             Having reached this conclusion, the Court does not find it necessary
                           to consider whether its jurisdiction also exists with regard to the same
                           dispute on the basis of the declarations made by the Parties under
                           Article 36, paragraph 2, of its Statute.” (Judgment, para. 63.)

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                        3. Whilst I agree that the Court does have jurisdiction to entertain Bel-
                     gium’s Application to the extent indicated in the Judgment, I am respect-
                     fully of the view that such jurisdiction can only derive from the Parties’
                     declarations pursuant to Article 36, paragraph 2, of the Statute of the
                     Court, and not from the provisions of Article 30, paragraph 1, of the
                     Convention against Torture (hereinafter referred to as “the Convention”).
                     In this regard, past jurisprudence of the Court shows that in interpreting
                     and applying treaty provisions similar to those of Article 30, paragraph 1,
                     of the Convention, the Court has set a standard of compliance. It is my
                     considered opinion that in the present case the preconditions of negotia-
                     tions and arbitration have not been fulfilled and that consequently that
                     standard has not been met. What follows is my analysis of the facts and
                     the Parties’ submissions upon which I base my opinion and conclusions
                     in that regard.

                               I. Jurisdiction Based on Article 30, Paragraph 1,
                                       of the Convention against Torture

                        4. To establish the jurisdiction of the Court, Belgium relies, firstly, on
                     the compromissory clause contained in Article 30, paragraph 1, of the
                     Convention and, secondly, on the declarations made by the Parties under
                     Article 36, paragraph 2, of the Statute of the Court (Memorial of Bel-
                     gium, Ann. A.2).
                        5. Senegal challenges the Court’s jurisdiction under Article 30, para-
                     graph 1, of the Convention, as well as the admissibility of Belgium’s claims.
                     First, it argues that there is no “dispute” between the Parties in respect of
                     which the Court could exercise jurisdiction. Secondly, it maintains that Bel-
                     gium’s Application must be declared inadmissible because Belgium has not
                     exhausted the avenues of “negotiation” and “arbitration” before referring
                     the matter to the Court (Counter‑Memorial of Senegal, para. 121).
                        6. It should be noted that although Senegal refers to Belgium’s alleged
                     non‑fulfilment of the procedural requirements laid down in Article 30, para-
                     graph 1, of the Convention as rendering Belgium’s claim “inadmissible”,
                     this objection clearly pertains to jurisdiction and must thus be examined in
                     that context (see Armed Activities on the Territory of the Congo (New Appli-
                     cation : 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction
                     and Admissibility, Judgment, I.C.J. Reports 2006, pp. 39‑40, para. 88).
                        7. In its Order of 28 May 2009, the Court held that it had prima facie
                     jurisdiction under Article 30 of the Convention (Questions relating to the
                     Obligation to Prosecute or Extradite (Belgium v. Senegal), Provisional
                     Measures, Order of 28 May 2009, I.C.J. Reports 2009, p. 151, para. 53). It
                     also concluded that there is consequently “no need to ascertain, at this
                     stage of the proceedings, whether the declarations made by the Parties
                     pursuant to Article 36, paragraph 2, of the Statute might also, prima
                     facie, afford a basis on which the Court’s jurisdiction could be founded”

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                     (I.C.J. Reports 2009, p. 151, para. 54). However, in the Order, the Court
                     also indicated that this provisional conclusion is without prejudice to the
                     Court’s final decision on the question of whether it has jurisdiction to
                     deal with the merits of the case (ibid., p. 155, para. 74).
                        8. Article 30, paragraph 1, of the Convention provides as follows :
                               “Any dispute between two or more States Parties concerning the
                           interpretation or application of this Convention which cannot be
                           settled through negotiation shall, at the request of one of them, be
                            submitted to arbitration. If within six months from the date of the
                            request for arbitration the Parties are unable to agree on the organi-
                            zation of the arbitration, any one of those Parties may refer the dis-
                            pute to the International Court of Justice by request in conformity
                            with the Statute of the Court.”

                     Both Senegal and Belgium are parties to the Convention which is binding
                     upon them as from 26 August 1987 and 25 July 1999, respectively. Neither
                     Party entered any reservation or made any relevant declaration in
                     relation to jurisdiction of the Court under Article 30 thereof.
                        9. It is apparent from the language of Article 30, paragraph 1, that
                     in order for the Court to have jurisdiction on this basis, the following four
                     conditions must be fulfilled. Firstly, a dispute must have existed between
                     the Parties concerning the interpretation or application of the Convention
                     (see also Questions relating to the Obligation to Prosecute or Extradite
                     (Belgium v. Senegal), Provisional Measures, Order of 28 May 2009,
                     I.C.J. Reports 2009, pp. 148‑149, para. 46). Secondly, the Parties must
                     have failed to settle the dispute through negotiations (see also ibid.,
                     pp. 149‑150, para. 49). Thirdly, failing settlement through negotiation,
                     either Party must have requested that the dispute be submitted to arbitra-
                     tion. Lastly, the Parties must have failed to agree on the organization of
                     the arbitration within six months from the date when such arbitration was
                     requested (see also ibid., p. 150, para. 51). As the Court has confirmed in
                     respect of a compromissory clause of a similar type, these conditions are
                     cumulative (Armed Activities on the Territory of the Congo (New Applica-
                     tion : 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction
                     and Admissibility, Judgment, I.C.J. Reports 2006, pp. 38‑39, para. 87). An
                     examination of the facts in this case clearly shows that not all the above
                     conditions were fulfilled at the time of the filing of the Application as
                     required by Article 30, paragraph 1, of the Convention.

                     A. Was There a Dispute between the Parties concerning the Interpretation
                        or Application of the Convention at the Time Belgium’s Application
                                          Was Filed on 19 February 2009 ?
                       10. Regarding the first condition, I am in complete agreement with the
                     Court’s analysis of the facts, as well as its findings and conclusion that
                     “any dispute that may have existed between the Parties with regard to the

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                     interpretation or application of Article 5, paragraph 2, of the Convention
                     had ended by the time the Application was filed” and that the Court
                     therefore “lacks jurisdiction to decide on Belgium’s claim relating to the
                     obligation under Article 5, paragraph 2” (Judgment, para. 48). Further-
                     more, I am in agreement with the Court’s analysis of the facts, findings
                     and conclusion with regard to Belgium’s claim under Article 6, para-
                     graph 2, and Article 7, paragraph 1, that

                              “Given that Belgium’s claims based on the interpretation and appli-
                           cation of Articles 6, paragraph 2, and 7, paragraph 1, of the Conven-
                           tion were positively opposed by Senegal, the Court considers that a
                           dispute in this regard existed by the time of the filing of the Applica-
                           tion. The Court notes that this dispute still exists.” (Ibid., para. 52.)

                       B. Was the Dispute between Belgium and Senegal One that Could Not
                                        Be Settled through Negotiations ?
                        11. Regarding the second condition, Belgium contends that notwith-
                     standing several diplomatic exchanges with Senegal requesting the latter
                     to prosecute Mr. Habré for alleged acts of torture, or alternatively to
                     extradite him to Belgium, Senegal has not “initiated or sought to prolong
                     the negotiations” rendering the dispute “not capable of being settled
                     through negotiation” (Memorial of Belgium, para. 3.22). In Belgium’s
                     view, the negotiations which started in November 2005, had proven futile
                     by June 2006 (ibid., paras. 3.18‑3.21), a fact expressly communicated to
                     Senegal in Belgium’s Note Verbale of 20 June 2006 (ibid., Ann. B.11).

                         12. Senegal argues that no negotiations within the meaning of
                      rticle 30, paragraph 1, of the Convention have ever taken place between
                     A
                     the Parties as there “[h]as never been any offer [by Belgium], to negotiate ;
                     never any of the exchanges characteristic of diplomatic negotiations”
                     (Counter‑Memorial of Senegal, paras. 121 and 190). Senegal contends
                     that Belgium failed in its duty to negotiate in as far as its diplomatic
                     exchanges consisted of general questions aimed at eliciting factual infor-
                     mation concerning the status of the proceedings or about the Senegalese
                     Government’s plans in respect of the Habré case, to which questions
                     Senegal had always provided answers (ibid., paras. 190, 195, 200 and
                      204).
                         13. In line with the well-established jurisprudence of this Court and its
                      predecessor, the requirement that “a dispute cannot be settled through
                      negotiation”, is met only where genuine attempts at negotiations, aimed
                      at resolving the dispute, have actually taken place between the parties and
                      have failed or become futile or deadlocked (see Application of the Interna-
                      tional Convention on the Elimination of All Forms of Racial Discrimination
                      (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J.

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                     Reports 2011 (I), p. 133, para. 159, citing earlier cases). The Court
                     explained that negotiation differs from “mere protests or disputations”
                     and “requires — at the very least — a genuine attempt by one of the dis-
                     puting parties to engage in discussions with the other disputing party,
                     with a view to resolving the dispute” (ibid., p. 132, para. 157).
                        14. Concerning the substance of negotiations envisaged under this con-
                     dition, the Court has stated that whilst “the absence of an express refer-
                     ence to the treaty in question does not bar the invocation of the
                     compromissory clause to establish jurisdiction” (ibid., p. 133, para. 161),
                     these negotiations must, at the very least, “relate to the subject-matter of
                     the treaty containing the compromissory clause” (ibid.).
                        15. Finally, the obligation to negotiate entails not only an obligation
                     to enter into negotiations, “but also to pursue them as far as possible,
                     with a view to concluding agreements [even if] an obligation to negotiate
                     does not imply an obligation to reach agreement” (ibid., pp. 132‑133,
                     para. 158, citing earlier cases).
                        16. In light of the above standard, it is necessary to examine whether
                     the facts before the Court demonstrate : (a) that Belgium made genuine
                     attempts to enter into negotiations with Senegal and, if so, whether the
                     former pursued those negotiations as far as possible with a view to resolv-
                     ing the dispute between the Parties ; and (b) that these negotiations had
                     proven unsuccessful before Belgium submitted its Application to the
                     Court on 19 February 2009 (see also ibid., p. 134, para. 162). The diplo-
                     matic exchanges on record show that the dispute between the Parties
                     arose at the earliest in late 2005 when Belgium submitted to Senegal its
                     first extradition request in respect of Mr. Habré.
                        17. In the Note Verbale of 11 January 2006 (Memorial of Belgium,
                     Ann. B.7), Belgium stated that it is providing clarifications to Senegal con-
                     cerning its extradition request of 22 September 2005, “in the framework of
                     the negotiation procedure covered by Article 30 of the [Convention]”. In
                     its Note Verbale of 9 March 2006 (ibid., Ann. B.8), Belgium stated :
                               “As the procedure for negotiation with regard to the extradition
                           application in the case of Mr. Hissène Habré, in application of
                           Article 30 of the [Convention] is under way, Belgium wishes to point
                            out that it interprets the provisions of Articles 4, 5.1c, 5.2, 7.1, 8.1,
                            8.2, 8.4 and 9.1 of the [Convention] as requiring the State on whose
                            territory the alleged author of an offence under Article 4 of the
                            [
                             Convention] is located to extradite this offender, unless it has
                            judged him on the basis of the charges covered by said article.
                               Belgium would therefore be grateful if the Government of Senegal
                            would be so kind as to inform it as to whether its decision to transfer
                            the Hissène Habré case to the African Union is to be interpreted as
                           meaning that the Senegalese authorities no longer intend to extradite
                           him to Belgium or to have him judged by their own Courts.”

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                        18. Two months later, in its Note Verbale of 4 May 2006 (Memorial of
                     Belgium, Ann. B.9), Belgium expressed concerns about the absence of an
                     official reaction by Senegal to its previous diplomatic Notes. It reiterated
                     its interpretation of Article 7 of the Convention as “requiring the State on
                     whose territory the alleged offender is located to extradite him unless it has
                     judged him” and emphasized that “[a]n unresolved dispute regarding this
                     interpretation would lead to recourse to the arbitration procedure pro-
                     vided for in Article 30 of the [Convention]”. In a Note Verbale of
                     9 May 2006 (ibid., Ann. B.10), Senegal considered that it had provided its
                     response to Belgium in respect of the extradition request in its earlier
                     Notes, and stated that by referring the Habré case to the African Union it
                     was “acting in accordance with the spirit of the principle ‘aut dedere aut
                     punire’ ”. Senegal also “[took] note of the possibility of Belgium having
                     recourse to the arbitration procedure provided for in Article 30 of the
                     Convention”. In its response in a Note Verbale of 20 June 2006 (ibid.,
                     Ann. B.11), Belgium, considering that Senegal had acknowledged that
                     these diplomatic exchanges were taking place within the framework of
                     negotiation under Article 30 of the Convention and recalling that Belgium
                     had wished to open negotiation with Senegal in respect of its interpreta-
                     tion of the Convention, pointed out that “the attempted negotiation with
                     Senegal . . . ha[d] not succeeded”.
                        19. In my view, these diplomatic exchanges demonstrate a genuine
                     attempt by Belgium at negotiating with Senegal the issue of Senegal’s com-
                     pliance with its substantive obligations under the Convention. It is, how-
                     ever, doubtful whether by June 2006 Belgium had in fact pursued these
                     negotiations as far as possible with a view to settling the dispute. This ques-
                     tion is especially justified in light of the short period of time that had lapsed
                     by that point since Belgium’s first reference to negotiations in January 2006,
                     and given that only a few Notes had been exchanged between the Parties
                     during this period. In this regard, it is recalled that the short period of time
                     in which the diplomatic exchanges were made between the Parties in the
                     framework of negotiations does not per se preclude the failure or a dead-
                     lock of negotiation as the Permanent Court of International Justice noted
                     in the Mavrommatis Palestine Concessions case, where it stated :
                              “Negotiations do not of necessity always presuppose a more or less
                           lengthy series of notes and despatches ; it may suffice that a discussion
                           should have been commenced, and this discussion may have been very
                           short ; this will be the case if a dead lock is reached, or if finally a
                           point is reached at which one of the Parties definitely declares himself
                           unable, or refuses, to give way, and there can therefore be no doubt
                           that the dispute cannot be settled by diplomatic negotiation.” (Mavrom-
                           matis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A,
                           No. 2, p. 13 ; emphasis in the original.)
                       20. Such was the situation in the case concerning United States Diplo-
                     matic and Consular Staff in Tehran, where the attempts by the United
                     States to negotiate with Iran were met with complete refusal of the

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                     Iranian Government to enter into any discussion of the matter or to have
                     contact with representatives of the United States, leading the Court to
                     conclude, despite the very short period of time between the occurrence
                     of the dispute and the date of the application to the Court, that this dis-
                     pute was one “not satisfactorily adjusted by diplomacy” within the mean-
                     ing of the relevant jurisdictional clause (United States Diplomatic and
                     Consular Staff in Tehran (United States of America v. Iran), Judgment,
                     I.C.J. Reports 1980, p. 15, para. 26, and p. 27, para. 51).
                        21. However, the situation in the present case is not comparable to
                     that cited above. Senegal’s reply, albeit not immediate, to Belgium’s
                     Notes of 11 June, 9 March and 4 May 2006, can hardly be seen as express-
                     ing a refusal to discuss the issue of its compliance with the Convention or
                     as adopting any such position in this regard which could be viewed as
                     irreconcilable with Belgium’s claims. To the contrary, in the Note Verbale
                     of 9 June 2006, Senegal merely clarified, in reply to Belgium’s inquiry,
                     that its courts have declined to rule on Belgium’s extradition request due
                     to lack of jurisdiction, and that it considers itself as already “acting in
                     accordance with the spirit of the principle ‘aut dedere aut judicare’ ” by
                     having referred the Habré case to the African Union for recommendation
                     as to the further course of action in this regard. Whilst this statement
                     attests to the existence of a dispute between the Parties as to Senegal’s
                     compliance with its obligations under the Convention, it does not in my
                     view, demonstrate a failure or collapse of negotiation on the matter.

                        22. Furthermore, after Belgium’s Note Verbale of 20 June 2006
                     whereby Belgium declared negotiation as “unsuccessful”, there were
                     further diplomatic exchanges between the Parties indicating that Belgium
                      nonetheless continued de facto to negotiate with Senegal with a view to
                      resolving the dispute, including expressing its willingness to support Sen-
                      egal’s efforts to prosecute Mr. Habré by its own Court as long as that is
                      done within a reasonable period (Belgium’s Note Verbale of 8 May 2007
                      (Memorial of Belgium, Ann. B.14) and 2 December 2008 (ibid.,
                      Ann. B.16)). Notably, in its last Note Verbale before its Application to
                      the Court, dated 2 December 2008 (ibid., Ann. B.16), Belgium merely
                      noted the legislative changes by Senegal enabling the prosecution of
                      Mr. Habré in Senegal, and reiterated its offer of judicial co-operation on
                      the matter.

                        23. In my view, the diplomatic exchanges between the Parties indicate
                     that negotiations on the matters in dispute between the Parties continued
                     right up to December 2008 and cannot be considered to have failed by
                     June 2006, nor, for that matter, at any other time prior to the date of
                     Belgium’s Application on 19 February 2009. In this regard, I respectfully
                     disagree with the findings and conclusions of the Court to the effect that
                     “the condition set forth in Article 30, paragraph 1, of the Convention that
                     the dispute cannot be settled by negotiation has been met” (Judgment,

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                     para. 59). This brings me to the third requirement, namely, whether either
                     of the Parties requested for arbitration as a means of settling the dispute.

                               C. Did Belgium Request that the Dispute Be Submitted
                                                 to Arbitration ?
                        24. Belgium submits that it announced the possibility of having
                     recourse to arbitration in its Note Verbale of 4 May 2006 and that Sen
                     egal took note of this possibility in the latter’s Note Verbale of 9 May 2006
                     (Memorial of Belgium, para. 3.23 ; CR 2012/2, p. 27, para. 34, and p. 61,
                     para. 49). Belgium further argues that it formally requested recourse to
                     arbitration under mutually agreed conditions in its Note Verbale of
                     20 June 2006, and that it repeated the request in its Note Verbale of
                     8 May 2007, but that its request had “met with no answer” from Senegal,
                     either in the ensuing six months or thereafter (Memorial of Belgium,
                     paras. 3.23‑3.28). In response to a question by a Member of the Court
                     concerning the interpretation of the arbitration requirement in Article 30,
                     paragraph 1, of the Convention, Belgium opined that the condition that
                     the Parties are unable to agree on the organization of the arbitration
                     within six months from the arbitration request “is met if, for any reason,
                     the period expires without agreement on the arbitration” (CR 2012/6,
                     p. 39, para. 11). In Belgium’s view, Article 30, paragraph 1, does not
                     require that a State requesting to submit the dispute to arbitration must
                     also propose any aspect of the organization or the time-frame of the arbi-
                     tration (ibid., p. 40, para. 14).

                         25. In response, Senegal argues that the criteria requiring the request
                     by one of the Parties for arbitration, as well as the lapse of a six-month
                     period without the Parties being able to agree on the organization of the
                     arbitration, have not been met (Counter‑Memorial of Senegal, paras. 121
                     and 214). It maintains that Belgium made only one “evasive” reference
                     to arbitration in its Note Verbale of 20 June 2006, which cannot be
                     considered as constituting a clear and formal proposal for arbitration
                      to which Senegal could possibly have replied in order to fulfil the
                      requirement under Article 30, paragraph 1, of the Convention (ibid.,

                      paras. 207‑210).
                         26. In the case concerning Armed Activities on the Territory of the
                      Congo (New Application : 2002) (Democratic Republic of the Congo v.
                      Rwanda), the Court, in interpreting a similar compromissory clause con-
                      tained in Article 29 of the Convention on the Elimination of All Forms of
                      Discrimination against Women, held that
                             “[T]he lack of agreement between the parties as to the organization
                           of an arbitration cannot be presumed. The existence of such disagree-
                           ment can follow only from a proposal for arbitration by the applicant,

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                           to which the respondent has made no answer or which it has expressed
                           its intention not to accept.” (Jurisdiction and Admissibility, Judgment,
                           I.C.J. Reports 2006, p. 41, para. 92.)
                        27. In the present case, Belgium first mentions the prospect of arbitra-
                     tion in its Note Verbale of 4 May 2006 in the following terms :
                             “As indicated in its last approach of 10 March 2006, Belgium inter-
                           prets Article 7 of the Convention against Torture as requiring the
                           State on whose territory the alleged offender is located to extradite
                           him unless it has judged him.
                             An unresolved dispute regarding this interpretation would lead to
                           recourse to the arbitration procedure provided for in Article 30 of the
                           [Convention].
                             In view of the willingness already expressed by Senegal to combat
                           impunity for the most serious crimes such as those of which
                           Mr. Hissène Habré is accused, Belgium once more insists on Senegal
                           respecting the obligations arising from the [Convention] and respond-
                           ing to the request by the Belgian authorities accordingly.” (Emphasis
                           added.)
                        Five days later, Senegal in its Note Verbale of 9 May 2006 responded,
                     inter alia, as follows :
                        “(2) With regard to the interpretation of Article 7 of the [Convention],
                             the Embassy considers that by transferring the Hissène Habré case
                             to the African Union, Senegal, in order not to create a legal
                             impasse, is acting in accordance with the spirit of the principle
                             ‘aut dedere aut punire’ the essential aim of which is to ensure that
                             no torturer can escape from justice by going to another country.

                           (3) By taking this case to the highest level on the continent, Senegal,
                               while respecting the separation of powers and the independence
                               of its judicial authorities, has thus opened up, throughout Africa,
                               new prospects for upholding human rights and combating impu-
                               nity.
                           (4) As to the possibility of Belgium having recourse to the arbitration
                               procedure provided for in Article 30 of the [Convention], the
                               Embassy can only take note of this, restating the commitment of
                               Senegal to the excellent relationship between the two countries in
                               terms of co-operation and the combating of impunity.” (Empha-
                               sis added.)
                        28. Taken at face value, Belgium’s Note Verbale of 4 May 2006 cannot
                     be regarded as “a request to submit the dispute to arbitration” within the
                     meaning of Article 30, paragraph 1, of the Convention. In my opinion,
                     what the diplomatic exchange did was to alert Senegal to the prospect
                     that Belgium reserved its right, at some future date, to refer the dispute,
                     if unresolved, to arbitration within the framework of Article 30, para-

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                     600 	obligation to prosecute or extradite (sep. op. sebutinde)

                     graph 1, of the Convention. Indeed, Senegal appears to have interpreted
                     that Note Verbale in this way, merely noting that prospect. Senegal’s
                     response in this regard cannot be described as “non-responsive” or “a
                     rejection of an arbitration request” within the meaning of established case
                     law.
                        29. In my view, the closest that Belgium came to putting a direct
                     request for arbitration to Senegal was in its Note Verbale of 20 June 2006,
                     wherein it stated, inter alia :
                              “While confirming to Senegal its attachment to the excellent rela-
                           tionship between the two countries, and while following with interest
                           the action carried out by the African Union in the context of com-
                           bating impunity, Belgium cannot fail to point out that the attempted
                           negotiation with Senegal, which started in November 2005, has not
                           succeeded and, in accordance with Article 30.1 of the Torture Con-
                           vention consequently asks Senegal to submit the dispute to arbitra-
                           tion under conditions to be agreed mutually.”

                        The above statement raises questions as to whether under Article 30,
                     paragraph 1, of the Convention, Belgium, by shifting the burden to Sen-
                     egal to submit the dispute to arbitration, rather than Belgium itself taking
                     that initiative, the latter can be said to have “requested for arbitration”. I
                     doubt that that is the case. Nonetheless, Senegal did not respond to Bel-
                     gium’s request within six months or at all and perhaps the Court is justi-
                     fied in interpreting Senegal’s silence as “the absence of any response on
                     the part of the State to which the request for arbitration was addressed”
                     (Judgment, para. 61).
                        30. Be that as it may, I am of the considered opinion that, in light of
                     my earlier conclusion that neither Belgium nor Senegal had pursued
                     negotiations regarding the dispute as far as they possibly could before
                     concluding that they had failed, and given that the procedural require-
                     ments of negotiation and arbitration under Article 30, paragraph 1, of the
                     Convention, are cumulative, I am not convinced that the preconditions
                     for the Court’s jurisdiction under that provision have fully been met.

                         31. Accordingly, I am of the view that given that the procedural require-
                     ments laid down in Article 30, paragraph 1, of the Convention against
                     Torture had not been met at the date of the Application on 19 Feb
                     ruary 2009, the Court cannot exercise jurisdiction over the dispute between
                     the Parties concerning the interpretation and application of Article 6,
                     paragraph 2, and Article 7, paragraph 1, of the Convention on the basis
                     of Article 30, paragraph 1, thereof. This brings me to the issue of whether
                     in the absence of jurisdiction pursuant to Article 30, paragraph 1, of the
                     Convention, the Court can exercise jurisdiction based on the Parties’
                     declarations pursuant to Article 36, paragraph 2, of the Court’s Statute.
                      This is an issue the Court did not address, having concluded in light of its
                      findings that it was not necessary to do so (ibid., para. 63).

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                     II. Jurisdiction Based on the Parties’ Declarations of Acceptance
                         of Compulsory Jurisdiction of the Court under Article 36,
                                         Paragraph 2, of the Statute
                                                of the Court

                        32. Belgium sought to found the jurisdiction of the Court on the dec-
                     larations of acceptance of compulsory jurisdiction of the Court made by
                     the Parties under Article 36, paragraph 2, of the Statute of the Court, the
                     text of which is reproduced in the Judgment (para. 42).
                        33. Belgium’s declaration, in effect since 17 June 1958, applies to “legal
                     disputes arising after 13 July 1948 concerning situations or facts subse-
                     quent to that date, except those in regard to which the parties have agreed
                     or may agree to have recourse to another method of pacific settlement”
                     (Judgment, para. 42). Senegal’s declaration, in effect since 2 Decem-
                     ber 1985, extends to “all legal disputes arising after the present declara-
                     tion”, save for : (a) disputes in regard to which the parties have agreed to
                     have recourse to some other method of settlement ; and (b) disputes with
                     regard to questions which, under international law, fall exclusively within
                     the jurisdiction of Senegal (ibid.). Thus, by virtue of reciprocity applied
                     to the two declarations of acceptance, the competence of the Court
                     extends to all legal disputes arising between the Parties after 2 Decem-
                     ber 1985 with the exception of disputes in regard to which the Parties
                     have agreed to have recourse to some other method of settlement and
                     disputes concerning questions which fall exclusively within the domestic
                     jurisdiction of one of the Parties.
                        34. Only Belgium submitted arguments on this issue, maintaining that
                     the Court has jurisdiction under Article 36, paragraph 2, of its Statute,
                     over the entire dispute between the Parties, both with regard to the Con-
                     vention and with regard to other rules of conventional and customary
                     international law (Memorial of Belgium, para. 3.44 ; CR 2012/2, p. 65,
                     para. 5). First, as regards the existence of a dispute, Belgium argues that
                     the Parties disagree as to the application and interpretation of conven-
                     tional and customary international obligations regarding the punishment
                     of torture, crimes against humanity, war crimes and genocide (Memorial
                     of Belgium, para. 3.34). In Belgium’s view Senegal had not only failed to
                     prosecute or extradite Mr. Habré for the international crimes alleged
                     against him, but had also shown, “through its actions and inaction”, that
                     “it did not interpret conventional and customary rules in the same way as
                     Belgium” (ibid., para. 3.35). Secondly, in respect of the temporal limits of
                     the Court’s jurisdiction under Article 36 declarations, Belgium contends
                     that the dispute between the Parties crystallized when it became apparent
                     that Senegal would neither extradite Mr. Habré to Belgium nor prosecute
                     him, and thus relates to the facts occurring entirely after the two dates of
                     application of the Parties’ respective declarations of acceptance, falling
                     clearly within the temporal scope of the Court’s jurisdiction (ibid.,
                     paras. 3.37‑3.40 ; CR 2012/2, p. 68, para. 14). Finally, Belgium contends
                     that the Court’s jurisdiction under the Article 36, paragraph 2, declara-

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                     602 	obligation to prosecute or extradite (sep. op. sebutinde)

                     tions is not excluded by virtue of the exceptions contained therein, since
                     the Parties have neither agreed on another method of settling this dispute
                     nor does the dispute, relating to violations of conventional or customary
                     rules of international law, fall within the exclusive jurisdiction of either
                     Party (Memorial of Belgium, paras. 3.41‑3.43 ; see also CR 2012/2,
                     pp. 68‑69, paras. 15‑16).

                         35. In response to a question by a Member of the Court concerning the
                     relationship between the exceptions contained in Belgium’s and Senegal’s
                     respective declarations of acceptance in respect of other modes of dispute
                     settlement, Belgium maintains that these exceptions do not affect the
                     Court’s jurisdiction on the basis of Article 30 of the Convention, since
                     that provision refers to negotiations and arbitration as procedural pre-
                     conditions to be fulfilled prior to the seisin of the Court, rather than as
                     “alternative” modes of dispute settlement. Furthermore, in Belgium’s view,
                     the Court’s jurisprudence confirms that different sources of the Court’s
                     jurisprudence, in the present case the declarations under Article 36,
                     paragraph 2, of the Statute of the Court and Article 30 of the Conven-
                      tion, are independent from each other and are not mutually exclusive
                      (CR 2012/6, pp. 29‑32, paras. 10‑17). Belgium emphasizes that the Court’s
                      jurisdiction pursuant to Article 30 of the Convention in respect of the
                      dispute under the Convention is additional to the Court’s jurisdiction
                      under Article 36, paragraph 2, of the Court’s Statute, which also applies
                      to that dispute as well as to the other issues in dispute between Belgium
                      and Senegal in the present proceedings (CR 2012/6, p. 36, para. 3).

                               A. Article 36 Declarations as the Basis for Jurisdiction
                                  of the Court in Respect of the Alleged Violations
                                                  of the Convention
                        36. The Court has previously dealt with the question of multiple bases
                     of jurisdiction. In the Electricity Company of Sofia and Bulgaria case, the
                     Permanent Court of International Justice held that multiple bases of
                     jurisdiction were not mutually exclusive : a treaty recognizing the jurisdic-
                     tion of the Court did not prevent declarations of acceptance of the Court’s
                     jurisdiction having the same effect (Electricity Company of Sofia and Bul-
                     garia, Judgment, 1939, P.C.I.J., Series A/B, No. 77, p. 76). Similarly, in
                     the case concerning Land and Maritime Boundary between Cameroon and
                     Nigeria, the Court found that when seised on the basis of Article 36,
                     paragraph 2, which did not contain a precondition of negotiations, it did
                     not matter that the basis of jurisdiction under the United Nations Con-
                     vention on the Law of the Sea (hereinafter “UNCLOS”) was more restric-
                     tive (Land and Maritime Boundary between Cameroon and Nigeria
                     (Cameroon v. Nigeria), Preliminary Objections, Judgment, I.C.J. Reports
                     1998, p. 322, para. 109).

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                     603 	obligation to prosecute or extradite (sep. op. sebutinde)

                       37. This was affirmed in principle in the case concerning Territorial and
                     Maritime Dispute, where the Court held that the “provisions of the Pact
                     of Bogotá and the declarations made under the optional clause represent
                     two distinct bases of the Court’s jurisdiction which are not mutually
                     exclusive” and noted that “the scope of its jurisdiction could be wider
                     under the optional clause than under the Pact” (Territorial and Maritime
                     Dispute (Nicaragua v. Colombia), Preliminary Objections, Judgment,
                     I.C.J. Reports 2007 (II), p. 873, paras. 136‑137). Importantly, however,
                     Article 36 declarations in that case were not subject to the reservation
                     excluding disputes “in regard to which the parties have agreed . . . to have
                     recourse to another method of pacific settlement”.

                        38. Belgium also relies on the case concerning Border and Transborder
                     Armed Actions (Nicaragua v. Honduras) (Jurisdiction and Admissibility,
                     Judgment, I.C.J. Reports 1988, p. 85, para. 36) in support of its proposi-
                     tion that titles of jurisdiction are separate and independent. According to
                     Belgium,
                           “the declaration of acceptance of Honduras contained a reservation
                           equivalent to those in question in the present case. Despite the exist-
                           ence of that reservation, the Court confirmed that the two titles of
                           jurisdiction were independent, rejecting the Honduran argument to
                           the contrary.” (CR 2012/6, pp. 30‑31, para. 13.)
                     Specifically, in the Border and Transborder Armed Actions case, the Court
                     held that the compromissory clause in the Pact of Bogotá, providing for
                     the Court’s jurisdiction, could be limited only by reservations made under
                     the Pact, and not by incorporating reservations made by a State party in
                     its declaration under Article 36, paragraph 2, of the Statute of the Court
                     (Border and Transborder Armed Actions (Nicaragua v. Honduras), Juris-
                     diction and Admissibility, Judgment, I.C.J. Reports 1988, p. 88, para. 41).

                        39. Further, while Belgium is correct in suggesting that Article 30
                     should be interpreted as establishing preconditions for the seisin of the
                     Court rather than as an “agreement” of the Parties to settle their Conven-
                     tion-related disputes through negotiation or arbitration rather than by
                     recourse to the Court, this still leaves open the question of whether the
                     Court may entertain a Convention‑related dispute on the basis of the
                     Article 36 declarations where these preconditions have not been met. On
                     this point, Belgium’s argument that there is no presumption of primacy of
                     a restrictive rule over an extensive rule, on the basis that the Court had
                     implied this in the Cameroon v. Nigeria case in 1998, is not without merit
                     and must be considered carefully.

                       40. Indeed in the Cameroon v. Nigeria case, the Court noted that both
                     States had referred to the UNCLOS, which provided for settlement of
                     disputes, inter alia, by contentious proceedings before the Court, if no

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                     agreement could be reached within a reasonable period of time. The
                     UNCLOS was one of the treaties which governed the dispute between the
                     Parties, and which the Court had to interpret, in that case. However, the
                     Court held that as it had been seised under Article 36, paragraph 2, of
                     its Statute, which did not provide for any precondition of negotiation, it
                     did not matter whether negotiations had taken place prior to the submis-
                     sion of the dispute (Land and Maritime Boundary between Cameroon and
                     Nigeria (Cameroon v. Nigeria), Preliminary Objections, Judgment,
                      I.C.J. Reports 1998, pp. 321‑322, para. 109). In the present case, Belgium
                      is invoking both Article 30, paragraph 1, of the Convention and A  rticle 36,
                      paragraph 2, of the Statute of the Court, as additional but independent
                      bases for the Court’s jurisdiction. Given that the Parties have accepted
                      the Court’s jurisdiction under Article 36, paragraph 2, of its Statute, and
                      that Article 30, paragraph 1, of the Convention does not fall within the
                      scope of their reservation excluding other agreements for the pacific
                      settlement of disputes, I am of the tentative view that the failure to fulfil
                       the conditions required under Article 30, paragraph 1, of the Convention
                       has no bearing on the Court’s jurisdiction under Article 36, paragraph 2,
                       of the Statute of the Court, even in relation to a dispute concerning Sen-
                       egal’s obligations under the Convention.

                               B. Article 36 Declarations as the Basis for Jurisdiction
                       of the Court in Respect of the Claims relating to International Crimes
                                    Other than Those Subject to the Convention
                        41. With regard to the question of whether the Court has jurisdiction
                     in respect of the alleged breaches by Senegal of its obligations other than
                     those arising under the Convention, there is no evidence before the Court
                     that there was, as Belgium claims, a dispute between the Parties as to the
                     application and interpretation of conventional and customary interna-
                     tional obligations regarding the punishment of torture, crimes against
                     humanity, war crimes and genocide at the date of Belgium’s Application
                     on 19 February 2009. The record before the Court shows that in the dip-
                     lomatic exchanges between the Parties in the period prior to 19 Febru-
                     ary 2009, no claim was ever made by Belgium relating to Senegal’s breach
                     of any international obligations other than those under the Convention.

                        42. Accordingly, I am of the view that the Court does not have juris-
                     diction to examine Belgium’s claims concerning the alleged violation by
                     Senegal of its obligation aut dedere aut judicare on the basis of rules of
                     international law other than the Convention.

                                                                     (Signed) Julia Sebutinde.

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