312

SEPARATE OPINION OF JUDGE SHAHABUDDEEN

The growing recognition of the need to protect the natural environ-
ment is striking. Contemporary international law has been developing
responsively. I understand New Zealand’s concerns and agree with its
case on several points. I agree that it was entitled to come to the Court,
entitled to a hearing, entitled to a judge ad hoc, and that it was not shut
out by the words in paragraph 63 of the 1974 Judgment, “in accordance
with the provisions of the Statute”. If I do not go the remainder of the
way, the reason lies in what appears to me to be substantial legal obstacles,
some of which I would like to explain.

I. THE QUESTION OF THE BASIS OF THE JUDGMENT

The central point in New Zealand’s case is that the basis of the 1974
Judgment lay in an assumption by the Court that underground tests were
safe, that more recent scientific evidence disproves that assumption, and
that consequently the basis of the Judgment has been affected within the
meaning of paragraph 63 of the Judgment.

A question could arise as to whether the true position was that the
Court made an assumption that underground tests were safe, or whether
it acted on an understanding that New Zealand was satisfied that such
tests were safe, the Court itself being in no position to judge of a complex
technical matter not put in issue and not examined. However, whether
the distinction between these two possibilities can be made and, if so,
with what significance are questions which need not be pursued for the
reasons given in Sections IT and IL below.

TJ. WHETHER NEW ZEALAND’S REQUEST IS WITHIN
THE LIMITS OF THE DISPUTE

Paragraph 64 of New Zealand’s present Request states:

“The 1973 Application makes it clear that the dispute was in its
origin about nuclear contamination of the environment arising from
nuclear testing of whatever nature. The ‘atmospheric’ feature was
merely incidental to the ‘contamination’ feature, which was of the
essence.”

28
313 REQUEST FOR AN EXAMINATION (SEP. OP. SHAHABUDDEEN)

New Zealand’s position is that the 1974 Judgment incorrectly assumed
that its 1973 Application was limited to the question of the legality of
atmospheric testing.

I accept that New Zealand was opposed to nuclear contamination
arising from nuclear testing of any kind. Evidence of this is to be seen at
various places in the pleadings and other material placed before the
Court in 1973-1974 (see C.J. Pleadings, Nuclear Tests, Vol. IL pp. 4,
18, 22 and 301). The question is how far was this general opposition to
contamination from nuclear testing of any kind made the subject of the
dispute presented in the particular case which New Zealand brought
against France in 1973. The bringing of the case was no doubt motivated
by New Zealand’s general opposition to contamination from nuclear
testing of any kind; however, the framework of the case would fall to be
determined by more specific considerations governing the designing of
any concrete piece of litigation.

In determining what the 1973 case was about, it is necessary to start
with the concept of a legal dispute. As the Court remarked in its
Judgment of 20 December 1974, “the existence of a dispute is the primary
condition for the Court to exercise its judicial function” (LC. J. Reports
1974, p. 476, para. 58).

The case for New Zealand is that its present Request does not intro-
duce a new case, but rather represents a continuation of its 1973 case. It
follows that the Request hinges on the dispute presented by the 1973 case
and cannot expand it. So the question is, what was the dispute presented
in that case?

After references in New Zealand’s 1973 Application to discussions
between the two sides, paragraph 8 of the Application stated:

“The French Government . . . made it plain that it did not accept
the contention that its programme of atmospheric nuclear testing in
the South Pacific involved a violation of international law. There is,
accordingly, a dispute between the Government of New Zealand and
the French Government as to the legality of atmospheric nuclear
tests in the South Pacific region.” (C.J. Pleadings, Nuclear Tests,
Vol. IL p. 4.)

That passage fell under the heading “The Subject of the Dispute”. Para-
graph 10 of the Application, falling under the same heading, added:

“Having failed to resolve through diplomatic means the dispute
that exists between it and the French Government, the New Zealand
Government is compelled to refer the dispute to the International
Court of Justice.” (Ibid. )

Thus, the dispute which was referred by New Zealand to the Court in
1973 was one “as to the legality of atmospheric nuclear tests”. It is not

29
314 REQUEST FOR AN EXAMINATION (SEP. OP. SHAHABUDDEEN)

that the Court assumed that this was the dispute, and even less that it
assumed so erroneously: New Zealand said that that was the dispute; it
did so in the operative part of its Application by which it formally
defined its complaint and referred it to the Court.

The foregoing view of the dispute, as one which concerned the legality
of atmospheric nuclear tests, was maintained in paragraph 188 of New
Zealand’s 1973 Memorial. Under the heading “Nature of the Claim
Which Is the Subject of the Dispute and of the Legal Rights for Which
New Zealand Seeks Protection”, that paragraph read:

“The dispute between New Zealand and France is of a legal char-
acter. New Zealand claims that the atmospheric testing of nuclear
weapons by France in the South Pacific is undertaken in violation of
legal obligations owed by France to New Zealand. France has
denied and continues to deny this claim.” (Z C.J. Pleadings, Nuclear
Tests, Vol. I, p. 203.)

Against this background it is not surprising that, at the beginning of
the oral proceedings relating to jurisdiction and admissibility, President
Lachs referred to the Application as having “instituted proceedings
against France in respect of a dispute as to the legality of atmospheric
nuclear tests in the South Pacific region” (ibid., p. 250). The remark drew
no objection from the Bar.

That view of the purpose of the proceedings was maintained by the
Court after reviewing all of the material before it, including the argu-
ments of New Zealand. Summing up its conclusion in paragraph 29 of
the Judgment, the Court said, in a key passage recalled in today’s Order:

“the New Zealand claim is to be interpreted as applying only to
atmospheric tests, not to any other form of testing, and as applying
only to atmospheric tests so conducted as to give rise to radio-active
fall-out on New Zealand territory” (C.J. Reports 1974, p. 466; and
see, ibid., p. 458, para. 1, and p. 461, para. 16).

New Zealand has not sought to contest the submission of France that
nothing in any of the dissenting opinions appended to the Judgment
questioned that part of the Court’s finding (Aide-mémoire of France,
6 September 1995, para. 15). The limits of the dispute, as both positively
and negatively defined by the Court in that finding, still control the
debate. The legality of underground tests lies outside of those limits.

II]. WHETHER NEW ZEALAND’S REQUEST IS OTHERWISE
AUTHORIZED BY PARAGRAPH 63 OF THE JUDGMENT

It is necessary to bear in mind the substantive nature of the reliefs
being sought by New Zealand in respect of the underground tests now

30
315 REQUEST FOR AN EXAMINATION (SEP. OP. SHAHABUDDEEN)

being conducted by France. New Zealand is not simply asking the Court
to reconsider the matters complained of in its 1973 Application in the
light of the new situation; it is asking for substantive reliefs in respect of
the new situation in like manner as it would if, instead of its request, it
had brought a new case. Its request for an examination of the situation is
asking for declarations as to the legality of the underground tests; its
request for an indication of provisional measures is seeking measures
restraining France from conducting the tests. The acts complained of are
new acts. Was a request within the meaning of paragraph 63 of the 1974
Judgment intended to extend to such a case?

The reservation in paragraph 63 of the 1974 Judgment was not
intended, in my opinion, to enable the Court to assume and exercise com-
petence over fresh matters not covered by such jurisdictional bond, if
any, as existed between the Parties when the Application was brought in
1973. Where the Court has jurisdiction at the time when an Application
is brought, the Nottebohm principle entitles it to continue to exercise that
jurisdiction in relation to the dispute presented in the Application not-
withstanding that the jurisdiction was terminated during the course of the
proceedings. The last sentence of paragraph 63 of the 1974 Judgment
sought to treat a request made pursuant to that paragraph as falling
within the operation of that principle, in the same way that the principle
would have applied to the original case had it continued; the sentence
could not be construed as an attempt by the Court, by force of its own
decision, to vest itself with jurisdiction not otherwise available to it.
I have not been able to find any principle of law which entitles the Court
to exercise a terminated jurisdiction over fresh acts occurring after the
termination, in this case some 21 years after the jurisdiction (if it existed)
was terminated. A request which leads to that result is not, in my
opinion, a request within the meaning of paragraph 63 of the Judgment.

CONCLUSION

As will appear from other opinions appended to the Order, the case
raises important questions of principle concerning the role and functions
of the Court.

Jn this respect, it is right to recall that the title of the Court is the
“International Court of Justice”. However, it is also useful to bear in
mind that the “Justice” spoken of is not justice at large; as in the case of
courts of justice generally, it is “the primary function of the Court to
administer justice based on law” (Aerial Incident of 27 July 1955 (Israel
v. Bulgaria), Preliminary Objections, Judgment, I.C.J. Reports 1959,
p. 191, joint dissenting opinion). That is made clear by Article 38, para-
graph 1, of the Statute, which provides that the Court’s “function is to
decide in accordance with international law such disputes as are sub-

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316 REQUEST FOR AN EXAMINATION (SEP. OP. SHAHABUDDEEN)

mitted to it. ..”. It is for this reason that the Court is sometimes referred
to in its own jurisprudence as “a court of law” (North Sea Continental
Shelf, Judgment, C.J. Reports 1969, p. 165, Vice-President Koretsky,
dissenting opinion; Legal Consequences for States of the Continued Pres-
ence of South Africa in Namibia (South West Africa) notwithstanding
Security Council Resolution 276 (1970), Advisory Opinion, I C.J. Reports
1971, p. 23, para. 29; and Fisheries Jurisdiction (Federal Republic of
Germany v. Iceland), Merits, Judgment, I C.J. Reports 1974, p. 192,
para. 45); and that, indeed, was how the Court described itself in its 1974
Judgment in this case (Nuclear Tests (New Zealand v. France), 1 C.J.
Reports 1974, p. 476, para. 58).

It does not follow from the fact that the Court may also be described
as a court of law that it administers the law mechanically. Lacking the
full measure of the judicial power available to some national courts, it
has nevertheless found opportunity for enterprise and even occasional
boldness. Especially where there is doubt, its forward course is helpfully
illuminated by broad notions of justice. However, where the law is clear,
the law prevails.

The law is clear that the Court cannot act unless there is a dispute
before it, and then only within the limits of the dispute. The dispute
which New Zealand referred to the Court in 1973 arose out of a claim by
New Zealand which the Court found applied “only to atmospheric tests,
not to any other form of testing” (emphasis added). The Court would
have been acting ultra petita in 1974 had it sought to adjudicate on the
legality of underground tests (supposing it had been asked to do so),
these being another form of testing. It is in respect of the legality of
underground tests that New Zealand’s present Request seeks relief. The
matters sought to be so raised do not fall within the limits of the 1973
dispute by which the Court is still bound.

It is for these reasons that, although agreeing with New Zealand on

some points, I have not found it possible to accept its main arguments.

(Signed) Mohamed SHAHABUDDEEN.

32


359

DISSENTING OPINION BY M. CAICEDO CASTILLA
[Translation]

1. Diplomatic asylum is an institution which is characteristic of
Latin America. As a result of the frequency with which political
upheavals occur (civil wars, coups d'état, etc.), and of the intensity
of the struggle between the various parties or groups, the aim of
asylum in that part of the world is twofold. Firstly, to protect the
life, liberty and safety of persons prosecuted for political offences
by the local authorities, taking this expression in its wider meaning
to include the various organs of the government. In accordance
with this aim, diplomatic asylum has rendered great services, for,
generally speaking, it is statesmen, politicians, intellectuals and
outstanding personalities who request asylum. Asylum protects the
persecuted individual, whose merits may be recognized later on,
thus enabling him to render outstanding services to his country
and to the American continent. In Latin America we have not
such an abundance of men of ability and culture that we can afford
to contemplate with an indifferent eye their sacrifice on the altar
of unbridled political passion. One glance at the list of persons
to whom asylum has been granted will show no less than twenty
heads of States. The list of writers, journalists, parliamentarians
and jurists who have at one time or another sought refuge could be
prolonged indefinitely, which goes to show that by protecting this
category of persons the State granting asylum is rendering a valu-
able service to the territorial State in that it prevents biased legal
proceedings, unjust persecution or a decision based on the result
of a triumphant revolution from creating irreparable situations and
sowing the seeds of future discord and implacable hatred between
the nationals of the same State.

The second aim of asylum is in keeping with the ideal which
has always inspired Latin America, that of ensuring respect for
fundamental human rights.

In spite of governments which have, on more than one occasion,
violated these rights, the ideal aspiration has always been the
establishment of a democratic and republican régime in all American
States. For this reason, asylum has always been accepted on the
international plane as a means of guaranteeing political liberty.

2. An obvious conclusion may be drawn from the preceding
considerations : in studying the problems of diplomatic asylum
and in reaching a decision, account must be taken of the Latin-
American spirit and environment, as well as of the special inter-
pretation of American international law regarding asylum, which
is very different from the European interpretation.

3. The Judgment of the Court refrains from considering the
institution of asylum as it appears in Latin America. Basing itself

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DISSENTING OPINION BY M. CAICEDO CASTILLA 360

on such grounds, the Judgment of the Court was necessarily bound
to arrive at very debatable conclusions with which I cannot agree.

Indeed, the Judgment imposes such limitations on the institution
of asylum that its practice becomes difficult, if not impossible.
Thus, for instance, the recognized right of the territorial State to
question the qualification made. by the State granting asylum
implies a legal insecurity concerning the grant of asylum as well
as the possibility of lengthy litigation. With the theory of urgency,
it would be impossible to justify asylum ; with such an interpre-
tation, none of the hundreds of cases of asylum which occurred
in America during the last few years would be justified. With an
interpretation that the State of refuge may request the necessary
guarantees enabling the refugee to leave the country only if the
local government has requested his departure, asylum may be
indefinitely prolonged and this would obviously be prejudicial to
both countries.

4. The Court rejects the contention of Colombia that the State
granting asylum has the unilateral and definitive right to qualify
the nature of the offence of which the refugee is accused. At the
same time, the Court agrees that Colombia was entirely right in her
qualification of M. Haya de la Torre as a political offender.

This last point is of great importance, for the whole dispute
between the two Governments, as will be seen from a mere reading
of the diplomatic correspondence between the Ambassador of
Colombia in Lima and the Minister for Foreign Affairs of Peru,
referred to the insistence of the Peruvian Government in consider-
ing that well-known intellectual and eminent political leader,
M. Victor Raul Haya de la Torre, as a vulgar common criminal. In
spite of the fact that, during this case, the Peruvian Government
brought new and abundant evidence in an attempt to prove its
views, the Court unanimously decided that it has not been estab-
lished that M. Haya de la Torre was a common criminal. |

It is thus evident that the attitude of Colombia was unimpeach-
able, since she gave asylum to a political refugee. In accordance
with the legal principles and the jurisprudence in force in America,
the Colombian Ambassador could not act otherwise.

5. In my opinion, the State which grants asylum must have the
right to qualify unilaterally and definitively the nature of the offence
of the refugee. I base this view on :

(I) the Havana Convention of 1928 and the Bolivarian Agree-
ment of 1911, both in force and binding upon Colombia and
Peru ;

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DISSENTING OPINION BY M. CAICEDO CASTILLA 361

(2) the very nature of the American institution of asylum ;
(3) the obligations deriving from the international custom
existing in the American coritinent.

6. The Havana Convention provided that asylum was to be
determined by the laws of the country of refuge. This is clearly
stated in Article 2 of the Convention, and may be also deduced
from the history of that Convention.

The drait was prepared at the 1927 meeting of jurists in Rio de
Janeiro and submitted as a basis of discussion at the Havana
Conference. Article 2, however, was modified with the definite aim
of referring to the customs, conventions and laws of the country
granting asylum.

The documents of the Havana Conference and of its Second
Committee enable us to follow the various steps in the elaboration
of the Convention. As the United States delegation opposed the
right of asylum, the Mexican delegate, Dr. Gonzalez Roa, undertook
to find a formula which would enable all American States, including
the United States of America, to sign the proposed Convention in
spite of their different views regarding the right of asylum and the
extent of its application. In this formula of the Mexican delegate,
which became Article 2 of the Havana Convention, two main points
stand out:

(1) No effort is made to find a definite basis for asylum from the
legal point of view, so that some contracting States may consider
asylum as an institution based strictly on law, whilst others may
consider it as a custom or merely a humanitarian toleration. Within
the framework of the Havana Convention, this point is of no interest.

(2) Apart from the provisions laid down in this Convention, the
conditions of asylum are also determined by the law of the country
of refuge.

The United States, nevertheless, did not accept the Havana
Convention, which did not achieve the desired unanimity. Article 2,
however, retained the definitive form proposed by the Mexican
delegate with the scope and extent already mentioned. By virtue
of this article, according to the explanation given by the Mexican
delegate in his report to the Mexican Government, ‘‘contracting
States remain free to pursue their own policy in matters of asylum”.
It is for this reason that the Argentinian writer, M. Bollini Shaw,
maintains in his important work on the right of asylum that the
Havana Convention is restrictive in that it does not lay down one
general rule but refers to the particular legislation of each of the
signatory States.

In view of the scope of Article 2 of the Havana Convention, the
Rapporteur of the 1939 Montevideo Convention was able to state.

99
DISSENTING OPINION BY M. CAICEDO CASTILLA 362

in a document as important as the Official Report, that in the
Havana Convention “‘asylum was left to the customs, conventions
and laws of the country of refuge”.

The author of this Report is the Chilean professor Julio Escudero
Guzman, former member of the Inter-American Legal Committee,
and the Report, before being submitted to the Montevideo Congress,
was approved by all members of the Committee on which all thc”
countries attending the Congress were represented, including
Colombia and Peru.

I have no intention of claiming that this document lays any
legal obligation whatever on the Parties in the present case, but
I strongly maintain that it is of acknowledged importance for a
proper understanding of the interpretation and extent of Article 2
of the Havana Convention. For this is a document that was drawn
up and approved by well-known American legal advisers, who
had no dispute to settle and no special case before them, but
whose intention it was to prepare a report of an exclusively legal
nature.

This interpretation of Article 2 of the Havana Convention is so
obvious that both Parties in the present case accept it—Colombia
explicitly in all its allegations, while Peru, in spite of attacking
it in several places, does in. fact accept it in its statement regarding
its interpretation of the Havana Convention. It is asserted on
page Io of the Peruvian Rejoinder : “Henceforth an asylum would
not be considered regular, and consequently would not have to
be respected if it were proved that the diplomat who granted it,
or the government which directed him to maintain it, was not
acting in conformity as a minimum with the prescriptions of their
domestic law, whether customary or conventional.”

This interesting opinion set forth in the Rejoinder in such
positive terms amounts to a statement that henceforth asylum
will be considered regular and must consequently be respected,
once it is proved that the diplomat who granted it or the govern-
ment which directed him to maintain it was acting in conformity,
as a minimum, with the prescriptions of their domestic law, whether
customary or conventional.

7. The Havana Convention does not require all three factors,
custom, convention and law, since it refers to customs or conven-
tions or laws, which means that the existence of one of these
factors is sufficient. However, as regards Colombia, the three factors
are equally in favour of unilateral qualification.

In the case of asylum in Colombian embassies or legations, that
country has always claimed and obtained the right to qualify.
In the course of this case, numerous examples were mentioned
to prove this fact ; I do not think that there is any need to repeat

100
DISSENTING OPINION BY M. CAICEDO CASTILLA 363

again. In cases of asylum in foreign embassies or legations, the
Colombian Government has always respected the qualification of
the respective diplomatic agents. |

Colombian usage has been amply proved. Almost twenty cases
of asylum occurred since 1928 in the foreign embassies and legations
accredited in Colombia. In all these cases, asylum was respected
and safe-conducts granted. There were eleven cases in which the
Colombian Government did not agree with the qualification made
by the foreign diplomatic agent, but in all these cases the Govern-
ment yielded to the unilateral qualification. All these cases have
been listed in detail either in the Written Pleadings or in the oral
statements (see Memorial of Colombia, p. 82; Rejoinder, p. 34 ; Oral
Statements, p. 44).

I do not think that it is possible to submit more complete or
more convincing proof without a single contradictory case and
without it being possible to argue that the countries concerned
were signatories of the Montevideo Convention of 1933 ; for several
of these cases of asylum involved Venezuela, which has not ratified
either the Havana or the Montevideo Convention and, consequently,
has no bond with Colombia other than that derived from the
Bolivarian Agreement of 1911 and from the principles of American
international law.

8. As regards Colombian laws and conventions, we must quote
law No. 15 of 1936 approving the 1933 Montevideo Convention on
political asylum. This Convention contains an article under which
“the judgment of political delinquency concerns the State which
offers asylum’.

Law No. 15 of 1936 is a Colombian law enacted with the same
formalities as the ordinary laws, it was approved by the Chamber
of Deputies and the Senate of the Republic, and duly confirmed
by the executive organ of the government. It proves the adherence
of Colombia, of the executive and legislative organs of Colombia to
the theory of unilateral qualification.

9. In an effort to invalidate the views expressed above, reference
has been made to a report by M. Raimundo Rivas, which was
approved by the Committee of Legal Advisers to the Ministry for
Foreign Affairs. It should be pointed out in this connexion that the
Committee in question is merely a consultative body and that its
opinions are not binding on the Government which may well depart
from them. The Committee’s opinion is at most a piece of inform-
ation supplied to the Government. By requesting it, the Govern-
ment did not pledge itself in advance to approve it. Consequently,
M. Rivas’s report merely expresses the private opinion of a writer
and can in no sense be considered an official Colombian document.
Furthermore, some of the mformation it contains is false, as, for
example, his reference to the Spanish Civil War when he states that

Ior
DISSENTING OPINION BY M. CAICEDO CASTILLA 364

Colombia did not grant asylum to one single person, whereas, on
the contrary, she granted it on several occasions. On the other hand,
on page 182 of the Counter-Memorial may be found a fragment of
a declaration by the Colombian Government showing the attitude
and opinion of Colombia in the case of Spain, which were in absolute
agreement with the generous and liberal views so brilliantly
defended by Chile at the time.

10. There is another aspect of the question. The right to qualify
the nature of an offence must necessarily lie with the State granting
asylum, otherwise the very institution of asylum could no longer
exist. For asylum is granted precisely to protect those persons who
are prosecuted by the local government, usually at difficult moments
in the life of the country, moments of great upheaval when political
passions lead to the diminution or disappearance, even in very
highly cultured statesmen, of that serenity of mind which is indis-
pensable for an impartial judgment of political opponents. To
recognize the right of the local State to qualify the nature of the
offence would be equivalent to allowing this qualification to depend
upon the opinion of the government, whose interests would urge
it to act against the refugee. Asylum in these circumstances would
be absurd. Unilateral qualification is in fact inherent in the very
nature of the asylum itself ; it is essential for the continued existence
of this institution as it is understood in Latin America.

In this respect there can be no better quotation than a passage
from Professor Scelle in his commentaries on cases occurring in
South America in 1911, which appeared in the Revue générale de
Droit international public.

The first case was the dispute between the Argentine Republic
and Paraguay, and Professor Scelle wrote, inter alia:

“The Treaty of Montevideo (of 188g) states that the list of
refugees should be submitted to the local government before asylum
may definitely be granted and the refugees transported to foreign
or neutral territory. This does not signify that the local authority
has the right either to oppose this transfer or to insist that such and
such a refugee should be surrendered to it, for this would render the
right of asylum illusory. In doubtful or disputed cases, a definitive
decision can only be made by the authorities granting asylum 1.”
(Revue générale de Droit international public, 1912, pp. 623-634.)

The conclusions could not be more final or more opportune :
asylum would be illusory if the territorial State could demand
the surrender of the refugee or oppose his departure from the
country ; in case of doubt the decision can only be made by the
authorities granting asylum.

1 Translation by the Registry.

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DISSENTING OPINION BY M. CAICEDO CASTILLA 365

In his analysis of the dispute which arose in 1911 between the
Governments of Ecuador and Great Britain regarding the asylum
granted to a number of refugees on board a merchant ship (the
case in which the Minister for Foreign Affairs of Ecuador, Dr. Tovar,
attempted to assimilate internal and external asylum), Professor
Scelle makes the following general observations on the problems
of asylum :

“This assimilation of external and internal asylum made by the
Minister of Ecuador was rather clever. It is juridical, and, in practice,
it would appear that asylum on territory properly speaking is more
difficult to grant than diplomatic asylum. It would also appear
that the examination of political refugees is usually much more
thorough in the case of external asylum, and this is understand-
able as it is easier. In both cases, however, the right of decision
hes entirely with the government granting asylum?.”

Professor Scelle’s opinion is categorical. As regards the examin-
ation of political refugees, whether in a case of territorial asylum
or in a case of diplomatic asylum, ‘‘the right of decision lies entirely
with the government granting asylum”.

11. Similarly I can refer to the Dutch writer, M. Savelberg,
cited in the Counter-Memorial of Peru as an authority in matters
of American international law. M. Savelberg has, in several
passages of his book, insisted on the need for unilateral qualifi-
cation. He says that this qualification “is necessary in order to
prevent a State which recognizes the right of asylum on its
territory from rendering its exercise impossible by means of an
arbitrary interpretation of the expression ‘political offence’ 1”?
(p. 359). He says elsewhere that unilateral qualification ‘is
indispensable, since the State in which asylum has been granted,
having received the qualification of the political offence, could
by an arbitrary interpretation of that expression render illusive
any exercise of that right”. (P. 284.)

12. As regards practice, I would point out that it has been
favourable to unilateral qualification and that the Havana Con-
vention has been constantly interpreted in this manner. This is
not a personal statement, it is an assertion by one of the most
authoritative international jurists of America, M. Hildebrando
Accioly. This eminent Brazilian author and diplomat who is at
present his country’s representative on the Council of the Organ-
ization of American States, writing on the question of ‘‘who
shall decide whether the motives justifying the asylum are purely
political or whether they contain an element of common crimin-
ality” states that “in practice and, as is only reasonable, the
solution was left to the discretion of the diplomatic agent granting

1 Translation by the Registry.
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DISSENTING OPINION BY M. CAICEDO CASTILLA 366

asylum, just as, in the case of extradition, it is the requested
State which has the right to determine the nature of the fact
which justifies extradition’. (Accioly, Vol. II, p. 351.)

13. As for the tendencies of American law, an eloquent illus-
tration is provided by the fact that twelve countries ratified
the two Conventions of Montevideo which expressly confirm the
rule of unilateral qualification, namely, Brazil, Colombia, Chile,
Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama,
Paraguay, the Dominican Republic and Urugiiay. Three countries
which had ratified the Havana Convention, namely, Costa Rica,
Cuba and Ecuador, also accepted the above rule, by means of
declarations of a public character. Finallv, two countries, the
Argentine Republic and Venezuela, which did not ratify the
treaties, also recognize the above rule. In all, seventeen out of
twenty Latin-American countries are in favour of unilateral
qualification. The Colombian view is thus the very expression
of American law.

14. The theory according to which the qualification should be
made jointly, that is, provisionally by the State of asylum and then
ratified or rejected with objections by the territorial State, practic-
ally amounts to this: that qualification would be the attribute of
the territorial State. For with this joint qualification, the terri-
torial State can at will prevent the institution of asvlum from
functioning. It would be strange, but true, that on the pretext of
avoiding unilateral qualification we should arrive at a confirmation
of that practice—in favour however of the territorial State.

It may be argued that in the event of a difference of opinion the
States concerned must resort to arbitration or to legal proceedings.
That would mean that each case of asylum would become a lawsuit,
a lengthy lawsuit, for it is understandable that international
proceedings should require several months to examine and decide
upon a case. Asylum would then become an inexhaustible source
of litigation and hence of dispute among States, with the result
that the two countries would have to examine the domestic situa-
tion of the territorial State, thus rendering the dispute bitter and
embarrassing and probably giving rise to a disagreement which
would hamper and weaken understanding between the two coun-
tries.

15. On the other hand, what is there to justify the conclusion
that the Havana Convention recognizes such a prerogative as
appertaining to the territorial State ? Nowhere is this stated in the
Havana Convention. It has been said that we should abide strictly
by the letter of the texts ; where are such texts to be found which
speak of two qualifications, one provisional and one final, or which
provide that the right of qualification must be exercised both by

104
DISSENTING OPINION BY M. CAICEDO CASTILLA’ 367

the territorial State and by the State of refuge ? On the contrary,
instead of express rules, there is a reference to the usages, conven-
tions and laws of the country of refuge. This reference, which
completely supports the Colombian view, is an express and literal
reference contained in the Convention.

16. Peru has on several occasions accepted the American practice
as obligatory, including the principle of unilateral qualification.

In 1936, during the Spanish Civil War, the Peruvian Govern-
ment, in an official declaration by its Minister for Foreign Affairs,
expressed its solidarity with other American countries, stating that
it was ‘‘in entire agreement with the theories maintained in Madrid
by diplomatic representatives of the Argentine Republic, Chile and
other countries”.

But the theories put forward by these countries were precisely
the legality of diplomatic asylum, the right of the State granting
asylum to qualify the nature of the refugee’s offence, and the duty
of the territorial State to give the necessary guarantees to enable
the refugees to leave the country freely.

Explaining the attitude of the Latin-American States towards
Spain, the Chilean delegate to the League of Nations summed up
the opinions of the said States in these words :

“All refugees, at least those in embassies and legations of Latin-
American States, have been received in accordance with the rules
regarding the right of asylum laid down by the 1933 Montevideo
Convention.”

On October 26th, 1948, the Peruvian Government published an
official statement on asylum, from which we shall quote the follow-
ing paragraph :

“Under the relevant international conventions in force, the State
granting asylum is competent to qualify the act which has motivated
asylum, either to decide that it is a criminal offence, or that it is
a political offence.... For its part, Peru has previously claimed that,
when a diplomatic representative refuses to surrender a refugee
because he does not consider him as a common criminal offender,
extradition is granted only when the refugee has left the country,
and according to the procedure established by international agree-
ments on the matter. This thesis is accepted and recognized by all
American States.” (Memorial of the Government of Colombia,

p. 28.)

An analysis of this statement shows that :

(1) The Peruvian Government agreed by virtue of treaties in
force in America, including the Havana Convention, that the right
to qualify the nature of the offence belonged to the State granting
asylum.

(2) Peru had already maintained on previous occasions that,
if a diplomatic agent did not surrender a refugee on the grounds

105
DISSENTING OPINION BY M. CAICEDO CASTILLA 368

that he was not a common criminal, the Peruvian Government
would respect the decision of the foreign diplomatic agent, reserving
its right to request extradition once the refugee had left Peruvian
territory. In other words, Peru had already declared itself in favour
of unilateral qualification by the foreign diplomat and the obligation
to provide a safe-conduct without, however, prejudicing its rights
to make a subsequent request for extradition.

(3) According to the official statement, the foregoing doctrine
is at the present time not merely a Peruvian doctrine but has
been accepted and recognized by all American States.

The foregoing declaration is not that of a mere official but of
the Peruvian Government itself. Moreover, it was made after the
October revolution, precisely with the object of defining the
attitude of the Peruvian Government towards the numerous cases
of asylum which had arisen. It was in force on January 3rd, 1949,
as the expression of the rules which the Government of Peru
accepted at that date in matters of asylum. In such circum-
stances, the declaration has a very definite legal significance.

17. Apart from the Havana Convention of 1928, there exists
another agreement binding on both Colombia and Peru, namely,
the Bolivarian Agreement on Extradition of 1911, Article 18
of which recognizes the institution of asylum in conformity with
the principles of international law.

The argument that, because the Caracas Agreement is an extra-
dition treaty, it has nothing to do with the regulation of asylum,
has a certain force which I cannot deny in so far as there is any
intention to apply the rules of a treaty on extradition to the
institution of asylum. But it is quite inadmissible to seek to deny
the value of Article 18. For the argument that asylum and extra-
dition are different institutions leads precisely to the conclusion
that Article 18 has a very definite significance, namely that it
makes it quite clear that, apart from the stipulations regarding
extradition, the contracting States have agreed to recognize
another institution, asylum, and have admitted that that insti-
tution should be governed by legal principles. Thus the Agreement
regulates two institutions—extradition in all clauses of the Agrée-
ment except one, and asylum in one clause, Article 18. It may be
argued that it is inconvenient and unusual to regulate two dif-
ferent institutions in the same treaty ; but this criticism, even if
it were valid, would not deprive Article 18 of its legal value or
render it inapplicable. On the other hand, it is obvious that the
plenipotentiaries of 1911 were of opinion that the two institutions
were similar and that they could, consequently, be included, from
a formal point of view, in a single treaty. This view may be crit-
icized, but it must in any case be respected ; it was after all adopted
by the said plenipotentiaries. Furthermore, it had already been
adopted in the Treaty of Montevideo of 1889, which included
both institutions in the same treaty under different headings.

106
DISSENTING OPINION BY M. CAICEDO CASTILLA 369

To contend, as the Rejoinder does, that the article is devoid of
effect because it confines itself to an obvious statement—a simple
allusion to international law—amounts to a unilateral denial of
a contractual obligation. Article 38 of the Statute of the Inter-
national Court of Justice says that the latter will apply the general
principles of law; it cannot be argued that, because these prin-
ciples have not been determined and because the article makes
a simpie reference to law, this provision of the Statute is null and
void. Yet this is practically the claim that is made regarding
Article 18 of the Bolivarian Agreement.

The most reasonable thing to do would be to examine Article x8
of the agreement and ascertain what juridical effects it could have.
It would then be found, in the first place, that the signatory States
recognize asylum as a right; it is not a practice, neither is it a
simple act of humanitarian toleration, but an institution governed
by the principles of law. In the second place, this institution is
recognized in accordance with the principles of international law ;
namely, in accordance with those principles accepted by American
States, both in their international conferences and in their collective
declarations. These principles of international law cannot be other
than those which have been stated in the various treaties on asylum
which were concluded in America, whether or not they were ratified
by the “Bolivarian” countries; for we are not concerned with the
determination of a contractual obligation, but with the determina-
tion of those principles which are generally adopted in America in
matters of asylum. For example, according to the Bolivarian
Agreement of 1911, asylum may only be granted to political
offenders. Why ? Simply because this is the principle that is generally
accepted in American international law. The same thing should
hold good as regards the qualification of the offence. This qualifica-
tion appertains to the State granting asylum, since the principle is
specially mentioned in the Montevideo Convention of 1933 ; accord-
ing to the Havana Convention, it is applied when the law of a
country granting asylum recognizes it; and furthermore, this
constitutes the practice of American States.

A further conclusion may be drawn from this article, namely.
that acceptance of the application of the principles of international
law entails a recognition of principles which may be derived from
international custom. If this is the case, this article in the Boliva-
rian Agreement has a special meaning as regards custom in matters
of asylum, namely, that it demonstrate »s the existence in both
Colombia and Peru of one of the elements which are necessary for
the existence of a custom—the psychological element, the opinio
qjuris sive necessitatis, The Bolivarian Agreement recognizes asylum,
recognizes the value of the principics applied in America ; hence

107
DISSENTING OPINION BY M. CAICEDO CASTILLA 370

it includes these principles as binding. Consequently, their accept-
ance by governments or by one individual government implies
their acceptance by that government as “being the law’, that is
to say, that they are the applicable law.

This is a matter of the utmost importance, since the psychological
element of custom, which is always so difficult to prove, is here
entirely proved.

18. In my opinion, diplomatic asylum is an international
custom of Latin America.

American Republics have practised asylum, have respected the
unilateral qualification exercised by the State granting asylum,
and have furnished the indispensable safe-conducts to enable the
refugees to leave the territory.

The custom has been continuous since it arose as early as the
middle of last century. Thus we see that we are dealing with a
custom one century old and consequently much earlier in date
than any treaties that exist on the matter.

The custom was general; all the Latin-American Republics
recognized and practised diplomatic asylum and all exercised the
right to unilateral qualification of the offence when circumstances
required it. Mexico, the Republics of Central America, Cuba,
and the South American Republics are all in the same position.

Finally, by recognizing the practice of asylum, the American
Republics accepted it as obligatory. Nothing is more remarkable
in this respect than the case of the Republic of Venezuela. It
offers asylum in its embassies and legations and respects asylum
in foreign legations and embassies without having ratified either
the Montevideo Convention or the Havana Convention. That is
to say, it recognizes asylum as an American right, as a practice
which is obligatory throughout the continent. In the same way,
it also accepts the unilateral qualification of the offence.

There is a recent case in which several countries were involved
and which demonstrates the general feeling of American countries
regarding the obligatory character of asylum. With reference to
the asylum of ex-President Bétancourt in the Colombian Embassy
at Caracas, the Chilean Government, supported by the Guatemalan
Government, lodged a protest with the Council of the Organisation
of American States against the Venezuelan Government “for its
delay in delivering the safe-conduct’’. Thus we see that a country
like Chile, which had no treaty with Venezuela regarding asylum,
considered that it had the right to lodge a complaint against the
latter in order to obtain the necessary guarantees to enable the
refugee to leave Venezuelan territory. This is not all! Chile then
claimed that the refugee in question was at the embassy of a third
State. Such a claim could not have been made by a country so
highly respected in America as Chile, had it not been for the
conviction that the practice of asylum, with its various conse-
quences, is juridicaliy obligatory. It must furthermore be noted

108
DISSENTING OPINION BY M. CAICEDO CASTILLA 371

that in the incident in question, the Republic of Venezuela did
not put forward as an excuse or as a reply to the Chilean protest
the non-existence of treaties on asylum. Neither did it deny the
juridical obligations resulting from this custom. On the contrary,
it proved that it had respected American practice and American
law by showing that the safe-conduct had already been granted
when the complaint was lodged.. Thus we have the example of
three American States, Chile, Guatemala and Venezuela, recog-
nizing the practice of asylum as obligatory, together with its conse-
quences, such as the qualification by the country granting asylum
and the right of the said country to demand a safe-conduct for
the refugee.

Another American country noted for its outstanding culture,
Uruguay, has also maintained the opinion in question on several
occasions. It will be sufficient to mention the memorandum
presented by the Uruguayan Embassy in Lima to the Peruvian
Minister for Foreign Affairs and Public Worship regarding the
asylum granted to MM. Manuel Gutierrez Aliaga and Luis Felipe
Rodriguez. One of the paragraphs of the Memorandum states:

“Tn accordance with the preceding facts, the Acting Chargé
d’Affaires received instructions from his Government to impress
upon the Peruvian Government the necessity for a speedy delivery
of safe-conducts which cannot be delayed on the pretext of an
alleged implication of the refugees in common crimes or political
offences related thereto, by virtue of the principle by which the
country granting asylum has the right to decide whether the offence
is of a political nature or is a common crime.”

In the case of Paraguay of 1922, other countries, the Argentine
Republic, Brazil, Uruguay, Bolivia, Cuba and even Peru collectively
drew up the following declaration as a rule of conduct and embodied
it in an official document :

“Any person who shall request asylum in the residence of a
foreign delegation for reasons of a political nature shall make a
statement of the facts which led him to request asylum, and the
appreciation of the circumstances shall be left to the head of the
legation.”’

In the case of Spain, the Argentine and Dominican Republics
maintained that Spain, in spite of the fact that it had no treaties
regarding the right of asylum, should nevertheless respect this
practice, and also that the head of the legation or embassy had the
right to qualify the offence and to request the delivery of safe-
conducts in every case.

The Government of Cuba declared in a recent statement :

“The principle that the qualification of the offence concerns the
State granting asylum is a general rule of law confirmed by custom.”

10g
DISSENTING OPINION BY M. CAICEDO CASTILLA 372

In Chile, the instructions of the Ministry for Foreign Affairs to
its diplomats of November 26th, 1935, say:

“The right to qualify the political offence appertains to the State
granting asylum.’’ (Quoted by Antokoletz.)

In a recent declaration, Costa Rica has expressed itself in favour
of the theory according to which the State granting asylum has
the right to qualify the nature of the offence.

Ecuador also has very definitely stated its opinion as follows :

“The Government of Ecuador considers that Article 18 of the
Bolivarian Agreement and Article 2 of the Convention on Asylum
of February 20th, 1928, which are valid instruments for Ecuador,
should be interpreted as meaning that the qualification of the nature
of the offence appertains to the country granting asylum.... The
Government of Ecuador bases this view on the very nature of the
institution of asylum: this institution would lose all value if the
local government were granted the right to qualify the nature of the
offence, thus rendering inoperative the international agreements
on the matter. On the other hand, American customary law also
attributes the right of qualification to the country granting asylum.
This interpretation was expressly confirmed by the Convention on
Asylum signed at the Seventh American International Conference
at Montevideo in December 19331.”

19. As regards the question of a safe-conduct, the Judgment
maintains that Article 2, § 3, of the Havana Convention should be
interpreted as meaning that the State granting asylum may only
request the necessary guarantees to enable the refugee to leave
the country, after the territorial State has requested the refugee
to leave the national territory.

I cannot accept this interpretation for several reasons, but
chiefly because I believe that the Havana Convention recognizes
two separate rights :

(a) firstly, the right of the territorial State to require the removal
of the refugee from the territory as rapidly as possible, that is to
say that, as asylum is a transitory situation which cannot be
prolonged indefinitely, the State granting asylum should respect
this request. This is an obligation on the State granting asylum.
The sojourn of the refugee on national territory cannot be prolonged
against the will of the territorial State ;

(2) the second right is that, which is conferred by the above-
mentioned text upon the State granting asylum, to require that
the refugee should leave the country with the necessary guarantees.
This right is a necessary consequence of asylum.

The unanimous practice of American States is in accordance
with this interpretation. In all cases of asylum, the diplomatic
agent has requested and obtained the departure of the refugee

1 Translation by the Registry.
Ito
DISSENTING OPINION BY M. CAICEDO CASTILLA 373

without waiting for the territorial government to take the initiative.
This practice has been amply proved in the documents annexed to
the Pleadings of this case. They include a note dated October 2oth,
1944, from the Minister of Peru in Guatemala to the Honour-
able Members of the Revolutionary Junta of Guatemala ; another,
dated October 28th, 1948, from the Peruvian Legation in Panama
to the Minister for Foreign Affairs of Panama, and two other
communications, dated November 2nd and 5th, 1948, respectively,
from the Uruguayan Embassy in Lima to the Minister for Foreign
Affairs of Peru. All these notes announce the grant of asylum and
simultaneously request the delivery of safe-conducts ; in none of
these cases has the State of refuge waited for the territorial State
to express any wishes on the subject.

It would be impossible to quote a single diplomatic communi-
cation contrary to this practice. And as far as Peru is concerned,
apart from the above-cited documents of the Peruvian Legations in
Guatemala and Panama, there is an official Government com-
muniqué of October r2th, 1948, which states : ‘‘The Government,
respectful of its international agreements and of the established
practice, has granted the respective safe-conducts.” In other
words, the Peruvian Government admits that, in accordance both
with the treaties in force and with American practice, it is compelled
to deliver safe-conducts.

It has also been maintained that American practice is contrary
to the text of the Convention and that, consequently, it cannot
prevail. It should be argued in reply:

(1) that authors such as Accioly consider that the Convention
conforms with practice on this point ;

(2) that practice shows what interpretation has been put upon
the Convention by the countries which signed and ratified it.

If there has been no other interpretation, why search for an
interpretation of the Havana provision outside American custom ?

On the other hand, why disregard the interpretation which
had been accepted by Peru ? It may be said, to meet this argument,
that States are entitled to change their minds. I recognize that
right as far as purely political questions are concerned, but as
regards legal questions, such as the interpretation or application
of treaties, a change of opinion is scarcely admissible except
for the future. Otherwise an element of uncertainty would be
introduced into international relations. It is hardly admissible
in law that a country, after maintaining a given interpretation
of a treaty and making it known to other contracting parties
by declaring its intention to apply that interpretation to cases
involving given circumstances, should be able to disregard its
own interpretation in cases and circumstances arising whilst
that rule was still considered to be in force.

III
DISSENTING OPINION BY M. CAICEDO CASTILLA 374

Any other practice would create a new element of insecurity
in international relations.

Furthermore, there have been cases in which the opinion of
the State granting asylum prevailed. We may, for example, quote
the case of the parliamentarian Rodriguez Araya, who took refuge
in the Uruguayan Embassy in Buenos Aires in 1949. The Argentine
Government declared that the local authorities were not prosec-
uting him and that the latter enjoyed all necessary guarantees
to reside freely on the national territory. In spite of this declaration
by the territorial State, Uruguay insisted that the refugee should
be allowed to leave the territory of the Argentine Republic. In
face of this insistence, the Argentine Republic, which has so
many noble juridical traditions in matters of asylum, immediately
granted the necessary safe-conduct.

Consequently, it must be admitted that the interpretation put
by Colombia upon Article 2 of the Havana Convention is entirely
in accordance with the general principles of law, as well as with
the spirit of the text and the provisions of the Convention taken
as a whole. Colombia has thus respected the uniform and con-
tinuous practice of the American nations, including Peru.

20. In my opinion the second basis of the counter-claim (case of
urgency) of the Government of Peru presented on March 21st, 1950,
does not come within the jurisdiction of the Court and is not
directly connected with the subject-matter of the Application. My
grounds for this opinion are that Peru, during the controversy
which preceded the signature of the Act of Lima, made no claim
whatsoever concerning the existence of urgency ; and consequently,
this consideration was not a part of the existing dispute ; it was not
referred to by Colombia in connexion with the question of the grant
of a safe-conduct, the latter question being based upon the essen-
tially political nature of the offence attributed to the refugee, the
grant of the safe-conduct constituting an obligation for the terri-
torial State. There was no other subject of dispute between the
Parties.

21. As regards the condition of urgency, it is sufficient to recall
that M. Haya de la Torre was threatened in his life or liberty due
to the fact that he was being prosecuted for political reasons,
and this consideration justifies the conclusion that he was entitled
to invoke in his favour the institution of diplomatic asylum in
Latin America.

Furthermore, there is abundant evidence to show that at that
time Peru was passing through an abnormal situation. One of the
first decrees promulgated by the Military Junta was that of Novem-
ber 2nd, 1948, under which ‘‘the Military Junta of the Government
assumes all the powers which the Constitution of the State confers
upon the executive and legislative branches of the Government” 1.

1 Translation by the Registry.
DISSENTING OPINION BY M. CAICEDO CASTILLA 375

In other words, the de facto military government conferred upon
itself the right to make new laws and modify or abrogate existing
laws, without regard to the rules of the Constitution. In the exercise
of the rights which it had conferred upon itself, the Junta enacted
decrees as grave as that of November 4th, which provided for
Oral Courts-Martial and authorized the application of the death
sentence, whilst suspending appeal to the Supreme Court against
the judgment. The decree-law fastened those accused of military
rebellion, such as M. Haya de la Torre, in a grip of iron: the members
of the Courts-Martial were soldiers who depended upon the govern-
ment, the defence for the accused was to be appointed by the
government, the penalty imposed might be death, which was not
accepted under the Code of Military Justice, and there was to be no
appeal against the judgment ; all the foregoing measures superseded
the Peruvian Code of Military Justice which had provided for an
appeal to the Supreme Court on the grounds of nullity, naturally
restricted to alleged irregularities of form.

Subsequently, on November 17th, a new decree-law was enacted
concerning the composition of the Supreme Court of Justice, which
stated as follows :

“1. Law No. 9654 of November 13th, 1942, is abrogated: the
positions which are at present provided on the Supreme Court of
Justice of the Republic under law No. 9654 are vacant as from the
date of the present decree.

2. The vacancies resulting from the application of the present
decree as well as the positions of Judges and General Advocates
of the Supreme Court of Justice shall be filled by direct appointment
of the Military Junta of the Government !.”

It is true that the Agent of the Government of Peru declared
that the decree of November 4th does not have retroactive effect.
But this declaration in no way modifies the problem in so far as
M. Haya de la Torre is concerned. For this problem must be
envisaged as it existed on January 3rd, 1949, the date of the grant
of asylum : at that time the decree was in force and there was no
reason to believe that it would not have retroactive effects for:
1) no declaration had been made by the Government in this
connexion, 2) there existed at that time a de facto Government
whose powers were founded, not on constitutional provisions but
on the success of a coup d’étai : and that Government had conferred
upon itself the right to promulgate laws regardless of the Constitu-
tion, and 3) it was not known how this decree would be interpreted
by the Oral Courts-Martial. |

On the other hand, the Peruvian Government during those
same days of October and November 1948 had promulgated
decrees of a retroactive character, such as that of October 4th

1 Translation by the Registry.
113
DISSENTING OPINION BY M. CAICEDO CASTILLA 376

concerning the outlawing of the Aprist Party which established
the collective criminal responsibility of the Aprist leaders for
the events of October 3rd. In other words, there was established
ex post facto a penal responsibility attributable to a whole category
of persons. A further retroactive decree was that of the Military
junta concerning the suspension of proceedings for military
rebellion which had been instituted against Colonel Llosa and
others for the abortive revolution of July 1048. This decree
intervened in the operation of military justice, and suspended
the action of the latter.

In making these remarks, I in no way intend to criticize the
Peruvian Government, for it is evident that it could judge, better
than anyone, what measures should be taken for the country.
My sole reason for referring to all these laws is because, in my
opinion, they prove clearly that there existed an unstable domestic
situation characterized by political disturbances, precisely the
kind of situation constituting the urgency of diplomatic asylum.

This abnormal situation is confirmed by the existence of a
state of siege. By a supreme decree of January 2nd, 1949, published
on January 3rd, i.e. the very day asylum was granted to M. Haya
de la Torre, the state of siege was extended for 30 days. In its
recitals, the decree states that ‘‘the reasons which have led to
the decree providing for the suspension of individual guarantees,
continue to exist”. In other words, the abnormal situation
continues to exist. The decree adds “‘that it is necessary that
the authority should have extraordinary powers in order to
maintain public order and tranquillity ©”.

It has been pointed out that Haya de ‘la Torre sought refuge
only on January 3rd, whereas the revolution had occurred on
October 3rd. For me, the time factor has no importance, for the
important question here is whether on January 3rd the abnormal
situation still existed : and irrefutable proof of this fact is furnished
by the above-quoted decree. On the other hand, if the Callao
revolution occurred on October 3rd, it was only at the end of
that month that the military uprising occurred which aggravated
the situation of M. Haya de la Torre, since the second revolution
which led to the fall of President Bustamante took place with
the avowed intention of punishing Apra. Consequently, the policy
of the new government consisted of the exclusion and repression
of Aprism (note of February 22nd, from the Peruvian Minister
for Foreign Affairs : “It was for that reason that the armed forces
of the Republic, by a unanimous impulse, took action to put
an end to all this crime and wickedness, and to save Peru.”’ P. 150
of the Counter-Memorial). Furthermore, M. Haya de la Torre,
prosecuted as a criminal, his personal assets having been seques-
trated, and in the face of a declaration of a state of siege which

1 Translation by the Registry.
II4
DISSENTING OPINION BY M. CAICEDO CASTILLA 377

facilitated search without a warrant from a competent judge,
and at a time when foreign embassies and legations were under
the surveillance of the police, M. Haya de la Torre, we say, was
not really in a position to choose the date of his asylum. It might
be said that he sought refuge when he could.

The existence of the condition of urgency was so evident that
it was accepted without hesitation by the Diplomatic Corps accred-
ited in Lima. For, following the revolution of October 3rd,
M. Haya de la Torre was not the only person obliged to seek asylum.
There were many refugees who had sought and obtained asylum
in eight embassies; all of them were Aprist leaders involved in
the same proceedings as M. Haya de la Torre. It is possible to
deduce from the foregoing that the Ambassadors considered that
there existed a situation implying serious danger for the security
of the refugee Aprist leaders. The case of M. Haya de la Torre
is identical with that of the other refugees.

On the other hand, it must not be forgotten that M. Haya de
la Torre was reputed to have given orders for the extermination
of his adversaries. There is no proof of this order, but the rumour
was spread (Counter-Memorial, p. 7). In moments of such con-
fusion and passion when a complete change in the political situation
had just taken place, it was quite conceivable that there should
be some danger of reprisals against the Aprists, and more especially
against their leader. The leaders of a victorious revolutionary
movement, even when they have assumed total power, are not
always able to control the activities of the extremist elements
among their subordinates and supporters. The very fact that the
Colombian Embassy in Lima has been provided with a continuous
police guard, is evidence of the anxiety of the local authorities
lest the political opponents of Haya de la Torre might take action
to seize him and endanger his life. If that happened while he was
in the Embassy, how much greater would the possibilities have
been and how much greater the danger for his personal safety,
had he been in another place.

Furthermore, in judging the conduct of the Ambassador, we
must consider :

1. That the two official communiqués of the Peruvian Govern-
ment—one of the 12th and the other of 26th October 1948—accepted
the existence of a situation which might justify the urgency of
asylum, as well as the principle of unilateral qualification and that
of the grant of a safe-conduct. These communiqués were in force on
January 3rd, 1949, for it was only in a note of February 22nd, that
the Peruvian Government showed any desire to change its attitude.

2. The Ambassador had granted asylum to M. Pulgar Vidal, an
Aprist deputy, who obtained a safe-conduct on November 2oth,
in other words, after the summons had been issued regarding

115
DISSENTING OPINION BY M. CAICEDO CASTILLA 378

M. Haya de la Torre and his friends, and without any remarks being
made by the Peruvian Government on the matter of urgency. Thus,
in the case of M. Pulgar Vidal, the theories set forth in the two
official communiqués were put into application.

3. Other Ambassadors had granted asylum without any observa-
tions being made by the Peruvian Government.

4. Official declarations by the Head of a State, published in the
official gazette El Peruano on January 3rd, 1949, recognizing that
the situation of the country at the time was abnormal.

5. The de facto situation which has already been described
actually existed.

Having regard to the foregoing elements of fact and of law, I
consider that the Colombian Ambassador acted correctly : he could
not do otherwise than grant asylum ; he conformed to international
law and American practice ; he granted the asylum in strict conform-
ity with the stipulations of the Havana Convention.

22. Finally, we have further recognition by Peru of the abnormal
nature of conditions existing in January 1949, namely, the modifica-
tion of her counter-claim. To maintain that present conditions are
different from those that obtained in 1949, amounts to an admission
that the conditions in 1949 were abnormal, that is, if it is clatmed
that present conditions are not abnormal.

23. Asylum, such as is recognized in America, has never been
regarded as a form of intervention. It is not intervention in the
sense that a government may interfere in the domestic affairs of a
country by favouring the members of a certain party ; indeed,
asylum has always been exercised generously and nobly, in favour
of all types of persons without discrimination and regardless of the
political views of the refugee. This point must be stressed because
it is to the credit of the Latin-American countries.

In the case of Colombia and Peru, it is sufficient to point out
that the same Ambassador granted asylum, first to M. Julho
C. Villegas, who, as Minister of the Interior, wrote the letter provid-
ing for the application of certain measures in the proceedings
against M. Haya de la Torre, and later, to Haya de la Torre himself.

24. Nor is diplomatic asylum contrary to the principle of non-
intervention, which is fundamental in American law. The historical
origins of this principle are to be found in the relations between the
United States of America and the Latin-American nations, and
it was put forward by the latter as an affirmation of their independ-
ence against interventions, even armed interventions, which had
occurred but which need not be recalled here. At the Montevideo
Conference of 1933, the principle was accepted by the United

I16
DISSENTING OPINION BY M. CAICEDO CASTILLA 379

States of America following the development of the policy of
President Franklin Roosevelt ; and pursuant to the confirmation of
the juridical equality of American States, their subsequent mutual
relations developed in an atmosphere of complete solidarity, for
the feelings of distrust which had existed theretofore now
disappeared.

That is why it has never been. believed in America that asylum
is related to intervention or to non-intervention. These are entirely
different situations which have never been confused. That is why
countries like. the Argentine Republic and Mexico which have
always most enthusiastically supported non-intervention, have also
supported with the same enthusiasm the institution of asylum.
In so doing, they were not being inconsistent, but were rather
taking American reality into account.

25. The Havana Conference of 1928 had before it the institution
of asylum which was intended to assist political refugees in the
event of domestic disturbance. The Conference never chose at any
moment to modify the essential character of the institution of
asylum, but sought rather to maintain and strengthen it. Nor did
it express a desire to put an end to alleged abuses in the matter
of asylum. The precedents of the Convention are very clear in this
connexion. The principal one was the meeting of jurists at Rio
de Janeiro in 1927, whose purpose was merely to attempt to
codify public international law and private international law in
accordance with the systems adopted by the Fifth Pan-American
Conference of Santiago (Chile) of 1923, namely, the elaboration
of a code of private international law and the preparation of
partial agreements for public international law. The criterion
applied in selecting the questions of public international law at
Rio was that preference should be given to questions in which
there were no wide divergencies of view, and upon which there
was general agreement. These were so to speak subjects which
were ripe for insertion in a treaty following a generally favourable
consensus, a kind of juridical conscience that had already been
formed in this respect among the American countries. We may
therefore assume that if the subject of asylum was chosen at Rio
it was because this was doubtless a question which enjoyed general
support and sympathy, a matter in which agreement was possible,
as was the case for the other topics adopted on that occasion
(diplomatic officials, consuls, treaties, literary copyright, etc.).

The same spirit may be noted in the acts and deliberations at
Havana. There was no resistance to asylum except the opposition
in principle of the United States of America. With this exception,
the matter presented no difficulty and raised no objections.

26. The grant of asylum and the maintenance of asylum are
different phenomena. The former is instantaneous, the latter
extends in time. This was Peru’s understanding in presenting its

117
DISSENTING OPINION BY M. CAICEDO CASTILLA 380

counter-claim concerning the grant of asylum as well as the addition,
which was not examined by the Court, concerning the maintenance
of asylum. For this reason I believe that all that relates to the
grant of asylum can only be examined by considering one date
and one date alone, January 3rd, 1940.

To pass judgment on the maintenance of asylum is to go beyond
the limits of the Peruvian claim as it was expressed by that Govern-
ment, and in my capacity as Judge, I consider that I must confine
myself to resolving the questions which have been put by the
Parties.

Nevertheless, the maintenance of asylum is fully justified in the
case of Colombia on the following grounds :

1. At no moment has Peru requested the surrender of-the refugee.

2. Peru opposed the asylum on the grounds that M. Haya de la
Torre was a common criminal, a fact which Peru has not been able
to establish.

3. On the very day after the grant of asylum, namely January
4th, 1949, Colombia requested a safe-conduct to enable M. Haya de
la Torre to leave Peru with the necessary guarantees, thus bringing
the stage of diplomatic asylum to a close.

4. This request on the part of Colombia was not entertained.

5. Following the Act of Lima, the question is sub judice and the
two countries have agreed upon their obligations to respect the
existing situation.

27. It has been stated that Colombia, following the day on
which the counter-claim was presented and during the oral
proceedings, chose to transfer her defence to a plane on which
the Havana Convention could provide it with no foundation.
This refers to the fact that the spokesmen for Colombia have
examined the circumstances in which proceedings were instituted
against M. Haya de la Torre. In my opinion, this examination
did not depend upon the will of Colombia, but rather upon the
policy adopted by Peru in presenting a counter-claim which, in
contrast to the Colombian Application, does not submit purely
legal questions to the Court but rather questions of fact and
accusations against the conduct of the Colombian Ambassador
in Lima. Throughout the diplomatic correspondence, Colombia
has consistently refused to enter into a discussion concerning
Peruvian politics or the domestic situation in Peru. This refusal
is to be found in all the Colombian notes, in spite of the repeated
invitations of the Peruvian Minister for Foreign Affairs. But con-
fronted with the counter-claim, Colombia was obliged to change
her attitude and to examine the documents and facts which were
raised in that counter-claim.

118
DISSENTING OPINION BY M. CAICEDO CASTILLA 381

Evidence of the change which was introduced by the counter-
claim is found in the fact that the point which was most discussed
in the last stage of the proceedings was the condition of urgency,
a question which had not even been mentioned during the diplo-
matic discussions.

Among the documents presented by Peru, the letter of
October 5th, 1948, from the Minister of the Interior, M. Villegas,
who subsequently sought refuge in the Colombian Embassy, is.
worthy of. special attention. It has been contended that this
letter constitutes a denunciation, although it does not fuifil the
requirements of Peruvian legislation in this respect. This letter
is a very serious document because it orders the Examining
Magistrate to follow a certain procedure in respect of M. Haya
de la Torre, which procedure that judge actually adopted. This.
constitutes irrefutable evidence of the influence and intervention.
of the Government in military justice.

28. In view of the foregoing considerations, it is possible to
conclude that the conduct of Colombia was beyond reproach. It
must further be emphasized that it is abundantly clear from the
whole proceedings that the Colombian Ambassador at Lima had
urgent grounds to grant asylum to M. Victor Raul Haya de la
Torre, and it is equally clear that the refugee is a political offender.
This proves that Colombia’s actions were inspired by the most
respectable considerations.

Colombia has not sought to defend a particular interest, but
rather the legal principles which are generally accepted in Latin
America. Colombia has considered that, as a member of the American
community, she is bound to work for the integrity of these principles
which, along with many others, are effectively in force on the
American continent, thus ensuring that international relations in
that part of the world develop on the basis of noble doctrines and
not on grounds which are purely utilitarian or materialistic. In
this case Colombia has remained faithful to her own traditions as
well as to the juridical traditions of the continent. In stating
resolutely and unselfishly the tendencies which are common to the
other American Republics, Colombia actually becomes the spokes-
man of the free peoples of America.

. In defending a political refugee, Colombia defends a fundamental
human right, and in so doing not only honours her contractual
obligations, but also undertakings of another order, the force of
which cannot be disregarded.

I am referring to the essential principles which have inspired
not only the Charter of the United Nations, but also the declara-
tions which have been adopted by the IXth Pan-American Confer-
ence, and by the General Assembly of the United Nations.

(Signed) José Joaquin CAICEDO CASTILLA.

119


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DE
LA BARCELONA TRACTION, LIGHT
AND POWER COMPANY, LIMITED
(BELGIQUE c. ESPAGNE)

ORDONNANCE DU 11 NOVEMBRE 1960

1960

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING
THE BARCELONA TRACTION, LIGHT
AND POWER COMPANY, LIMITED
(BELGIUM v. SPAIN)

ORDER OF 11 NOVEMBER 1960
La présente ordonnance doit étre citée comme suit:
« Affaire de la Barcelona Traction, Light and Power Company,
Limited (Belgique c. Espagne),
Ordonnance du rx novembre 1960: C. I. J. Recueil 1960, p. 189. »

This Order should be cited as follows:
“Case concerning the Barcelona Traction, Light and Power Company,
Limited (Belgium v. Spain),
Order of 1x November 1960: I.C.]. Reports 1960, p. 189.”

N° de vente: 937
Sales number

189

INTERNATIONAL COURT OF JUSTICE

1960
YEAR 1960 11 November
General List:

11 November 1960 No. 41

CASE CONCERNING
THE BARCELONA TRACTION, LIGHT
AND POWER COMPANY, LIMITED
_ (BELGIUM +. SPAIN)

ORDER

Present: President KLAESTAD; Vice-President ZAFRULLA KHAN;
judges HACKWORTH, WINIARSKI, BADAWI, ARMAND-
Ucon, KojEvnikov, MoRENO QUINTANA, CORDOVA,
WELLINGTON Koo, SPIROPOULOS, Sir Percy SPENDER,
ALFARO; Registrar GARNIER-COIGNET. |

The International Court of Justice,

composed as above,

after deliberation,

having regard to Article 48 of the Statute of the Court and to
Article 37 of the Rules of Court,

Makes the following Order :

Having regard to the Order of 20 June 1960, fixing 5 Decem-
ber 1960 as the time-limit for the filing of the Observations and
Submissions of the Belgian Government with regard to the Prelimi-
nary Objections raised by the Spanish Government;

4
BARCELONA TRACTION (ORDER OF II XI 60) Igo

Whereas, by a letter dated 28 October 1960, the Agent for the
Belgian Government requested a four months extension of that
time-limit ;

Whereas, by a letter dated 2 November 1960, the letter of the
Agent for the Belgian Government was communicated to the
Agent for the Spanish Government, who was asked to make known
the views of that Government on the request of the Agent for the
Belgian Government ;

Whereas, by a letter dated 7 November 1960, the Agent for
the Spanish Government stated that that Government, placing
itself entirely in the hands of the Court as to the fixing of an exten-
sion of the time-limit, raised no objection to the Belgian request
and would regard it as fitting that the Court should find it possible
to accede to it;

THE CourRT

Extends to 5 April 1961 the time-limit for the filing of the Obser-
vations and Submissions of the Belgian Government with regard
to the Preliminary Objections raised by the Spanish Government.

Done in French and in English, the French text being authori-
tative, at the Peace Palace, The Hague, this eleventh day of
November, one thousand nine hundred and sixty, in three copies,
one of which will be placed in the archives of the Court and the
others transmitted to the Belgian Government and to the Spanish

«Government, respectively.

(Signed) Helge KLAESTAD,
President.

(Signed) GARNIER-COIGNET,
Registrar.


349

DISSENTING OPINION BY M. ANZILOTTI.

[Translation]

I consider that the Court should have declared that the
application submitted to it on April xith, 1932, by the Gov-
ernments of Great Britain, France, Italy and Japan, was
inadmissible; and had I to summarize in a few words the
reasons for my opinion, I should say that it is based on the
fact that this application does not embody the essential feat-
ures of a claim for legal redress and tends to force the Court
to deviate from the fundamental rules governing the activities
of a judicial body.

1.—The application begins with the following statement :

“The dismissal of the President of the Memel Directorate,
M. Bôttcher, the appointment of a Directorate presided over
by M. Simaitis and the dissolution of the Diet have given
rise to differences of opinion as to whether these acts are in
accordance with the Statute of the Memel Territory which
is annexed to the Convention of May 8th, 1924.”

It would appear that this statement should logically have
been followed by a request to the Court to pass upon certain
points of law or of fact, and possibly also to indicate certain
measures to which the applicant Powers believed themselves
entitled, in consequence of the facts above mentioned and
the differences of opinion to which they had led.

The application however asks the Court to decide:

‘“‘{x) whether the Governor of the Memel Territory has
the right to dismiss the President of the Directorate ;

(2) in the case of an affirmative decision, whether this
right only exists under certain conditions or in certain cir-
cumstances, and what those conditions or circumstances are;

(3) if the right to dismiss the President of the Directorate
is admitted, whether such dismissal involves the termination
of the appointments of the other members of the Directorate ;

(4) if the right to dismiss the President of the Directorate
only exists under certain conditions or in certain circumstances,
whether the dismissal of M. Béttcher, carried out on February 6th,
1932, is in order in the circumstances in which it took place;

8 59
DISSENTING OPINION BY M. ANZILOTTI 350

(5) whether, in the circumstances in which it took place,
the appointment of the Directorate presided over by M. Simaitis
is in order;

(6) whether the dissolution of the Diet, carried out by the
Governor of the Memel Territory on March 22nd, 1932, when
the Directorate presided over by M. Simaitis had not received
the confidence of the Diet, is in order’’.

Thus the application, instead of stating what the Applicants
believed themselves entitled to claim from the Court, puts
a series of questions to which the Court is asked to reply,
as though what was required was an advisory opinion.

2.—It is nevertheless certain that the applicant Powers
did not intend to ask the Court for an advisory opinion. In
formulating the above questions, the intention of the applic-
ant Powers was probably to indicate ‘‘the subject of the
dispute”, in accordance with Article 40 of the Statute and
Article 35 of the Rules of Court. But it is just this method
of specifying “the subject of the dispute” which renders the
application inadmissible.

In its judicial capacity, the Court cannot answer questions;
it must pass upon claims. The application mentioned in
Article 40 of the Statute and Article 35 of the Rules is
a claim for legal redress; and in such a claim the specifi-
cation of the subject of the dispute can only be a statement
of that which the Applicant wishes to obtain from the
Court and of the reasons of law or of fact on the basis
of which he feels entitled to obtain it (petitum et causa
petendi). A properly constituted action at law is only possible
if a claim is presented in this form, for an action is hardly
conceivable unless there is a person who makes against some
other person a claim upon which it is for the judge to pass
according to law.

3.—The foregoing leads to the following conclusion: The
Court could not answer the questions put in-the application,
because by so doing, it would be giving an advisory opinion
for which the applicant Powers were not entitled to ask and

which the Court was not entitled to give.
On the other hand, it may be asked whether the Court
could not base itself on the claims which the applicant Powers
60
DISSENTING OPINION BY M. ANZILOTTI 351

subsequently presented in the form of submissions in their
Memorial, in order to supplement or amend the application.
Certainly, this would have been the only means whereby it
might have been possible to. overcome the flaw in the proceed-
ings and to enable the Court to pass upon claims instead
of answering questions.

In a procedural system like that of the Court, which is
elastic and little rigid in form, and especially in a system where
the application is followed by other written documents, I am
inclined to hold that the Court may refer to documents sub-
sequent to the application, in order to make good omissions
or overcome defects in the instrument instituting proceedings.
It would seem that this principle should be applied more
especially when, as in the present case, the Party concerned
omits to adduce the conclusions which it might have drawn
from certain irregularities in the application.

I am, therefore, of opinion that if the Memorial had presented
to the Court, in the form of submissions, claims correspond-
ing to the points of the application and capable of elimin-
ating any doubt as to the subject of the suit, the Court
could have ignored the defects of the application and passed
upon the claims formulated in the Memorial.

But, to my mind, it is very doubtful whether that is so.
Since the submissions of the Memorial do not correspond with
the questions in the application, grave doubts remain as to
what the applicant Powers ask of the Court and as to the
position of the Respondent in regard to at least one of the
most important questions in the case.

4.—In this connection, the first four questions of the applica-
tion, which are reproduced above, should be compared with
the corresponding submissions (4) and (6) of the Memorial,
where the Applicants ask the Court to decide:

“(a) that the Governor of the Memel Territory has no
right to dismiss the President of the Directorate;

(0) that the termination of the appointment of the Pre-
sident of the Directorate does not ipso facto entail the term-
ination of the appointments of the other members of the
Directorate”.

Submission (a) corresponds to question 1 of the applica-
tion and states in the form of a claim what the application

61
DISSENTING OPINION BY M. ANZILOTTI 352

states in the form of a question. The same applies to
submission (0) in respect of question 3 of the application;
it should however be noted that the submission considerably
enlarges this question since, instead of confining itself, like
the latter, to the case of dismissal, it speaks generally of
the termination of the appointment of the President of the
Directorate. | |

But there is nothing in the submissions of the Memorial
which corresponds to questions 2 and 4 of the application.

The application clearly disclosed ‘a main plea—viz.
that there is no right on the part of the Governor to dis-
miss the President of the Directorate—and an alternative
plea—viz. that this right exists in certain conditions
or circumstances, which did not obtain in the case of
M. Béttcher’s dismissal. The main plea had as its object the
interpretation of the Statute of Memel, irrespective of the
case in point, the examination of which it made superfluous ;
the alternative plea related to the case in point and only
contemplated an interpretation of the Statute of Memel in
so far as that interpretation was necessary to establish that
M. Bôttcher’s dismissal was not in order.

In the submissions, the alternative plea has disappeared ;
the Applicants now merely ask the Court to say that there
is no right of dismissal, without even mentioning the case
in point; what they ask for therefore is a decision on an
abstract question of interpretation.

It is of course permissible to abandon part of a plea.
It should however be observed that in reply to a question
specially put to them on the point, the Agents of the applic-
ant Powers replied that their alternative plea had not been
abandoned, and it may be added that the question of the
legality of M. Bôttcher’s dismissal was discussed by them in
their oral arguments. No plea, however, was formulated,
and it was even stated at the hearings that the applicant
Powers did not feel able to define the conditions and cir-
cumstances contemplated by questions 2 and 4 of the applica-
tion: I do not therefore see upon what the Court could
give a ruling.

62
DISSENTING OPINION BY M. ANZILOTTI 353

5.—The obscurity in which the questions of the applica-
tion, the submissions of the Memorial and the statements
made at the public hearings by the Agents of the applicant
Powers have thus left an essential part of their suit, is all
the more serious in view of the respective positions of the
two Parties.

A reference to the points in the application shows that
the conclusions of the Lithuanian Counter-Memorial do not
go beyond a request for the dismissal of the claims of the
Applicants, so far as it was possible to ascertain these claims
from the facts adduced and the questions formulated in the
said application. Submission No. 2, which is given below,
perhaps constitutes an exception, but question No. 2 of the
application, to which this submission relates, is so vague and
indefinite that it is really very difficult to say whether, and
how far, the submission may involve a fresh claim.

The situation is altogether different if reference be made
to the submissions of the Memorial. As I have just said,
point 4 of the application, taken together with point 2—of
which point 4 is an application—do not reappear in these
submissions. On the other hand, the Respondent made the
‘ following submissions on these two points, in its Counter-
Memorial :

“(2) that, in any event, the Governor of the Memel Territory
is entitled to dismiss the President of the Directorate in the
following cases :

(a) when the President has committed acts which com-
promise the sovereignty or unity of the Lithuanian State ;

(6) when the President has encroached upon the powers
of the central authority ; -

(c) when the President has exercised his powers in dis-
regard of the principles of the Lithuanian Constitution ;

(@) when the President opposes the adoption by the local
authorities of the measures necessary to apply in the Memel
Territory international treaties concluded by Lithuania dealing
with matters which are within the competence of the local
authorities ;

(¢) when the President opposes the adoption by the local
authorities of the measures necessary to execute the provisions
of the Statute and of those laws of the Republic which are
applicable to the Territory;

63
DISSENTING OPINION BY M. ANZILOTTI 354

(4) that the dismissal of M. Bôttcher by the Governor of
Memel on February 6th, 1932, was, in the circumstances in
which it was effected, quite regular”.

If it be held, according to the application and the state-
ments of the Agents of the applicant Powers, that the latter
are asking the Court to declare that the dismissal of M. Bôttcher
was not in order in the circumstances in which it took
place, the Lithuanian Government remains in the position of
Respondent.

On the other hand, if regard be had to the submissions
of the Memorial, there is no claim that the Court should say
that the dismissal of M. Béttcher was not in order. In that
event, it is manifest that the Respondent could have con-
fined itself to requesting the Court to reject submission (a)
and to declare that the Governor of the Memel Territory
is entitled to dismiss the President of the Directorate. Sub-
missions 2 and 4 of the Lithuanian Counter-Memorial would, in
that case, extend the limits of the suit; they would consequently
appear to be in the nature of a counter-claim, submitted
with a view to obtaining an affirmation of the Governor’s
right to dismiss M. Béttcher, the President of the Directorate. :

6.—This point was, in my view, of fundamental—one might
even .say: of decisive importance for the issue of the
proceedings.

Though I am unable to concur either in the recitals or the
operative clause of the present judgment in respect of question
No. 1 of the application, I nevertheless agree with the
Court that there are certain exceptional cases in which
the Governor of the Memel Territory is entitled to dismiss the
President of the Directorate, either with a view to ensuring
the regular operation of the Memel constitutional system (see
Art. ro, 12 and 17 of the Statute) or as a necessary means of
defence against the consequences of a given act (see sd,
Art. 16).

The question whether the right of dismissal has been exercised
in a regular manner by the Governor in M. Béttcher’s case
depends therefore, to a great extent, on certain circumstances
of fact, in particular on the character and subject of the
conversations which had taken place at Berlin between
M. Bôttcher and certain German officials.

64
DISSENTING OPINION BY M. ANZILOTTI 355

The first problem which arises—and without a solution of
which it is impossible to arrive at a conclusion by judicial
methods—is, accordingly, upon which of the Parties does the
burden of proof rest. |

Was there a burden of proof on the applicant Powers to
show that the conversations at Berlin were purely of a private
character—as was alleged by M. Bôttcher himself, and by
the representative of the German Government on the Council
of the League of Nations? Or was the onus on the Lithua-
nian Government, as the counter-claimant, to prove that these
conversations possessed that political character, contrary to
the interests of Lithuania, which the Governor had regarded
as justifying him in dismissing M. Bôttcher ? In my view, the
whole question turned on this point of procedure: I willingly
admit that the applicant Powers did not furnish satisfactory
evidence in support of their case; but it is quite impossible
to-find in the documents adduced by the Lithuanian Govern-
ment anything more than rather vague indications, merely
serving as material for conjecture.

In these circumstances, it seems difficult to admit that
the Court could ignore the defects of the application. The
truth seems to be, rather, that the seriousness of the
initial irregularity of the application instituting proceedings has
become increasingly manifest during the subsequent proceedings.
In my view, all that the Court could do was to take note of
this irregularity and declare that it would not entertain the
application. |

7.—The foregoing observations apply strictly speaking to
points 2 and 4 of the application. As regards points I,
5 and 6, I hold that the Court could have given judgment
upon submissions (a), (c) and (d) of the Memorial, which
exactly correspond to the above-named points, while, at
the same time, defining in more precise terms the claim of
the applicant Powers. In regard to point 3 of the applica-
tion and submission (b) of the Memorial, I am also willing
to admit that the Court could have given judgment on this
submission, confining it, however, to the case of dismissal.
DISSENTING OPINION BY M. ANZILOTTI 356

It must however be remembered that in actual fact, as
well as in the intention of the Applicants, the various ques-
tions in the application are closely bound up with one another
and form an indivisible whole with its basis or starting-
point in the dismissal of M. Béttcher. Once the Court had
rejected the Applicants’ argument concerning the abstract
interpretation of the Statute of Memel (submission @ of the
Memorial), the concrete question whether M. Bôttcher’s dis-
missal was in order became the crux of the case. After the
applicant Powers had declared that the so-called alternative
claim set out in points 2 and 4 of the application was main-
tained, it was hardly possible for the Court to confine its
decision to the other claims, which had been adequately stated
in the submissions of the Memorial. The Court should there-
fore have declared that the application in its entirety was
inadmissible.

(Signed) D. ANZILOTTI.

66