                                                                           284

          DÉCLARATION DE M. LE JUGE SKOTNIKOV

[Traduction]

                                COMPÉTENCE
   1. La Cour a jugé que les Parties avaient accepté sa compétence pour
connaître des demandes formulées dans la requête de Djibouti dans son
ensemble. Je souscris à cette conclusion.
   2. Je ne puis cependant souscrire à l’interprétation que fait la Cour de
la lettre par laquelle la France a consenti à sa compétence, selon laquelle
seraient exclus des faits découlant directement des questions qui consti-
tuent l’objet de la requête mais ayant eu lieu après le dépôt de celle-ci.
   3. La France précise que son acceptation « ne vaut qu’aux fins de
l’affaire », pour « le différend qui fait l’objet de la requête et dans les
strictes limites des demandes formulées dans celle-ci ». Il ressort selon
moi de la simple lecture des termes mêmes de la lettre de la France que
le défendeur n’a pas exclu de la compétence de la Cour les faits nou-
veaux s’inscrivant dans l’affaire telle que celle-ci a été présentée dans
la requête.
   4. En exprimant son consentement, la France n’a pas « gelé » le diffé-
rend alors en cours. A l’évidence, les demandes formulées dans la requête
de Djibouti à l’égard desquelles, ainsi que l’a indiqué la Cour, la France
a consenti à sa compétence se rapportent au différend en cours. Par
exemple, dans les demandes formulées au paragraphe 4 de sa requête,
Djibouti prie la Cour de dire et juger :
      « e) que la République française a l’obligation juridique interna-
            tionale de veiller à ce que le chef d’Etat de la République
            de Djibouti en tant que chef d’Etat étranger ne soit pas l’objet
            d’offenses et d’atteintes à sa dignité sur le territoire français ;
        f) que la République française a l’obligation juridique de veiller
            scrupuleusement au respect au regard de la République de Dji-
            bouti des principes et règles relatifs aux privilèges, prérogatives
            et immunités diplomatiques tels que reflétés dans la convention
            de Vienne du 18 avril 1961 sur les relations diplomatiques ».
   5. Il est clair que ces demandes se rapportent à des faits tant passés
que présents ou futurs. En outre, Djibouti prie la Cour de dire et juger :

     « h) que la République française est tenue de mettre fin immédiate-
          ment à la violation des obligations susmentionnées, et qu’à ce
          titre elle doit notamment :
     . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
          ii) retirer et mettre à néant les convocations en qualité de

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     QUESTIONS CONCERNANT L’ENTRAIDE JUDICIAIRE (DÉCL. SKOTNIKOV)        285

              témoins assistés du chef d’Etat de la République de Dji-
              bouti et de ressortissants djiboutiens jouissant d’une protec-
              tion internationale pour subornation de témoins dans
              l’Affaire contre X du chef d’assassinat sur la personne de
              Bernard Borrel » (les italiques sont de moi).

   6. A l’évidence, les convocations ne sont mentionnées dans la requête
qu’à titre d’exemples des violations alléguées auxquelles la France doit
remédier. La demande de Djibouti selon laquelle la France a l’obligation
juridique de « mettre fin » à la violation des obligations mentionnées dans
la requête ne se réduit certainement pas à cela.
   7. La Cour ayant conclu que la France avait accepté sa compétence à
l’égard des demandes formulées dans la requête de Djibouti dans son
ensemble, elle aurait dû juger qu’elle avait compétence pour connaître des
faits ultérieurs — lesquels font partie du différend — et ce, même s’ils
sont survenus après le dépôt de la requête. Cela aurait été conforme à sa
jurisprudence (voir Compétence en matière de pêcheries (République
fédérale d’Allemagne c. Islande), fond, arrêt, C.I.J. Recueil 1974, p. 203,
par. 72 ; LaGrand (Allemagne c. Etats-Unis d’Amérique), arrêt, C.I.J.
Recueil 2001, p. 483-484, par. 45 ; voir également Certaines terres à phos-
phates à Nauru (Nauru c. Australie), exceptions préliminaires, arrêt,
C.I.J. Recueil 1992, p. 264-267, par. 69-70 ; et Mandat d’arrêt du 11 avril
2000 (République démocratique du Congo c. Belgique), arrêt, C.I.J.
Recueil 2002, p. 16, par. 36), jurisprudence qu’elle a écartée aux paragra-
phes 87 et 88 de l’arrêt au motif que sa compétence en l’espèce était fon-
dée sur la règle du forum prorogatum.

   8. Je ne vois pas pourquoi cette jurisprudence ne serait pas pertinente
en la présente affaire ou, d’une manière générale, dans les affaires en les-
quelles la règle du forum prorogatum s’applique.
   9. Pour ces raisons, je suis en désaccord avec la décision de la Cour de
ne pas s’estimer compétente à l’égard des mandats d’arrêt décernés à
l’encontre de deux hauts fonctionnaires djiboutiens le 27 septembre 2006.
   10. Pour des raisons rigoureusement identiques, j’approuve la conclu-
sion de la Cour selon laquelle celle-ci a compétence pour statuer sur le
différend relatif à la convocation en tant que témoin adressée le 14 février
2007 au président de Djibouti (soit après le dépôt de la requête). Toute-
fois, il est bien évident que je ne souscris pas au raisonnement de la Cour
sur ce point.
   11. La Cour a estimé avoir compétence à l’égard de cette convocation
au motif qu’il s’agissait d’une simple répétition de la précédente — laquelle
est mentionnée dans la requête —, quoique la forme en eût été recti-
fiée. La Cour estime qu’il « s’agit en substance de la même convoca-
tion » (arrêt, par. 95). Il est sous-entendu que la deuxième convocation
était donc « manifeste » pour la France lorsque celle-ci a donné son
consentement et que la Cour, partant, a compétence à l’égard de cette
convocation.

                                                                         112

     QUESTIONS CONCERNANT L’ENTRAIDE JUDICIAIRE (DÉCL. SKOTNIKOV)           286

   12. La deuxième convocation n’était cependant pas une répétition de
la première. La France a indiqué, au sujet de la première, que « cet acte de
procédure, auquel aucune suite n’a[vait] été donnée, [était] en droit fran-
çais nul et non avenu » (CR 2008/5, p. 28, par. 17). Or, peut-il y avoir
« répétition » d’un acte nul et non avenu ?
   13. A l’évidence, la convocation du 14 février 2007 est un nouvel acte
juridique qui, selon la France, « par contraste avec la convocation du
17 mai 2005, ... respecte scrupuleusement les dispositions de l’article 656
du Code de procédure pénale » (ibid., p. 37, par. 39).
   14. Le fait d’étendre la compétence de la Cour à ce nouvel acte serait
conforme à sa jurisprudence mentionnée au paragraphe 7 ci-dessus, puis-
que cela ne modifierait pas la nature du différend. En effet, la continuité
et la connexité avec la convocation précédente sont évidentes.
   15. Paradoxalement, l’insistance que met la Cour à considérer la
seconde convocation comme une répétition de la première ne fait que
confirmer la pertinence et l’applicabilité de sa jurisprudence relative à la
continuité et à la connexité (la répétition n’est-elle pas une manifestation
de la continuité et de la connexité ?), qui, d’après la conclusion formulée
au paragraphe 88 de l’arrêt, serait pourtant dépourvue de pertinence en
l’espèce.

                                    FOND

   16. La Cour a jugé que les deux invitations à témoigner adressées au
président de Djibouti ne constituaient pas une atteinte, de la part de la
France, aux immunités de juridiction pénale dont jouit le chef de l’Etat.
   17. Par ailleurs, aux paragraphes 175 et 180 de l’arrêt, la Cour a
conclu que, s’il avait été prouvé que les informations relatives à ces actes
de procédure, lesquels ne portaient pas atteinte aux immunités du prési-
dent de Djibouti, avaient été communiquées à la presse par des instances
judiciaires françaises, cela aurait pu constituer une violation par la France
de ses obligations internationales.
   18. A cet égard, la Cour rappelle la règle de droit international coutu-
mier codifiée à l’article 29 de la convention de Vienne sur les relations
diplomatiques. Cet article, qui est a fortiori applicable au chef de l’Etat,
se lit comme suit :
        « La personne de l’agent diplomatique est inviolable. Il ne peut
     être soumis à aucune forme d’arrestation ou de détention. L’Etat
     accréditaire le traite avec le respect qui lui est dû, et prend toutes
     mesures appropriées pour empêcher toute atteinte à sa personne, sa
     liberté et sa dignité. »
   19. Il est vrai que l’article 29 « se traduit par des obligations positives à
la charge de l’Etat d’accueil, pour ce qui est des actes de ses propres auto-
rités » (arrêt, par. 174). Cependant, je ne vois pas en quoi la communica-
tion aux médias d’informations concernant un acte de procédure — lequel,

                                                                            113

     QUESTIONS CONCERNANT L’ENTRAIDE JUDICIAIRE (DÉCL. SKOTNIKOV)          287

ainsi que l’a indiqué la Cour, ne constitue pas une violation de l’article 29
de la convention de Vienne — pourrait être considérée comme une viola-
tion de cette même disposition.
   20. Pour l’essentiel, Djibouti tire grief d’une campagne médiatique
menée par la partie civile et les instances judiciaires françaises contre son
président. Certes, la couverture médiatique peut effectivement avoir été
préjudiciable au président de Djibouti. Toutefois, l’article 29 se rapporte
à l’inviolabilité de la personne du chef de l’Etat. Il ne protège pas les inté-
ressés contre des commentaires défavorables dans les médias.
   21. Ainsi que la Cour l’a indiqué dans le présent arrêt, « pour apprécier
s’il y a eu atteinte ou non à l’immunité du chef de l’Etat, il faut vérifier si
celui-ci a été soumis à un acte d’autorité contraignant ; c’est là l’élément
déterminant » (arrêt, par. 170). Une campagne médiatique dirigée contre
un chef d’Etat étranger, quand bien même elle serait fondée sur des fuites
des autorités de l’Etat d’accueil, ne saurait en elle-même être considérée
comme un acte d’autorité contraignant.
   22. Dès lors, selon moi, s’il avait été prouvé que les informations en
question avaient été communiquées à la presse par les instances judi-
ciaires françaises, cela aurait pu, compte tenu des circonstances de la
présente espèce, constituer un manquement par la France à son obliga-
tion d’agir selon la courtoisie due à un chef d’Etat étranger et non une
violation des obligations lui incombant en vertu du droit international.

                                             (Signé) Leonid SKOTNIKOV.

                                                                           114


INTERNATIONATL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING RIGHTS OF
NATIONALS OF THE UNITED STATES

OF AMERICA IN MOROCCO
(FRANCE / UNITED STATES OF AMERICA)

ORDER OF OCTOBER 31st, 1951

1951

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE AUX DROITS
DES RESSORTISSANTS
DES ETATS-UNIS D’AMERIQUE

AU MAROC
(FRANCE / ETATS-UNIS D’AMERIQUE)

ORDONNANCE DU 31 OCTOBRE 1951

SOCIETE D’EDITIONS A. W. SIJTHOFF’S

LEYDE LEYDEN
A. W. SIJTHOFF PUBLISHING COMPANY _
This Order should be cited as follows :

“Case concerning rights of nationals of the United States
of America in Morocco, Order of October 31st, I051 :
I.C. J. Reports 1951, p. 109.”

La présente ordonnance doit étre citée comme suit:

« Affaire relative aux droits des ressortissants
des États-Unis d'Amérique au Maroc, Ordonnance du
3x octobre 1957: C. I. J. Recueil 1951, p. 10g.»

N° de vente : 79
Sales number

109

INTERNATIONAL COURT OF JUSTICE

1951
October 31st

General List : YEAR 1951

No. ira

October 31st, 1951

CASE CONCERNING RIGHTS OF
NATIONALS OF THE UNITED STATES

OF AMERICA IN MOROCCO
(FRANCE / UNITED STATES OF AMERICA)

ORDER

Present : Vice-President GUERRERO, Acting President for this case ;
President BAaSDEVANT; Judges ALVAREZ, HACKWORTH,
WINIARSKI, ZORICIÉ, DE VisscHER, Sir Arnold McNarr,
KLAESTAD, BADAWI PasHa, READ, Hsu Mo; Registrar
HAMBRO.

The International Court of Justice,
composed as above,
after deliberation,

having regard to Article 48 of the Statute of the Court,
having regard to Articles 62 and 69 of the Rules of Court,
Makes the following Order :

Having regard to the Preliminary Objection in the case con-
cerning rights of nationals of the United States of America in

4
Iro ORDER OF 31 X 51 (U.S. NATIONALS IN MOROCCO)

Morocco, filed by the United States Government on June 21st,
1951, that is to say, within the time-limit fixed for the filing by
that Government of the Counter-Memorial in that case ;

Having regard to the Order of June 25th, 1951, fixing August 6th,
1951, as the time-limit for the presentation by the Government
of the French Republic of a written statement of its observations
and submissions in regard to the Objection ;

Having regard to the said written statement, presented within
the time-limit fixed ;

Having regard to the decision of the Court of October 4th, 1951,
requesting the Agent for the Government of the French Republic
to clarify the capacity in which the French Republic was pro-
ceeding in that case, and, in particular, to specify whether it was
appearing both on its own account and as Protecting Power in
Morocco ;

Having regard to the letter dated October 6th, 1951, which
reached the Registry on October gth, and of which a copy was the
same day sent to the Agent for the Government of the United
States of America, by which the Agent for the Government of the
French Republic, in answer to the Court’s request, stated that the
Government of the French Republic was prepared, in order to
dispel the doubts remaining in the mind of the Government of the
United States of America, to supplement its observations and
submissions in regard to the Objection by specifying that the
French Republic was proceeding in the case both on its own
account and as Protecting Power in Morocco, the judgment of the
Court to be binding upon France and Morocco ;

Whereas by a letter dated October 22nd, 1951, which reached
the Registry on October 25th, the Agent for the Government of the
United States of America referred to the letter, dated October 6th,
from the Agent for the Government of the French Republic,
and stated that, having regard to the terms of that letter, the
Government of the United States of America was prepared to
withdraw its Objection ;

Whereas by a letter dated October 25th, 1951, a copy of the
communication from the Agent for the Government of the United
States of America was transmitted to the Agent for the Government
of the French Republic, who was requested, pursuant to Article 69
of the Rules, to state as soon as possible whether he opposed this
withdrawal ;

Whereas by a letter dated October 27th, 1951, which reached
the Registry on October 29th, the Agent for the Government of
the French Republic stated that he did not oppose the withdrawal
of the Objection ;
III ORDER OF 31 X 51 (U.S. NATIONALS IN MOROCCO)

THE COURT

places on record the discontinuance by the Government of the
United States of America of the proceedings instituted by the
Preliminary Objection filed on June 21st, 1957;

orders that the said proceedings shall be removed from the
Court’s list ;

records that the proceedings on the merits, suspended by the
Objection, are resumed ;

fixes as time-limits for the filing of

the Counter-Memorial of the Government of the United States
of America, December 2oth, 1951;

the Reply of the Government of the French Republic, Febru-
ary 15th, 1952;

the Rejoinder of the Government of the United States of America,
April rrth, 1952.

Done in English and French, the English text being authoritative,
at the Peace Palace, The Hague, this thirty-first day of October,
one thousand nine hundred and fifty-one, in three copies, of which
one will be placed in the Archives of the Court and the others will
be transmitted to the Governments of the United States of America
and of the French Republic respectively.

(Signed) J. G. GUERRERO,
Vice-President.

(Signed) E. HAMBRO,
Registrar.


621

JOINT DECLARATION OF VICE-PRESIDENT RANJEVA,
JUDGES GUILLAUME, HIGGINS, KOOIJMANS,
AL-KHASAWNEH, BUERGENTHAL AND ELARABY

[English Original Text]

Various objections to the jurisdiction of the Court — Freedom of choice of
the Court — Guiding criteria: consistency; certitude; implications for the other
pending cases — Judgment of the Court inappropriately based on its lack of
jurisdiction ratione personae — Judgment incompatible with previous decisions
of the Court.

1. We have voted in favour of the dispositif of the Judgment because,
at the end of the day, we each agree that this case cannot, as a matter of
law, proceed to the merits. Nevertheless, we profoundly disagree with the
reasoning upon which the Judgment rests, in particular the ground upon
which the Court has found it has no jurisdiction.

2. It is not unusual that, in a case, the Court has the possibility of
determining its jurisdiction on more than one ground (Right of Passage
over Indian Territory, Preliminary Objections, Judgment, I.C.J Reports
1957, pp. 129-134; Aerial Incident of 27 July 1955 (Israel v. Bulgaria),
Judgment, I.C.J. Reports 1959, pp. 132-134; Land and Maritime Bound-
ary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary
Objections, Judgment, I. C.J Reports 1998, pp. 284-289; Aerial Incident
of 10 August 1999 (Pakistan v. India), Jurisdiction, Judgment, I. CJ.
Reports 2000, pp. 19-24). Submissions may have been made to the Court
that it lacks jurisdiction by reference to more than one of the common
bases of jurisdiction (that is to say, ratione personae, ratione materiae,
ratione temporis). If the Court finds that, on two or more grounds, its
jurisdiction is not well founded, it may choose the most appropriate
ground on which to base its decision of lack of competence. The Court
does not necessarily first have to dispose of the conditions laid down in
Article 35 of the Statute, dealing only later with the conditions laid down
in Articles 36 and 37.

3. The choice of the Court has to be exercised in a manner that reflects
its judicial function. That being so, there are three criteria that must
guide the Court in selecting between possible options. First, in exercising
its choice, it must ensure consistency with its own past case law in order
to provide predictability. Consistency is the essence of judicial reasoning.
This is especially true in different phases of the same case or with regard
to closely related cases. Second, the principle of certitude will lead the
Court to choose the ground which is most secure in law and to avoid a
ground which is less safe and, indeed, perhaps doubtful. Third, as the
principal judicial organ of the United Nations, the Court will, in making

50
LEGALITY OF USE OF FORCE (JOINT DECL.) 622

its selection among possible grounds, be mindful of the possible implica-
tions and consequences for the other pending cases.

4. In the earlier phase of the present case — as in other cases relating
to events after the break-up of the Socialist Federal Republic of Yugo-
slavia — the Court had chosen to base itself on jurisdictional considera-
tions ratione temporis and ratione materiae.

5. In this respect it should first be recalled that when the Court gave an
Order of 2 June 1999, in response to a request by the Federal Republic of
Yugoslavia for the indication of provisional measures, in which it found
that it lacked prima facie jurisdiction to rule on Yugoslavia’s Applica-
tion, it did so on quite different grounds from the one on which the Court
has based itself in the present decision.

6. In the Orders concerning Belgium, Canada, Netherlands, Portugal
and the United Kingdom, the Court observed that Yugoslavia’s declara-
tion accepting the compulsory jurisdiction of the Court under Article 36,
paragraph 2, of the Statute, had been filed with the United Nations
Secretary-General on 26 April 1999 (three days before the institution of
proceedings). In that declaration, Yugoslavia recognized, on condition
of reciprocity, “the jurisdiction of the said Court in all disputes arising
or which may arise after the signature of the present Declaration,
with regard to the situations or facts subsequent to this signature”.

The Court found that the Application was directed, in essence, against
the bombing of Yugoslav territory by several members of NATO. It
observed that the bombings began on 24 March 1999. Accordingly, it
considered that the disputes before it had arisen some time prior to
25 April 1999. The Court further recalled its established jurisprudence
whereby any limitation ratione temporis attached by one of the parties to
its declaration of acceptance of the Court’s jurisdiction “holds good as
between the Parties” and concluded from this that the declaration of
Yugoslavia, taken in conjunction with those made by the Parties which
had also accepted the Court’s jurisdiction under Article 36, paragraph 2,
of the Statute, did not constitute a basis on which its jurisdiction could
prima facie be founded (see, for example, case concerning Legality of Use
of Force ( Yugoslavia v. Belgium), Order of 2 June 1999, C.J. Reports
1999 (I), p. 135, para. 30). The Court, thus lacking prima facie jurisdic-
tion ratione temporis, concluded that it did not need to examine whether
Yugoslavia was or was not a Member of the United Nations and a party
to the Statute in 1999, or whether on such basis it had jurisdiction ratione
personae.

7. In all the Orders, the Court next noted that Yugoslavia and certain
of the respondent States were parties to the United Nations Genocide
Convention without reservation. It recalled the definition of genocide as
stated in the Convention and observed that, according to that definition,

51
LEGALITY OF USE OF FORCE (JOINT DECL.) 623

“[the] essential characteristic [of genocide] is the intended destruction of
‘a national, ethnical, racial or religious group’” (.C.J. Reports 1999 (1),
p. 138, para. 40). In the Court’s view, it did not appear “at the present
stage of the proceedings that the bombings which form the subject of the
Yugoslav Application ‘indeed entail the element of intent, towards a
group as such, required by the provision quoted above’” (ibid., p. 138,
para. 40).

8. Based on different reasoning, the Court has now confirmed that
it lacks jurisdiction to entertain the claims presented by Serbia and
Montenegro. It began by finding that Serbia and Montenegro, on
29 April 1999, was not a Member of the United Nations and not a party
to the Statute. It concluded therefrom that the Court was not open to
Serbia and Montenegro under Article 35, paragraph 1, of the Statute.

Moreover, the Court considered that Article 35, paragraph 2, of the
Statute enabled States not parties to the Statute to appear before the
Court only by virtue of treaties concluded prior to the entry into force of
the Statute. It observed that the Genocide Convention entered into force
at a later date, on 12 January 1951. It thus concluded that Article 35,
paragraph 2, did not grant Serbia and Montenegro access to the Court
under Article IX of the Convention. Accordingly, the Court was not
called upon to decide “whether Serbia and Montenegro was or was not a
party to the Genocide Convention” when the Applications were filed. In
any event, the Court was, once again, not open to Serbia and Monte-
negro.

In sum, and contrary to its position in 1999, the Court has thus pre-
ferred to rule on its jurisdiction ratione personae, without even examining
the questions of jurisdiction ratione temporis and ratione materiae on
which it had previously pronounced prima facie.

9. This change of position is all the more surprising as the reasoning
now adopted by the Court is at odds with judgments or orders previously
rendered by the Court.

10. We would first observe that the question whether Yugoslavia was
a Member of the United Nations and as such a party to the Statute
between 1992 and 2000, remained a subject of debate during that period.
The Court declined to settle the issue, both in 1993 (Application of the
Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro) ), Pro-
visional Measures, I.C.J. Reports 1993, p. 14, para. 18) and in 1999 when
issuing its Order on provisional measures (Legality of Use of Force
( Yugoslavia v. Belgium), Order of 2 June 1999, I.C.J. Reports 1999 (I),
p. 136, para. 33). It then confined itself to stating that the solution
adopted in this respect by Security Council resolution 757 (1992) and
General Assembly resolution 47/1 was “not free from legal difficulties”
(Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and

52
LEGALITY OF USE OF FORCE (JOINT DECL.) 624

Montenegro)), Provisional Measures, I.C.J. Reports 1993, p. 14,
para. 18).

Subsequent to the admission of Serbia and Montenegro to the United
Nations on 1 November 2000, the Court had to consider the question
whether that admission clarified the previous position. The Court then
found, in its Judgment of 3 February 2003, that

“resolution 47/1 did not inter alia affect the Federal Republic of
Yugoslavia’s right to appear before the Court or to be a party to a
dispute before the Court under the conditions laid down by the Stat-
ute” (Application for Revision of the Judgment of 11 July 1996 in the
Case concerning Application of the Convention on the Prevention
and Punishment of the Crime of Genocide (Bosnia and Herze-
govina v. Yugoslavia), Preliminary Objections ( Yugoslavia v. Bosnia
and Herzegovina), I.C.J. Reports 2003, p. 31, para. 70).

The Court added that

“General Assembly resolution 55/12 of 1 November 2000 cannot
have changed retroactively the sui generis position which the Federal
Republic of Yugoslavia found itself in vis-a-vis the United Nations
over the period 1992 to 2000, or its position in relation to the Statute
of the Court” (ibid., para. 71).

The Court thus previously found in 2003 that the Federal Republic of Yugo-
slavia could appear before the Court between 1992 and 2000 and that this
position was not changed by its admission to the United Nations in 2002.

11. Further, the interpretation given in the present Judgment of
Article 35, paragraph 2, of the Statute also appears to us to be at odds
with the position previously adopted by the Court in its Order of 8 April
1993, where it considered that

“proceedings may validly be instituted by a State against a State
which is a party to such a special provision in a treaty in force, but
is not party to the Statute, and independently of the conditions laid
down by the Security Council in its resolution 9 of 1946” / Applica-
tion of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia
and Montenegro) ), Provisional Measures, Order of 8 April 1993,
1. C.J. Reports 1993, p. 14, para. 19).

It is moreover astonishing that the Court found it necessary to rule on
the scope of Article 35, paragraph 2, whereas the Applicant did not
invoke this text.

12. Turning to the second criterion that the Court should apply in
selecting between alternative grounds for its decision — that of certi-
tude — we also find this not to be reflected in the ground chosen by the
Court today. Nothing has occurred, in the series of cases concerning
Kosovo, since the Court’s last judgment in 2003, to suggest that the

53
LEGALITY OF USE OF FORCE (JOINT DECL.) 625

grounds previously chosen have now lost legal credibility. Further, the
grounds today selected by the Court are less certain than others open to
it. The Court has determined that the admission of the Applicant to the
United Nations in November 2000 “did not have, and could not have
had, the effect of dating back to the time when the Socialist Federal
Republic of Yugoslavia broke up and disappeared” (para. 77). The Court
has also stated that “the significance of this new development in 2000 is
that it has clarified the thus far amorphous legal situation concerning the
status of the Federal Republic of Yugoslavia vis-à-vis the United Nations”
(para. 78). Without specifying whether this “clarification” refers to the
period 1992-2000, the Court asserts that it has now become “clear that
the sui generis position of the Applicant could not have amounted to its
membership in the Organization”. We find this proposition far from self-
evident and we cannot trace the steps of the reasoning. Such grounds
seem to us to be less legally compelling and therefore less certain, and
more open to different points of view, than the grounds relied upon by
the Court thus far and which are now set aside by the Court.

13. We have referred also to the care that the Court must have, in
selecting one among several possible grounds for a decision on jurisdic-
tion, for the implications and possible consequences for other cases. In
that sense, we believe that paragraph 39 of the Judgment does not
adequately reflect the proper role of the Court as a judicial institution.
The Judgment thus goes back on decisions previously adopted by the
Court, whereas it was free to choose the ground upon which to base them
and was under no obligation to rule in the present case on its jurisdiction
ratione personae. Moreover, this approach appears to leave some doubt
as to whether Yugoslavia was a party, between 1992 and 2000, to the
United Nations Genocide Convention. Such an approach could call into
question the solutions adopted by the Court with respect to its jurisdic-
tion in the case brought by Bosnia and Herzegovina against Serbia and
Montenegro for the application of the Genocide Convention. We regret
that the Court has decided to take such a direction.

(Signed) Raymond RANJEVA.
(Signed) Gilbert GUILLAUME.
(Signed) Rosalyn Hiccins.
(Signed) Pieter KOOIMANS.
(Signed) Awn Shawkat AL-KHASAWNEH.
(Signed) Thomas BUERGENTHAL.
(Signed) Nabil ELARABY.

54


                             COUR INTERNATIONALE DE JUSTICE

                                RECUEIL DES ARRÊTS,
                         AVIS CONSULTATIFS ET ORDONNANCES

               CERTAINES ACTIVITÉS MENÉES PAR LE NICARAGUA
                       DANS LA RÉGION FRONTALIÈRE
                              (COSTA RICA c. NICARAGUA)

                    CONSTRUCTION D’UNE ROUTE AU COSTA RICA
                          LE LONG DU FLEUVE SAN JUAN
                              (NICARAGUA c. COSTA RICA)

                            DEMANDES RECONVENTIONNELLES

                            ORDONNANCE DU 18 AVRIL 2013

                                    2013
                             INTERNATIONAL COURT OF JUSTICE

                              REPORTS OF JUDGMENTS,
                           ADVISORY OPINIONS AND ORDERS

               CERTAIN ACTIVITIES CARRIED OUT BY NICARAGUA
                           IN THE BORDER AREA
                              (COSTA RICA v. NICARAGUA)

                     CONSTRUCTION OF A ROAD IN COSTA RICA
                          ALONG THE SAN JUAN RIVER
                              (NICARAGUA v. COSTA RICA)

                                   COUNTER-CLAIMS

                                ORDER OF 18 APRIL 2013

6 CIJ 1045.indb 1                                             5/06/14 09:42

                                              Mode officiel de citation :
                        Certaines activités menées par le Nicaragua dans la région frontalière
                        (Costa Rica c. Nicaragua); Construction d’une route au Costa Rica
                               le long du fleuve San Juan (Nicaragua c. Costa Rica),
                             demandes reconventionnelles, ordonnance du 18 avril 2013,
                                              C.I.J. Recueil 2013, p. 200

                                                  Official citation :
                          Certain Activities Carried Out by Nicaragua in the Border Area
                         (Costa Rica v. Nicaragua); Construction of a Road in Costa Rica
                               along the San Juan River (Nicaragua v. Costa Rica),
                                     Counter-Claims, Order of 18 April 2013,
                                             I.C.J. Reports 2013, p. 200

                                                                                1045
                                                                   No de vente:
                    ISSN 0074-4441                                 Sales number
                    ISBN 978-92-1-071160-9

6 CIJ 1045.indb 2                                                                                5/06/14 09:42

                                                            18 AVRIL 2013

                                                            ORDONNANCE

                    CERTAINES ACTIVITÉS MENÉES PAR LE NICARAGUA
                            DANS LA RÉGION FRONTALIÈRE
                             (COSTA RICA c. NICARAGUA)

                      CONSTRUCTION D’UNE ROUTE AU COSTA RICA
                            LE LONG DU FLEUVE SAN JUAN
                             (NICARAGUA c. COSTA RICA)

                              DEMANDES RECONVENTIONNELLES

                    CERTAIN ACTIVITIES CARRIED OUT BY NICARAGUA
                                IN THE BORDER AREA
                             (COSTA RICA v. NICARAGUA)

                       CONSTRUCTION OF A ROAD IN COSTA RICA
                            ALONG THE SAN JUAN RIVER
                             (NICARAGUA v. COSTA RICA)

                                    COUNTER-CLAIMS

                                                            18 APRIL 2013

                                                              ORDER

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                                                                                200

                                 INTERNATIONAL COURT OF JUSTICE

                                                  YEAR 2013                                    2013
                                                                                18 April
                                                                                General List
                                                 18 April 2013                           Nos. 150 and 152

        CERTAIN ACTIVITIES CARRIED OUT BY NICARAGUA
                    IN THE BORDER AREA
                                      (COSTA RICA v. NICARAGUA)

                    CONSTRUCTION OF A ROAD IN COSTA RICA
                         ALONG THE SAN JUAN RIVER
                                      (NICARAGUA v. COSTA RICA)

                                            COUNTER‑CLAIMS

                                                   ORDER

                    Present : President Tomka ; Vice‑President Sepúlveda‑Amor ; Judges
                               Owada,     Abraham,    Keith,    Bennouna,   Skotnikov,
                               Cançado Trindade, Yusuf, Greenwood, Xue, Donoghue,
                               Gaja, Sebutinde, Bhandari ; Judges ad hoc Guillaume,
                               Dugard ; Registrar Couvreur.

                      The International Court of Justice,
                       Composed as above,
                       After deliberation,
                       Having regard to Article 48 of the Statute of the Court and to Arti-
                    cle 80 of the Rules of Court,

                                                                                4

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                            certain activities ; construction of a road (order 18 IV 13)    201

                      Makes the following Order :
                       Whereas :
                       1. By an Application filed in the Registry of the Court on 18 Novem-
                    ber 2010, the Government of the Republic of Costa Rica (hereinafter
                    “Costa Rica”) instituted proceedings against the Government of the
                    Republic of Nicaragua (hereinafter “Nicaragua”) in the case concerning
                    Certain Activities Carried Out by Nicaragua in the Border Area (Costa
                    Rica v. Nicaragua) (hereinafter referred to as the “Costa Rica v. Nicara-
                    gua case”) for “the incursion into, occupation of and use by Nicaragua’s
                    army of Costa Rican territory”, contending, in particular, that Nicaragua
                    had “in two separate incidents, occupied the territory of Costa Rica in
                    connection with the construction of a canal across Costa Rican terri-
                    tory . . . and certain related works of dredging on the San Juan River”.
                    Costa Rica alleges breaches by Nicaragua of its obligations towards
                    Costa Rica under a number of treaty instruments and other applicable
                    rules of international law, as well as under certain arbitral and judicial
                    decisions. In this regard, Costa Rica refers to the Charter of the United
                    Nations and the Charter of the Organization of American States ; the
                    Treaty of Territorial Limits between Costa Rica and Nicaragua of
                    15 April 1858 (hereinafter the “1858 Treaty of Limits”), namely, Arti-
                    cles I, II, V and IX ; the arbitral award issued by the President of the
                    United States of America, Grover Cleveland, on 22 March 1888 (herein-
                    after the “Cleveland Award”) ; the first and second arbitral awards ren-
                    dered by Edward Porter Alexander dated respectively 30 September 1897
                    and 20 December 1897 (hereinafter the “Alexander Awards”) ; the 1971
                    Convention on Wetlands of International Importance (hereinafter the
                    “Ramsar Convention”) ; and the Judgment of the Court of 13 July 2009
                    in the case concerning the Dispute regarding Navigational and Related
                    Rights (Costa Rica v. Nicaragua).

                       2. In its Application, Costa Rica invokes as a basis of the jurisdiction
                    of the Court Article XXXI of the American Treaty on Pacific Settlement
                    signed at Bogotá on 30 April 1948 (hereinafter the “Pact of Bogotá”). In
                    addition, Costa Rica seeks to found the jurisdiction of the Court on the
                    declaration it made on 20 February 1973 under Article 36, paragraph 2,
                    of the Statute, as well as on the declaration which Nicaragua made on
                    24 September 1929 (and amended on 23 October 2001) under Article 36
                    of the Statute of the Permanent Court of International Justice and which
                    is deemed, pursuant to Article 36, paragraph 5, of the Statute of the pres-
                    ent Court, for the period which it still has to run, to be acceptance of the
                    compulsory jurisdiction of this Court.
                       3. On 18 November 2010, having filed its Application, Costa Rica also
                    submitted a Request for the indication of provisional measures, pursuant
                    to Article 41 of the Statute and Articles 73 to 75 of the Rules of Court.

                      4. In accordance with Article 40, paragraph 2, of the Statute, the

                                                                                5

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                            certain activities ; construction of a road (order 18 IV 13)     202

                     egistrar communicated a signed copy of the Application forthwith to
                    R
                    the Government of Nicaragua ; and, under paragraph 3 of that Article,
                    all States entitled to appear before the Court were notified of the filing of
                    the Application.
                       5. Pursuant to the instructions of the Court under Article 43 of the
                    Rules of Court, the Registrar addressed to States parties to the Pact of
                    Bogotá and to the Ramsar Convention the notifications provided for in
                    Article 63, paragraph 1, of the Statute. In accordance with the provisions
                    of Article 69, paragraph 3, of the Rules of Court, the Registrar moreover
                    addressed to the Organization of American States the notification pro-
                    vided for in Article 34, paragraph 3, of the Statute. The Organization of
                    American States indicated that it did not intend to submit any observa-
                    tions in writing under Article 69, paragraph 3, of the Rules of Court.
                       6. By an Order of 8 March 2011, the Court indicated certain provi-
                    sional measures to both Parties.
                       7. By an Order of 5 April 2011, the Court fixed 5 December 2011 and
                    6 August 2012 as the respective time‑limits for the filing of a Memorial by
                    Costa Rica and a Counter‑Memorial by Nicaragua. The Memorial and
                    Counter‑Memorial were filed within the time‑limits thus fixed.

                       8. By an Application filed in the Registry of the Court on 22 Decem-
                    ber 2011, Nicaragua instituted proceedings against Costa Rica in the case
                    concerning Construction of a Road in Costa Rica along the San Juan River
                    (Nicaragua v. Costa Rica) (hereinafter referred to as the “Nicaragua v.
                    Costa Rica case”). The content of that Application and the procedural
                    history of that case are set out in the Court’s Orders dated 17 April 2013
                    joining the proceedings in that case with those in the Costa Rica v. Nica-
                    ragua case.
                       By a communication dated 17 April 2013, Mr. Simma, who had been
                    chosen by Costa Rica to sit as judge ad hoc in the Nicaragua v. Costa Rica
                    case, informed the Court of his decision to resign from his functions, fur-
                    ther to the above‑mentioned joinder of proceedings.

                       9. In Chapter 9 of its Counter‑Memorial filed in the Costa Rica v.
                    Nicaragua case, Nicaragua, making reference to Article 80 of the Rules of
                    Court, submitted four counter‑claims.
                       10. At a meeting held by the President of the Court with the represen-
                    tatives of the Parties on 19 September 2012, the Parties agreed not to
                    request the Court’s authorization to file a reply and a rejoinder in the
                    Costa Rica v. Nicaragua case. At the same meeting, and in a letter from
                    its Co‑Agent dated 19 September 2012, Costa Rica indicated that it con-
                    sidered the first three counter‑claims contained in the Counter‑Memorial
                    of Nicaragua to be inadmissible. Costa Rica further added that, while it
                    had no objection to the admissibility of the fourth counter‑claim, it
                    reserved the right to comment further on the substance of that counter‑
                    claim in the subsequent proceedings.

                                                                                6

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                         certain activities ; construction of a road (order 18 IV 13)    203

                    11. By letters dated 28 September 2012, the Registrar informed the
                 Parties that the Court had decided that the Government of Costa Rica
                 should specify in writing, by 30 November 2012 at the latest, the legal
                 grounds on which it relied in maintaining that the Respondent’s first
                 three counter‑claims were inadmissible, and that the Government of
                 Nicaragua should present its own views on the question in writing, by
                 30 January 2013 at the latest. Costa Rica and Nicaragua submitted their
                 written observations on the admissibility of Nicaragua’s counter‑claims
                 within the time‑limits thus fixed.
                    12. Having received full and detailed written observations from each
                 of the Parties, the Court considered that it was sufficiently well informed of
                 the positions they held as to the admissibility of Nicaragua’s counter‑
                 claims, and did not consider it necessary to hear the Parties further on the
                 subject.

                                                      *
                   13. At the end of its Application filed in the Costa Rica v. Nicaragua
                 case, Costa Rica set out its claims as follows :
                       “For these reasons, and reserving the right to supplement, amplify
                     or amend the present Application, Costa Rica requests the Court to
                     adjudge and declare that Nicaragua is in breach of its international
                     obligations as referred to in paragraph 1 of this Application as regards
                     the incursion into and occupation of Costa Rican territory, the ser
                     ious damage inflicted to its protected rainforests and wetlands, and
                     the damage intended to the Colorado River, wetlands and protected
                     ecosystems, as well as the dredging and canalization activities being
                     carried out by Nicaragua on the San Juan River.

                        In particular the Court is requested to adjudge and declare that, by
                     its conduct, Nicaragua has breached :
                     (a) the territory of the Republic of Costa Rica, as agreed and delim-
                         ited by the 1858 Treaty of Limits, the Cleveland Award and the
                         first and second Alexander Awards ;
                     (b) the fundamental principles of territorial integrity and the prohi-
                         bition of use of force under the Charter of the United Nations
                         and the Charter of the Organization of American States ;
                     (c) the obligation imposed upon Nicaragua by Article IX of the
                         1858 Treaty of Limits not to use the San Juan River to carry out
                         hostile acts ;
                     (d) the obligation not to damage Costa Rican territory ;

                     (e) the obligation not to artificially channel the San Juan River away
                         from its natural watercourse without the consent of Costa Rica ;
                     (f) the obligation not to prohibit the navigation on the San Juan
                         River by Costa Rican nationals ;

                                                                                7

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                        certain activities ; construction of a road (order 18 IV 13)    204

                     (g) the obligation not to dredge the San Juan River if this causes
                         damage to Costa Rican territory (including the Colorado River),
                         in accordance with the 1888 Cleveland Award ;

                     (h) the obligations under the Ramsar Convention on Wetlands ;

                     (i) the obligation not to aggravate and extend the dispute by adopt-
                         ing measures against Costa Rica, including the expansion of the
                         invaded and occupied Costa Rican territory or by adopting any
                         further measure or carrying out any further actions that would
                         infringe Costa Rica’s territorial integrity under international
                         law.”
                 Costa Rica also requests the Court to “determine the reparation which
                 must be made by Nicaragua, in particular in relation to any measures of
                 the kind referred to . . . above”.
                   14. At the end of its Memorial filed in the Costa Rica v. Nicaragua
                 case, Costa Rica made the following submissions :
                       “For these reasons, and reserving the right to supplement, amplify
                     or amend the present submissions :
                        1. Costa Rica requests the Court to adjudge and declare that, by
                     its conduct, Nicaragua has breached :
                     (a) the obligation to respect the sovereignty and territorial integrity
                          of the Republic of Costa Rica, within the boundaries delimited
                          by the 1858 Treaty of Limits and further defined by the Demar-
                          cation Commission established by the Pacheco‑Matus Conven-
                          tion, in particular by the first and second Alexander Awards ;

                     (b) the prohibition of use of force under Article 2 (4) of the United
                         Nations Charter and Articles 1, 19, 21 and 29 of the Charter of
                         the Organization of American States ;

                     (c) the obligation of Nicaragua under Article IX of the 1858 Treaty
                         of Limits not to use the San Juan to carry out hostile acts ;

                     (d) the rights of Costa Rican nationals to free navigation on the San
                         Juan in accordance with the 1858 Treaty of Limits, the Cleveland
                         Award and the Court’s Judgment of 13 July 2009 ;

                     (e) the obligation not to dredge, divert or alter the course of the San
                         Juan, or conduct any other works on the San Juan, if this causes
                         damage to Costa Rican territory (including the Colorado River),
                         its environment, or to Costa Rican rights in accordance with the
                         Cleveland Award ;
                     (f) the obligation to consult with Costa Rica about implementing
                         obligations arising from the Ramsar Convention, in particular the

                                                                                8

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                        certain activities ; construction of a road (order 18 IV 13)     205

                         obligation to co‑ordinate future policies and regulations concern-
                         ing the conservation of wetlands and their flora and fauna under
                         Article 5 (1) of the Ramsar Convention ; and
                     (g) the Court’s Order for Provisional Measures of 8 March 2011 ;

                     and further to adjudge and declare that Nicaragua is :
                     (h) obliged to cease such breaches and to make reparation therefor.

                       2. The Court is requested to order, in consequence, that Nicara-
                     gua :
                     (a) withdraw any presence, including all troops and other personnel
                         (whether civilian, police or security, or volunteers) from that part
                         of Costa Rica known as Isla Portillos, on the right bank of the
                         San Juan, and prevent any return there of any such persons ;

                     (b) cease all dredging activities on the San Juan in the area between
                         the point of bifurcation of the Colorado River and the San Juan
                         and the outlet of the San Juan in the Caribbean Sea (‘the area’),
                         pending :
                          (i) an adequate environmental impact assessment ;

                          (ii) notification to Costa Rica of further dredging plans for the
                               area, not less than three months prior to the implementation
                               of such plans ;
                         (iii) due consideration of any comments of Costa Rica made
                               within one month of notification ;

                     (c) not engage in any dredging operations or other works in the area
                         if and to the extent that these may cause significant harm to Costa
                         Rican territory (including the Colorado River) or its environ-
                         ment, or to impair Costa Rica’s rights under the Cleveland Award.

                       3. The Court is also requested to determine, in a separate phase,
                     the reparation and satisfaction to be made by Nicaragua.”
                   15. Nicaragua, for its part, made the following submissions at the end
                 of its Counter‑Memorial filed in the Costa Rica v. Nicaragua case :
                       “For the reasons given herein, the Republic of Nicaragua requests
                     the Court to :
                     (1) dismiss and reject the requests and submissions of Costa Rica in
                         her pleadings ;
                     (2) adjudge and declare that :
                          (i) Nicaragua enjoys full sovereignty over the caño joining Har-
                              bour Head Lagoon with the San Juan River proper, the right

                                                                                9

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                        certain activities ; construction of a road (order 18 IV 13)    206

                               bank of which constitutes the land boundary as established
                               by the 1858 Treaty as interpreted by the Cleveland and Alex-
                               ander Awards ;
                          (ii) Costa Rica is under an obligation to respect the sovereignty
                               and territorial integrity of Nicaragua, within the boundaries
                               delimited by the 1858 Treaty of Limits as interpreted by the
                               Cleveland and Alexander Awards ;
                         (iii) Nicaragua is entitled, in accordance with the 1858 Treaty as
                               interpreted by the subsequent arbitral awards, to execute
                               works to improve navigation on the San Juan River as it
                               deems suitable, and that these works include the dredging of
                               the San Juan de Nicaragua River ; and,
                         (iv) in so doing, Nicaragua is entitled as it deems suitable to re‑
                               establish the situation that existed at the time the 1858
                               Treaty was concluded ;
                          (v) the only rights enjoyed by Costa Rica on the San Juan de
                               Nicaragua River are those defined by [the] said Treaty as
                               interpreted by the Cleveland and Alexander Awards.
                        As to Nicaragua’s counter‑claims as specified in Chapter 9 of this
                     Counter‑Memorial, Nicaragua requests a declaration by the Court
                     that :
                     (1) Nicaragua has become the sole sovereign over the area formerly
                         occupied by the Bay of San Juan del Norte ;
                     (2) Nicaragua has a right to free navigation on the Colorado Branch
                         of the San Juan de Nicaragua River until the conditions of navi-
                         gability existing at the time the 1858 Treaty was concluded are
                         re‑established ;
                     (3) Costa Rica bears responsibility to Nicaragua
                      — for the construction of a road along the San Juan de Nicaragua
                         River in violation of Costa Rica’s obligations stemming from the
                         1858 Treaty of Limits and various treaty or customary rules relat-
                         ing to the protection of the environment and good neighbourli-
                         ness ; and
                      — for the non‑implementation of the provisional measures indicated
                         by the Court’s Order of 8 March 2011.

                        Compensation in the form of damages, should be awarded by the
                     Court in a subsequent phase of the case.
                        Nicaragua reserves its right to amend and modify these submissions
                     in the light of the further pleadings in this case.”

                                                     *
                   16. In its “written observations on the admissibility of Nicaragua’s
                 counter‑claims” in the Costa Rica v. Nicaragua case, Costa Rica deals

                                                                                10

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                          certain activities ; construction of a road (order 18 IV 13)     207

                 with those counter‑claims in an order that differs from the presentation
                 made by Nicaragua in the submissions of its Counter‑Memorial. In fact,
                 Costa Rica deals with the counter‑claim concerning the construction of a
                 road along the San Juan River under the heading of “The first counter‑
                 claim”, with the counter‑claim concerning the status of the Bay of San
                 Juan del Norte under the heading of “The second counter‑claim”, and
                 with the counter‑claim concerning the right of free navigation on the
                 Colorado River under the heading of “The third counter‑claim”. At the
                  end of its written observations, Costa Rica requests the Court “to deter-
                  mine that Nicaragua’s counter‑claims 1, 2 and 3 as presented in its Counter‑
                  Memorial, are inadmissible in these proceedings”.

                   With regard to the “fourth” counter‑claim, concerning alleged breaches
                 of the Court’s Order on Provisional Measures of 8 March 2011,
                 Costa Rica accepts that it is admissible, although it reserves the right to
                 deal with the merits of this counter‑claim in subsequent proceedings.

                   17. At the end of its “written observations on the admissibility of its
                 counter‑claims” in the Costa Rica v. Nicaragua case, Nicaragua requests
                 the Court to adjudge and declare that :
                        “— it has jurisdiction to decide on the counter‑claims made by
                           Nicaragua in its Counter‑Memorial ; and
                         — that these counter‑claims are admissible”.

                                                         *
                                                     *       *

                                           I. General Framework

                     18. Article 80 of the Rules of Court provides as follows :
                          “1. The Court may entertain a counter‑claim only if it comes
                       within the jurisdiction of the Court and is directly connected with the
                       subject‑matter of the claim of the other party.
                          2. A counter‑claim shall be made in the Counter‑Memorial and
                       shall appear as part of the submissions contained therein. The right
                       of the other party to present its views in writing on the counter‑claim,
                       in an additional pleading, shall be preserved, irrespective of any deci-
                       sion of the Court, in accordance with Article 45, paragraph 2, of these
                       Rules, concerning the filing of further written pleadings.

                          3. Where an objection is raised concerning the application of par-
                       agraph 1 or whenever the Court deems necessary, the Court shall take
                       its decision thereon after hearing the parties.”
                   19. It is not disputed that, in the Costa Rica v. Nicaragua case, Nicara-
                 gua’s claims are “counter‑claims” within the meaning of Article 80 of the

                                                                                11

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                         certain activities ; construction of a road (order 18 IV 13)   208

                 Rules of Court, since they are autonomous legal acts the object of which
                 is to submit new claims to the Court which are, at the same time, linked
                 to the principal claims, in so far as formulated as “counter” claims that
                 react to them (Application of the Convention on the Prevention and Punish-
                 ment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia),
                 Counter‑Claims, Order of 17 December 1997, I.C.J. Reports 1997, p. 256,
                 para. 27) ; nor is it disputed that the counter‑claims have been “made in
                 the Counter‑Memorial and [appear] as part of the submissions contained
                 therein”, in accordance with Article 80, paragraph 2, of the Rules of
                 Court.
                    20. Under Article 80, paragraph 1, of the Rules of Court, two require-
                 ments must be met for the Court to be able to entertain a counter‑claim
                 at the same time as the principal claim, namely, that the counter‑claim
                 “comes within the jurisdiction of the Court” and, that it “is directly con-
                 nected with the subject‑matter of the claim of the other party.” In earlier
                 pronouncements, the Court has characterized these requirements as relat-
                 ing to the admissibility of a counter‑claim as such (Oil Platforms (Islamic
                 Republic of Iran v. United States of America), Counter‑Claim, Order of
                 10 March 1998, I.C.J. Reports 1998, p. 203, para. 33 ; Armed Activities on
                 the Territory of the Congo (Democratic Republic of the Congo v. Uganda),
                 Counter‑Claims, Order of 29 November 2001, I.C.J. Reports 2001, p. 678,
                 para. 35). In this context, the Court has accepted that the term “admissi-
                 bility” must be understood to encompass both the jurisdictional require-
                 ment and the direct‑connection requirement (Jurisdictional Immunities of
                 the State (Germany v. Italy), Counter‑Claim, Order of 6 July 2010,
                 I.C.J. Reports 2010 (I), p. 316, para. 14).

                                                      *
                    21. Nicaragua, in its written observations in the Costa Rica v. Nicara-
                 gua case, follows the order of presentation of its counter‑claims as dealt
                 with by Costa Rica in its Written Observations (see paragraph 16 above).
                 It is therefore appropriate to follow that same order for the purposes of
                 the present Order.

                                         II. First Counter‑Claim

                    22. In its first counter‑claim, Nicaragua requests the Court to declare
                 that “Costa Rica bears responsibility to Nicaragua” for “the impairment
                 and possible destruction of navigation on the San Juan River caused by
                 the construction of a road next to its right bank” by Costa Rica in viola-
                 tion of its obligations stemming from the 1858 Treaty of Limits and vari-
                 ous treaty or customary rules relating to the protection of the environment
                 and good neighbourliness.

                                                                                12

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                         certain activities ; construction of a road (order 18 IV 13)     209

                    23. Costa Rica maintains that the first counter‑claim “is identical in
                 terms to, or plainly included in and covered by, the claim” made by Nica-
                 ragua in its Application instituting proceedings in the Nicaragua v. Costa
                 Rica case and that, consistent with a basic principle (electa una via),
                 under which two legal actions cannot be pursued simultaneously by the
                 same applicant against the same party for the same cause of action, it
                 cannot be open to a party to request the Court to condemn the same
                 State twice. Costa Rica refers, in this context, to Article IV of the Pact of
                 Bogotá, which reads as follows : “Once any pacific procedure has been
                 initiated, whether by agreement between the parties or in fulfilment of the
                 present Treaty or a previous pact, no other procedure may be commenced
                 until that procedure is concluded.”

                     24. The Court notes that, in the Nicaragua v. Costa Rica case, Nicara-
                 gua indeed put forward principal claims which in substance deal with the
                 same subject‑matter as its first counter‑claim in the Costa Rica v. Nicara-
                 gua case. As a result of the joinder of the proceedings in these two cases
                 (see paragraph 8 above), Nicaragua’s first counter‑claim in the Costa
                 Rica v. Nicaragua case is subsumed under its principal claim in the Nica-
                 ragua v. Costa Rica case relating to Costa Rica’s alleged responsibility for
                 “the impairment and possible destruction of navigation on the San Juan
                 River caused by the construction of a road next to its right bank”. This
                 claim is to be examined as a principal claim, within the context of the
                 joined proceedings, thereby eliminating the need to examine it as a
                 counter‑claim. In these circumstances, the first counter‑claim has become
                  without object, and the Court does not need to decide whether it is admis-
                  sible within the meaning of Article 80 of the Rules of Court. In view of the
                  foregoing, the Court need not address the question whether the consider-
                  ation of the first counter‑claim may be contrary to the rule stated in Arti-
                  cle IV of the Pact of Bogotá.

                                 III. Second and Third Counter‑Claims

                            1. Content of the Second and Third Counter‑Claims
                   25. In its second counter‑claim, Nicaragua asks the Court to declare
                 that it “has become the sole sovereign over the area formerly occupied by
                 the Bay of San Juan del Norte”. In its third counter‑claim, Nicaragua
                 requests the Court to find that “Nicaragua has a right to free navigation
                 on the Colorado Branch of the San Juan de Nicaragua River until the
                 conditions of navigability existing at the time the 1858 Treaty was
                 concluded are re‑established”.

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                                          2. Method of Examination
                     26. The Court notes, with regard to the second and third counter‑claims
                 of Nicaragua, that the respective arguments presented by the Parties con-
                 cerning the question of whether these counter‑claims come within the
                 jurisdiction of the Court and whether they are directly connected to the
                 subject‑matter of the claims of Costa Rica in the main proceedings are
                 similar if not identical. Therefore, it is appropriate to examine the second
                 and third counter‑claims jointly, keeping in mind, nevertheless, that they
                 are separate claims.
                     27. The requirements of admissibility under Article 80 of the Rules of
                 Court are cumulative ; each requirement must be satisfied for a counter‑
                 claim to be found admissible. In examining those requirements, the Court
                 is not bound by the sequence set out in that Article. In the present
                 circumstances, the Court deems it appropriate to begin with the question
                  whether the second and third counter‑claims are directly connected with
                  the subject‑matter of Costa Rica’s principal claims.

                                      3. Question of Direct Connection
                    28. Nicaragua asserts, with regard to its second counter‑claim, that
                 although Costa Rica did not claim sovereignty over the Bay of San Juan
                 del Norte in its Application, the question of sovereignty over the bay is
                 part of the issue of sovereignty near the mouth of the San Juan River
                 which lies at the heart of the Costa Rica v. Nicaragua case. Furthermore,
                 the status of the bay was fixed by the 1858 Treaty of Limits and is there-
                 fore, according to Nicaragua, indisputably part of this case. Nicaragua
                 further observes that, in respect of its second counter‑claim, both Parties
                 rely on the same instrument, namely the 1858 Treaty of Limits, and even
                 on the same provisions of that instrument, in particular its Article IV,
                 and, more generally, its Articles I, II, V, VI and IX.

                    29. Nicaragua asserts in its third counter‑claim that it possesses a “right
                 of navigation on the Colorado River” on the basis of the 1858 Treaty of
                 Limits and general international law. In particular, Nicaragua asserts that
                 Costa Rica is attempting to prevent Nicaragua from taking the measures
                 needed — that is, the dredging works of which Costa Rica complains — to
                 restore the navigability of the San Juan River. In this regard, Nicaragua
                 takes the position that one purpose of the 1858 Treaty of Limits was to
                 guarantee navigation from the San Juan River to and from the Caribbean
                 Sea. Nicaragua highlights Article V of the 1858 Treaty of Limits, which
                 stated that the Colorado River, not the San Juan River, would constitute
                 the course of the boundary until such time as Nicaragua had “recover[ed]
                 the full possession of all her rights in the port of San Juan del Norte”. In
                 Nicaragua’s view, this provision is applicable to the present situation because
                 Nicaragua is currently without access to the sea via the San Juan River.

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                   According to Nicaragua, its second and third counter‑claims are thus
                 part of the same factual complex as Costa Rica’s principal claims and
                 have a direct legal connection with them.

                                                      *
                    30. Examining the direct‑connection requirement with regard to the
                 second counter‑claim, Costa Rica first underlines the fact that it has made
                 no claim relating to the Bay of San Juan del Norte, nor does it refer to the
                 bay in the operative part of its submissions. Costa Rica further notes that
                 this counter‑claim and Costa Rica’s principal claims do not form part of
                 the same factual complex, as they concern geographically distinct areas
                 and are not temporally related. Costa Rica maintains that the respective
                 claims are not “legally related” as they do not concern reciprocal obliga-
                 tions and do not pursue the same legal aim. Finally, Costa Rica contends
                 that the law applicable to its own claims differs from the law applicable to
                 Nicaragua’s second counter‑claim.

                    31. As to the third counter‑claim, Costa Rica considers that it is not
                 directly connected to any of Costa Rica’s principal claims as it bears no
                 relation to any of the submissions presented by Costa Rica in its Applica-
                 tion and Memorial. In particular, Costa Rica asserts that Nicaragua has
                 failed to establish that a direct connection exists between the law appli-
                 cable to its own claims and the law invoked by Nicaragua in support of
                 its third counter‑claim. Costa Rica observes that Nicaragua alleges that it
                 possesses a right of navigation on the Colorado River based on Article V
                 of the 1858 Treaty of Limits. In that regard, Costa Rica maintains, first,
                 that there is nothing in the 1858 Treaty of Limits, including Article V
                 thereof, that can be construed as giving Nicaragua navigational rights on
                 any Costa Rican river, including the Colorado. Secondly, Costa Rica
                 notes that it has not relied upon Article V at any point in support of the
                 principal claims. Rather, it has complained that Nicaragua has breached
                 Article II of the 1858 Treaty of Limits and has thereby violated its terri
                 torial integrity.

                    Costa Rica accordingly concludes that Nicaragua has failed to show
                 that its second and third counter‑claims meet the conditions for admissi-
                 bility set out in Article 80 of the Rules of Court, and that, consequently,
                 these two counter‑claims must be declared inadmissible.

                                                     * *
                   32. The Court recalls that it is for the Court to assess “whether the
                 counter‑claim is sufficiently connected to the principal claim, taking

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                 account of the particular aspects of each case” (see Application of the
                 Convention on the Prevention and Punishment of the Crime of Genocide
                 (Bosnia and Herzegovina v. Yugoslavia), Counter‑Claims, Order of
                 17 December 1997, I.C.J. Reports 1997, p. 258, para. 33). In previous
                 decisions relating to the admissibility of counter‑claims, the Court has
                 taken into consideration a range of factors that could establish a direct
                 connection both in fact and in law between a counter‑claim and the claims
                 in the principal case for purposes of Article 80.

                    The Court has thus considered whether the facts relied upon by each
                 party relate to the same geographical area or the same time period (see
                 Application of the Convention on the Prevention and Punishment of the
                 Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Counter‑
                 Claims, Order of 17 December 1997, I.C.J. Reports 1997, p. 258,
                 para. 34 ; Oil Platforms (Islamic Republic of Iran v. United States of
                 America), Counter‑Claim, Order of 10 March 1998, I.C.J. Reports 1998,
                 p. 205, para. 38). The Court has also considered whether the facts relied
                 upon by each party are of the same nature, in that they allege similar
                 types of conduct (see Armed Activities on the Territory of the Congo
                 (Democratic Republic of the Congo v. Uganda), Counter‑Claims, Order of
                 29 November 2001, I.C.J. Reports 2001, p. 679, para. 38).
                    The Court has further examined whether there is a direct connection
                 between the counter‑claim and the principal claims of the other party
                 based on the legal principles or instruments relied upon, or where the
                 Applicant and the Respondent were considered as pursuing the same
                 legal aim by their respective claims (see Application of the Convention on
                 the Prevention and Punishment of the Crime of Genocide (Bosnia and Her-
                 zegovina v. Yugoslavia), Counter‑Claims, Order of 17 December 1997,
                 I.C.J. Reports 1997, p. 258, para. 35 ; Oil Platforms (Islamic Republic of
                 Iran v. United States of America), Counter‑Claim, Order of 10 March 1998,
                 I.C.J. Reports 1998, p. 205, para. 38 ; Land and Maritime Boundary
                 between Cameroon and Nigeria (Cameroon v. Nigeria), Order of
                 30 June 1999, I.C.J. Reports 1999 (II), pp. 985‑986 ; Armed Activities on
                 the Territory of the Congo (Democratic Republic of Congo v. Uganda),
                 Counter‑Claims, Order of 29 November 2001, I.C.J. Reports 2001, p. 679,
                 paras. 38 and 40).

                                                     *
                     33. With regard to the nature of the alleged facts which constitute the
                  basis of Costa Rica’s principal claims and Nicaragua’s second counter‑
                  claim, respectively, the Court observes that Costa Rica complains of
                  Nicaragua’s actions in Isla Portillos and of Nicaragua’s dredging pro-
                 gramme on the San Juan River. By contrast, Nicaragua’s second
                 counter‑claim is based on alleged changes to the physical characteristics
                  of the Bay of San Juan del Norte, which, in Nicaragua’s view, extinguish

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                 any rights that Costa Rica may have once possessed in connection with
                 that bay based on the 1858 Treaty of Limits.
                    34. In geographical terms, Nicaragua’s second counter‑claim relates, in
                 a general sense, to the same region that is the focus of Costa Rica’s prin-
                 cipal claims, an area that is near the mouth of the San Juan River. How-
                 ever, the geographical point of reference of each Party’s claims is different,
                 in the sense that the claim and the counter‑claim do not relate to the same
                 area. Moreover, a temporal connection is lacking. Nicaragua’s counter‑
                 claim refers to physical changes to the Bay of San Juan del Norte that
                 apparently date to the nineteenth century. By contrast, Costa Rica’s
                 claims relate to alleged Nicaraguan conduct dating to 2010. In addition,
                 the facts underpinning Nicaragua’s second counter‑claim are not of the
                 same nature as those underpinning Costa Rica’s principal claims. While it
                 may be said that both Parties invoke facts in connection with territorial
                 sovereignty, Nicaragua’s counter‑claim does not relate to territorial sov-
                 ereignty over Isla Portillos, nor does it relate to a question of territorial
                 sovereignty based on the course of the river boundary as established by
                 the 1858 Treaty of Limits, the Cleveland Award, or the subsequent Alex-
                 ander Awards. In sum, the issues raised by Nicaragua with respect to the
                 Bay of San Juan del Norte in its second counter‑claim do not form part
                 of the same factual complex from which Costa Rica’s principal claims
                 arise.

                   The Court is thus of the view that Nicaragua has failed to demonstrate
                 that its second counter‑claim is directly connected, as a matter of fact, to
                 the principal claims of Costa Rica in this case.

                    35. Furthermore, no direct legal connection exists between Costa
                 Rica’s principal claims and Nicaragua’s second counter‑claim. The
                 essence of Costa Rica’s claims is that its sovereignty has been breached
                 and its territorial integrity violated through Nicaragua’s actions carried
                 out in Isla Portillos, and that Nicaragua’s dredging activities have not
                 complied with international environmental law and pose a risk of serious
                 environmental harm to Costa Rica, whereas Nicaragua’s second counter‑
                 claim is in essence that it has exclusive sovereignty over the area “formerly
                 occupied” by the Bay of San Juan del Norte. In addition, Costa Rica
                 asserts sovereignty over Isla Portillos based on provisions of the 1858
                 Treaty of Limits and associated awards that govern the location of the
                 boundary between the Parties, and also invokes international environ-
                 mental law. By contrast, Nicaragua bases its second counter‑claim on the
                 contention that the legal situation of the Parties with respect to the Bay
                 of San Juan del Norte has evolved since the conclusion of the 1858 Treaty
                 of Limits, as a result of physical changes to that bay. Thus, the Parties do
                 not pursue the same legal aims.

                                                      *

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                    36. With regard to the factual connection between Costa Rica’s princi-
                 pal claims and Nicaragua’s third counter‑claim, the Court recalls that,
                 while Costa Rica’s claims are based on certain activities of Nicaragua in
                 the border area, namely, the presence of Nicaraguan troops and other
                 personnel at Isla Portillos and dredging activities on the San Juan River,
                 Nicaragua’s third counter‑claim concerns the use of the Colorado River
                 for navigation until access to the Caribbean Sea via the San Juan River
                 can be restored. In particular, Nicaragua refers to the fact that the outlet
                 of the San Juan River to the sea is blocked for much of the year, thereby
                 hindering navigation for its vessels, and the fact that Costa Rica has
                 barred the entrance to the Colorado River. The Court notes that there is,
                 in a general sense, a geographical link between Nicaragua’s third counter‑
                 claim and Costa Rica’s claims relating to Nicaragua’s dredging activities
                 in that these claims relate to a common river system. An approximate
                 temporal connection can also be made, in the sense that Nicaragua claims
                 that its right to navigate the Colorado River has been revived by Costa
                 Rica’s efforts to prevent Nicaragua from dredging the San Juan River in
                 order to enhance its navigability. Nonetheless, the facts underpinning
                 Nicaragua’s third counter‑claim are of a different nature from those
                 underpinning Costa Rica’s claims, which are invoked to demonstrate
                 alleged violations of its territorial sovereignty and of Nicaragua’s obliga-
                 tions under international environmental law. Nicaragua’s third counter‑
                 claim, by contrast, is based on facts relating to damage allegedly caused
                 by Costa Rica’s effort to prevent Nicaragua from dredging the San Juan
                 River. Under these circumstances, the factual link between Nicaragua’s
                 third counter‑claim and Costa Rica’s principal claims is not sufficient for
                 purposes of admissibility under Article 80 of the Rules of Court. There is
                 therefore no direct connection between the facts relied on by Costa Rica
                 in its principal claims and the facts invoked by Nicaragua to substantiate
                 its third counter‑claim, because of their different nature.

                    37. Furthermore, Nicaragua has failed to establish the existence of a
                 direct legal connection between its third counter‑claim and Costa Rica’s
                 principal claims. Costa Rica and Nicaragua do not pursue the same legal
                 aims in their respective claims and counter‑claim. Costa Rica’s claims
                 concern allegations of violations of its territorial sovereignty and its navi-
                 gational rights on the San Juan River, and of environmental damage to
                 its territory. Nicaragua, for its part, seeks to assert its alleged naviga-
                 tional rights on the Colorado River, on the basis of Article V of the
                 1858 Treaty of Limits, which provided for the temporary shared use and
                 possession of Punta Castilla and designated the Colorado River as a
                 boundary until such time as Nicaragua recovered full possession over the
                 Port of San Juan del Norte, which it did in 1860.

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                                  4. Conclusion of the Court as to the Second
                                          and Third Counter‑Claims
                    38. The Court therefore concludes that there is no direct connection,
                 either in fact or in law, between Nicaragua’s second and third counter‑
                 claims and Costa Rica’s principal claims. Consequently, those counter‑
                 claims are inadmissible as such under Article 80, paragraph 1, of the
                 Rules of Court. It is not necessary for the Court to address the question
                 whether those counter‑claims come within its jurisdiction.

                                        IV. Fourth Counter‑Claim

                   39. In its fourth counter‑claim, Nicaragua alleges that Costa Rica did
                 not implement the provisional measures indicated by the Court in its
                 Order of 8 March 2011. Costa Rica does not contest the admissibility of
                 this counter‑claim.

                    40. The Court recalls that, where it “has jurisdiction to decide a case,
                 it also has jurisdiction to deal with submissions requesting it to determine
                 that an order indicating measures which seeks to preserve the rights of the
                 Parties to this dispute has not been complied with” (see LaGrand (Ger-
                 many v. United States of America), Judgment, I.C.J. Reports 2001, p. 484,
                 para. 45). It follows that the question of compliance by both Parties with
                 the provisional measures indicated in this case may be considered by the
                 Court in the principal proceedings, irrespective of whether or not the
                 respondent State raised that issue by way of a counter‑claim. The Parties
                 thus remain at liberty to take up this issue in the further course of the
                 proceedings. The Court, accordingly, finds that there is no need to enter-
                 tain Nicaragua’s fourth counter‑claim, as such.

                                                         *
                                                     *       *

                     41. For these reasons,
                     The Court,
                     (A) Unanimously,
                    Finds that there is no need for the Court to adjudicate on the admissi-
                 bility of Nicaragua’s first counter‑claim as such ;
                     (B) Unanimously,
                   Finds that Nicaragua’s second counter‑claim is inadmissible as such
                 and does not form part of the current proceedings ;

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                     (C) Unanimously,
                   Finds that Nicaragua’s third counter‑claim is inadmissible as such and
                 does not form part of the current proceedings ;
                     (D) Unanimously,
                    Finds that there is no need for the Court to entertain Nicaragua’s
                 fourth counter‑claim as such, and that the Parties may take up any ques-
                 tion relating to the implementation of the provisional measures indicated
                 by the Court in its Order of 8 March 2011 in the further course of the
                 proceedings ;
                     Reserves the subsequent procedure for further decision.

                    Done in French and in English, the French text being authoritative, at
                 the Peace Palace, The Hague, this eighteenth day of April, two thousand
                 and thirteen, in three copies, one of which will be placed in the archives
                 of the Court and the others transmitted to the Government of the Repub-
                 lic of Costa Rica and the Government of the Republic of Nicaragua,
                 respectively.

                                                                (Signed) Peter Tomka,
                                                                          President.
                                                             (Signed) Philippe Couvreur,
                                                                           Registrar.

                     Judge ad hoc Guillaume appends a declaration to the Order.

                                                                          (Initialled) P.T.
                                                                          (Initialled) Ph.C.

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