390

SEPARATE OPINION OF JUDGE AJIBOLA

1. INTRODUCTION

I have voted in favour of the decision of the Court whereby it re-
affirmed the provisional measures indicated in paragraph 52 of its Order
of 8 April 1993, but I equally have some observations and amplifications
to make on some aspects of the request which are explained below, in view
of the apparently unique nature of the request, and the importance of the
subject-matter to world peace and the development of the jurisprudence
of this Court, especially as it relates to procedural matters in all cases of
requests for the indication of provisional measures.

2. THE REQUESTS

On 27 July 1993, a request was filed by the Agent of Bosnia-Herzego-
vina in this Court — which was, in fact, its second request for the indica-
tion of provisional measures. The reasons for the filing of this second
request were given in the Agent’s letter attached to the request.

Mr. Rodoljub Etinski, Agent for the Federal Republic of Yugoslavia
(Serbia and Montenegro) also filed with the Registry a request for the
indication of provisional measures dated 9 August 1993.

It is not out of place to remind ourselves that the determination of the
United Nations as stated in the Preamble of the Charter, is:

“to save succeeding generations from the scourge of war, which twice in
our lifetime has brought untold sorrow to mankind, and

to reaffirm faith in fundamental human rights, in the dignity and worth
of the human person, in the equal rights of men and women and of
nations large and small, and

to establish conditions under which justice and respect for the obliga-
tions arising from treaties and other sources of international law can
be maintained .. .” (emphasis added).

These laudable declarations of the determination of the United Nations
directed towards the maintenance of peace and security in the world can-
not be seen as mere verbiage, unrelated to a firm resolve to give them effect
through its main organs like the Security Council, the General Assembly,
and of course, in this particular instance, the Court as its principal judicial

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organ, that is thus seised of the matter in hand. The First World War ended
with the establishment of the League of Nations, having as its judicial
organ the Permanent Court of International Justice, both of which ceased
to exist at the end of the Second World War.

The pioneering Member States that met in San Francisco to draft the
United Nations Charter devoted a great deal of effort to ensuring that
peace, security, justice and the pacific settlement of disputes would be
ensured and thoroughly incorporated into the Charter. Hence they spelt
out, in clear terms, some of their goals and aspirations to ensure the
supremacy of international law, peace, security and justice among all
nations.

Members were enjoined, as stated in the second part of the Preamble:

“to practice tolerance and live together in peace with one another as
good neighbours, and

to unite our strength to maintain international peace and security,
and

to ensure, by the acceptance of principles and the institution of
methods, that armed force shall not be used, save in the common
interest ...” (emphasis added).

It may perhaps be argued that the preambular part of the Charter is
non-justiciable, and that it was in order to obviate this problem that many
of the declarations, determinations, aims and objectives of the Member
States were encapsulated in the first paragraph of the first Article, thus:

“1. To maintain international peace and security, and to that end:
to take effective collective measures for the prevention and removal
of threats to the peace, and for the suppression of acts of aggression
or other breaches of the peace, and to bring about by peaceful means,
and in conformity with the principles of justice and international
law, adjustment or settlement of international disputes or situations
which might lead to a breach of the peace.”

I have cited some of the provisions of the United Nations Charter
referred to above, not without good reason and in order to highlight, for
the purposes of my argument, the yearnings and aspirations of nations of
the world seeking for peace at this crucial time through international law
and the pacific settlement of international disputes. It is for all these rea-
sons that I welcome and approve of the decision of the Court based on the
provisions of the Genocide Convention. For the aforementioned reasons,
I shall now proceed to touch on some pertinent aspects of Bosnia-

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Herzegovina’s request as well as the request of the Federal Republic of
Yugoslavia (Serbia and Montenegro) for the indication of provisional
measures.

3. UNIQUE NATURE OF THE REQUESTS

In the recent history of the Court, it can be seen that there has been only
one occasion on which the Court was called upon to respond to a second
request for provisional measures. That was in the case concerning Military
and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America), when such a request was filed in the Registry of
the Court on 25 June 1984. Nicaragua stated in its second request (pursu-
ant to paragraph 41 (C) of the Order of the Court dated 10 May 1984), that
it was occasioned by the alleged failure of the United States to comply
with the aforementioned Order of the Court, and that the Court ought to
make a second order to secure compliance with the first one. As in the
present case, Nicaragua annexed to the request fresh evidence of breaches
of the Court’s Order. The Court did not entertain the second request, con-
sidering, as contained in the letter from the President of the Court dated
16 July 1984, that Nicaragua should await the outcome of the proceedings
on jurisdiction which were then pending before the Court. This episode
was referred to in paragraph 287 of the Court’s 1986 Judgment. However,
the Court, in paragraph 288 of the same Judgment, re-emphasized, in
the light of its findings on the merits, the Order that had been made on
10 May 1984.

The other case that bears a resemblance to the one mentioned above
was taken to the Security Council. This was the Anglo-Iranian Oil Co. case
in which Iran ignored the Order of the Court made in July 1951. The Secu-
rity Council decided that the United Kingdom must await the outcome of
the proceedings on jurisdiction that were currently pending before the
Court. Even though the Respondent in the present case has reserved its
right to file a preliminary objection in relation to the jurisdiction of the
Court, this has not as yet been done and there is no proceeding on jurisdic-
tion pending before the Court as at the moment; otherwise such an appli-
cation would perhaps have prevented the Court from entertaining this
new request from the Applicant. On the contrary, the Respondent also
filed its own request for an indication of provisional measures, as men-
tioned above. The Security Council is already firmly seised of this dispute
and there have been many resolutions passed on it, perhaps more than any
other single matter that has been treated by the Security Council. The
Security Council, by resolution 819 (1993) of 16 April 1993 took note of
the Order of the Court of 8 April 1993 and, in that resolution, reaffirmed
its condemnation of all “violations” of international humanitarian law and

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“ethnic cleansing” in particular. Both the Court and the Security Council
“have taken steps, I believe, to stop the ongoing acts of genocide in Bosnia.

4. HAS THE FIRST ORDER OF THE COURT BEEN COMPLIED WITH ?

At the sitting of the Court on 26 August 1993, during the hearing of the
requests for the indication of provisional measures in this case, I put a
question to both Parties that was worded as follows:

“The Court, on the first request for an indication of provisional
measures presented to it by the Applicant in this case, issued on
8 April 1993 the following Order:

“THE COURT

Indicates, pending its final decision in the proceedings instituted
on 20 March 1993 by the Republic of Bosnia and Herzegovina
against the Federal Republic of Yugoslavia (Serbia and Monte-
negro), the following provisional measures :

A. (1) Unanimously,

The Government of the Federal Republic of Yugoslavia
(Serbia and Montenegro) should immediately, in pursuance of
its undertaking in the Convention on the Prevention and Pun-
ishment of the Crime of Genocide of 9 December 1948, take all
measures within its power to prevent commission of the crime
of genocide;

(2) By 13 votes to 1,

The Government of the Federal Republic of Yugoslavia
(Serbia and Montenegro) should in particular ensure that any
military, paramilitary or irregular armed units which may be
directed or supported by it, as well as any organizations and
persons which may be subject to its control, direction or influ-
ence, do not commit any acts of genocide, of conspiracy to
commit genocide, of direct and public incitement to commit
genocide, or of complicity in genocide, whether directed
against the Muslim population of Bosnia and Herzegovina or
against any other national, ethnical, racial or religious group;

a i i

B. Unanimously,

The Government of the Federal Republic of Yugoslavia
(Serbia and Montenegro) and the Government of the Republic
of Bosnia and Herzegovina should not take any action and

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should ensure that no action is taken which may aggravate or
extend the existing dispute over the prevention or punishment
of the crime of genocide, or render it more difficult of solution.’

What steps have been taken by each Party to ensure compliance
with this Order?”

Answers have been supplied by both Parties, but I am sorry to say that
the answers do not convincingly suggest that the measures relating to acts
of genocide which the Court indicated in its Order as quoted above have
been complied with by either of the Parties.

If it can therefore be said that the first Order has not been complied
with, will the Court not be justified in refraining from issuing a second
such Order until the first set of measures has been implemented? What-
ever may be the controversy on the legal effect of an order of the Court,
has it not the power to refuse making any further order or orders until the
first one has been complied with? Must the Court make orders in vain?
Does it not fall within the inherent power of the Court to make an order or
reject an application apart from invoking the provisions of Article 41 of
the Statute as well as its powers under Section D of the Rules of Court,
especially those contained in Articles 73, 74, 75 and 76 of those Rules?
Can the Court not exercise its discretion as it deems fit, in relation to all
matters of this nature? These are some of the questions that have engaged
my mind since the most recent requests were filed in this Court. Returning
to my first question as to whether the Court has the power to refuse to
make any further order or orders until the first one is complied with, I
think I should qualify that question by restricting such power of the Court
to only similar requests to indicate provisional measures ratione materiae
and ratione personae. 1 do not have in mind such requests as were
presented to the Court in the Nicaragua case, where the Applicant was
seeking an order of the Court to the effect:

“That, until such time as the United States ceases and desists from
all activities that do not comply with the Order of 10 May 1984, the
facilities of the Court shall not be available to the United States for
the purpose of rendering a decision in its favour in any other pending
or future case, and the United States shall not be permitted to invoke
the Court’s aid in any matter.” (1.CJ. Pleadings, Military and Paramil-
itary Activities in and against Nicaragua (Nicaraguav. United States of
America), Request of the Republic of Nicaragua concerning imple-
mentation of the Court’s Order of 10 May 1984 dated 25 June 1984.)

With due deference that was going rather too far, and I share the view of
the Court as contained in the letter of 16 July 1984 (already referred to),

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when it replied that it “considers that this somewhat unprecedented
request is difficult to contemplate” (letter of 6 July 1984 from the Presi-
dent of the Court to the Agent of Nicaragua) and gave reasons with which
Tagree. In many domestic courts, especially in the common law countries,
interlocutory applications are exclusively at the discretion of the court,
and in most cases when the court is called upon to exercise such a discre-
tion (which is a part of the inherent power of the court), “equity” plays a
very large role, and an applicant who “wants equity must do equity”
implying that that applicant “must come with clean hands”. This means
that, if an applicant wants the court to exercise its equitable discretion ona
matter, he must first satisfy the court that the earlier order issued by the
court has been complied with, otherwise the court may refuse to make any
further order.

Fitzmaurice expressed his doubt as to whether the jurisdiction of the
Court is inherent per se, and he felt that the whole issue is debatable as to
whether the Court’s jurisdiction to indicate provisional measures would
normally or automatically form part of its inherent powers as an interna-
tional tribunal in the absence of specific provisions such as Article 41 of
the Statute of the Court. However, he concluded his exposition by
expressing an ambivalent view in the following terms:

“On that occasion the present writer expressed the view that in
existing international conditions, the arguments against ‘inherency’
would prevail in any test case. He nevertheless indicated his belief
that the arguments for are much weightier, and he sees no reason to
change this conclusion.” (Fitzmaurice, The Law and Procedure of the
International Court of Justice, Vol. II, 1986, p. 774.)

However with regard to inherent powers under the Statute, he
expressed his view as follows:

“The jurisdiction to indicate interim measures of protection is, so
far as the International Court is concerned, part of the incidental
jurisdiction of the Court, the characteristic of which is that it does not
depend on any direct consent given by the parties to its exercise, but is
an inherent part of the standing powers of the Court under its Statute.
Its exercise is therefore governed, not by the consent of the parties
(except in a remote sense) but by the relevant provisions of the Statute
and of the Rules of Court.” (Ibid, p. 533; emphasis added.)

One may argue that this is still an inherent power derived from the Sta-
tute and Rules of Court. Perhaps it is important to note that its jurisdiction
is incidental, like all other incidental powers of other international adjudi-

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cating tribunals. Therefore, once the Court is seised of a case in which it
has jurisdiction prima facie, all of its incidental powers ought naturally to
flow from that jurisdiction whether statutory or otherwise, like any other
international tribunal, even though most of these powers, functions and
jurisdiction are provided for in the Statute and Rules of Court.

The learned author went even further when he stated that:

“As has been shown above, the power of the Court to indicate
interim measures falls into the same category as its compétence de la
compétence. Both are an exercise of incidental jurisdiction, necessary
in the case of compétence de la compétenceto enable the Court to func-
tion at all, and, in the case of the power to indicate interim measures,
to prevent its decisions from being stultified .. . Yet it is established
law that this power is part of the inherent powers of ail international
tribunals, irrespective of whether it has been expressly conferred on
them or not.” (Fitzmaurice, op. cit., p. 542.)

This view of Sir Gerald Fitzmaurice was definitively affirmed in the
Nottebohm case, where the Court clearly and positively claimed such an
incidental power when it pointed out that:

“Paragraph 6 of Article 36 merely adopted, in respect of the Court,
arule consistently accepted by general international law in the matter
of international arbitration. Since the Alabama case, it has been gen-
erally recognized, following the earlier precedents, that, in the absence
of any agreement to the contrary, an international tribunal has the
right to decide as to its own jurisdiction and has the power to inter-
pret for this purpose the instruments which govern that jurisdiction.”
(C.J. Reports 1953, p. 119.)

Two possible theses may, therefore, emerge from the expression quoted
above; since the issue of jurisdiction is an incidental one — like the power
of the Court to indicate provisional measures — then it follows that sucha
power should likewise be a part of the inherent power of the Court. Again,
since such power under international law is available to international
arbitral tribunals, a fortiori it must also be available to the Court. Further-
more, going by the decision of the Court in the Corfu Channel case on
proceedings in default of appearance, one may conclude that generally, in
matters of procedure, what is not specifically prevented by the rules may
be applied by the Court (Rosenne, The Law and Practice of the Interna-
tional Court, 1965, Vol. II, pp. 590-591, para. 244). There is support for the
view that:

“the failure of a State to comply with an interlocutory decision can
lead to the automatic imposition by the Court itself of a sanction

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against that State, and will only bring it disadvantage . . . since the
interlocutory decision in itself does not dispose of the substantive
rights of the parties” (Rosenne, op. cit., Vol. I, pp. 124-125).

The discretionary power of the Court, even though statutory, flows
from Article 75 of the Rules of Court. Paragraph 1 of the Article makes it
clear that proprio motu, the Court may at any time indicate provisional
measures if the circumstances of the case so dictate and that such
measures ought to be complied with by any or all the parties involved
in the case. Paragraph 2 goes further to empower the Court to indicate
measures that are in whole or part different from those requested by the
parties, if in its discretion such measures ought to be taken or complied
with by the parties. This Article gives the Court a wider discretionary
power than does Article 41 of the Statute of the Court. It is an Article
which to a great extent allows the Court to function as it ought to and in
turn derives its validity from Article 30, paragraph 1, of the Statute of the
Court which states that: “The Court shall frame rules for carrying out its
functions. In particular, it shall lay down rules of procedure.”

Apart, therefore, from the discretionary and inherent powers of the
Court, these rule-making powers are necessary to enable the Court to
function as a Court and to ensure that orders issued by it are obeyed. I
believe that the Court thus has the power statutorily and inherently to
ensure compliance with whatever interlocutory directives or orders it may
make in any matter of which it is seised. If this power were not available to
the Court or were denied to it, an absurd situation might occur, especially
having regard to the provisions of Article 74, paragraph 3, whereby the
Court may persistently be inundated with requests for indications of pro-
visional measures by the same parties, when in fact an earlier order has
not been complied with.

5. IS THE ORDER BINDING?

This question is difficult to answer. One would have expected such an
apparently simple question to be answered positively, since in interna-
tional arbitrations and cases heard by other adjudicating tribunals such
orders, like their awards, are final and binding. The controversy as to
whether an order of the Court has binding force stems from the wording of
the text of Article 41 of the Statute and Article 94 of the Charter.
Sir Hersch Lauterpacht regrets this situation and suggests adequate
amendment. I would refer to his discussion of effectiveness of the law,
when he said that:

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“This circumstance illustrates to some extent the difficulty and the
degree of artificiality surrounding the subject of provisional meas-
ures — drawbacks which stem from the fact that according to the
wording and, perhaps, the intention of the Statute no legally binding
force attaches to Orders issued under Article 41 of the Statute. The
latter statement is controversial. However, that very fact may suggest
the necessity of amending the Statute with a view to removing what is
either an ambiguity or, on the assumption that Orders under that
Article lack legal force, a provision inappropriate to a legal instru-
ment.” (Sir Hersch Lauterpacht, The Development of International
Law by the International Court, 1958-1982, pp. 112-113; emphasis
added.)

What then is wrong with Article 41 of the Statute that makes it not
legally binding? Is any such deficiency one of “omission” or “commis-
sion” ? Is there really an ambiguity contained therein ? How should it have
been worded? After all, this is the main vehicle whereby all the requests
for an indication of provisional measures of protection are being trans-
ported into the portals of justice at the Peace Palace. On the face of the text
of the Article, there is nothing that specifically leads one to conclude that
it lacks binding force. The first paragraph reads thus:

“The Court shall have the power to indicate, if it considers that
circumstances so require, any provisional measures which ought to
be taken to preserve the respective rights of either party.”

If one looks into the jurisprudence of this Court, it will be seen that
there has been no categorical pronouncement on this issue, but that on
19 August 1929, in the Free Zones of Upper Savoy and the District of Gex
case, the Permanent Court of International Justice stated that, unlike the
final judgment of the Court, orders of the Court have no “binding force”
or “final effect” in the decision of any dispute. The relevant para-
graph reads as follows:

“and whereas, in contradistinction to judgments contemplated by
Article 58 of the Statute, to which reference is made in Article 2, para-
graph 1, of the Special Agreement, orders made by the Court,
although as a general rule read in open Court, due notice having been
given to the Agents, have no ‘binding’ force (Article 59 of the Statute)
or ‘final’ effect (Article 60 of the Statute) in deciding the dispute
brought by the Parties before the Court” (P.C_LJ., Series A, No. 22,

p. 13).

Since then (about 64 years ago), the issue of whether the indication of
provisional measures does or does not have legal binding force has con-
tinued to be in controversy.

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However, I think that the time has come when this Court should make a
definitive pronouncement on this issue. After all, the principle of stare
decisis is not applicable in the Court. In fact a careful examination of
Article 41, paragraph 1, will suggest that it is prima facie and patently
devoid of any ambiguity. In the plain and ordinary meaning of the form of
words employed, the use of the words “shall” and “power” is undoubtedly
mandatory and imperative, giving the Court an indisputable prerogative
to indicate provisional measures. The phrase “if it considers that circum-
stances so require” relates to the discretionary exercise of such power, to
be used or applied in deserving cases. The reason why the power was given
is clearly apparent in the later part of the Article; and that is to enable the
Court to function as it should by preserving the “rights” of either party.
Logic and common sense would consider it ridiculous and absurd for the
Court to be unable to preserve the rights of the parties pending the final
judgment.

If the Court is not sufficiently effective and truly empowered to pre-
serve the status quo, what then is the essence of carrying litigation through
to its final conclusion, leading to the giving of judgment? Such an absurd-
ity would be like affirming that confidence is to be placed in the record of
a judgment and not in the judge — Absurdum est affirmare (re judicata)
credendum esse non judici. As pointed out earlier, Lauterpacht observed
that “according to the wording and, perhaps, the intention of the Statute
no legally binding force attaches to Orders”. In the first case, I see nothing
wrong prima facie in the wording of the Article. It is clear on the face of it,
because the Article even envisages a situation of possible stultification of
the function of the Court if it cannot exercise such a power of indication,
when it refers to “any provisional measures which ought to be taken to
preserve the respective rights of either party”. It is even clear from the
wording of the Article that there may be a situation in which any subse-
quent action of the Court will become illusory or an exercise in futility,
possibly like the case in hand — or the Nicaragua case — if such an indica-
tion for provisional measures cannot be given immediately to arrest that
ongoing situation.

Arguendo, one may also ask what is the point of giving a request for an
indication of provisional measure urgent attention, a quick and immedi-
ate hearing and priority (in most cases leading to an order being made
within one or two weeks), if in spite of all the effort put into it, the resulting
order is to be considered not legally binding and ineffective? Note, for
example, the situation of urgency as dictated by Article 74 of the Rules of
Court which sounds like an application for habeas corpus in the common
law countries. That Article reads:

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“1. A request for the indication of provisional measures shall have
priority over all other cases.

2. The Court, if it is not sitting when the request is made, shall be
convened forthwith for the purpose of proceeding to a decision on
the request as a matter of urgency.” (Art. 74, paras. 1-2; emphasis
added.)

There is another aspect of this matter which should be mentioned here.
If itis agreed, and I think there is no doubt about this, that the jurisdiction
to deal with a request for the indication of provisional measures is part of
the incidental jurisdiction of the Court, it can therefore safely be asserted
that an incidental order forms a part of the outcome of the adjudicating
assignment of the Court which is the final goal or the whole. If the “whole”
judgment is binding, why then should it not be the same with that “part” of
the “whole”?

Concluding this part of my opinion on whether the Order of the Court
is binding or not, I believe there is no reason why the Court’s Order should
not be binding on the Parties; otherwise the Court would not be em-
powered to make such orders in accordance with the provisions of the
Statute and Rules of Court. The Court is empowered to make rules under
Article 30 of the Statute; thus by evoking that Article, such orders made
under the Rules are equally valid and binding. If the Court were to be even
in the slightest doubt as to the force behind such power as is contained
in the Statute, it is submitted that all the provisions in the Rules with
regard to requests for an indication of provisional measures together con-
fer upon it sufficient power to pronounce an order.

6. CONSEQUENCE OF NON-COMPLIANCE —
Is THE ORDER ENFORCEABLE?

If an order is not binding it is difficult to see how it can be enforced. This
difficulty was prominently highlighted in the United States Diplomatic and
Consular Staff in Tehran case (Order of 15 December 1979, I.C.J. Reports
1979, pp. 20-21, para. 47). In fact, this was the first important “test case”
since the adoption of the Vienna Convention on Diplomatic Relations of
1961 and the Vienna Convention on Consular Relations of 1963, between
two Members of the United Nations — the United States of America and
Tran.

This case was filed in the Court by way of an Application by the United
States of America on 29 November 1979 against the Government of Iran
with regard to the dispute concerning the seizure and holding of hostages
who were members of the United States Embassy in Tehran. A request for
the indication of provisional measures was annexed to the Application

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and both the Application and the request were aimed at securing the
immediate release of the hostages. Even though the Government of Iran
was notified, it refused to participate in the proceedings, but merely sent a
telegram denying the jurisdiction of the Court. However, the Court exer-
cised its power and discretion — correctly, in my view — and proceeded
with the hearing of the request by the United States of America. Five pro-
visional measures were indicated in an Order in which Part A (containing
three measures) directed the Government of Iran to release the hostages,
give back the Chancery and Consulates of the United States of America
which had been occupied, afford all the diplomatic and consular person-
nel of the United States of America the full protection, privileges and
immunities to which they were entitled under the aforementioned Vienna
Convention, and permit the hostages to leave Iran. The rest of the
measures are not all that relevant to my thesis here. The important point
was that the Islamic Republic of Iran refused to carry out all or any
of the measures ordered by the Court. The Court has no machinery for
enforcement and relies only on the Security Council to ensure such
enforcement under Article 94 of the Charter.

At this point, it is important to state the provision of Article 94 of the
Charter, which reads:

“1. Each Member of the United Nations undertakes to comply
with the decision of the International Court of Justice in any case to
which it is a party.

2. If any party to a case fails to perform the obligations incumbent
upon it under a judgment rendered by the Court, the other party may
have recourse to the Security Council, which may, if it deems neces-
sary, make recommendations or decide upon measures to be taken to
give effect to the judgment.” (Emphasis added.)

The consequential effect and problem created by this Article with
regard to justiciability and enforceability of orders for an indication of
provisional measures of protection on matters pending before the Court
are better perceived from the plea of Sir Gladwyn Jebb when the United
Kingdom took its complaint to the Security Council — presumably under
Article 94, paragraph 1 — in the Anglo-Iranian Oil Co. case, which is
another classic example of difficulty with the enforcement of interim
measures of protection, as indicated by the Court. In this case, like the
later case concerning the United States Diplomatic and Consular Staff in
Tehran, Iran refused to comply with the Order of the Court. But formally
and legitimately, I believe, the United Kingdom presented its complaint to
the Security Council under Articles 34and 35 of the Charter of the United
Nations.

If I pause here for a while, it may be safe to argue that even if matters of
this nature — relating to orders of the Court — cannot be presented to the
Security Council under Article 94, there is nothing to prevent the affected

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State from taking its matter to the Security Council under Articles 34 and
35 of the Charter, so as to ensure that the order of the Court is not treated
lightly, even though, and most regrettably, that may also prove ultimately
futile at times. Because the statement of Sir Gladwyn made my point very
adequately and directly, I feel I would do well to quote him here verbatim:

“the Council has special functions in relation to decisions of the
Court, both under Article 94, paragraph 2, of the Charter, and under
Article 41, paragraph 2, of the Statue of the Court... and this must
clearly imply that the Council has the powerto deal with matters aris-
ing out of such interim measures .. . Now, it is established that a final
judgment of the Court is binding on the parties; that, indeed, is
expressly stated by Articles 59 and 60 of the Statute and Article 94,
paragraph 1, of the Charter. But, clearly, there would be no point in
making the final [judgment] binding if one of the parties could frustrate
that decision in advance by actions which would render the final judg-
ment nugatory. It is, therefore, a necessary consequence, we suggest, of
the bindingness of the final decision that the interim measures intended
to preserve its efficacy should equally be binding.” (United Nations,
Official Records of the Security Council, 559th meeting, 1 October
1951, S/PV.559, p. 20; emphasis added.)

This statement of Sir Gladwyn calls for some examination in view of the
difficulties surrounding matters arising out of indication of provisional
measures of protection by the Court. If by reference to Article 94, para-
graph 2, of the Charter, Sir Gladwyn was referring to the power of the
Security Council vis-à-vis the power of the Court to indicate provisional
measures of protection in the form of an order, I do have some reserva-
tions. Article 94, paragraph 2, deals only with the judgment and not inci-
dental orders or interlocutory matters. If the word judgment is meant to
include an order of this nature under discussion, I must beg to differ. Here
I take the view that those who drafted the Charter meant a final decision
of the Court or perhaps a final judgment. If we think of the word decision
as a generic term encompassing orders and judgments, then I think
Article 94, paragraph 1, is better referred to since that paragraph deals
with decisions. But there again, I wish to observe that paragraph 1 is some-
how weak and too general because the use of the word “undertake” tends to
imply an appeal to the “moral obligation” of a State. A more imperative
word like “ought”, “must”, “shall” and “under obligation to” should per-
haps have been employed. What again puzzles me with the wording of
that section as finally adopted is the fact that the word “decision” was
used in paragraph 1 and “judgment” used in paragraph 2.

Itis my view that the word “decision” should preferably have been used
in both cases, otherwise it may even be better to spell matters out by insert-

81
403 APPLICATION OF GENOCIDE CONVENTION (SEP. OP. AJIBOLA)

ing, in both provisions, the words “judgments or orders” which would ele-
gantly demonstrate the desire to ensure that all the decisions of the Court
are to be complied with. But as I have mentioned earlier, the complaint of
the United Kingdom was brought under Articles 34 and 35, which to my
mind, implied a cautious approach. Time constraints will not permit me to
deal any further with Article 94, paragraphs 1 and 2, of the Charter, but it
is sufficient to state that it is not adequately or elegantly worded to assist
the Court in ensuring due compliance with its orders under discussion.

Sir Gladwyn also referred to the binding force of the decision of the
Court under Articles 59 and 60 of the Statute of the Court. I generally
agree with him on this point, even though I should quickly add that
Article 59 of the Statute of the Court was negatively drafted, whereas
there is no reason why such an Article should not be stated positively
possibly by providing that “the decision of the Court has binding force
between the Parties in respect of that particular case”. The way it is
.drafted puts too much emphasis on ratione personae and ratione materiae.
With regard to Article 60, I believe that that Article adequately strengthens
the power and function of the Court, in order to ensure the finality of the
settlement of any dispute that may be brought before it.

But the most important part of Sir Gladwyn’s statement is the last two
sentences quoted above. Definitively, there is no reason why a judgment
should be delivered or handed down in such cases, if the order of the
Court would be frustrated in advance, which, in effect, would make the
judgment a mere exercise in futility. It strongly supports my view that the
Court should not be seen to make any further order if and when the
parties in dispute have not taken the necessary steps to ensure the com-
pliance with the earlier order made by the Court. It is for this reason that
I share the view of Rosenne when he states:

“That law, the attitude of which to States is impersonal and not
eclectic, is ex hypothesibinding on all States. Lex vera, atque princeps,
apta ad jubendum, et ad vetandum! For this reason it is submitted that
the obligation to comply with the decision of the Court cannot be
regarded only as a ‘moral obligation’.” (Shabtai Rosenne, The Law
and Practice of the International Court, 1965, Vol. I, p. 120.)

7. THE COURT AND THE SECURITY COUNCIL

The Charter of the United Nations clearly provides that the Security
Council gives effect to the possible enforcement of the decisions of the
Court — Article 94 of the Charter. The Security Council has immense
powers under Chapter VI and Chapter VII of the Charter, which in this

82
404 APPLICATION OF GENOCIDE CONVENTION (SEP. OP. AJIBOLA)

regard serves as its “executive function”. However, a point was made
repeatedly by Bosnia in the proceedings on the request for an indication of
provisional measures of protection with regard to the arms embargo
placed on it and its need for self-defence to prevent continuing acts of
genocide. In Article I of the Genocide Convention the High Contracting
Parties confirm inter alia:

“that genocide, whether committed in time of peace or in time of war,
is a crime under international law which they undertake to prevent
and to punish” (emphasis added).

On self-defence, the Agent of Bosnia referred many times during the
hearings, and in his earlier request, to Article 51 of the Charter of the
United Nations. This is an important provision on self-defence which
provides that:

“Nothing in the present Charter shall impair the inherent right of
individual or collective self-defence if an armed attack occurs against
a Member of the United Nations, until the Security Council has
taken measures necessary to maintain international peace and secu-
rity. Measures taken by Members in the exercise of this right of self-
defence shall be immediately reported to the Security Council and
shall not in any way affect the authority and responsibility of the
Security Council under the present Charter to take at any time
such action as it deems necessary in order to maintain or restore
international peace and security.”

There is no doubt that the Security Council has been giving its careful
consideration to the hostilities in Bosnia and, as a result of this, has passed
many resolutions. For example, on 16 April 1993, just a week after the
Court’s Order, the Security Council promptly passed resolution 819
(1993) in which it took note of the Court’s Order and reaffirmed its
condemnation of all the violations of international humanitarian law,
in particular the practice of “ethnic cleansing”. By resolution 808
(1993) the Security Council has established an international tribunal
for the prosecution of persons responsible for serious violations of
humanitarian law committed in the territory of the former Yugoslavia.
Just recently, on 24 August 1993, another resolution 859 (1993) was passed
by the Security Council to ensure and reaffirm the territorial integrity
of Bosnia-Herzegovina and its membership of the United Nations.
All these resolutions leave one in no doubt that the Security Council has
given and continues to give due consideration to international obligations
under Chapters VI and VII of the Charter with regard to the hostilities
going on in Bosnia.

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405 APPLICATION OF GENOCIDE CONVENTION (SEP. OP. AJIBOLA)

Having said that, perhaps one can pause to see whether there is any
positive juridical issue involved in this argument of Bosnia. The fourth
request in its fresh request reads thus:

“That the Government of Bosnia and Herzegovina must have the
means ‘to prevent’ the commission of acts of genocide against its own
People as required by Article I of the Genocide Convention.”

In the first place, I find it difficult to understand this request. What
form of measure can the Court indicate to enable Bosnia “to have the
means ‘to prevent’ the commission of acts of genocide against its own
People”? It must, however, be constantly borne in mind that the aim of
indicating provisional measures of protection is “to preserve the respec-
tive rights of either party”, even though one is aware of the requirement of
Article I of the Genocide Convention.

Article IX of that Convention provides

“Disputes between the Contracting Parties relating to the interpre-
tation, application or fulfilment of the present Convention, including
those relating to the responsibility of a State for genocide or for any of
the other acts enumerated in article III...”

shall be submitted to the Court at the request of any of the parties.

On this particular fourth request of Bosnia, if it is asking for a declar-
atory judgment of the Court, which seems to me to be the purport of its
request, and provided that such a request is entertainable by the Court, it
must await the final hearing of the case on the merits. Furthermore, the
question is whether the issue of genocide as provided for in Article I of the
Convention is not exclusively a matter for the States which “undertake to
prevent and to punish” it. Again, another pertinent question may be
asked, namely: “Who are the ‘Bosnian People’? Does this not include the
Croats, Serbs, Muslims and Jews”? Has the request not missed its target
since it is alleged therein that “violations” and “acts of genocide” are
being directed against the Muslims? As to the power, function and obliga-
tions of the Court, I think that they have been adequately addressed and
discharged by the Order issued on 8 April 1993, especially on the subject
of the prevention of acts of genocide which is the subject-matter of the
Applicant’s request for provisional measures.

If, however, the issue of “prevention” is, as I suspect, overstretched to
include the question of access by the Applicant to the means (weapons)
“to prevent” the commission of acts of genocide, I would point out that
the request is misconceived as far as the Court is concerned. It was the
Security Council acting upon its powers under the Charter — and rightly

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406 APPLICATION OF GENOCIDE CONVENTION (SEP. OP. AJIBOLA)

too — that on 25 September 1991 placed an embargo upon the provision
of arms and military equipment to Yugoslavia (as it then was) with that
State’s consent. Even though the Applicant has argued, and I think there is
an element of logic in its argument, that at that time (25 September 1991)
the State of Bosnia and Herzegovina was not in existence and declared its
independence only on 6 March 1992 and became a Member of the United
Nations on 22 May 1992, and that the former State of Yugoslavia is no
longer in existence, ever since its (Bosnia’s) independence the same reso-
lutions on embargo have been maintained. In this regard, the Security
Council is now acting within its power under Chapter VII, and it is still
seised of the matter. Had any indication been made by the Court on this
particular request, and if the same were not complied with (as happened
with respect to the Order of 8 April 1993), Bosnia might still have had to
present its complaints to the Security Council, either under Articles 34
and 35 of the Charter, or under Article 94 upon which I have earlier
expressed my opinion.

My conclusion is that an order, like a judgment (and being incidental to
it) ought not to be ineffective, artificial or illusory. It should be binding
and enforceable, otherwise, ab initio, there may be a good and reasonable
ground to question its being issued at all. The Court, it is submitted,
should not be seen to act in vain — Judicium non debet esse illusorium;
suum effectum habere debet.

The Court, as I would further point out, has this power under the Sta-
tute and Rules, so that it also forms a part of its inherent power under
general international law. Otherwise it may be impeded from functioning
as a Court. This is my reason for stating that the Court should have
rejected or refused to issue the request for another Order in this case,
unless and until the first Order of 8 April 1993 had been complied with by
both Parties, and I therefore agree with the Court, when it reaffirms its
first indication of provisional measures and re-emphasizes to both Parties
that they should take all necessary steps to implement and comply with
the first Order of the Court, made on 8 April 1993.

(Signed) Bola AJIBOLA.

85


56

DISSENTING OPINION BY M. NYHOLM.

The case before the Court comprises two questions: the
question of jurisdiction and the question of the interpretation
of Articles 74 and 131 of the Geneva Convention of May
isth, 1922 (the merits).

It has been dealt with in four parts: (z) has objection to
the jurisdiction taken by Poland been raised too late? (2) has
the objection been abandoned and, arising out of this, has
an agreement been created between the Parties as a result of
which the Court has jurisdiction ? (3) are there other grounds
on which jurisdiction can be based, besides the agreement ?
(4) the merits of the suit.

The judgment rejects the argument to the effect that the
objection has been submitted too late to be considered, on
the ground that Article 38 of the Rules of Court, when it
lays down that an objection to the jurisdiction must be sub-
mitted simultaneously with the Counter-Case, only contem-
plates a case where the Respondent asks a separate judgment
upon the objection.

Moreover, the Rules of Court cannot lay down a rule of
procedure the effect of which would be to determine the
Court’s jurisdiction.. The Court decides whether it has juris-
diction, but it does not lay down its jurisdiction. The rule,
failure to comply with which does not render an objection
null and void, is rather of an administrative nature, and its
meaning is that the Registry will not receive an objection
after the time fixed. It cannot exercise a legal effect for
the simple reason that its wording also covers objections
vatione materi; and, as regards such objections, the immut-
able principle holds go that they are admissible at any stage
of the proceedings.
DISSENTING OPINION BY M. NYHOLM 57

II.

The judgment arrives at the conclusion that the Court has
jurisdiction on the basis of the principle that the jurisdiction
of the Court is determined by the intention of the Parties
(Statute, Article 36); but in the present case this intention
has not been sufficiently definitely expressed. According to
Article 36, the Court’s jurisdiction is based on one of two
foundations only, a treaty or a special agreement. The
present suit has been brought on the basis of a treaty, the
Geneva Convention of May xsth, 1922. But, in point of
fact, the judgment does not find in this treaty the basis of
the Court’s jurisdiction; it resolves the question by saying
that the Parties have established the Court’s jurisdiction by
special ‘‘agreement’’ arrived at between themselves. Neverthe-
less, when the interpretation of an article of a particular
convention is concerned, it would seem natural, in the first
place, to look for the rules governing jurisdiction in the
convention itself, and not at once to have recourse to some
other source, such as the intention of the Parties. In any
case, however, it must be further proved that there exists a
special agreement concluded in due form, that is to say, con-
stituting a definite and precise proof of the intention of the Parties.

It is undeniable that the intention of the Parties, in the

form of a special agreement, may determine the Court’s
jurisdiction.
_ It would, however, seem impossible to dispense with the
formalities which, in accordance with the letter and spirit of
the Statute and Rules, must be complied with in the drawing
up of a special agreement. The judgment would seem to be
wrong when it refers to a precedent in the Mavrommatis
case (Judgment No. 5) and states that the Parties established
the Court’s jurisdiction in regard to a particular point in the
course of the proceedings by means of an agreement between
them, without any other formality.

In the Mavrommatis case an objection to the jurisdiction
was duly argued and overruled. In the course of the subse-
quent hearings on the merits, the Parties took what was in
substance simply a step of procedure, when they asked the
DISSENTING OPINION BY M. NYHOLM 58.

Court also to decide a point which had not previously been
specifically referred to. It was, therefore, rather a question
of a modification or extension of their submissions. No
definite reference seems to have been made to the Court’s
jurisdiction, and the request calling upon the Court to decide
this further point was made without any specific indication
of a jurisdiction which was not provided for beforehand.
No precedent, therefore, for the omission of the formalities
accompanying the submission of a special agreement seems to
exist.

Apart, however, from the question of these formalities, it
is at all events certain that a special agreement implies a
definite intention on the part of the two Parties couched in
express terms.

Is there a definite intention in the present case? In the
first place, concordant declarations by the two Parties are
altogether lacking. Nowhere has Poland stated that she accepted
the Court’s jurisdiction.

‘Has she, however, in effect accepted it? Again the answer
is no. On the contrary, right up to and including her final
submissions (the oral hearing of March 15th, 1928), Poland
expressly maintained her objection to the jurisdiction.

The judgment, which cannot cite, in support of the theory
which it enunciates, either an express declaration or even a
tacit acceptance, simply argues that an agreement has been
created by the fact that Poland has argued the case on the
- merits “without making reservations”. But reservations are
to be found all through the proceedings. Even if, as the
judgment says, Poland filed her Counter-Case with submis-
sions on the merits ‘‘without raising an objection”, the fact
remains that in the subsequent proceedings and as soon as
the attitude of Germany afforded an opportunity, Poland
submitted that the Court had no jurisdiction. At all events,
the proceedings before the Court—both written and oral—
form a single whole. They comprise two phases and they
end with the oral rejoinder, and it is impossible to argue—
as does the judgment—that the fact that Poland began her
presentation of the case by filing a Counter-Case on the merits
constitutes a tacit acceptance. A decisive argument against
this contention exists, moreover, in the fact that in the
DISSENTING OPINION BY M. NYHOLM 59

present case, the objection is an objection vatione materia
which can accordingly be raised at any stage. The judgment
appears, finally, to adopt the standpoint that implicit (not
even tacit) acceptance results from the mere fact that Poland,
at a time when the Court had before it submissions regarding
both the question of jurisdiction and the merits, argued the
merits. It will suffice to observe that such a contention
directly conflicts with the principle of procedure that an objec-
tion may be joined to the merits, from which it follows
that it is possible to argue both the question of jurisdiction
and the merits at the same time.

Tt must, therefore, be regarded as impossible to establish
the existence of a ‘special agreement” between two Parties,
one of which has done nothing but contest the existence of
an agreement.

It should also be added that in this case the Parties were
even unable to conclude an agreement regarding the Court’s
jurisdiction. The Convention, on the basis of which the suit
was brought, was imposed on the Parties by the Conference
of Ambassadors, which, amongst other things, prescribed the
rules respecting jurisdiction. Germany and Poland, therefore,
cannot alter or establish these rules of their own free will.

ITT.

It is impossible, therefore, in this case to base the Court’s
jurisdiction upon an ‘“‘agreement” which does not and cannot
exist.

It is, therefore, necessary, and quite natural, to have recourse to
an interpretation of the Geneva Convention, on which the suit is
based. The judgment only considers it in a somewhat cursory
fashion (see pages 26-27). The observations contained in the
judgment may be supplemented or replaced by a reference to
the Convention which, in point of fact, contains sufficient
data for the decision of the question of jurisdiction.

In consulting this instrument, the following should be noted.
Article 131, the interpretation of which is sought, is found in
Division II of the part of the Convention relating to minor-
ities, namely, Part III, which contains Articles 64 to 158. This

8
DISSENTING OPINION BY M. NYHOLM 60

Part comprises three divisions: the first from Articles 64
to 72, the second from 73 to 146, and to this second Division
is appended a third concerning means of redress (Articles 147
to 158). In referring to the text, which must be consulted in
considering the question of jurisdiction, it may be mentioned that
Division I is merely a reproduction of the Treaty of Minorities
concluded between Poland and the Principal Allied and Asso-
ciated Powers on June 28th, 1919, whilst Division II is the
work of the Commission responsible for drawing up the Con-
vention.

Jurisdictional rules are to be found in Division I in Article 72,
and in Division III in Article 147 and the following articles.
Article 72 gives the Court jurisdiction in regard to the “foregoing”
articles, that is to say, Articles 65 to 72. Article 147 gives
the Council of the League of Nations jurisdiction as regards
the whole of Part III including both Division I and Division II.
A comparison of the foregoing observations with the text
will enable one to understand the interpretation which at
first sight seems indicated and which has found support, namely,
that the Court is competent as faras Article 72 and the Coun-
cil from Articles 73 to 158. And, since Article 131 is in the
part falling within the sphere of the Council, the conclusion
seems to be that the Court has no jurisdiction.

But a study, of the origin of the Convention and the system
adopted by the Commission in drafting it, leads nevertheless
to a different result.

After the conclusion of the Treaty of June 28th, 1910,
relating to the protection of the rights of minorities, the prin-
ciples of this Treaty required development and application in
detail, and the Conference of Ambassadors decided on Octo-
ber 20th, 1921, that, with a view to the practical application
of the principles of the Treaty, the German and Polish Govern-
ments should conclude an agreement in order “‘to put into

force the following provisions:....’’, namely, those contained
in Articles 1, 2, 7, 8, 9 (paragraphs 1 and 2), ro, 1x and 12 of the
Treaty.

. The Commission entrusted with the preparation of the
Convention could choose between two methods: (1) it could
either take as a basis the articles of the Treaty, adding to
each article in the form of appendices the articles required.
DISSENTING OPINION BY M. NYHOLM 61

to expound in detail the principles of the Treaty, or (2) it
could combine the principles with the detailed regulations. It
adopted the latter method. Division II, in fact, which sets
out the principles together with the new detailed regulations,
forms a unity. At the same time, the articles of the Treaty
were reprinted in a sort of preliminary annex or preamble
and were given numbers in the Convention as Articles 65
to 72, The adoption of this method is referred to in the Pre-
amble to Division II which states that the contents of Articles 65
to 72 are only repeated in the present section for the purpose
of giving a general view.

Division IT, therefore, by itself really constitutes the Conven-
tion. The principles of the Treaty of 1019 are inserted in it
and form a complete whole with the detailed rules to be
added by the Commission. .

The first conclusion to be drawn from this is that the
_word “‘foregoing” loses its significance. Of course, the provi-
sion establishing the Court’s jurisdiction for Articles 65 to 72
holds good, but the word “foregoing’ does not create a
barrier depriving the Court of jurisdiction as regards Article 75
and the following articles, that is to say, as regards Divi-
sion II. This Division, which by itself constitutes the Conven-
tion, is subject to the Court’s jurisdiction, not only as regards
the principles set out therein, but also as regards those articles
which develop them and which are merely a detailed applica-
tion of them, and these latter articles cannot be separately
treated, since they form a complete whole together with the
principles. It would be inadmissible to extract certain articles
and give the Court jurisdiction in respect of them alone. An
examination of the articles of Division II shows that every
one of them without exception is connected with one of the
principles of the Treaty, so that no separation of the rules of
jurisdiction is possible. Articles 69 and 131 afford an example
of this. The provisions of Article 69 regarding education, as
set out under the Treaty of Minorities, are very brief. But
in Division II we see what a large number of detailed rules
it has been necessary to elaborate in addition to the main
principle contained in Article 69.

But Division Ii, which is subject to the Court’s jurisdiction,
is also subject to that of the Council.
DISSENTING OPINION BY M. NYHOLM 62

In this connection, however, it is most important to note
that the Council only has jurisdiction in respect of petitions
and requests made by individuals, whereas the Court’s juris-
diction only covers disputes arising between, on the one hand,
either the Polish or German Governments, and, on the other,
any of the Principal Allied and Associated Powers or any
other Power, a Member of the Council of the League of
Nations. The method of allocating jurisdiction adopted by the
Commission in the Convention is suited to practical condi-
tions and is calculated to fulfil this object. The Council’s
jurisdiction is established with a view to the very numerous
disputes arising in connection with the detailed regulations
of the Convention (Division Il). At the moment, more than
700 cases are pending. The Court should not be called on
to deal with them. If nevertheless the jurisdiction of the
Court is recognized in regard to Division II, the reason is that
the Court only hears cases brought by States and that States
are relied upon to exercise their discernment so as not to
bring actions in regard to trifling questions, but only where in
connection with an article regulating matters of detail questions of
legal principle arise or circumstances exist which may involve
important consequences. This is the case in the present suit,
an apparently unimportant point, namely, the construction to
be placed on a declaration entering a child for a school,
having had the effect of temporarily interrupting the educa-
tion of a large number of children.

These considerations clearly show the necessity for action on
the part of States and it would be inadmissible to decline to
take cognizance of such action; this, therefore, affords ground
for maintaining that the Court has jurisdiction in regard to
the articles concerning points of detail in Division II.

IV.

The reply which the judgment gives to the question whether
a declaration under Article 131 is of a subjective or objective
character seems to be drawn up in terms which do not
provide a satisfactory solution of the problem. The judgment
justly recognizes the weight of the specific text according
to which a declaration cannot be either verified or disputed, but
DISSENTING OPINION BY M. NYHOLM 63.

it does not draw the necessary inference. For the operative
part of the judgment admits that the declaration is.
objective in character when it lays down that it must (doit)
relate to what its author considers to be the actual state of
the facts and that there does not exist an unlimited right of
choosing the language of the child with regard to whom the
declaration is made. |

There appears here to be a contradiction in terms. A
declaration which cannot be disputed or verified is entirely
unimpeachable. Such a declaration cannot be limited by rules
of law. The requirement according to which the declaration
must correspond exactly to the facts is only a pious wish
and any limitations as regards its sincerity come solely within
a moral sphere. Since the declaration cannot be examined
and since all objections or disputes in regard to it are excluded,
the declarer is not subject to a legal obligation and the
declaration must be taken as it stands. Consequently, the
maker of the declaration may of his own free will.make a
declaration without considering whether it corresponds to the
actual state of affairs.

Germany, whilst clearly concluding in favour of the right
of the declarer to draw up a declaration freely, has in its
submissions inserted the words ‘‘the parent must declare
according to his own conscience and on his own personal
responsibility”. Since Germany has refused to accept the
objective theory, the idea which these words express must be
that the maker of the declaration may draw up such declaration
as he wishes, true or false, but that, in doing so, he must
from a moral point of view reflect on the substance of what.
his declaration contains. ;

The principle underlying Article 13: is explainable by the
particular state of affairs existing in Upper Silesia; no precise
limits exist either as regards nationality or as regards lan-
guage. Besides the two literary languages: Polish and Ger-
man, dialects are to be found as in all countries, and even a
commonly used dialect differing considerably from the Polish
and German languages. The working class ordinarily and in
domestic life exclusively speaks this dialect which consequently
is the sole means of expression, to the exclusion of German
and Polish, for children up to the time when the latter begin
DISSENTING OPINION BY M. NYHOLM 64

their school studies. Now the declaration only provides for
an option between two languages, the German language and
the Polish language. In these circumstances and in view of
the facts set out above, there are cases in which the declara-
tion, in opting for either German or Polish, cannot correspond
to the actual state of facts. Owing to this situation, it
‘further follows that the examination which the League of
Nations has ordered cannot result in proving that the lan-
guage of the child under such examination is not German.
The child does not know Polish either. He is only acquainted
with the dialect. A request for the entry of a child for a
minority school cannot be, generally speaking, considered as
having as its aim the denationalization of a child in reality
-of Polish nationality. The aim may be different, for example,
‘that the parent, realizing that the child will automatically
learn Polish, the language of the country, wishes for practical
‘reasons to have him instructed in the German language taught
in a minority school. Poland cannot complain of Article 13x
nor endeavour to alter it by interpretation, since, in view of
the reciprocal nature of the Treaty, the same rules hold good
for the German part. It may further be added that the
Polish complaint as regards the application of Article 131
mainly turns against Poland’s own nationals, namely, against
those Poles who send their children to a German school.

As regards adults, the same principle has been applied
(Article 74) for the definition of nationality, race and religion.
It appears to follow that, having regard to the situation in
Upper Silesia, the given solution is based on a rational basis
-according to the conditions prevailing in the country.

It is of interest to add to the above remarks some informa-
tion as to what took place in the Committee in which the
‘Convention was elaborated. At its meeting of February 15th,
1922, it was pointed out on behalf of Germany that the
principle which had been admitted by the draft proposal was
(translation) “that each individual was himself to determine
whether he belonged to a minority”. In order to allow of the
right of choosing being exercised subject to no hindrance or
influence by the authorities, it was expressly provided that
the authorities may not make any verification. That is
absolutely necessary precisely because of the particular situation
DISSENTING OPINION BY M. NYHOLM 65

in Upper Silesia, where the language is not the only criterion
which decides whether an individual belongs to a minority.
And similarly there is very little object in giving a rigid and
objective definition of the idea of “minority” since the lin-
guistic, religious and ethnical divisions cannot be disentangled.
A definition of minorities solely based on the subjective principle
must, for example, allow of an individual counting himself
as one of a minority from a religious point of view; on the
other hand, it should not be impossible for the same individual
to consider himself as belonging to the minority as regards
schools but to the majority in other spheres, for example, as
regards associations. The German Government considers that
its proposals take this particular situation into account.

No objection was made in the course of the meeting
against the above-mentioned principle.

The declaration being thus unimpeachable, it now remains
to consider the problem which in effect is the one in which
the Parties are interested. How far can the declaration be
enquired into? Article 131 prohibits any dispute or verification
by the “‘school authorities’. There is no reason for restricting
the meaning of the words “school authorities’ to the sub-
ordinate authorities of each school. The words ‘‘school author-
ities’ must comprise all the organs of the State which deal
with school matters from the lowest to the highest.

As regards authorities not being specifically school authorities,
one cannot within the meaning of the Convention deduce a
right of examination.

Any enquiry to verity the language implies a hindrance
contrary to the right of free choice.

Nevertheless, it might be objected that the authorities of
a State could, from an administrative point of view, examine,
not whether the declaration is in conformity with the true
state of the facts, but whether there exists in reality a
declaration within the meaning of the article, namely, for
example, whether the person who had made the declaration
had the necessary authority for so doing.
DISSENTING OPINION BY M. NYHOLM 66:

It cannot be denied in this respect that abuses might arise.
That is not contested by Germany. Poland is entitled to:
intervene in such cases, but good faith in the carrying out
of the Convention requires that such special cases should not
’ furnish grounds for general measures contrary to the substance
of Article 131. But there is reason to have recourse to the
good faith of the two States, having regard to the fact that
‘the stipulations of the Convention are reciprocally applicable
both to the Polish part and to the German part, and that
consequently they may, should the occasion arise, be put
into force against one or the other State.

(Signed) D. G. NYHOLM.


633

DECLARATION OF JUDGE LAUTERPACHT

I respectfully concur in operative paragraphs 1, 2 (a) and 3 of the
Judgment of the Court, but regret that I am unable to vote in favour of
paragraph 2 (b) in so far as it reflects (as stated in paragraph 40 of the
Judgment) a decision of the Court that the conduct of the Federal Repub-
lic of Yugoslavia does not “confer upon [the Court] a jurisdiction
exceeding that which it has already acknowledged to have been conferred
upon it by Article IX of the Genocide Convention” (emphasis added).
Although the point is now at the very margins of this case, I do not wish
to convey any impression of acting in a manner inconsistent with what
I said on the question of forum prorogatum in paragraphs 24-37 of my
separate opinion of 13 September 1993 relating to the Further Requests
for the Indication of Provisional Measures (1. C.J. Reports 1993, p. 325,
pp. 416-442).

(Signed) Elihu LAUTERPACHT.

42


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING BORDER AND
TRANSBORDER ARMED ACTIONS

(NICARAGUA vy. HONDURAS)

ORDER OF 27 MAY 1992

1992

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE A DES ACTIONS ARMEES
FRONTALIERES ET TRANSFRONTALIERES

(NICARAGUA c. HONDURAS)

ORDONNANCE DU 27 MAI 1992
Official citation :

Border and Transborder Armed Actions (Nicaragua v. Honduras),
Order of 27 May 1992, I.C.J. Reports 1992, p. 222

- Mode officiel de citation :

Actions armées frontaliéres et transfrontaliéres (Nicaragua c. Honduras),
ordonnance du 27 mai 1992, C.I.J. Recueil 1992, p. 222

Sales number 6 1 0
N° de vente :

1992
27 May
General List
No. 74

222

INTERNATIONAL COURT OF JUSTICE
YEAR 1992

27 May 1992

CASE CONCERNING BORDER AND
TRANSBORDER ARMED ACTIONS

(NICARAGUA v. HONDURAS)

ORDER

Present: President Sir Robert JENNINGS; Vice-President ODA; Judges
LACHS, AGO, SCHWEBEL, BEDJAOUI, Ni, EVENSEN, TARASSOV,
GUILLAUME, SHAHABUDDEEN, AGUILAR MAWDSLEY, RANJEVA,
AJIBOLA ; Registrar VALENCIA-OSPINA.

The International Court of Justice,

Composed as above,

Having regard to Article 48 of the Statute of the Court, and to Article 89
of the Rules of Court,

Having regard to the Application filed by the Republic of Nicaragua on
28 July 1986 by which the proceedings in this case were instituted against
the Republic of Honduras,

Having regard to the Judgment delivered by the Court on 20 December
1988 by which it found that it had jurisdiction to entertain that Applica-
tion, and that that Application was admissible,

Having regard to the Orders made by the President of the Court on
21 April and 31 August 1989 by which time-limits for written proceedings
on the merits were fixed and subsequently extended, and having regard to
the Memorial filed by Nicaragua on 8 December 1989,

Having regard to the agreement between the Parties dated 12 December
1989, notified to the Court on 13 December 1989, providing (inter alia)
that the Parties would immediately request the postponement of the date

4
223 ARMED ACTIONS (ORDER 27 V 92)

for the fixing of the time-limit for the Counter-Memorial of Honduras
until 11 June 1990, and that if no extra-judicial settlement of the dispute
had been reached by that date, either Party might request that Honduras
be granted six months for the filing of its Counter-Memorial,

Having regard to the Order made by the Court on 14 December 1989 by
which the Court, taking into account the said agreement, decided that the
time-limit for the Counter- Memorial of Honduras was extended from the
date originally fixed (19 February 1990) to a date to be fixed by an order to
be made after 11 June 1990;

Whereas neither Party has since requested the Court to fix the time-
limit for the Counter-Memorial;

Whereas by a letter dated 11 May 1992, and received in the Registry the
following day, the Agent of Nicaragua informed the Court that, taking into
consideration that the Parties had reached an out-of-court agreement aimed
at enhancing their good neighbourly relations, the Government of Nicar-
agua had decided to renounce all further right of action based on the case,
and that that Government did not wish to go on with the proceedings;

Whereas a copy of that letter was forthwith transmitted by the Registrar
to the Government of Honduras, which was informed that the President
of the Court had fixed 25 May 1992 as the time-limit within which the
Government might state whether it opposed discontinuance of the pro-
ceedings;

Whereas by a letter dated 14 May 1992, transmitted to the Registrar by
facsimile on 18 May 1992, the Co-Agent of Honduras informed the Court
that his Government did not oppose discontinuance of the proceedings,

Places on record the discontinuance by the Republic of Nicaragua of the
proceedings instituted by the Application filed on 28 July 1986; and
Orders that the case be removed from the list.

Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this twenty-seventh day of May, one thou-
sand nine hundred and ninety-two, in three copies, one of which will be
placed in the archives of the Court and the others transmitted to the
Government of the Republic of Nicaragua and the Government of the
Republic of Honduras, respectively.

(Signed) R. Y. JENNINGS,
President.

(Signed) Eduardo VALENCIA-OSPINA,
Registrar.


                                                                                228

               DÉCLARATION DE M. LE JUGE TOMKA

[Texte original en français]

   Recherche d’une solution équitable dans la délimitation de la zone économique
exclusive et du plateau continental — Nécessité d’éviter que la frontière maritime
ne produise un effet d’amputation marqué — Ajustement de la ligne
d’équidistance provisoire — Recherche d’un juste équilibre entre les droits respectifs
des Parties.

  1. Bien que j’aie souscrit à toutes les conclusions de la Cour, je ne suis
pas pleinement satisfait de la manière dont celle-ci a établi la frontière
maritime entre les Parties dans la mer des Caraïbes. A mon sens, le pre-
mier segment de la ligne ainsi tracée a pour eﬀet d’amputer les projections
d’une partie non négligeable — voire substantielle — de la côte concave
du Nicaragua dans la Bahía de San Juan del Norte.

   2. Le droit applicable à la délimitation de la zone économique exclu-
sive et du plateau continental entre le Costa Rica et le Nicaragua, tous
deux Etats parties à la convention des Nations Unies sur le droit de la
mer de 1982, se trouve aux articles 74 et 83, respectivement, de cet instru-
ment. Ces deux articles quasiment identiques (la seule diﬀérence étant que
le premier fait référence à la zone économique exclusive et le second au
plateau continental) disposent ce qui suit :
        « 1. La délimitation [de la zone économique exclusive/du plateau
     continental] entre Etats dont les côtes sont adjacentes ou se font face
     est eﬀectuée par voie d’accord conformément au droit international
     tel qu’il est visé à l’article 38 du Statut de la Cour internationale de
     Justice, aﬁn d’aboutir à une solution équitable.
        2. S’ils ne parviennent pas à un accord dans un délai raisonnable,
     les Etats concernés ont recours aux procédures prévues à la par-
     tie XV… ».
  3. De par leur caractère très général, ces dispositions ne disent pas clai-
rement comment procéder. Les Etats sont censés négocier en vue de s’en-
tendre sur une délimitation de la zone économique exclusive et du plateau
continental qui leur permette d’aboutir à « une solution équitable ». C’est
à eux qu’il revient d’apprécier ce qui est « équitable ». Mais dès lors qu’ils
parviennent à un accord, ils sont réputés avoir trouvé « une solution équi-
table ». Si toutefois ils ne parviennent pas à s’entendre, ils auront recours
à des procédures de règlement des diﬀérends pour résoudre la question
pendante de leur frontière maritime. Lorsque la Cour est choisie comme
juridiction pour régler ce diﬀérend, sa mission se substitue en fait à celle
qui incombait initialement aux Etats concernés, à savoir la recherche

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    délimitation maritime et frontière terrestre (décl. tomka) 229

d’« une solution équitable ». En pratique, il en résultera une ligne de déli-
mitation qui permette d’emporter l’adhésion de la majorité des juges sié-
geant en l’aﬀaire.
   4. Cet exercice peut conduire à un résultat qui, bien que contraignant
pour les parties, sera plus ou moins convaincant. La Cour a précisé sa
jurisprudence aﬁn de fournir des orientations sur la manière d’eﬀectuer
une délimitation maritime en gardant toujours à l’esprit que l’objectif est
d’aboutir à « une solution équitable ». Selon cette jurisprudence, une ligne
frontière ne doit pas amputer les projections côtières de l’une ou l’autre
des parties (voir Différend territorial et maritime (Nicaragua c. Colom-
bie), arrêt, C.I.J. Recueil 2012 (II), p. 703-704, par. 215-216). Dans l’af-
faire relative à la Délimitation maritime en mer Noire (Roumanie
c. Ukraine), la Cour a expliqué que la ligne tracée par elle devait per-
mettre « aux côtes adjacentes des Parties de produire leurs eﬀets, en
matière de droits maritimes, d’une manière raisonnable et équilibrée pour
chacune d’entre elles » (arrêt, C.I.J. Recueil 2009, p. 127, par. 201). Par
ailleurs, la Cour a estimé qu’une ligne d’équidistance provisoire produi-
sant un eﬀet d’amputation devait être ajustée si cela était nécessaire pour
aboutir à « une solution équitable » (Différend territorial et maritime
(Nicaragua c. Colombie), arrêt, C.I.J. Recueil 2012 (II), p. 703-704,
par. 215). De même, le Tribunal international du droit de la mer, obser-
vant que, en raison de la côte « manifestement concave » de l’une des par-
ties, la ligne d’équidistance provisoire produisait « sur la projection
maritime de la côte nord [de celle-ci] un eﬀet d’amputation marqué », a
conclu que cette situation constituait « une circonstance pertinente qui
nécessit[ait] un ajustement de la ligne d’équidistance provisoire » (Délimi-
tation de la frontière maritime dans le golfe du Bengale (Bangladesh/
Myanmar), arrêt, TIDM Recueil 2012, p. 87, par. 323-324).
   5. A mon sens, la Cour, en la présente espèce, n’a pas complètement
réussi à éviter l’eﬀet d’amputation produit par le premier segment de la
ligne de délimitation dans la mer des Caraïbes. Le tracé de cette ligne est
illustré ci-dessous (p. 230) sur le croquis A, qui est un agrandissement tiré
du croquis no 11 ﬁgurant dans l’arrêt de la Cour.
   6. Ce croquis montre que le segment initial de la ligne de délimitation
a pour eﬀet d’amputer les projections maritimes (non seulement radiales
mais également frontales) générées par près de la moitié de la longue côte
concave du Nicaragua dans la Bahía de San Juan del Norte. J’estime que
le résultat obtenu n’est pas totalement équitable. La Cour aurait dû ajus-
ter quelque peu la ligne dans la zone économique exclusive et sur le pla-
teau continental, aﬁn d’atténuer l’amputation produite. A mon avis, elle
aurait dû, pour ce faire, relier par une ligne droite le point Lx (point ter-
minal de la frontière maritime dans la mer territoriale) et le point P
(signalé sur le croquis A).

  7. Cet ajustement aurait permis à la Cour d’assurer un équilibre plus
juste entre les droits respectifs des Parties et d’aboutir à une solution glo-
bale plus équitable, d’autant qu’elle a décidé qu’« il ne sera[it] pas tenu

                                                                           94

    délimitation maritime et frontière terrestre (décl. tomka) 230

compte … d’un quelconque droit qui découlerait » du cordon littoral
séparant la lagune de Harbor Head de la mer des Caraïbes (arrêt,
par. 105). La souveraineté sur le cordon littoral et la lagune appartient au
Nicaragua (ibid., par. 205, point 2)). La Cour ne tranche pas la question
de savoir si le cordon littoral génère un quelconque droit maritime au
bénéﬁce du Nicaragua, se bornant à relever que « [s]i l’enclave devait se
voir attribuer des eaux territoriales, celles-ci seraient peu utiles au Nicara-
gua, tout en brisant la continuité de la mer territoriale du Costa Rica »
(ibid., par. 105). Bien que l’on puisse comprendre qu’elle ait choisi cette
approche pragmatique, l’on pouvait cependant s’attendre aussi à ce que
la Cour apporte une solution plus équilibrée aux eﬀets que produit la
concavité marquée de la côte nicaraguayenne dans la Bahía de San Juan
del Norte, combinée à la convexité du court segment de côte costa-
ricienne qui lui est immédiatement adjacent.

                                                    (Signé) Peter Tomka.

                                                                            95