COUR PERMANENTE DE JUSTICE INTERNATIONALE

SERIE A/B
ARRETS, ORDONNANCES ET AVIS CONSULTATIFS

FASCICULE N° 64

ÉCOLES MINORITAIRES
EN ALBANIE

AVIS CONSULTATIF DU 6 AVRIL 1935
XXXIVme SESSION

1935

XXXIVth SESSION
ADVISORY OPINION OF APRIL 6th, 1935

PERMANENT COURT OF INTERNATIONAL JUSTICE

SERIES A./B.
JUDGMENTS, ORDERS AND ADVISORY OPINIONS

FASCICULE No. 64

MINORITY SCHOOLS
IN ALBANIA

SOCIETE D’EDITIONS A, W. SIJTHOFF’S

LEYDE LEYDEN
A. W. SIJTHOFF PUBLISHING COMPANY
PERMANENT COURT OF INTERNATIONAL JUSTICE

1935.
THIRTY-FOURTH (ORDINARY) SESSION. ee

No. 62.
April 6th, 1935.

MINORITY SCHOOLS
IN ALBANIA

The Albanian Declaration of October and, 921, concerning the
protection of minorities—General principles of the Minorities
Treaties —The conception of “equality in law’ and “equality in law
and in fact’ —Obligation to allow minorities to establish and main-

tain private schools.

ADVISORY OPINION.

Before: Sir Ceciz Hurst, President; M. GUERRERO, Vice-
President ; Baron Ro.Lin-JAEQUEMYNS, Count Rostwo-
ROWSKI, MM. FROMAGEOT, ALTAMIRA, ANZILOTTI,
URRUTIA, SCHUCKING, NEGULESCO, Jhr. VAN EysINnGa,
Judges.
A./B. 64.—MINORITY SCHOOLS IN ALBANIA 5

The Court, composed as above, gives the following opinion :

On January r8th, 1935, the Council of the League of Nations
adopted the following Resolution :

“The Council of the League of Nations,
In consideration of the Albanian Declaration made before the
Council on October 2nd, 1921, Article 5 of which reads as follows :

‘Albanian nationals who belong to racial, religious or
linguistic minorities will enjoy the same treatment and
security in law and in fact as other Albanian nationals.
In particular they shall have an equal right to maintain,
manage and control at their own expense or to establish in
the future, charitable, religious and social institutions,
schools and other educational establishments, with the right
to use their own language and to exercise their religion
freely therein.

Within six months from the date of the present Declar-
ation, detailed information will be presented to the Council
of the League of Nations with regard to the legal status
of the religious communities, Churches, Convents, schools,
voluntary establishments, and associations of racial, religi-
ous and linguistic minorities. The Albanian Government
will take into consideration any advice it might receive
from the League of Nations with regard to this question.’

In consideration of the provisions of Articles 206-207 of the
Albanian Constitution of 1933, which read as follows:

‘The instruction and education of Albanian subjects are
“reserved to the State and will be given in State schools.
Primary education is compulsory for all Albanian nationals
and will be given free of charge. Private schools of all
categories at present in operation will be closed’ ;

In consideration of the plea adduced before the Council by

the representative of the Albanian Government that, as the
- abolition of private schools in Albania constitutes a general

measure applicable to the majority as well as to the minority,
it is in conformity with Article 5, first paragraph, of the Albanian
Declaration ;

In consideration of the report submitted to the Council on
January 14th, 1935, by the representative of Spain;

Requests the Permanent Court of International Justice to
express an advisory opinion on the following question :

1° whether, regard being had to the above-mentioned
Declaration of October 2nd, 1921, as a whole, the Albanian
Government is justified. in its plea that, as the abolition of
the private schools in Albania constitutes a general meas-.
ure applicable to the majority as well as to the minority,
it is in conformity with the letter and the spirit of the
stipulations laid down in Article 5, first paragraph, « of that
Declaration ;

5
A./B. 64.—MINORITY SCHOOLS IN ALBANIA 6

2° and if so, whether the Council of the League of Nations
can, on the basis of the second paragraph of the said
Article, formulate recommendations going beyond the pro-
visions of the first paragraph.

The Secretary-General is authorized to submit this request to
the Court, together with all the documents relating to the
question, to afford the necessary assistance in the examination
of the question, and to arrange to be represented before the
Court if necessary.”

In accordance with this Resolution, the Secretary-General of the
League of Nations, on January 21st, 1935, transmitted to the Court
a request for an advisory opinion in the following terms:

“The Secretary-General of the League of Nations,

in pursuance of the Council Resolution of January 18th, 1935,
and in virtue of the authorization given by the Council,

has the honour to submit to the Permanent Court of Inter-
national Justice an Application requesting the Court, in accord-
ance with Article 14 of the Covenant, to give an advisory
opinion to the Council on the question which is referred to the
font by the Resolution of January 18th, 1935 (see attached
text).

The Secretary-General will be prepared to furnish any assist-
ance which the Court may require in the examination of this
matter, and will, if necessary, arrange to be represented before
the Court.”

The request was registered on January 23rd, 1935, in the Registry
of the Court. To the request were appended a number of docu-
ments} concerning the history of the Albanian Declaration of Octo-
ber 2nd, 1927, the application of Article 5 of this Declaration, and
the origin of the request for an opinion.

In conformity with Article 73, No. 1, paragraph 1, of the Rules,
the request was communicated to Members of the League of Nations
{through the Secretary-General of the League) and to States
entitled to appear before the Court. Furthermore, the Registrar,
by letter dated January 26th, 1935, sent to two States regarded
by the President—the Court not being in session—as likely to
be able to furnish information on the question referred to the Court
for advisory opinion, the special and direct communication mentioned
in Article 73, No. I, paragraph 2, of the Rules. These States were
Albania and Greece.

The Court being satisfied that the question submitted to it for
advisory opinion did not relate to an existing dispute, the second
paragraph of Article 71 of the Rules, concerning the appointment
of judges in accordance with Article 31 of the Statute, was not
applicable.

By an Order made on January 26th, 1935, the President of the
Court—the latter not being in session—after having first ascer-
tained by correspondence the views of Albania and Greece with
regard to the procedure to be adopted, fixed March Ist, 1935, as the

1 See list in the Annex.

6
A./B. 64.—MINORITY SCHOOLS IN ALBANIA . 7

date by which written statements might be filed on behalf of these
two States. These statements having been duly filed by.the date
fixed, the Court decided on March Ist that there should be oral
statements and fixed March 11th as the date for their presentation.

In the course of hearings held on March 11th and 12th, informa-
tion was presented in turn by M. G. Gidel, Professor at the Faculty
of Law at Paris, Counsel for the Albanian Government, by M. N.
Politis, Greek Minister at Paris, Counsel for the Greek Government,
and by M. Mehdi Frasheri, President of the Albanian Council of
. State, the Albanian Agent. The Greek Agent was M. G. Lagoudakis,
Greek Minister at The Hague.

In addition to the statements of the interested Governments and
the documents transmitted by. the Secretariat of the League of
Nations, the Court has had before it certain documents collected on
its own behalf and expressly mentioned either in the Albanian
- Memorial or in the Greek Memorial +. |

The submission of the case being in all respects regular, these
are the circumstances in which the Court is now called upon to
give its opinion. :

« * «

On December 15th, 1920, the Assembly of the League of
Nations adopted the following recommendation :

“In the event of Albania, the Baltic and Caucasian States
being admitted into the League, the Assembly requests that
they should take the necessary measures to enforce the princi-
ples of the Minorities Treaties, and that they should arrange with
the Council the details required to carry this object into effect.’

Albania was subsequently admitted to membership of the
League of Nations by a vote of the Assembly on December 17th,
1920.

The Secretary-General having communicated these decisions
to the Albanian Government, the Prime Minister of Albania, in a
letter dated February gth and a telegram dated February 13th,
1921, sent him certain information as to the position of Albania
with regard to minorities.

On February 23rd, 1921, the Council decided to include on
the agenda of its next session, which was fixed for June of the
same year, the question of the protection of minorities in
Albania. Meantime, the Director of the Permanent Greek Secre-
tariat attached to the League of Nations sent to the Secretary-
General, under cover of a letter dated May 17th, 19271, a
memorandum on this question, to which the Albanian Presi-
dent of the Council, Minister for Foreign Affairs, replied by a
note dated June 21st, 1921. |

+ See list in the Annex.
A,/B. 64.—MINORITY SCHOOLS IN ALBANIA 8

In his memorandum the Greek representative raised the
question whether, in order to secure equitable treatment for
the racial or religious minorities living im Albanian territory,
it would suffice simply to apply to Albania the general prin-
ciples laid down in the Minority Treaties. In regard to this
point, the Greek representative, having arrived at the conclu-
sion that Albania ought to accept special conditions which, in
the case of Albania, should supplement the provisions relating
to the régime of minorities, expressed the opinion that, in the
” drawing up of the minority clauses to be accepted by Albania,
regard should be had to certain suggestions made by him and
including the following proposals:

“4. That the Albanian Government should promise to take the
necessary Measures for the construction and preservation of build-
ings used for Christian worship, for education and for philanthropy,
and that no hindrance should be placed in the way of such work
when it is justified by the needs of the communities and the con-
ditions of the buildings.

5. That all Albanian subjects belonging to racial, religious or
linguistic minorities should enjoy the same treatment and the same
security, both in fact and in law, as other Albanian subjects; and
that they should be entitled to establish, to administer and to con-
trol at their own expense, charitable, religious or scholastic insti-
tutions of ail kinds, to employ their own language and to practise
their own religion freely without interference by the authorities,
provided that the interest of public order is sateguarded.

6. That the ecclesiastic, scholastic and juridical privileges and
immunities granted by the Sultan to the non-Mohammedan nation-
als of Turkey by special ‘berats’, and confirmed by Imperial
decrees, should be recognized, and that the Albanian Government
should undertake to respect them in their entirety.”’

The reply of the Albanian Minister for Foreign Affairs, dated
June 21st, 1921, contained the following in regard to these
points :

“4. At the present moment there is in Albania no obstacle to the
construction and upkeep of buildings devoted to the Christian faith.
The Greek-speaking villages already possess schools where instruc-
tion is given in the Greek language, and these schools are subsi-
dized by the Albanian Government.

5. Equal treatment, both in law and in fact, exists for all Albanian
citizens without distinction of religion.

6. The ecclesiastic and legal prerogatives and immunities will be
dealt with in a special law concerning the Orthodox autocephalous
Churches, and this law will be inspired by a liberal recognition of
the freedom of conscience, equal for all Catholic, autocephalous
Churches and Bektachite (Téké) convents.”

On June 27th, the Council decided that the question of minor-
ities in Albania should be examined by the Secretariat together
with the interested governments, in order. that a report might

8
 A./B. 64.—MINORITY SCHOOLS IN ALBANIA 9

be prepared for the next meeting of the Council. The latter
took place in August-October, 1927. | |

The report made by Mr. Fisher, the British representative,
submitted to the Council a draft Declaration which was intended
by the Rapporteur to be signed by the duly authorized repre-
sentatives of Albania and formally communicated to the Council
of the League. With regard to the contents of this Declaration,
which was actually signed by the Albanian representative on
October 2nd, 19211, the Rapporteur stated that it met most
of the suggestions of the Greek Government—he was referring
to those made notably in the memorandum of May 17th, 1927.
He indicated however two important exceptions, which he
explained and accounted for in detail: neither of these excep-
tions affected the points covered by Nos. 4 to 6 of the above-
mentioned Greek memorandum.

It should be observed that, though it closely follows the cor-
responding clauses of the Minorities Treaties, and especially
those of the first of these Treaties, the Treaty with Poland
of June 28th, 1919, the Albanian Declaration differs from
it in certain respects. Thus Article 1 of the Declaration, in
addition to the usual provision as to the supremacy of the minor-
ity clauses, lays down that no act of State shall prevail over
them “now or in the future” ; again, paragraph 2 of Article 5
of the Declaration does not occur in the model Treaty, and
paragraph 1x of the same Article speaks of the “equal right”
of the minority to ‘‘maintain, manage and control” certain insti-
tutions or to “‘establish” them ‘‘in the future”, whereas the
model Treaty only mentions the right to “establish, manage and
control’. |

The Council, on the proposal of the Rapporteur, adopted on
the same day (Oct. 2nd, 1921) a Resolution taking note of the
Declaration made by the Albanian delegation for the protection
of minorities and deciding that the stipulations contained in this
Declaration, so far as they concerned racial, religious or linguistic
minorities, should be placed under the guarantee of the League
of Nations as from the date of their ratification by the Albanian
Government. Ratification took place on February 17th, 1922 ;
the instrument of ratification was deposited at Geneva on the
following 22nd of March.

After the signature of the Declaration by the Albanian repre-
sentative at the Council meeting on October 2nd, 1921, the
Greek representative, whilst expressing his gratitude to the
Council for having considered certain of the suggestions made
in the memorandum of May 17th, 1921, drew the Council’s
attention to the necessity, in his view, of maintaining in Albania

1 For the text, see Annex.
A./B. 64.—MINORITY SCHOOLS IN ALBANIA 10

the secular, religious and educational privileges which . the
Greek nation had enjoyed in all the territories of the former
Turkish Empire.

The Court has received but little precise information as to
the educational situation in Albania at the time when the
Declaration of October 2nd, 1921, was made and when that
Declaration became effective. Certain conclusions may how-
ever be drawn from the documents which have been produced.
Thus, in the course of the observations made by him before
the Council on January 14th, 1935, the Albanian representa-
tive said that ‘‘education in Albania, until 1912, had varied
according to religion: the Moslems attended the Ottoman
schools; the Orthodox, the Greek schools, and, in the dis-
tricts adjacent to the Slavs, the Serbian or Bulgarian schools ;
the Catholics attended the Italian or Austrian schools....”.
With regard to the period subsequent to 1912—Albania became
an independent State in 1913—it appears from the same
observations that only in 1929 was a law concerning communi-
ties drafted under which ‘‘secular education was separated from
religious teaching’. Furthermore, the Agreement signed at
Corfu on May 17th, 1914, by the representatives of the Albanian
Government, amongst others, declared that “‘education was
free” ; and the Agreement signed at Kapishtiça on May 15th,
1920, between the Greek authorities and representatives of the
Albanian Government laid down that “the Greek schools may
function freely’’ in southern Albania. Again, in a letter dated
February gth, 1921, which is referred to in Mr. Fisher’s report
of October 2nd, 1921, and has been mentioned above, the Pre-
sident of the Albanian Council of Ministers declared that the
national Government had given “complete cultural freedom”
to the Greek (and Slav) elements of the population ‘‘by estab-
lishing Greek schools and paying the teaching staff”; the
letter continues: “The same freedom is given to private
initiative for the establishment of educational institutions using
the Greek language +.”

The Court would emphasize that it only quotes the Agree-
ments of Corfu and Kapishtiça in so far as they may serve to
throw light upon the educational situation existing at the
period of their conclusion and that it expresses no opinion as
to the validity of these arrangements as international agree-
ments imposing obligations on Albania.

Under Article 5, paragraph 2, of the Declaration of October 2nd,
1921, the Albanian Government had, within six months, to
present to the Council ‘‘detailed information .... with regard
to the legal status of the religious communities, churches, con-
vents, schools, voluntary establishments and associations of

1 Translation by the Registry.
10
A./B. 64.—MINORITY SCHOOLS IN ALBANIA “Ir

racial, religious and linguistic minorities’. In this connection,
the Court would recall that in its Advisory Opinion of July 31st,
1930, - concerning the Greco-Bulgarian Communities (Opinion
No. 17), it had occasion to state that a community is

ce

. a group of persons living in a given country or locality,
having a race, religion, language and traditions of their own
and united by this identity of race, religion, language and tradi-
tions in a sentiment of solidarity, with a view to preserving
their traditions, maintaining their form of worship, ensuring the
instruction and upbringing of their children in accordance with
the spirit and traditions of their race and rendering mutual
assistance to each other.”

By a telegram dated April 2nd, 1922, the Albanian Govern-
ment, however, announced that it was materially impossible
for it to present its report within the time fixed, and that it
would do so as soon as possible. In accordance with this pro-
mise, the Albanian Minister for Foreign Affairs sent certain
information to the Secretary-General on this subject in a letter
dated July 7th, 1922. This letter stated that there were in
southern Albania a number of Greek minority schools, all main-
tained solely by the State out of the funds of the Ministry
of Education; further, according to the same letter, Albanian
communities, including the Orthodox community, had “full
rights of establishing schools of various grades teaching in the
language of the people over whom their religious heads have
rights of jurisdiction’.

Meantime, at a meeting of the Council on May rath, 1922,
the Albanian representative had announced that two classes
of laws would be passed to deal with the question of minor-
ities in Albania: the general principles. would form an integral
part of the constitutional law which was in process of prepar-
ation, and the development of these principles and the provi-
sions regarding religious communities would be embodied in
another law, which was also in course of preparation.

On September ist, 1922, the Council noted the information
furnished by the Albanian Government in its letter of July 7th
regarding the situation of minorities in Albania; at the
same time, it instructed the Secretary-General to collect and
submit to the Council in due course further information concern-
ing the legislative measures which, according to the statement
made by the Albanian representative on May rath, 1922, were
to be taken, particularly with regard to the legal status of
minority schools. |

The first Albanian Constitution—apart from the organic Stat-
ute of August xoth, 1914, and a ‘Provisional Constitution”
which would seem to have been in force in 1923, but the terms

2 II
A./B. 64.—MINORITY SCHOOLS IN ALBANIA 12

of which have not been produced to the Court—was only adopted
on March 7th, 1925.

On June 5th, 1923, however, a law was promulgated “concerning
the legal status of religious communities”, the text of which
was communicated to the Council on August r5th of the same
year. This law does not deal with educational questions ; its
bearing upon the organization of education in Albania appears
indirectly from the letter of the Albanian Minister for Foreign
Affairs of July 7th, 1922, to which reference has been made
above. On September 17th, 1923, the Council decided to note
“the information furnished to date by the Albanian Govern-
ment in conformity with Article 5, paragraph 2, of the Alban-
ian Declaration of October 2nd, 1921”, and to instruct the
Secretary-General to examine this information ‘‘in co-operation
with the Albanian representative and to submit [his] conclu-
sions to the Rapporteur’. The results of this examination
were set out in a memorandum which the Secretariat commu-
nicated to the Council, for its information, on May 14th, 1924.

This memorandum stated that the Minorities Section of the
Secretariat had undertaken, together with the Albanian repre-
sentative, a detailed examination of various questions including
the question of schools. In regard to this point, the Albanian
representative appears to have informed the Secretariat that
a law was being drafted by which no private schools would be
aHowed in Albania; this law, being general in character and
applying to the ‘majority as well as to the minority, would,
in his view, be in conformity with Article 5, paragraph 1, of
the Declaration of October 2nd, 1921. According to a letter
dated November 3rd, 1934, addressed by the Albanian Minister
for Foreign Affairs to the Secretary-General, this view had been
“expressed in statements made in August, 1923, to the per-
manent Albanian Delegate by M. Colban, the Director of the
Minorities Section !”. No document confirming this allegation
has, however, been produced to the Court.

The Secretariat’s memorandum does not seem to have led
to any subsequent decision on the part of the Council. In
his “Report to the Sixth Assembly of the League of Nations
on the Work of the Council’, etc. (Sept., 1925), the Secretary-
General of the League writes that the ‘“‘memorandum prepared
by the Secretariat was communicated to Members of the Coun-
cil.... The Council has not yet decided to examine this docu-
ment”; and in his report to the Council on January 14th,
1935, the Spanish representative said: ‘‘since then [May 1924]
the Council has not dealt with the matter’. In the same
report it is explained that, in view of the information supplied
by the Albanian Government in 1922 and 1923, the Council

1 Translation by the Registry.
12
A./B. 64.—MINORITY SCHOOLS IN ALBANIA 13

did not feel that the situation called for any recommendations.

The intentions mentioned by the Albanian representative in
his conversations with the Secretariat in 1923 did not take
shape for some time. Thus, on December Ist, 1928, a new
Constitution was promulgated; Articles 206 and 207 were as
follows :

“Article 206.—Elementary education is compulsory for all
Albanian subjects and shall be given free of charge in the
State schools.

Article 207.—Provided they conform with the laws, prin-
ciples and curricula approved by the State for its own schools,
and subject to the effective control of the Government, Alban-
ian subjects may found private schools.

Provided they comply with the laws, foreigners may be
authorized to found technical and agricultural schools only,
with theoretical and practical curricula.

Similarly, religious schools may be established by Albanian
religious communities with the permission of the competent
Minister and in conformity with the laws; the number of the
religious schools of any community and of the pupils of such
schools shall be fixed by the competent Minister after consulta-
‘tion with the Council of Ministers.’’

In the following year, however, the law regarding the secu-
larization of education to which—as has already been mentioned
—the Albanian representative alluded in his observations at
the Council meeting on January r4th, 1935, was prepared; but
this law, according to the statements of this representative,
remained a dead letter. On January goth, 1930, a new law was
adopted “concerning religious communities”, replacing that of
1923. Under Article 24 of this law, which came into force on
February ist, 1031, “religious communities and their sects may
open religious schools and seminaries for the education of their
ecclesiastical personnel, so long as they conform to the laws
of the State and to the statutes and rules of the community
as approved by the State”. On November 14th, 1930, a cir-
cular of the Minister of Public Education was published, abol-
ishing religious instruction in schools. Finally, in 1933, the
Albanian National Assembly modified Articles 206 and 207 of
the Constitution of 1928, and those Articles now run as follows:

“The instruction and education of Albanian subjects are
reserved to the State and will be given in State schools. Pri-
mary education is compulsory for all Albanian nationals and
will be given free of charge. Private schools of all categories at
present in operation will be closed 1.”

1 This translation is taken from the Council Resolution of January 18th,
1935. The following translation appears in the report adopted by the Council
on January 14th, 1935:

“The teaching and education of Albanian subjects are reserved to the

13
A./B. 64.—MINORITY SCHOOLS IN ALBANIA 14

Thus the abolition of private schools in Albania was com-
pleted. :

Following upon these measures, a number of petitions which
have not been produced to the Court seem to have been addressed
to the League of Nations, relating mainly to the question of
the abolition of private schools in Albania. The Committee
of the Council which had been instructed to examine these
petitions requested the Secretary-General in a letter dated
November 21st, 1934, to place the question of the scope of
Article 5 of the Albanian Declaration of October 2nd, 1927, in
regard to certain points, upon the Council agenda at the ear-
lest possible moment. The letter contains the following pas-
sage on the subject:

“This Article contains a set of interdependent provisions. In
our opinion the last, which refers to advice to be given by the
League of Nations, is a most important point to bear in mind in
judging the present situation. As it appears that such advice
has not yet been given, we think it would be well to draw the
Council’s attention to this fact, so that it may decide whether it
desires to take action under these clauses.”

The Committee of the Council, before taking this step, had
been able to see, inter ala, the observations sent by the Albanian
Government to the Secretary-General on July 23rd and Nov-
ember 3rd, 1934, the text of which has been communicated to
the Court. It is stated in the report adopted on January rath,
1935, that a comparison of the legislation in force in Albania
with that of 1923 led three Members of the Council to the
conclusion that the situation had changed considerably, so
that they thought it desirable to draw the Council’s attention
to the fact that the recommendations contemplated in Article 5,
paragraph 2, of the Albanian Declaration had not yet been
formulated.

After discussing the question on the basis of the reports
presented by the Spanish representative at the meetings on
January r4th and 18th, 1935, the Council decided, by a Reso-
lution adopted on the latter date and the terms of which are
reproduced above, to ask the Court for an advisory opinion on
the questions formulated therein.

*
* *

The request submitted to the Court by the Council of the
League of Nations first asks “whether, regard being had to

State, which shall be responsible for giving such teaching and education
in its schools. Elementary education is compulsory for all Albanian
nationals and shall be given free of charge. Private schools of all cate-
gories at present in existence shall be closed.”

14
A./B. 64.—MINORITY SCHOOLS IN ALBANIA 15

the above-mentioned Declaration of October 2nd, 1921, as a
whole, the Albanian Government is justified in its plea that,
as the abolition of the private schools in Albania constitutes
a general measure applicable to the majority as well as to the
minority, it is in conformity with the letter and the spirit of
the stipulations laid down in Article 5, first paragraph, of that
Declaration’.

The contention of the Albanian Government is that the
above-mentioned clause imposed no other obligation upon it,
in educational matters, than to grant to its nationals belonging
to racial, religious, or linguistic minorities a right equal to that
possessed by other Albanian nationals. Once the latter have
ceased to be entitled to have private schools, the former can-
not claim to have them either. This conclusion, which is
alleged to follow quite naturally from the wording of para-
graph x of Article 5, would, it is contended, be in complete
conformity with the meaning and spirit of the treaties for the
protection of minorities, an essential characteristic of which is
the full and complete equality of all nationals of the State,
whether belonging to the majority or to the minority. On the
other hand, it is argued, any interpretation which would compel
Albania to respect the private minority schools would create a
privilege in favour of the minority and run counter to the
essential idea of the law governing minorities. Moreover, as the
minority régime is an extraordinary régime, constituting a dero-
gation from the ordinary law, the text in question should, in
case of doubt, be construed in the manner most favourable to
the sovereignty of the Albanian State.

According to the explanations furnished to the Court by the
Greek Government, the fundamental idea of Article 5 of the
Declaration was on the contrary to guarantee freedom of edu-
cation to the minorities by granting them the right to retain
their existing schools and to establish others, if they desired ;
equality of treatment is, in the Greek Governments’ opinion,
merely an adjunct to that right, and cannot impede the pur-
pose in view, which is to ensure full and effectual liberty in
matters of education. Moreover, the application of the same
régime to a majority as to a minority, whose needs are quite
different, would only create an apparent equality, whereas the
Albanian Declaration, consistently with ordinary minority law,
was designed to ensure a genuine and effective equality, not
merely a formal equality.

Éd

The Declaration of October 2nd, 1921, belongs to the nume-
rous category of international acts designed for the protection
of minorities.

15
A./B. 64.—MINORITY SCHOOLS IN ALBANIA 16

The Greek Government recognizes this fact, but it contends
that the Declaration must be construed in the light of the
historical and social conditions of Albania, and with regard, in
particular, to the fact that the rights of the minorities had been
long in existence in the Near East, where they were known
by the name of community rights.

In accordance with this line of argument, Counsel for the
above-mentioned Government gave prominence, in the course
of his oral statement, to the points of difference which exist
between the Albanian Declaration and the other treaties and
declarations of the same kind which have been mentioned
above. Thus, he drew attention to the insertion in the second
sentence of paragraph 1 of Article 5 of the words “to main-
tain’, which do not appear in the other treaties and declar-
ations, and which, in his submission, were intended to ensure
the continuation of the religious and educational autonomy that
was enjoyed by the Greek communities in Albania.

It is only natural to assume that the conditions which existed in
Albania after the war and which were themselves the conse-
quence of previous historic events, were within the knowledge
of the Assembly of the League of Nations when it included
Albania in its recommendation on December 15th, 1920. It
is moreover certain that the Declaration of October 2nd, 1921,
was drawn up after a prolonged examination, during which
the States concerned had an opportunity of stating their points
of view and supplying all relevant information.

There appears therefore no reason to doubt that certain spe-
cial aspects of the situation of the minorities in Albania—for
instance the existence of religious communities mentioned in
paragraph 2 of Article 5 of the Albanian Declaration—were
taken into consideration by the Council, and that they accounted
for certain differences between the Albanian Declaration and
the other treaties and declarations concerned with the protec-
tion of minorities.

These considerations cannot however prevail against the fact
that what the Council of the League of Nations asked Albania
to accept, and what Albania did accept, was a régime of minor-
ity protection substantially the same as that which had been
already agreed upon with other States in which there were no
“communities”.

The differences between the text of the Albanian Declaration
and the other texts of the same kind do not affect the essen-
tial features of that Act. On the other hand, it is a fact that
the Council did not insert in the Declaration certain proposals
of the Greek Government which departed “from the general
principles adopted in all the treaties for the protection of minor-
ities”. It follows that any rights and privileges which the Greek
communities in Albania may have enjoyed are only recognized

16
A./B. 64.—MINORITY SCHOOLS IN ALBANIA 17

in the Declaration of October and, 1921, in so far as they are
covered by the analogous régime of the protection of minorities.

As the Declaration of October 2nd, 192I, was designed to
apply to Albania the general principles of the treaties for the
protection of minorities, this is the point of view which, in the
Court’s opinion, must be adopted in construing paragraph 1 of
Article 5 of the said Declaration.

PE

The idea underlying the treaties for the protection of minor-
ities is to secure for certain elements incorporated in a State,
the population of which differs from them in race, language or
religion, the possibility of living peaceably alongside that popu-
lation and co-operating amicably with it, while at the same
time preserving the characteristics which distinguish them from
the majority, and satisfying the ensuing special needs.

In order to attain this object, two things were regarded as
particularly necessary, and have formed the subject of provi-
sions in these treaties,

The first is to ensure that nationals belonging to racial, reli-
gious or linguistic minorities shall be placed in every respect
on a footing of perfect equality with the other nationals of
the State.

The second is to ensure for the minority elements suitable
means for the preservation of their racial peculiarities, their
traditions and their national characteristics.

_ These two requirements are indeed closely interlocked, for

there would be no true equality between a majority and a
minority if the latter were deprived of its own institutions, and
were consequently compelled to renounce that which constitutes
the very essence of its being as a minority.

In common with the other treaties for the protection of
minorities, and in particular with the Polish Treaty of June 28th,
1919, the text of which it follows, so far as concerns the ques-
tion before the Court, very closely and almost literally, the
Declaration of October 2nd, 1921, begins by laying down that
no person shall be placed, in his relations with the Albanian
authorities, in a position of inferiority by reason of his language,
race or religion. Thus, Article 2 stipulates for all inhabitants of
Albania a certain minimum of rights, which are to be granted to
them “without distinction of birth, nationality, language, race
or religion’; and Article 3 guarantees that Albanian national-
ity will not be refused to any person fulfilling the conditions
mentioned in that Article.

Article 4 only relates to Albanian nationals and stipulates
on their behalf equality before the law and the enjoyment of

17
A./B. 64.—MINORITY SCHOOLS IN ALBANIA 18

the same civil and political rights, without distinction as to
race, language or religion. It also defines certain of these rights,
with the same object of preventing differences of race, language
or religion from becoming a ground of inferiority in law or an
obstacle in fact to the exercise of the rights in question.

In all these cases, the Declaration provides for a régime of
legal equality for all persons mentioned in the clause; in fact
no standard of comparison was indicated, and none was neces-
sary, for at the same time that it provides for equality of treat-
ment the Declaration specifies the rights which are to be enjoyed
equally by all.

After having regulated, as indicated above, the legal posi-
tion of certain persons who, whether or not possessing Albanian
nationality, come under Albanian sovereignty, and the legal
position of Albanian nationals in general, the Declaration goes
on to make special provision for Albanian nationals belonging
to minorities of race, language or religion.. That is the sub-
ject dealt with in paragraph x of Article 5, the provision which
is expressly referred to in the first question put to the Court,
and with which the Court must now occupy itself more
particularly.

%

It has already been remarked that paragraph x of Article 5
consists of two sentences, the second of which is linked to the
first by the words im particular : for a right apprehension of
the second part, it is therefore first necessary to determine the
meaning and the scope of the first sentence.

This sentence is worded as follows :

“Albanian nationals who belong to racial, linguistic or religi-
ous minorities, will enjoy the same treatment and security in
law and in fact as other Albanian nationals.”’

The question that arises is what is meant by the same treat-
ment and security in law and in fact.

It must be noted to begin with that the equality of all Alban-
jan nationals before the law has already been stipulated in the
widest terms in Article 4. As it is difficult to admit that Article 5
set out to repeat in different words what had already been said
in Article 4, one is led to the conclusion that ‘‘the same treat-
ment and security in law and in fact” which is provided for
in Article 5 is not the same notion as the equality before the
law which is provided for in Article 4.

Moreover, as Article 4 stipulates equality before the law for
all Albanian nationals, while Article 5. stipulates the ‘same
treatment and security in law and in fact” for Albanian nationals

18
A./B. 64.—MINORITY SCHOOLS IN ALBANIA 19

belonging to racial, religious or linguistic minorities as com-
pared with other Albanian nationals, it is natural to conclude
that the “‘same treatment and security in law and in fact”
implies a notion of equality which is peculiar to the relations
between the majority and minorities.

This special conception finds expression in the idea of an
equality in fact which in Article 5 supplements equality in law.
All Albanian nationals enjoy the equality in law stipulated in
Article 4; on the other hand, the equality between members
of the majority and of the minority must, according to the
terms of Article 5, be an equality in law and in fact.

It is perhaps not easy to define the distinction between the
notions of equality in fact and equality in law; nevertheless,
it may be said that the former notion excludes the idea of a
merely formal equality; that is indeed what the Court laid
down in its Advisory Opinion of September roth, 1923, concern-
ing the case of the German settlers in Poland (Opinion No. 6),
in which it said that:

“There must be equality in fact as well as ostensible legal
equality in the sense of the absence of discrimination in the
words of the law.”

Equality in law precludes discrimination of any kind; whereas
equality in fact may involve the necessity of different treat-
ment in order to attain a result which establishes an equilibrium
between different situations.

It is easy to imagine cases in which equality of treatment
of the majority and of the minority, whose situation and require-
ments are different, would result in inequality in fact; treatment
of this description would run counter to the first sentence of
paragraph rx of Article 5. The equality between members of the
majority and of the minority must be an effective, genuine
equality ; that is the meaning of this provision.

The second sentence of this paragraph provides as follows:

“In particular they shall have an equal right to maintain,
manage and control at their own expense or to establish in the
future, charitable, religious and social institutions, schools and
other educational establishments, with the right to use their own
language and to exercise their religion freely therein.”’

This sentence of the paragraph being linked to the first by
the words “in particular’, it is natural to conclude that it
envisages a particularly important illustration of the application
of the principle of identical treatment in law and in fact that
is stipulated in the first sentence of the paragraph. For the
institutions mentioned in the second sentence are indispensable
to enable the minority to enjoy the same treatment as the

3 19
A./B. 64.—MINORITY SCHOOLS IN ALBANIA 20

majority, not only in law but also in fact. The abolition of
these institutions, which alone can satisfy the special require-
ments of the minority groups, and their replacement by govern-
ment institutions, would destroy this equality of treatment, for
its effect would be to deprive the minority of the institutions
appropriate to its needs, whereas the majority would continue
to have them supplied in the institutions created by the State.

Far from creating a privilege in favour of the minority,
as the Albanian Government avers, this stipulation ensures that
thé majority shall not be given a privileged situation as com-
pared with the minority.

It may further be observed that, even disregarding the link
between the two parts of paragraph I of Article 5, it seems
difficult to maintain that the adjective ‘‘equal’’, which qualifies
the word “right”, has the effect of empowering the State to
abolish the right, and thus to render the clause in question
illusory ; for, if so, the stipulation which confers so important
a right on the members of the minority would not only add
nothing to what has already been provided in Article 4, but it
would become a weapon by which the State could deprive the
minority régime of a great part of its practical value. It should
be observed that in its Advisory Opinion of September 15th,
1923, concerning the question of the acquisition of Polish
nationality (Opinion No. 7), the Court referred to the opinion
which it had already expressed in Advisory Opinion No. 6 to
the effect that ‘‘an interpretation which would deprive the
Minorities Treaty of a great part of its value is inadmissible”.

If the object and effect of the second sentence of the para-
graph is to ensure that Albanian nationals belonging to racial,
linguistic or religious minorities shall in fact enjoy the same
treatment as other Albanian nationals, it is clear that the
expression “‘equal right” must be construed on the assumption
that the right stipulated must always be accorded to the mem-
bers of the minority. The idea embodied in the expression
“equal right” is that the right thus conferred on the members
of the minority cannot in any case be inferior to the corre-
sponding right of other Albanian nationals. In other words,
‘the members of the minority must always enjoy the right
stipulated in the Declaration, and, in addition, any more exten-
sive rights which the State may accord to other nationals.
The right provided by the Declaration is in fact the minimum
necessary to guarantee effective and genuine equality as between
the majority and the minority; but if the members of the
majority should be granted a right more extensive than that
which is provided, the principle of equality of treatment would
come into play and would require that the more extensive
right should also be granted to the members of the minority.

20
A./B. 64.—MINORITY SCHOOLS IN ALBANIA 21

The construction which the Court places on paragraph I of
Article 5 is confirmed by the history of this provision.

No. 5 of the proposals which the Greek Government: sub-
mitted to the Council of the League of Nations on May 17th,
1921, and which have in part been reproduced above, was
worded as follows:

“That all Albanian subjects belonging to racial, religious or lin-
guistic minorities should enjoy the same treatment and the same
security, both in fact and in law, as other Albanian subjects; and
that they should be entitled to establish, to administer and to
control at their own expense, charitable, religious or scholastic insti-
tutions of all kinds, to employ their own language and to practise
their own religion freely without interference by the authorities,
provided that the interest of public order is safeguarded.’’

It is clear that the right of minorities to have their own
charitable, religious or educational institutions was envisaged
in that proposal as a right which they were to enjoy in any case,
irrespective of the legal situation of other Albanian nationals.

This proposal was not contested by the Albanian Government
in its reply of June 21st of the same year, the relevant part
of which has been quoted above; and the report submitted to
the Council by the British representative on October 2nd
observed that the Declaration met most of the Greek Govern-
ment’s suggestions. The points mentioned in the report in
which it failed to do so, in no case affect the subject of the
proposal in question. That being so, the Court is unable to
attach any importance to the fact that the word “‘equal” does
not appear in the fifth Greek proposal, whereas it is used in
Article 5 of the Albanian Declaration which, in this respect,
follows the exact wording of the minorities treaties.

On the other hand, it was probably with the object of
meeting, in so far as was consistent with the general minority
régime, the desire expressed by the Greek Government in its
sixth proposal that the words “to maintain’, which do not
appear in Article 8 of the Treaty with Poland of June 28th,
1910, were inserted in paragraph 1 of Article 5.

Another argument in support of the interpretation placed by
the Court on paragraph 1 of Article 5 is supplied by Arti-
cle 6 of the Declaration, which is worded as follows:

“Provision will be made in the public educational system in
towns and districts in which are resident a considerable pro-
portion of Albanian nationals whose mother-tongue is not the
official language, for adequate facilities for ensuring that in the
primary schools instruction shall be given to the children of
such nationals through the medium of their own language, it.
being understood that this provision does not prevent teaching
of the official language being made obligatory in the said schools.

21
A./B. 64.—MINORITY SCHOOLS IN ALBANIA 22

In towns and districts where there is a considerable propor-
tion of Albanian nationals belonging to racial, religious or lin-
guistic minorities, these minorities will be assured an equitable
share in the enjoyment and application of sums which may be
provided out of public funds under the State, municipal or
other budgets, for educational, religious or charitable purposes.”

Beginning as it does with the words “in the public educa-
tional system”, which thus follow directly after Article 5,
Article 6 appears to assume that State education, so far as it
is intended for members of the minorities, will be something
additional to private education, and is not meant to take
the place of private education. For that reason, the Court
cannot regard as relevant the information supplied to it by
the Albanian Government concerning the present conditions
of State education in Albania and the reforms already intro-
duced, or about to be introduced, in order to meet the needs
of the minority in the State schools.

*

The Court, having thus established that paragraph 1 of
Article 5 of the Declaration, both according to its letter and
its spirit, confers on Albanian nationals of racial, religious or
linguistic minorities the right that is stipulated in the second
sentence of that paragraph, finds it unnecessary to examine
the subsidiary argument adduced by the Albanian Government
to the effect that the text in question should in case of
doubt be interpreted in the sense that is most favourable
to the sovereignty of the State. |

*

The Court therefore finds that paragraph 1 of Article 5
of the Declaration of October 2nd, 1921, ensures for Albanian
nationals belonging to racial, linguistic or religious minorities
the right to maintain, manage and control at their own
expense or to establish in the future charitable, religious and
social institutions, schools and other educational establish-
ments, with the right to use their own language and to exer-
cise their religion freely therein.

*

The second question in regard to which the opinion of the
Court is sollicited is worded as follows:

“2° and if so [t.e. if the Albanian plea on the first question ts
deemed to be in conformity with the letter and spirit of the stpu-
lations in Article 5, first paragraph, of the Declaration of Octo-
ber 2nd, 1921], whether the Council of the League of Nations can,
on the basis of the second paragraph of the said Article,

22
A./B. 64.—MINORITY SCHOOLS IN ALBANIA 23

formulate recommendations going beyond the provisions of the
first paragraph”.

As the Court has found that the reply ‘to the first question

put to it is not in the affirmative, the second question does.
not arise.

FoR THESE REASONS,
The Court is of opinion,
by eight votes to three,

that the plea of the Albanian Government that, as the
abolition of private schools in Albania constitutes a general
measure applicable to the majority as well as to the minority,
it is in conformity with the letter and spirit of the stipula-
tions laid down in Article 5, first paragraph, of the Declaration
of October 2nd, 1921, is not well founded.

Done in English and French, the French text being authori-
tative, at the Peace Palace, The Hague, this sixth day
of April, one thousand nine hundred and thirty-five, in two
copies, one of which is to be deposited in the archives of the
Court and the other to be forwarded to the Council of the
League of Nations.

(Signed) Ceci, J. B. Hurst,
President.

(Signed) À. HAMMARSKJÜLD,
Registrar.

Sir CEcIL Hurst, President of the Court, Count RosTworowskr
and M. Nrcuresco, Judges, declare that they are unable to
concur inthe Opinion given by the Court and, availing them-
selves of the right conferred on them by Article 71, para-
graph 3, of the Rules, have appended thereto the dissenting

opinion which follows.
(Initialled) C. J. B. H.
(Initialled) À. H.

23.


86

       SEPARATE OPINION OF JUDGE AD HOC DUGARD

   Agreement with Judgment of the Court — Jus cogens has an important role
to play in litigation before the Court — Jus cogens is to be invoked as a guide
to the Court in the exercise of its judicial choice and not to overthrow a norm of
general international law accepted and recognized by the international commu-
nity of States as a whole — The argument that jus cogens confers jurisdiction
on the Court in the present proceedings therefore unfounded — In order to
satisfy requirement of negotiation in a compromissory clause by means of con-
ference diplomacy, Applicant must identify convention and nature of alleged
violation with some degree of precision.

   1. The Democratic Republic of the Congo (hereinafter the DRC) has
failed to show that the Court has jurisdiction to hear the present Applica-
tion, either in terms of the compromissory clauses of several treaties that
it claims have been violated by Rwanda or in terms of a number of other
bases for jurisdiction that it has advanced. In these circumstances I agree
fully with the decision of the Court that it has no jurisdiction to entertain
the Application filed by the DRC on 28 May 2002.

   2. There are, however, two issues on which I wish to add some
comments of my own. First, as this is the first occasion on which the
Court has expressly acknowledged the existence of peremptory norms
(jus cogens), I wish to examine, albeit in a tentative manner, the role that
jus cogens may play in international litigation and the limits that must be
placed on its use, with special reference to the present Application.
Secondly, I wish to comment on the subject of negotiations within the
political organs of the United Nations for the purpose of satisfying
the requirement in a compromissory clause for the exercise of jurisdic-
tion that a dispute must be shown to be not capable of settlement
by negotiation.

                 JUS COGENS IN INTERNATIONAL LITIGATION

   3. The DRC has sought to invoke the jurisdiction of the Court on the
basis of a number of arguments premised on the violation of peremptory
norms (jus cogens) by Rwanda. These arguments, in essence, may be
reduced to two. First, the allegation of the violation of a norm of
jus cogens per se confers jurisdiction on the Court. Secondly, where a vio-
lation of a norm of jus cogens is alleged, the respondent State cannot

84

87                 ARMED ACTIVITIES (SEP. OP. DUGARD)

raise a reservation to the Court’s jurisdiction to defeat that jurisdiction.
In such a case, jus cogens in effect trumps the reservation. Aware, no
doubt, of the novelty and far-reaching implications of its argument, the
DRC has urged the Court to act “boldly and creatively”. The Court has
responded boldly by acknowledging the existence of norms of jus cogens
but it has, rightly, declined the DRC’s invitation to go beyond this.
Instead it has, correctly in my judgment, rejected the DRC’s submissions
in holding that the fact that a dispute relates to compliance with a per-
emptory norm, such as genocide, cannot of itself provide a basis for the
Court’s jurisdiction ; and that a reservation to the Court’s jurisdiction
cannot be held to be invalid on the ground that it violates a norm of
jus cogens. In so finding the Court has emphasized that its jurisdiction is
based on consent and that no peremptory norm requires States to con-
sent to jurisdiction where the compliance with a peremptory norm is the
issue before the Court.

   4. This is the first occasion on which the International Court of Justice
has given its support to the notion of jus cogens. It is strange that the
Court has taken so long to reach this point because it has shown no hesi-
tation in recognizing the notion of obligation erga omnes, which together
with jus cogens affirms the normative hierarchy of international law.
Indeed, the Court itself initiated the notion of obligation erga omnes in
1970 in the Barcelona Traction case (Barcelona Traction, Light and
Power Company, Limited (Belgium v. Spain), Second Phase, Judgment,
I.C.J. Reports 1970, p. 32) and has recently confirmed its adherence to
the notion in its Advisory Opinion in the case concerning Legal Conse-
quences of the Construction of a Wall in the Occupied Palestinian Terri-
tory (I.C.J. Reports 2004, p. 136, para. 155). Until the present Judgment
the Court carefully and deliberately avoided endorsing the notion of
jus cogens despite the many opportunities it had to do so. In 1969 it
refrained from pronouncing “on any question of jus cogens” (North Sea
Continental Shelf (Federal Republic of Germany/Denmark ; Federal
Republic of Germany/Netherlands), Judgment, I.C.J. Reports 1969, p. 42,
para. 72) ; in 1986 it acknowledged that the International Law Commis-
sion had found the prohibition on the use of force to have the character
of jus cogens, but declined to align itself with this position (Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), Merits, Judgment, I.C.J. Reports 1986, p. 258,
para. 83) ; and in 2002 it failed to respond to an argument that the grant-
ing of immunity to a Foreign Minister for crimes against humanity vio-
lated a norm of jus cogens (Arrest Warrant of 11 April 2000 (Democratic
Republic of the Congo v. Belgium), Judgment, I.C.J. Reports 2002,
pp. 23-26). Despite this, jus cogens has been invoked by individual judges
in cases before the Court in separate and dissenting opinions going back
to the 1960s. In 1960, in a dissenting opinion in the Right of Passage
case, Judge ad hoc Fernandes referred to the “rules of ius cogens, over
which no special practice can prevail” (Right of Passage over Indian Ter-

85

88                 ARMED ACTIVITIES (SEP. OP. DUGARD)

ritory (Portugal v. India), Merits, Judgment, I.C.J. Reports 1960, p. 135).
Then in 1966, in his dissenting opinion in the South West Africa cases,
Judge Tanaka declared :

       “If we can introduce in the international field a category of law,
     namely jus cogens examined the International Law Commission, a
     kind of imperative law which constitutes the contrast to the jus dis-
     positivum, capable of being changed by way of agreement between
     States, surely the law concerning the protection of human rights may
     be considered to belong to the jus cogens.” (South West Africa
     (Ethiopia v. South Africa ; Liberia v. South Africa), Second Phase,
     Judgment, I.C.J. Reports 1966, p. 298.)
  5. The failure of the International Court to endorse or pronounce on
the subject of jus cogens has not gone unnoticed. Its silence has been
aggravated by the fact that both other international tribunals (Al-
Adsani v. United Kingdom, 123 International Law Reports 24 (European
Court of Human Rights) ; Prosecutor v. Furundzija, IT-95-17/1-T,
paras. 153-156, 121 International Law Reports 214, 260 (International
Criminal Tribunal for the former Yugoslavia)) and national courts (see,
for example, R. v. Bow Street Metropolitan Stipendiary Magistrate :
Ex Parte Pinochet Ugarte (No. 3) [1999] 2 All ER 97 (HL) ; Ferrini v.
Federal Republic of Germany (Italian Court of Cassation), 11 March
2004 ; (2005) 99 American Journal of International Law 242) have invoked
the term jus cogens to portray higher norms of international law.

  6. The approval given to jus cogens by the Court in the present Judg-
ment is to be welcomed. However, the Judgment stresses that the scope
of jus cogens is not unlimited and that the concept is not to be used as an
instrument to overthrow accepted doctrines of international law.

  7. The Court’s endorsement of jus cogens raises the question of the
future role of jus cogens and the legal consequences to be attached to a
violation of jus cogens for, as Ian Brownlie states, “many problems of
application remain” in respect of jus cogens (Principles of Public Inter-
national Law, 6th ed. (2003), p. 490).
  8. It is today accepted that a treaty will be void if at the time of its
conclusion, it conflicts with “a peremptory norm of general international
law” (Art. 53 of the Vienna Convention on the Law of Treaties of 1969) ;
and that States must deny recognition to a situation created by the seri-
ous breach of a peremptory norm (Arts. 40 and 41 of the Draft Articles
on the Responsibility of States for Internationally Wrongful Acts, Report
of the International Law Commission, United Nations, Official Records
of the General Assembly, Fifty-sixth Session, Supplement No. 10 (A/56/
10) 29 (2001)). Moreover, it has been suggested that a Security Council
resolution will be void if it conflicts with a norm of jus cogens (see the

86

89                 ARMED ACTIVITIES (SEP. OP. DUGARD)

separate opinion of Judge ad hoc Sir Elihu Lauterpacht in the case con-
cerning the Application of the Convention on the Prevention and Punish-
ment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia
(Serbia and Montenegro), Provisional Measures, Order of 13 September
1993, I.C.J. Reports 1993, p. 440, para. 100). Jus cogens does, however,
have a less spectacular role to play in the judicial process and it is this
role that becomes important now that the Court has finally recognized
the existence of peremptory norms.

   9. In national law there is a wealth of literature on judicial lawmaking
and the nature of the judicial process. International law, on the other
hand, is characterized by a dearth of literature on this subject. (Cf.
Hersch Lauterpacht, The Development of International Law by the
International Court (1958).) This explains why little attention has been
paid to the place of jus cogens in the judicial process despite the pivotal
role that it could — and should — play.
   10. The judicial decision is essentially an exercise in choice. Where
authorities are divided, or different general principles compete for prior-
ity, or different rules of interpretation lead to different conclusions, or
State practices conflict, the judge is required to make a choice. In exer-
cising this choice, the judge will be guided by principles (propositions
that describe rights) and policies (propositions that describe goals) in
order to arrive at a coherent conclusion that most effectively furthers the
integrity of the international legal order.
   Norms of jus cogens are a blend of principle and policy. On the one
hand, they affirm the high principles of international law, which recog-
nize the most important rights of the international order — such as the
right to be free from aggression, genocide, torture and slavery and the
right to self-determination ; while, on the other hand, they give legal form
to the most fundamental policies or goals of the international commu-
nity — the prohibitions on aggression, genocide, torture and slavery and
the advancement of self-determination. This explains why they enjoy a
hierarchical superiority to other norms in the international legal order.
The fact that norms of jus cogens advance both principle and policy
means that they must inevitably play a dominant role in the process of
judicial choice.

   11. Several decisions of the International Court in which the Court
might have invoked norms of jus cogens, but did not, illustrate the type
of case in which norms of jus cogens might be employed. The Judgment
of the Court in the South West Africa cases (South West Africa (Ethio-
pia v. South Africa ; Liberia v. South Africa), Second Phase, Judgment,
I.C.J. Reports 1966, p. 6) is an obvious example of such a case. There the
Court was faced with a choice between the principle that a State must
demonstrate a special, national, interest in the proceedings before the
Court to enjoy legal standing and the “sacred trust of civilization” con-
tained in the Mandate for South West Africa to promote to the utmost

87

90                 ARMED ACTIVITIES (SEP. OP. DUGARD)

the well-being of the inhabitants of the territory. In preferring the former
principle it chose not to accede to the higher norm ; with serious conse-
quences for the Court. In fairness, it must be added that this decision
largely predated the recognition of norms of jus cogens although
Judge Tanaka in his powerful dissenting opinion did refer to such norms
(see above, para. 4).

   Other cases in which norms of jus cogens might possibly have been
invoked were East Timor (Portugal v. Australia) (Judgment, I.C.J.
Reports 1995, p. 90), and the Arrest Warrant case (Arrest Warrant of
11 April 2000 (Democratic Republic of the Congo v. Belgium), Judg-
ment, I.C.J. Reports 2002, p. 3).
   In the former, the Court declined to apply its decision in the Certain
Phosphate Lands case (Certain Phosphate Lands in Nauru (Nauru v.
Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992,
pp. 261-262) and instead preferred the controversial precedent of the
Monetary Gold case (Monetary Gold Removed from Rome in 1943
(Italy v. France, United Kingdom of Great Britain and Northern Ireland
and United States of America), Judgment, I.C.J. Reports 1954) above
the peremptory norm of self-determination, which was described as a
norm of erga omnes rather than jus cogens by the Court in its decision at
page 102. The Court has recently retreated from the Monetary Gold case
and instead relied on the Certain Phosphate Lands in Nauru case in the
case concerning Armed Activities on the Territory of the Congo (Demo-
cratic Republic of the Congo v. Uganda) (Judgment, I.C.J. Reports 2005,
pp. 237-238, para. 203). Although the Court did not indicate that its
choice was influenced by the fact that norms of jus cogens were involved
in this case, it may safely be assumed that the gravity of the issues raised
influenced the Court’s choice.
   In the Arrest Warrant case the Court found that a Foreign Minister
enjoyed immunity before a national court in respect of crimes against
humanity on the basis of weak evidence of State practice rather than
allowing the jus cogens character of the crime to prevail over the plea of
immunity (see the dissenting opinions of Judge Al-Khasawneh and
Judge ad hoc van den Wyngaert in the Arrest Warrant case (I.C.J.
Reports 2002, p. 98, para. 7, and p. 155, para. 28, respectively), which
advocate the choice of the jus cogens norm of the prohibition of crimes
against humanity over the unsettled rule of immunity).

   12. In the above cases the Court was faced with competing principles,
State practice and precedents and preferred not to choose that solution
which gave effect to a norm of jus cogens. The Court was not asked to
invoke jus cogens to trump an established, accepted rule but instead to
choose a principle of jus cogens or a precedent coinciding with a norm of
jus cogens in preference to a principle, State practice or precedent that
did not enjoy the status of jus cogens. It was simply asked to exercise its

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91                      ARMED ACTIVITIES (SEP. OP. DUGARD)

choice within the interstices of the law in a molecular rather than a molar
fashion1.

   13. In the present case the Court is confronted with a very different
situation. The Court is not asked, in the exercise of its legitimate judicial
function, to exercise its choice between competing sources in a manner
which gives effect to a norm of jus cogens. On the contrary, it is asked to
overthrow an established principle — that the basis of the Court’s juris-
diction is consent — which is founded in its Statute (Art. 36), endorsed
by unqualified State practice and backed by opinio juris. It is, in effect,
asked to invoke a peremptory norm to trump a norm of general interna-
tional law accepted and recognized by the international community of
States as a whole, and which has guided the Court for over 80 years. This
is a bridge too far. The Court cannot be expected to accept the arguments
raised by the DRC for by so doing it would not engage in molecular law-
making, but molar law-making that goes beyond the legitimate judicial
function. Only States can amend Article 36 of the Court’s Statute.

  14. For this reason the Court, in the present instance, has rightly held
that although norms of jus cogens are to be recognized by the Court, and
presumably to be invoked by the Court in future in the exercise of its
judicial function, there are limits to be placed on the role of jus cogens.
The request to overthrow the principle of consent as the basis for its juris-
diction goes beyond these limits. This, in effect, is what the Court has
held.

                NEGOTIATIONS WITHIN THE UNITED NATIONS AND
                       OTHER INTERNATIONAL BODIES

   15. The DRC claims that the Court has jurisdiction in terms of
Article 29 of the Convention on the Elimination of All Forms of Discri-
mination against Women in that there is a dispute between it and
Rwanda concerning the interpretation and application of the Conven-
tion, which cannot be settled by negotiation. It argues that it has made
frequent protests about Rwanda’s use of force in the region and its
violation of human rights before the political organs of the United
Nations and other international bodies. In support of its contention that
these protests and complaints about Rwanda’s actions within the
political organs of the United Nations and other international bodies

  1   See the statement of Justice Oliver Wendell Holmes :
        “I recognize without hesitation that judges do and must legislate, but they can do
      so only interstitially, they are confined from molar to molecular motions.” (Southern
      Pacific Co. v. Jensen, 244 US 205 at 221 (1916).).

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92                 ARMED ACTIVITIES (SEP. OP. DUGARD)

satisfy the requirement of negotiation, the DRC invokes the ruling of
the Court in 1962 in the South West Africa cases when it stated :

        “Moreover, diplomacy by conference or parliamentary diplomacy
     has come to be recognized in the past four or five decades as one of
     the established modes of international negotiation. In cases where
     the disputed questions are of common interest to a group of States
     on one side or the other in an organized body, parliamentary or con-
     ference diplomacy has often been found to be the most practical
     form of negotiation.” (South West Africa (Ethiopia v. South Africa ;
     Liberia v. South Africa), Preliminary Objections, Judgment, I.C.J.
     Reports 1962, p. 346.)

   16. There is an important difference between the South West Africa
cases and the present case. In the former case it was quite clear to all
States participating in the “conference or parliamentary diplomacy”
within the United Nations that the dispute related to the Mandate for
South West Africa, more particularly to the questions whether South
Africa was obliged to account to the United Nations for its administra-
tion of the territory in terms of the Mandate, and whether it had violated
Article 2 of the Mandate requiring it to “promote to the utmost the
material and moral well-being and the social progress of the inhabitants
of the Territory” by applying the policy of apartheid within the Territory.
For ten years or more these issues had constituted the focus of debates
within the United Nations.

   17. In the present case, on the other hand, the DRC has failed to indi-
cate with precision the nature of its complaint within the context of the
Convention on the Elimination of All Forms of Discrimination against
Women. It has made sweeping allegations of Rwanda’s use of force and
violations of human rights in general without, in most instances, indi-
cating which particular human rights convention it alleges has been vio-
lated. Nor has it indicated which of the 15 substantive provisions in the
Convention on the Elimination of All Forms of Discrimination against
Women Rwanda is alleged to have violated. The substantive provisions
in this Convention oblige States parties to abolish discriminatory meas-
ures against women within their own legal systems by adopting legislation
to ensure gender equality (Arts. 2, 3, 15) ; by pursuing affirmative
action programmes for women (Art. 4) ; by eliminating social and cul-
tural discrimination against women (Art. 5) ; by suppressing traffic in
women (Art. 6) ; by eliminating discrimination against women in political
life and in participation in government (Arts. 7 and 8) ; by protecting the
right to nationality of women (Art. 9) ; by ensuring equal rights
for women in education, employment, health care and economic
life (Arts. 10-13) ; by promoting the position of women in rural areas

90

93                 ARMED ACTIVITIES (SEP. OP. DUGARD)

(Art. 14) ; and by eliminating discrimination against women in marriage
and family relations (Art. 16). None of these provisions, it seems,
is relevant to the present dispute. Instead the nature of the DRC’s
allegation against Rwanda relates to acts of violence, including sexual
violence, against women, not within the territory of Rwanda but within
the territory of the DRC. Without in any way minimizing the gravity or
seriousness of these allegations, it should be stressed that they raise issues
pertaining to other human rights conventions — such as the Convention
against Torture (to which Rwanda is not a party) and the International
Covenant on Civil and Political Rights (which is not claimed as a basis
for jurisdiction in the present proceedings) — and to international humani-
tarian law.

   18. The fact that the DRC’s allegations relating to the violation of the
rights and personal integrity of women relate to human rights conven-
tions other than the Convention on the Elimination of All Forms of Dis-
crimination against Women, probably explains why this Convention was
not the subject of protest and complaint — that is “conference or parlia-
mentary diplomacy” — in the United Nations or other international
bodies. As these Conventions do not provide a basis for the Court’s juris-
diction, the DRC has felt itself compelled to invoke the compromissory
clause in the Convention on the Elimination of All Forms of Discrimina-
tion against Women as a basis for jurisdiction in this matter. However,
this invocation of jurisdiction is misplaced. First, it is doubtful whether
the allegations in question relating to the mistreatment of women fall
within the ambit of the Convention ; secondly, even if they do in some
way violate its provisions, it is clear that the DRC’s protests and allega-
tions of violence against women before the United Nations and other
international bodies have not been premised on the violation of this Con-
vention in particular, but on the violation of general human rights law
and other human rights Conventions. This means that there have been no
negotiations in the form of “conference or parliamentary diplomacy”
within the United Nations or other international bodies on the subject
of the Convention on the Elimination of All Forms of Discrimination
against Women. Accordingly, the DRC has failed to show that any dis-
pute between the Parties relating to this particular Convention has been
the subject of negotiation and that the dispute is one that cannot be
settled by negotiation within the meaning of Article 29 of the Conven-
tion.

  19. A party that wishes to rely on “conference or parliamentary diplo-
macy” in the political organs of the United Nations as evidence that it
has engaged in negotiations for the purpose of satisfying the require-

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94                 ARMED ACTIVITIES (SEP. OP. DUGARD)

ments of a compromissory clause must at least show that it has clearly
identified the Convention in question, and should be able to show that it
has indicated, albeit in broad terms, the nature of the violation it alleges
has occurred.

                                               (Signed) John DUGARD.

92


                          INTERNATIONAL COURT OF JUSTICE

                            REPORTS OF JUDGMENTS,
                         ADVISORY OPINIONS AND ORDERS

                     QUESTION OF THE DELIMITATION
                       OF THE CONTINENTAL SHELF
                   BETWEEN NICARAGUA AND COLOMBIA
                       BEYOND 200 NAUTICAL MILES
                      FROM THE NICARAGUAN COAST
                            (NICARAGUA v. COLOMBIA)

                           ORDER OF 8 DECEMBER 2017

                                 2017
                          COUR INTERNATIONALE DE JUSTICE

                              RECUEIL DES ARRÊTS,
                       AVIS CONSULTATIFS ET ORDONNANCES

                      QUESTION DE LA DÉLIMITATION
                        DU PLATEAU CONTINENTAL
                   ENTRE LE NICARAGUA ET LA COLOMBIE
                      AU‑DELÀ DE 200 MILLES MARINS
                      DE LA CÔTE NICARAGUAYENNE
                            (NICARAGUA c. COLOMBIE)

                        ORDONNANCE DU 8 DÉCEMBRE 2017

2 CIJ1128.indb 1                                           5/04/18 11:09

                                                 Official citation :
                     Question of the Delimitation of the Continental Shelf between Nicaragua
                      and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast
                              (Nicaragua v. Colombia), Order of 8 December 2017,
                                           I.C.J. Reports 2017, p. 361

                                            Mode officiel de citation :
                       Question de la délimitation du plateau continental entre le Nicaragua
                      et la Colombie au-delà de 200 milles marins de la côte nicaraguayenne
                            (Nicaragua c. Colombie), ordonnance du 8 décembre 2017,
                                            C.I.J. Recueil 2017, p. 361

                                                                                1128
                                                                 Sales number
                   ISSN 0074-4441                                No de vente:
                   ISBN 978-92-1-157326-8

2 CIJ1128.indb 2                                                                               5/04/18 11:09

                                                  8 DECEMBER 2017

                                                       ORDER

                     QUESTION OF THE DELIMITATION
                       OF THE CONTINENTAL SHELF
                   BETWEEN NICARAGUA AND COLOMBIA
                       BEYOND 200 NAUTICAL MILES
                      FROM THE NICARAGUAN COAST
                        (NICARAGUA v. COLOMBIA)

                       QUESTION DE LA DÉLIMITATION
                        DU PLATEAU CONTINENTAL
                   ENTRE LE NICARAGUA ET LA COLOMBIE
                      AU-DELÀ DE 200 MILLES MARINS
                       DE LA CÔTE NICARAGUAYENNE
                        (NICARAGUA c. COLOMBIE)

                                                  8 DÉCEMBRE 2017

                                                   ORDONNANCE

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                    361

                                   INTERNATIONAL COURT OF JUSTICE

                                                    YEAR 2017
        2017
     8 December                                  8 December 2017
     General List
       No. 154
                           QUESTION OF THE DELIMITATION
                             OF THE CONTINENTAL SHELF
                         BETWEEN NICARAGUA AND COLOMBIA
                             BEYOND 200 NAUTICAL MILES
                            FROM THE NICARAGUAN COAST
                                         (NICARAGUA v. COLOMBIA)

                                                     ORDER

                    Present:
                             President Abraham; Vice-President Yusuf; Judges Owada,
                             Tomka, Cançado Trindade, Greenwood, Xue, Gaja,
                             Sebutinde, Bhandari, Robinson, Gevorgian; 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‑
                    cles 31, 44, 45, paragraph 2, 48 and 49 of the Rules of Court,
                       Having regard to the Application filed in the Registry of the Court on
                    16 September 2013, whereby the Republic of Nicaragua instituted pro‑
                    ceedings against the Republic of Colombia with regard to a dispute in
                    relation to “the delimitation of the boundaries between, on the one hand,
                    the continental shelf of Nicaragua beyond the 200‑nautical‑mile limit
                    from the baselines from which the breadth of the territorial sea of
                    Nicaragua is measured, and on the other hand, the continental shelf of
                     Colombia”,

                    4

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                    362 	 delimitation of the continental shelf (order 8 XII 17)

                        Having regard to Nicaragua’s First Request in its Application, whereby
                    the Court was asked to establish “[t]he precise course of the maritime
                    boundary between Nicaragua and Colombia in the areas of the continen‑
                    tal shelf which appertain to each of them beyond the boundaries deter‑
                    mined by the Court in its Judgment of 19 November 2012” and to
                    Nicaragua’s Second Request, whereby it was asked to declare “[t]he prin‑
                    ciples and rules of international law that determine the rights and duties
                    of the two States in relation to the area of overlapping continental shelf
                    claims and the use of its resources, pending the delimitation of the mari‑
                    time boundary between them beyond 200 nautical miles from Nicaragua’s
                    coast”,
                        Having regard to the Order dated 9 December 2013, whereby the Court
                    fixed 9 December 2014 and 9 December 2015 as the time‑limits for the
                    filing, respectively, of the Memorial of the Republic of Nicaragua and the
                    Counter‑Memorial of the Republic of Colombia,
                        Having regard to the preliminary objections to the jurisdiction of the
                    Court and to the admissibility of the Application raised by the Govern‑
                    ment of the Republic of Colombia on 14 August 2014,
                        Having regard to the Judgment dated 17 March 2016, whereby the
                    Court found that it had jurisdiction on the basis of Article XXXI of the
                    Pact of Bogotá to entertain the First Request put forward by Nicaragua
                    in its Application and that that Request was admissible, while the Second
                    Request was inadmissible;
                        Having regard to the Order of 28 April 2016, by which the President
                    fixed 28 September 2016 and 28 September 2017 as the new time-limits
                    for the filing, respectively, of the Memorial of the Republic of Nicaragua
                    and the Counter-Memorial of the Republic of Colombia,

                      Having regard to the Memorial and the Counter-Memorial duly filed
                    by the Parties within those time-limits;
                      Whereas, at a meeting held between the President of the Court and the
                    Agents of the Parties on 29 November 2017, the Agent of Nicaragua indi‑
                    cated that a Reply by the Applicant was necessary in order to respond, in
                    particular, to the technical issues raised in the Counter-  Memorial of
                    Colombia, and requested a period of nine months for the preparation of
                    the Reply; and whereas the Agent of Colombia stated that his Govern‑
                    ment had no objection to the request by Nicaragua for a second round of
                    written pleadings but expressed the view that shorter time-limits should
                    be fixed for that purpose, with a period of four to six months for the
                    preparation of each of the additional pleadings, calculated from the date
                    of filing of Colombia’s Counter-Memorial;
                      Taking into account the views of the Parties and the circumstances of
                    the case,
                      Authorizes the submission of a Reply by Nicaragua and a Rejoinder by
                    Colombia;

                    5

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                    363 	 delimitation of the continental shelf (order 8 XII 17)

                        Fixes the following time‑limits for the filing of those pleadings:

                        9 July 2018 for the Reply of the Republic of Nicaragua;
                        11 February 2019 for the Rejoinder of the Republic of Colombia; and
                        Reserves the subsequent procedure for further decision.

                       Done in English and in French, the English text being authoritative, at
                    the Peace Palace, The Hague, this eighth day of December, two thousand
                    and seventeen, 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 Nicaragua and the Government of the Republic of Colombia,
                    respectively.

                                                                  (Signed) Ronny Abraham,
                                                                             President.
                                                                (Signed) Philippe Couvreur,
                                                                              Registrar.

                    6

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