                                                                                159

                                DÉCLARATION DE M. LE JUGE GEVORGIAN

                [Traduction]

                   Désaccord avec certains aspects du raisonnement de la Cour en ce qui concerne
                le deuxième moyen d’appel — Paragraphe 48 de l’arrêt — Cour n’étant pas fondée
                à invoquer la jurisprudence se rapportant à sa propre compétence pour évaluer
                celle du Conseil de l’OACI — Existence de différences fondamentales entre la
                Cour et le Conseil — Paragraphe 61 de l’arrêt — Cour allant trop loin en
                souscrivant à une interprétation large de la compétence du Conseil étendant celle‑ci
                à des questions étrangères à l’aviation civile — Mandat de règlement des différends
                du Conseil se limitant aux traités de l’OACI — Etats n’ayant en principe pas
                consenti au règlement par le Conseil de différends sans lien avec l’aviation civile.

                   1. J’ai voté en faveur des conclusions de la Cour énoncées dans le dis-
                positif car j’estime que chacun des trois moyens d’appel avancés par les
                demandeurs devait être rejeté. Néanmoins, je ne souscris pas à la concep-
                tion large que propose la Cour de la compétence du Conseil de l’OACI en
                considérant que celle‑ci s’étend à des questions sans lien avec l’aviation
                civile, comme elle le dit notamment aux paragraphes 48 et 61 de l’arrêt.
                Dans la présente déclaration, j’exposerai les raisons de mon désaccord.
                   2. Selon moi, il est possible d’écarter les arguments des demandeurs
                relatifs à la compétence ratione materiae en s’en tenant à la décision anté-
                rieure de la Cour en l’affaire de l’Appel concernant la compétence du
                Conseil de l’OACI (Inde c. Pakistan). Dans cette affaire, en effet, la Cour
                avait nettement rejeté l’idée que considérer une défense au fond comme
                sortant du champ d’application de la convention de Chicago et de l’ac-
                cord de transit pouvait priver le Conseil de sa compétence 1. Le même
                raisonnement s’applique en l’espèce, étant donné que l’argument
                qu’avancent les demandeurs en qualifiant de contre‑mesures licites les res-
                trictions visant l’aviation qu’ils ont imposées constitue en substance une
                défense sur le fond 2.
                   3. Cependant, l’opportunité d’un examen par le Conseil de l’OACI,
                dans le cadre de sa fonction de règlement des différends, de questions sans

                   1 Appel concernant la compétence du Conseil de l’OACI (Inde c. Pakistan), arrêt,

                C.I.J. Recueil 1972, p. 61, par. 27. La Cour a écrit :
                         « [l]e fait qu’une défense au fond se présente d’une certaine manière ne peut porter
                         atteinte à la compétence du tribunal ou de tout autre organe en cause ; sinon les
                         parties seraient en mesure de déterminer elles‑mêmes cette compétence, ce qui serait
                         inadmissible. Comme on l’a déjà vu pour Ia compétence de la Cour, la compétence du
                         Conseil dépend nécessairement du caractère du litige soumis au Conseil et des points
                         soulevés, mais non pas des moyens de défense au fond ou d’autres considérations
                         qui ne deviendraient pertinentes qu’une fois tranchés les problèmes juridictionnels. »
                    2    Voir le paragraphe 49 du présent arrêt.

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                lien avec l’aviation civile est loin d’être aussi évidente que le donne à pen-
                ser le présent arrêt. Au vu de l’importance des principes qui sont en jeu
                — en particulier le principe du consentement dans le règlement des diffé-
                rends entre Etats —, la compétence du Conseil devrait être clairement
                définie et se limiter aux questions que cet organe s’est expressément vu
                confier par les Etats parties. La Cour, dans le présent arrêt, va trop loin
                en donnant l’impression d’avaliser une définition étendue de la compé-
                tence du Conseil, selon laquelle celui‑ci peut (voire doit) examiner des
                questions sans lien avec l’aviation civile lorsqu’il entreprend de régler des
                différends conformément à l’article 84 de la convention de Chicago et à la
                section 2 de l’article II de l’accord de transit.
                   4. Au paragraphe 48 de l’arrêt, la Cour se fonde sur une conclusion
                qu’elle a énoncée en l’affaire relative au Personnel diplomatique et consu‑
                laire des Etats‑Unis à Téhéran (Etats-Unis d’Amérique c. Iran) pour affir-
                mer que l’existence d’un contexte plus large au différend opposant les
                Parties « ne prive pas le Conseil [de l’OACI] de la compétence qu’il tient »
                de l’article 84 de la convention de Chicago 3. Dans l’arrêt rendu en cette
                affaire‑là, la Cour avait estimé que le fait qu’un différend d’ordre juri-
                dique puisse s’inscrire dans le cadre d’un différend politique plus vaste
                entre les Etats en litige ne la privait pas de sa compétence à l’égard de ce
                différend juridique 4. Statuer autrement équivaudrait à « une restriction
                considérable et injustifiée de son rôle en matière de règlement pacifique
                des différends internationaux » 5.
                   5. Si ce principe a été confirmé à de nombreuses reprises dans des pro-
                cédures devant la Cour 6, il ne s’applique pas, à mon sens, à d’autres insti-
                tutions internationales qui n’ont pas été créées aux fins exclusives du
                règlement pacifique des différends. En particulier, les contextes politiques
                auxquels fait référence l’arrêt en l’affaire relative au Personnel diplomatique
                et consulaire des Etats‑Unis à Téhéran sont susceptibles d’influer davantage
                sur une procédure se tenant devant un organe composé de représentants
                d’Etats que sur une instance introduite devant la Cour. Autrement dit,
                c’est une chose que d’affirmer que l’existence d’un différend politique plus
                large ne saurait avoir d’incidence sur la compétence d’un organe composé
                de « magistrats indépendants » 7 et c’en est une tout autre que d’appliquer

                    3 Voir le paragraphe 48 du présent arrêt.
                    4 Personnel diplomatique et consulaire des Etats‑Unis à Téhéran (Etats‑Unis d’Amérique
                c. Iran), arrêt, C.I.J. Recueil 1980, p. 20, par. 37.
                    5 Ibid.
                    6 Voir, par exemple, Application de la convention internationale pour la répression du

                financement du terrorisme et de la convention internationale sur l’élimination de toutes les
                formes de discrimination raciale (Ukraine c. Fédération de Russie), exceptions préliminaires,
                arrêt, C.I.J. Recueil 2019 (II), p. 576, par. 28 ; Certains actifs iraniens (République islamique
                d’Iran c. Etats‑Unis d’Amérique), exceptions préliminaires, arrêt, C.I.J. Recueil 2019 (I),
                p. 23, par. 36 ; Obligation de négocier un accès à l’océan Pacifique (Bolivie c. Chili), excep‑
                tion préliminaire, arrêt, C.I.J. Recueil 2015 (II), p. 604, par. 32.
                    7 Voir l’article 2 du Statut de la Cour internationale de Justice.

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                le même principe à un organe composé d’Etats parties au traité en cause 8,
                chacun d’entre eux étant susceptible d’avoir ses propres visées politiques et
                d’être potentiellement influencé par des considérations non juridiques.
                   6. La Cour n’explique pas les raisons pour lesquelles elle estime que le
                raisonnement qu’elle avait suivi en l’affaire relative au Personnel diploma‑
                tique et consulaire des Etats‑Unis à Téhéran s’applique au Conseil de
                l’OACI. Il s’agit là d’une omission notable, étant donné que dans d’autres
                parties du présent arrêt la Cour souligne les différences importantes qui
                existent entre cet organe et elle‑même 9, notamment le fait que le Conseil
                est composé non pas de juges indépendants mais d’« Etats contractants
                élus par [son] assemblée » 10.
                   7. Il importe également de mentionner un certain nombre d’autres
                considérations. Par exemple, les membres du Conseil de l’OACI agissent
                sur les instructions de leurs gouvernements lorsqu’ils votent au cours
                d’une procédure engagée au titre de l’article 84 11 — fait qui illustre clai-
                rement la nature non judiciaire du Conseil. En outre, si la Cour a pour
                principale fonction le règlement pacifique des différends juridiques, le
                Conseil se voit pour sa part assigner, par l’article 54 de la convention de
                Chicago, un large éventail de responsabilités, dont la plupart sont d’ordre
                technique et administratif (il doit ainsi « gérer les finances de l’[o]rganisa-
                tion » ou « adopter … des normes et des pratiques recommandées interna-
                tionales » relatives à l’aviation civile). Enfin, si la Cour est habilitée par
                son Statut à examiner « tout point de droit international », le Conseil,
                quant à lui, a un mandat de règlement des différends nettement plus res-
                treint, visant uniquement l’interprétation ou l’application des instruments
                de l’OACI.
                   8. Ce sont là autant de raisons de considérer que les principes de com-
                pétence qui valent pour la Cour ne s’appliquent pas de la même façon au
                Conseil de l’OACI. Je désapprouve donc que la Cour se soit appuyée sur
                ce qu’elle avait déclaré en l’affaire relative au Personnel diplomatique et
                consulaire des Etats‑Unis à Téhéran pour traiter le deuxième moyen d’ap-
                pel avancé par les demandeurs.

                    8Voir l’article 50 a) de la convention de Chicago.
                    9Voir le paragraphe 60 du présent arrêt.
                   10 Ibid.
                   11 Voir G. F. Fitzgerald, « The Judgment of the International Court of Justice in the

                Appeal relating to the Jurisdiction of the ICAO Council », Canadian Yearbook of Interna‑
                tional Law, vol. 12, 1974, p. 168‑169 (faisant observer que :
                         « [d]ans le cas du Conseil de l’OACI, les membres siégeant sont manifestement
                         les représentants respectifs des différents Etats membres… En effet, l’examen des
                         procès‑verbaux des réunions du Conseil tenues les 28 et 29 juillet 1971 [en l’affaire
                         Inde c. Pakistan] indique que certains des membres souhaitaient différer les déci-
                         sions pour attendre les instructions de leurs gouvernements. D’autres représentants
                         semblaient avoir déjà reçu leurs instructions… Le mieux que l’on puisse dire, pour ce
                         qui est du règlement des différends au sein de l’OACI, est que les Etats en tant que
                         tels agissent comme des juges et que leurs représentants s’expriment au nom des Etats
                         et non en leur nom propre. »)

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                   9. Pour des motifs analogues, je ne souscris pas davantage au raisonne-
                ment suivi par la Cour au paragraphe 61 du présent arrêt. Au vu des
                éléments susmentionnés qui la distinguent du Conseil de l’OACI, la Cour
                choisit de ne pas appliquer à celui‑ci le concept d’« opportunité judiciaire »
                en tant que tel 12. Pourtant, elle juge ensuite que « [l]’intégrité de la fonc-
                tion de règlement des différends du Conseil … ne serait pas compromise
                si celui‑ci examinait des questions étrangères à l’aviation civile » à la seule
                fin de statuer sur un différend à l’égard duquel il est compétent 13.
                   10. De mon point de vue, cette affirmation catégorique a une portée
                trop large. La doctrine de l’« opportunité judiciaire » ne peut en aucun cas
                s’appliquer à bon droit au Conseil de l’OACI, celui‑ci étant un organe
                principalement technique et administratif, dont les membres agissent en
                tant que représentants de leurs gouvernements, sans avoir à bien connaître
                le droit international, et dont le mandat de règlement des différends est
                étroitement limité à l’interprétation ou l’application des traités de l’OACI.
                Ces éléments ne peuvent nous amener à conclure de manière générale que
                le Conseil est fondé à examiner des questions sans lien avec l’aviation
                civile tant qu’il le fait aux fins de la résolution d’un différend à l’égard
                duquel il est par ailleurs compétent.
                   11. Le principe fondamental demeure que les Etats ne devraient relever
                de la compétence du Conseil de l’OACI que dans la mesure où ils y ont
                consenti. Comme elle l’a fait observer à propos de sa propre compétence,
                « la Cour n’a de juridiction à l’égard des Etats que dans la mesure où
                ceux‑ci y ont consenti » 14, et lorsque ce consentement est exprimé dans
                une clause compromissoire insérée dans un accord international, les
                conditions prévues dans ladite clause « doivent être considérées
                comme … constituant les limites » de ce consentement 15.
                   12. Ces considérations valent encore davantage dans le cas d’une insti-
                tution telle que le Conseil de l’OACI, du fait de son mandat restreint.
                Etant donné que l’article 84 de la convention de Chicago et la section 2 de
                l’article II de l’accord de transit n’établissent la compétence du Conseil
                que pour juger des différends relatifs à ces instruments, les Etats n’ont
                pas, en principe, donné leur consentement au règlement par le Conseil de
                différends sans lien avec l’aviation civile. En concluant que l’intégrité de
                la fonction de règlement des différends du Conseil « ne serait pas compro-
                mise » si celui‑ci examinait des questions étrangères à l’aviation civile dans
                l’exercice de sa compétence, la Cour entérine une conception étendue de
                la compétence du Conseil qui pourrait, à l’avenir, porter préjudice au
                principe fondamental du consentement dans le règlement pacifique des
                différends.

                    12 Voir les paragraphes 60 et 61 du présent arrêt.
                    13 Voir le paragraphe 61 du présent arrêt.
                   14 Activités armées sur le territoire du Congo (nouvelle requête : 2002) (République

                démocratique du Congo c. Rwanda), compétence et recevabilité, arrêt, C.I.J. Recueil 2006,
                p. 32, par. 65.
                   15 Ibid., p. 39, par. 88.

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                                  conseil de l’oaci (décl. gevorgian)                    163

                   13. En résumé, je suis d’avis que la Cour se fourvoie en cherchant à
                définir l’aptitude du Conseil de l’OACI à traiter de questions sans lien
                avec l’aviation civile. La Cour aurait pu invoquer son arrêt de 1972 en
                l’affaire de l’Appel concernant la compétence du Conseil de l’OACI (Inde
                c. Pakistan) pour rejeter le deuxième moyen d’appel avancé par les
                demandeurs. En effet, cette décision avait clairement établi que le Conseil
                n’est pas privé de sa compétence ratione materiae au seul motif que le
                défendeur fait valoir qu’une défense au fond est exclue de sa compétence.
                Au lieu de cela, sciemment ou non, la Cour paraît élargir la compétence
                du Conseil — organe dont le rôle est de régler des différends individuels
                relatifs à l’aviation. Ce faisant, l’arrêt, sans fondement juridique substan-
                tiel, risque à l’avenir de soumettre indûment les Etats aux procédures de
                règlement des différends par le Conseil sans leur consentement. Pour les
                motifs exposés ci‑dessus, j’estime que cela n’est ni nécessaire ni opportun.

                (Signé) Kirill Gevorgian.

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94

DISSENTING OPINION BY M. ZORICIC.
[Translation.]

I agree with the Court’s opinion as regards its competence to
interpret the Charter, but I am sorry I cannot support the opinion,
firstly because I consider that the Court should have refrained from
answering the question put, and secondly because I cannot accept
the conclusions of the reply

TL

The Court’s competence in advisory opinions is derived from
Article 65 of the Statute, which says that : “The Court may give an
advisory opinion on any legal question.” It follows from this that
the Court is not obliged to give opinions for which it is asked, but
on the contrary has a discretionary power in the matter.

The above interpretation is the same as that adopted by the
Permanent Court of International Justice on March roth, 1922.
Judge J. B. Moore had written a memorandum on the question of
advisory opinions (Acts and Documents concerning the Organization
of the Court, Series 2, Annex 58 a, p. 383), in which he emphasized
that the advisory powers were derived from Article 14 of the
Covenant of the League of Nations. The French text of Article 14
(“La Cour donnera aussi des avis....”’) differed from the English
text (“The Court may also give....’’), the word ““may”’ in the English
text implying a permission, i.e. a discretion. After careful study
of the preparatory work and of the nature of the Court’s duties,
Judge Moore reached the conclusion that it was for the Court itself
“to determine in each instance whether .... it would undertake to
give advice”’ (l. c., p. 384), and that “1f an application for such an
opinion should be presented, the Court should then deal with the
application according to what should be found to be the nature and
the merits of the case’ (p. 398).

In 1935, Judge Anzilotti relied on this interpretation and added
that “there is no reason to suppose that the Court has ever meant
to modify its attitude’ (Series A./B., No. 65, p. 61).

It remains to be seen whether the powers of the present Court are
not more restricted on this subject than were those of the old Court.
I do not think so ; for there can be no doubt that Article 65 of the
present Statute, in which the French text (‘‘peut donner’’) corre-
sponds entirely with the English text (‘‘may give”), implies that the

41
DISSENTING OPINION BY M. ZORICIC 95

authors of the Statute had the question in mind, and that they
deliberately adapted the French text to the English, thus giving
the Court a discretion to decide whether, in a particular case, it
should give an opinion on a question put, even if it were a legal
question.

The need for such a discretionary power is derived also from
the purposes for which the Court was created, and from its
nature as an essentially judicial body, with the task of encourag-
ing and developing between nations the principle and methods
of judicial decisions, and of contributing thereby to the peaceful
settlement of disputes between States. The Court can only fulfil
this important task in complete independence.

Neither the Charter nor the Statute of the Court contain any
provision to the effect that the Court, even if it considered itself
competent, would be obliged to give an opinion ; Article 65, on the
contrary, reserves for the Court a right to take such action as it
thinks fit, on a request for an opinion. I therefore think that the
Court should have abstained from replying to the present question,
for the reasons that I will set out briefly below :

The Assembly resolution and the documents submitted to the
Court by the Secretary-General show that the request for an opinion
had its origin in a divergence of views that arose in the Security
Council as to the attitudes adopted by Members of the Council
during the discussion on the admission of certain States. These
were views expressed in a political body relating essentially to
political acts, and based on arguments and appreciations of a
political nature. Moreover, I feel bound to conclude from the cir-
cumstances that the request was made to the Court for a definitely
political purpose.

It is true that the request submits the question in an abstract
form, but it is no less true, and is beyond doubt, that the Court’s
answer lends itself to a different interpretation, namely that it
relates to the above-mentioned discussions. And although the
Court has stated that it only considers the question in the abstract,
the reply will, in my view, be interpreted as containing a judgment
on the action of members of the Security Council. The Court is
thus drawn on to the slippery ground of politics, and its reply may
well become an instrument in political disputes between States.
This may do considerable harm to the Court’s prestige and to
the confidence that the Court should inspire in all nations if it
is to fulfil its important duties as guardian of the law and principal
judicial organ of the United Nations.

IL.

As however the Court has decided to give an opinion, I must
state the reasons for which I am not in agreement with that opinion.

42
DISSENTING OPINION BY M. ZORICIÉ 96

I would begin by saying that, in substance, I agree with
what is said in the joint opinion of the Vice-President and of
Judges Winiarski, Sir Arnold McNair and Read. My chief reason
for writing a separate opinion is that I look at the question put
to the Court from a somewhat different angle, having in view the
concrete cases which gave rise to the request for an opinion.

Before examining the question before the Court, I have the
following observations to make:

The Preamble to the General Assembly’s Resolution of Novem-
ber 17th, 1947, runs as follows:

“Considering the exchange of views which has taken place in
the Security Council at its 204th, 205th, and 206th Meetings,
relating to the admission of certain States to membership in the
United Nations...”

This Resolution ends with the following provision :

“Instructs the Secretary-General to place at the disposal of
the Court the records of the above-mentioned Meetings of the
Security Council.”

There seems to me to be no possible doubt as to the Assembly’s
intention ; the Assembly states the origin and nature of the
request for an opinion in order that the opinion may be given
in the light of the facts and circumstances from which it arose.

It may be said that the question itself is in an abstract form.
This does not seem to be decisive, for it does not remove the fact
that the Resolution of November 17th, 1947, is a whole in which
the abstract question is closely connected with the recital which
precedes it and explains its meaning and scope. The Secretary-
General supplied the Court with a large number of documents,
and also instructed his representative to make an oral statement
to the Court on the history of the question. It follows from
all these facts that the Court is expressly asked in the Assembly
Resolution to give an opinion, taking account of the facts in
which the request originated.

Nothing could be more natural, In human life, all activity
is based on concrete considerations or facts. To attempt to
judge and explain such acts in the abstract would be to mis-
construe the intentions, to work in a vacuum, and to misunder-
stand the meaning of real life. This is still more evident in the
case of a Court of Justice whose first duty is to decide whether
certain acts are in accordance with law.

*
* *

The request for an opinion is presented as one single question,
but there are in reality two, on different planes :

43
DISSENTING OPINION BY M. ZORICI¢ 07

(1) Is a Member called upon to vote juridically entitled to
make its consent to the admission of a State to the United
Nations dependent on conditions not expressly provided
by paragraph x of Article 4 of the Charter, and

{2} Can such a Member, while it recognizes that the conditions
set forth in that provision to be fulfilled by the State
concerned, subject its affirmative vote to the additional
condition that other States be admitted to membership
in the United Nations together with that State ?

It is quite clear that the word “‘conditions’’ in the first question
has a different meaning from that which it has in the second.
Article 4, paragraph 1, mentions certain conditions that are to
be fulfilled by a State desirous of admission. Thus, it is solely
a question of the qualities that must exist at the moment of
considering the admission.

In the second question, the word “conditions” has a very
different meaning. It is used in its habitual legal sense: the
condition mentioned in this part of the application relates te a
future and uncertain event, namely, that the other members of
the Council would accept the obligation to vote for the admission
of other States. This condition concerns the members of the
Security Council, who alone could fulfil it, whereas the candidate
cannot, in any way, contribute to its fulfilment.

IIT.

The first part of the question calls on the Court to decide whether
a Member called upon to vote is juridically entitled to make its
consent to admission dependent on conditions not expressly provided
by paragraph 1 of Article 4 of the Charter.

The legal foundation for a certain method of procedure can only
be examined in the light of the rules of law that govern it. On
the subject of voting in the Council and the Assembly, there are
no provisions. Neither the Charter nor the Rules of procedure
of the Council or the Assembly contain anything as to what a
Member may or should do when it votes and—a point of great
importance—there is no obligation on the part of Members to give
a reason for their vote. All that is said on the subject is that
each Member has one vote (Articles 18 and 27 of the Charter) ;
the exercise of the right to vote is left entirely to their discretion.

As a Member who votes is entitled to do so without giving any
reasons for his vote, he may act in accordance with his own view
of the case; and it is the question of any possible limits to this
view that leads to a consideration of the nature of the provisions
of Article 4 of the Charter.

44
DISSENTING OPINION BY M. ZORICI¢ 98

For a State to be admitted to the United Nations the required
conditions, or rather qualities, are, according to Article 4, para-
graph 1, that it shall be peace-loving, that it shall accept the
obligations contained in the Charter, and that it shall be able and
willing to carry out these obligations. It is quite clear that the
actual appreciation of these qualities, and therefore their existence,
may depend on elements of all kinds. But, apart from that,
there is nothing in Article 4, paragraph x, to prevent a Member
who votes and thus exercises a political discretion, from taking into
consideration elements of a political nature, not contained in
Article 4. Thus, while, on the one hand, it is endeavoured to
interpret this provision as exhaustive, it is, on the other hand,
possible to interpret it as imposing only the minimum of qual-
ities, i.e., the fundamental qualities without which no State can
be admitted to the United Nations.

As the provision is capable of various interpretations, it follows
hat, in the first place, the preparatory work must be looked at, in
order to discover the exact scope of Article 4, in the minds of its
authors.

The preparatory work was submitted to the Court, and it appears
that the two paragraphs of Article 4 of the Charter were, in San
Francisco, each drafted by a different Committee: paragraph I
by Committee I/2, and paragraph 2 by Committee II/r.

The Rapporteur to Committee 1/2 submitted to the First Commis-
sion a report on the admission of new Members (San Francisco
Conference, Document No. 1160 1/2/76 (1), Vol. VII, p. 308), in
which it was said that the Committee had to consider the fun-
damental problem :

“The extent to which it was desirable to establish the limits
within which the Organization wouid exercise its discretionary
power with respect to the admission of new Members.’ (Italics
mine.)

Observing that adherence to the principles of the Charter and
complete acceptance of the obligations arising therefrom were
essential conditions to participation by States, the report explains
that :

“Nevertheless, two principal tendencies were manifested in the
discussions. On the one hand, there were some that declared
themselves in favour of inserting in the Charter specific con-
ditions which new Members should be required to fulfil especially
in matters concerning the character and policies of governments.
On the other hand, others maintain that the Charter should not
needlessly limit the Organization in its decisions concerning
requests for admission, and asserted that the Organization itself
would be in a better position to judge the character of candidates
for admission.’’

45
DISSENTING OPINION BY M. ZORICIÉ 99

Then, mentioning the conditions, or rather the qualities agreed on,
which are those of Article 4, the Report continues :

“It was clearly stated that the admission of a new Member
would be subject to study, but the Committee did not feel it
should recommend the enumeration of the elements which were to
be taken into consideration. It considered the difficulties which
would arise in evaluating the political institutions of States and
feared that the mention in the Charter of a study of such a nature
would be a breach of the principle of non-intervention, orif preferred,
of non-interference. This does not imply, however, that om passing
upon the admission of a new Member, considerations of all kinds
cannot be brought into account.’’ (Italics mine.)

And the report ends with these words:

“The text adopted sets forth more clearly than the Dumbarton
Oaks proposals those qualifications for membership which the
delegates deemed fundamental, and provides a more definite guide
to the General Assembly and Security Council on the admission
of new Members.’’ (Italics mine.)

This report was approved by Commission I (Report of Rap-
porteur of Commission I, Conference Doc. No. 1142. 1/9, Vol. VI,
p. 229).

It would seem that any doubt as to the nature of Article 4 is
dispelled by such a clear provision. The authors did not feel they
should ‘‘recommend the enumeration of the elements which were to
be taken into consideration”” ; they desired that “considerations of
all kinds” should ‘‘be brought into account” when it was necessary
‘to pass upon the admission of a new Member’’, and finally they
stated that the text set forth the conditions ‘‘which the delegates
deemed fundamental” and constituted a guide for determining
elegibility.

The above-mentioned text thus shows that Article 4 does not
contain exhaustive provisions, but on the contrary is a guide on
admissions, containing only the fundamental and indispensable
qualities required of a candidate. In other words, the conditions
of Article 4 are minimum conditions that must be fulfilled by new
Members, and without which Members cannot be admitted; but
these are not the only conditions to be taken into account when a
judgment is formed as to the desirability of admission ; for a
judgment as to desirability cannot be limited or deemed to be a
judgment relating exclusively to the fulfilment of the conditions
of Article 4.

The work of Committee II/z and its Report, relating to Article 4,
paragraph 2, confirmed this interpretation. The Committee had

46
DISSENTING OPINION BY M. ZORICIÉ I00

drafted a provision giving the General Assembly a discretionary
power as to the admission of new Members. Certain changes were
made by the Co-ordination Committee, and Committee II/1 became
anxious, as is seen in the minutes of its Fifteenth Meeting :

“The Secretary reported that he had been advised by the
Secretary of the Advisory Committee of Jurists that that Com-
mittee felt these texts would not in any way weaken the original
text adopted by the Committee. In the light of this interpretation,
the Committee approved the text.’’ (Vol. VIII, pp. 487-488.)

The report of the Rapporteur to Committee II/z is categorical.
It states briefly that the Committee considered a revision of the
text ‘‘in order to determine whether the power of the Assembly ....
was in no way weakened by the proposed text’’, and that ‘‘the
Committee was advised that the new text did not .... weaken the
right of the Assembly”. It goes on as follows :

“The Committee agreed that this interpretation should be
included in its minutes as the one that should be given to this
provision of the Charter, and on this basis approved the text
as suggested by the Co-ordination Committee.”’ (Vol. VIII, p. 495.)

It is quite clear that the Committee took special care that the
Assembly should have a discretionary power at the moment when
it decides, on the recommendation of the Council, whether a new
Member shall be admitted or not.

The two reports of the Committees were approved by the respect-
ive Commissions, and it is difficult to suppose that the carefully
chosen wording of these reports, considered first in the Committees,
and then by the Commissions, does not express their thoughts and
true intentions. On the contrary, I believe that these reports are
to be taken as agreements on the interpretation of the provisions
in question, and that consequently their terms must be understcod
and applied in their normal meaning as forming the surest means of
interpreting Article 4 of the Charter. In my view, the reports
quoted indicate the intention of the authors of the Charter not to
limit either the Security Council or the Assembly by the provisions
of Article 4, but to give them full freedom in the exercise of their
political duties, always with the exception that they should not
admit a State which, in their judgment, did not satisfy the minimum
conditions of Article 4, paragraph 1.

From what is said, it follows that the argument to the effect that
the terms of Article 4: “any such State’, would prohibit any
account being taken of political considerations not provided for in
Article 4, paragraph 1, is not convincing. The interpretation of
paragraph 2 cannot be based on a few isolated words, but depends on
the whole paragraph. The paragraph says that the admission “‘of

47
DISSENTING OPINION BY M. ZORICIC IOI

any such State will be effected by a decision of the General Assembly
upon the recommendation of the Security Council”. Consequently,
it is not sufficient to be ‘‘such’’ a State ; it is also necessary for the
Council to decide to make a recommendation, and for the Assembly
to decide whether it is willing to accept this recommendation or
not. The Charter therefore does not provide for the automatic
admission of “any such State” ; it subordinates submission to the
decisions of political organs with a discretionary power to base their
decisions (as has been shown) on any kind of considerations.

In any case, it would seem difficult to assert, on the one hand,
that the words “any such State’ in paragraph 2 of Article 4,
prohibit the introduction of political considerations which could
be superimposed on the conditions of paragraph x and, on the
other hand, to maintain that paragraph 2 is concerned only with
the procedure for admission.

An interpretation to the effect that decisions on admission are
governed by political considerations notwithstanding Article 4,
appears to have been given by the General Assembly itself, as is
seen in the first Resolution adopted by it on November 17th, 1947,
by 46 votes against 1, with 6 abstentions. The Resolution recom-
mends the permanent Members of the Security Council to consult
together with a view to reaching an agreement on the admission of
candidates whose admission has not yet been recommended, and to
submit their conclusions to the Security Council. (Journal of the
General Assembly, No. 56, November roth, 1947, p. 4.) Can it be
suggested that the only purpose of this Resolution was to invite the
permanent Members to agree solely on the question whether the
conditions of Article 4 were fulfilled or not ? I do not think it can
be contested that the Assembly here had in view a political agree-
ment based on quite general political considerations.

*k
* *

Apart from the preparatory work, the general structure of the
Charter shows the conclusions drawn from the preparatory work to
be exact. This will be seen from a study of (1) the powers and
duties of the Security Council, and (2) the method of admission of
States to the United Nations.

(x) Article 24 of the Charter places on the Security Council
“Primary responsibility for the maintenance of international peace
and security”. This duty comes before all others, and, failing an
express provision, I do not think that the powers and duties of the
Council under Article 24, a fundamental article of the Charter, can
be limited merely by a restrictive interpretation of Article 4; partic-
ularly as, in my opinion, such an interpretation would be quite

48
DISSENTING OPINION BY M. ZORICI¢ 102

contrary to the intentions of the authors of these provisions, as
expressed in the reports quoted above. Moreover, there can be no
doubt that it is because of this duty that Article 4, pararaph 2,
only gives to the Assembly the right to decide on the admission of
new Members subject to the previous recommendation of the
Security Council. This constitutes an exception to the general rule
contained in Article 10 as to the rights of the Assembly ; this excep-
tion can only be understood by bearing in mind the task entrusted
to the Council by Article 24. As the report of the Rapporteur of
Committee II/z shows, the principle whereby the Assembly must
admit new Members on the recommendation of the Security Council
only, is derived from the idea that “the purpose of the Charter is
primarily to provide security against a repetition of the present war
and that, therefore, the Security Council should assume the initial
responsibility of suggesting new participating States”. (Doc. 666,
I1/1/26/1 (a), San Francisco Conference, Vol. VII, p. 451.)

How could the Council fulfil its duties if it was strictly limited by
the criteria mentioned in Article 4, paragraph 1? Such a limita-
tion on the Council would prevent it from declaring against the
admission of a State even if it thought that such admission would
have serious consequences for general international stability and
consequently for the maintenance of peace. Such a case may well
arise even though the candidate fulfils all the conditions of Article 4 ;
for the admission of a State might create tension with other Members
or non-Members of the Organization, and might give rise to expres-
sions of mistrust, discontent and injustice ; whilst, on the other
hand, its admission might be held undesirable from the point of
view of harmonious co-operation within the Organization. These
are essentially political considerations that could not be, and are
not, limited by Article 4. Evidently the authors of the Charter
could not impose such extensive duties on the Council (Article 24)
and, at the same time, limit its powers in such a way as to prevent
it from carrying out properly its main task.

In the supreme interests of the Organization, the members
of the Council must therefore have a wide discretion. They can
and must take account of every kind of political considerations,
even if these do not fall within Article 4.

(2) It has already been said that nothing obliges a Member to
give a reason for its vote. The vote is by “‘yes” or “‘no’’, unless
the Member abstains. Consequently, at the moment of voting,
there is no possibility of imposing a condition. A condition could
only be expressed in the discussion that takes place in the competent
organs before the vote. The documents placed before the Court
show that, during these discussions, Members have adopted very

49
DISSENTING OPINION BY M. ZORICI¢ 103

different positions, according to the political requirements of the
case under discussion. Not only have some delegations adopted
differing points of view, but the same delegations have often put
forward one argument in one case, and a contrary argument in
another.

There is nothing surprising in this. It is a question of policy.
The Council is an essentially political organ and not a Court of
Justice. How then could freedom of speech in this political organ
be limited ? If a Member was not legally entitled to take account
of political considerations in the statements made by him on the
subject of the vote which takes place at the end of discussions,
these latter would become particularly difficult. The result
would be to encourage hypocrisy and mental reservations.
Moreover, discussion and political reasons of any kind may no
doubt decide a vote, but they do not necessarily do so. It is
possible that a Member may state certain views and that then,
convinced by the arguments of others, or for a political reason,
he may, when voting, be influenced by considerations quite different
from those he had put forward during the discussion.

Consequently, it is quite impossible to determine the reasons on
which a Member’s vote depends, for they are the subject of a
mental process that cannot be controlled. Asa result, seeing that
there is no rule of law obliging a Member to give reasons for his
vote, he is juridically entitled to vote according to his own opinion,
subject to what follows:

If the exercise of the right to vote is left to the discretion of
Members of the Council and of the Assembly, it must be emphasized
that this cannot upon any pretext authorize them to act arbi-
trarily. Any organization, and especially that of the United
Nations, is, as a general principle, founded on good faith. This
rule, which all States have bound themselves to observe when
signing the Charter (Article 2/2), requires that a Member shall fulfil
its obligations in accordance with the purposes of and in the inter-
ests of the Organization. This rule is assumed to have been
observed, failing proof to the contrary.

The work of a Court of Justice involves primarily the application
of rules of law to concrete cases. It follows that the first task of
the Court is to consider what are the concrete cases from which
the application for an opinion arises. That this should be the
Court’s procedure is the more evident from the fact that concrete
examples have been drawn to its attention in the documents supplied
by the Secretariat of the United Nations. These documents show
that there was only one case in which a Member expressly made
his vote dependent on the realization of a condition. It was in
regard to the admission of ex-enemy States. I shall come to this
later. In no other case was there a question of any conditions to

50
DISSENTING OPINION BY M. ZORICI¢ 104

which a vote was made subject, but rather of various elements
of appreciation such as might all, moreover, come within the class
of qualitics required in Article 4, paragraph 1.

In the light of the foregoing, I arrive at the following reply to
the first part.of the question :

A Member of the United Nations, which is called upon to vote,
is juridically entitled to make its vote depend on conditions not
expressly provided by paragraph r of Article 4 of the Charter.
This right is derived from :

(1) the supreme duty of the Security Council, i.e. the main
responsibility for the maintenance of peace and security. This
responsibility rests in particular on the permanent Members of the
Council, and the exercise of their political prerogatives is not
limited by Article 4, but only by the legal obligation to act in good
faith and in the interest of the Organization ;

(2) the discretionary right to vote without giving reasons for the
vote, and

(3) the nature of Article 4 of the Charter, which cannot be
considered as exhaustive, but on the contrary as only indicating
the minimum conditions, without the fulfilment of which a State
cannot be admitted.

IV.

I now come to the second part of the question put to the Court,
which is, in substance, whether a Member may subject its affirm-
ative vote on the admission of a State to the condition that other
States be admitted together with that State.

As I have already said, there is nothing in common between the
conditions in Article 4 and the condition that several States should
beadmitted together. Article 4 only concerns the qualities required
of a State for admission, whilst the candidate State has no influence
on the result of an application made to other Members of the
Security Council. The condition of simultaneous admission has
nothing to do with Article 4 of the Charter, but is a political matter
for States.

The Court has decided to give an answer to this question, and
to give it in an abstract way. This leads me to make the following
remarks :

Although the second question is an abstract one, it must evidently
relate to the only concrete case of this nature that has arisen,
namely to the discussion on the admission of ex-enemy States. This
discussion took place in the Security Council during the meetings
referred to in the recitals to the General Assembly’s Resolution of

SI
DISSENTING OPINION BY M. ZORIÉIC 105

November 17th, 1947. Consequently, however abstract the Court’s
reply may be, it will necessarily be understood as relating to this
case and will be interpreted as an indirect judgment on the action
of certain members of the Council. Moreover, this interpretation
will be given in complete ignorance of the exceptional circumstances
of the case and of the arguments then put forward.

It follows, in my view, that, having decided to give an answer,
the Court should have done so by dealing with the concrete case
from which the question arose ; especially as there are legal elements
in that case which, when separated from the political elements,
would permit of the giving of areply based on law. The facts were
as follows:

A permanent member of the Security Council had declared that
he would only vote for the admission of two ex-enemy States on
condition that the other members of the Council would undertake
to vote for the admission of the three other ex-enemy. States. This
was truly a condition, the only one that has ever been laid down ; a
previous proposal made by another permanent member, for the
simultaneous admission of several other States, contained no
condition and, in particular, did not make the admission of one
group depend on the admission of the other. The admission of the
ex-enemy States is thus the only case to which the request for an
opinion can refer,

The declaration of the member in question was founded on legal
arguments drawn from the Declaration of Potsdam and from the
peace treaties with the five ex-enemy States. These instruments
have been invoked on the ground that they contain an obligation
by the Signatory Powers to support the application for admission,
and it has been maintained that the Potsdam Declaration makes
a very clear distinction between the admission of the five ex-enemy
States and all other States.

The Court has not been asked to consider or interpret the provi-
sions in question, but I consider that the above facts cannot be
disregarded ; for the whole question depends on them. The
following considerations will serve to show the importance of these
facts :

(x) They show that the question relates to a special unpre-
cedented case, and one that cannot recur; it follows that the
‘question raised by this case cannot be treated in the abstract ; and

(2) they are decisive on the point whether, in the particular
case, the member who asked for the simultaneous admission of all
ex-enemy States was legally entitled to introduce this condition
into the debate, and to make his vote depend on it.

52
DISSENTING OPINION BY M. ZORICIÉ 106

The permanent member in question, rightly or wrongly, main-
tained its interpretation of the Declaration of Potsdam and of the
peace treaties. For that member, these instruments involved an
obligation on signatory States to support applications for admis-
sion. The Declaration of Potsdam and the treaties of peace were
subsequent to the Charter, and as such an obligation does not
conflict with those arising from the Charter (Art. 103 of Charter),
the member in question was entitled to rely on them.

It goes without saying that the co-signatories of these instru-
ments were free to accept this interpretation or not. What is
decisive, for the question before the Court, is not the correctness
of the interpretation made by that State, but the right of that
State to rely on it, in the same way as the other signatory States
were entitled to rely on their interpretation. This right is
guaranteed by the principle of the sovereign equality of States
which underlies the organization of the United Nations (Art. 2 of
Charter). It follows that the member in question was juridically
entitled to maintain its interpretation and therefore to call for
the simultaneous admission of the ex-enemy States.

(Signed) Zoritié.

53


                                                                                172

                           SEPARATE OPINION OF JUDGE BENNOUNA

                   Evolution of the customary rule of immunity — Change in the concept of sover‑
                eignty — Link between the law of international responsibility and jurisdictional
                immunity — Right to have access to justice — Exceptional circumstances allowing
                the lifting of immunity — Unity of international law — Mechanical conception of
                the judicial task.

                   1. Although I agree with the operative part of the Court’s Judgment,
                which finds that, in the context of its dispute with Germany, Italy vio-
                lated the latter’s jurisdictional immunity (Judgment, para. 139 (1)), I can-
                not, however, endorse the approach adopted by the Court, or support the
                logic of its reasoning.
                   2. As we know, the scope of the principle of State jurisdictional immu-
                nity has divided, and continues to divide, opinions among States, despite
                an emerging trend towards rapprochement, in the context of globalization.
                   3. Thus, starting from an absolute concept of sovereignty, States had
                inferred an equally absolute concept of immunity, which allowed one
                State to claim immunity from the jurisdiction of another’s courts under
                all circumstances.
                   4. However, a noticeable change in the concept of sovereignty, brought
                about by the diversification of international actors and by advances in
                international law, led a number of States to adapt and relativize their
                positions on jurisdictional immunity, essentially restricting it to acts of
                sovereignty (jure imperii), as opposed to private and commercial acts
                (jure gestionis). Nevertheless, the line between these two categories is not
                always easy to draw. Regarding the domestic laws, they are few in num-
                ber and far from being consistent, as the Court points out (ibid., para. 71) ;
                the same can be said of the case law of the various States, which means
                that the law of jurisdictional immunity still gives the impression of being
                a flag which covers all kinds of goods.

                   5. In practice, States have enacted legislation authorizing their courts
                to rule on certain activities by foreign States without necessarily basing
                themselves on international law governing immunity. Thus in 1996, the
                United States amended its legislation to enable its courts to entertain civil
                liability claims against foreign States designated by the United States
                Government as “sponsor[s] of terrorism” (United States of America, For-
                eign Sovereign Immunities Act 1976, 28 USC, Sec. 1605A). As a result,
                scholars have raised the question of the limits on the power of States to
                legislate in this area, in light of the customary rule of immunity.

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                  6. The situation is further complicated by the introduction, first in the
                1972 European Convention on State Immunity (Art. 11) and then in the
                2004 United Nations Convention on Jurisdictional Immunities of States
                and Their Property (Art. 12), of the so‑called “tort exception”, which
                makes no distinction between acts jure imperii and acts jure gestionis.
                Thus, that exception is intended to cover injuries to persons and property
                in the territory of the forum State irrespective of the aim or purpose of
                the activity in question.

                    7. Furthermore, the responsibility of the State is now indissociable
                from the exercise of its sovereign power. The State is responsible, first, for
                its own population, which it has a duty to protect, but it is also respon-
                sible for acts attributable to it, committed outside its territory and injur-
                ing the population of another country.
                    8. The fact that responsibility is thus indissociable from the exercise of
                sovereignty means that, when assuming responsibility, a State can justify
                its claim to immunity before foreign courts on the basis of the principle of
                sovereign equality. In other words, the granting of immunity by those
                courts can in no sense mean that the State concerned is exonerated from
                responsibility ; it merely defers consideration of that responsibility to
                other diplomatic or judicial bodies. Sovereign equality is only meaningful
                if it is accompanied by equality in terms of respect for international
                legality.
                    9. It should be emphasized that, when it arises in connection with
                 international crimes, as in the present dispute, the question of jurisdic-
                 tional immunity raises fundamental ethical and juridical problems for the
                 international community as a whole, which cannot be evaded simply by
                 characterizing immunity as a simple matter of procedure.

                   10. Furthermore, as the Court notes, Germany acknowledges the
                “untold suffering inflicted on Italian men and women in particular during
                massacres, and on former Italian military internees”, and that these were
                unlawful acts, engaging its responsibility (Judgment, para. 52). However,
                the Court is content to take the view that it is “a matter of surprise — and
                regret — that Germany decided to deny compensation to a group of vic-
                tims on the ground that they had been entitled to a status which, at the
                relevant time, Germany had refused to recognize” (ibid., para. 99).

                   11. In my view, the Court could not simply leave the matter there,
                whether in terms of principles or of the consequences to be drawn in this
                case. With respect to the principles, firstly, the Court had already clearly
                stated that “the State notifying a foreign court that judicial process should
                not proceed, for reasons of immunity, against its State organs, is assum-
                ing responsibility for any internationally wrongful act in issue committed
                by such organs” (Certain Questions of Mutual Assistance in Criminal Mat‑
                ters (Djibouti v. France), Judgment, I.C.J. Reports 2008, p. 244, para. 196).
                In this case, Germany invokes its immunity as a State on account of crim-

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                      jurisdictional immunities of the state (sep. op. bennouna)          174

                inal acts carried out by its organs and attributable to it ; and it must
                assume responsibility for these acts.

                   12. The resolution of the Institute of International Law, adopted at the
                2009 Naples Session, concerning “the Immunity from Jurisdiction of the
                State and of Persons Who Act on Behalf of the State in Case of Interna-
                tional Crimes” contains an Article (Art. II), entitled “Principles” that
                puts immunities in their context (first paragraph), which is not to evade
                the rules of international law, but to enable the courts to take account of
                the sovereign equality of States in the exercise of their respective jurisdic-
                tions :
                        “1. Immunities are conferred to ensure an orderly allocation and
                     exercise of jurisdiction in accordance with international law in
                     proceedings concerning States, to respect the sovereign equality of
                     States and to permit the effective performance of the functions of
                     persons who act on behalf of States.” (Annuaire de l’Institut de droit
                     international, Vol. 73, Naples Session (Italy), 2009.)

                   13. In this case, therefore, the Court should have observed that Ger-
                many, which recognizes the unlawfulness of the acts committed against
                the group of victims in question, in particular the former Italian military
                internees, including Mr. Luigi Ferrini, is obliged in principle to assume its
                responsibility for those acts, and that it is subject to that condition that
                Germany should enjoy immunity before the courts of the forum State.
                   14. Moreover, with respect to the consequences deriving from the prin-
                ciple of responsibility, the Court considers that
                     “the claims arising from the treatment of the Italian military intern-
                     ees . . ., together with other claims of Italian nationals which have
                     allegedly not been settled — and which formed the basis for the Ital-
                     ian proceedings — could be the subject of further negotiation involv-
                     ing the two States concerned, with a view to resolving the issue”
                     (Judgment, para. 104).
                In my view, rather than regarding this simply as a possible subject of
                negotiation, Germany should assume its international responsibility and,
                in consultation with Italy, supplement the measures it has taken since the
                Second World War, so as to cover the categories of victims excluded
                therefrom.
                   15. Thus, it is only in exceptional circumstances — when a State pre-
                sumed to be the author of unlawful acts rejects any engagement of its
                responsibility, in whatever form — that a State could lose the benefit of
                its immunity before the courts of the forum State. The right of the indi-
                viduals concerned to have access to justice in their own country would
                then take precedence, where the State in question had refused to submit
                to the fundamental principles of law — on which, moreover, it was itself
                relying.

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                    16. In my view, such exceptional circumstances cannot be ignored,
                 either by national or by international courts, and, were this to happen, it
                 would open the door to abuses with the potential to undermine the very
                 foundations of international legality.
                    17. Judges should always remain vigilant to ensure that ultimate prece-
                 dence is given to law and justice, as Rosalyn Higgins has recalled :

                        “An exception [sovereign immunity] to the normal rules of jurisdic-
                     tion should only be granted when international law requires — that
                     is to say, when it is consonant with justice and with the equitable
                     protection of the parties. It is not to be granted ‘as a right’.” (“Certain
                     Unresolved Aspects of the Law of State Immunity”, Netherlands
                     International Law Review, Vol. 29, 1982, p. 271.)
                    18. One would have expected the International Court of Justice to fol-
                 low that approach, which in recent decades has enabled the legal régime
                 governing jurisdictional immunity to evolve in a way which strikes an
                 equal balance between State sovereignties and the considerations of jus-
                 tice and equity operating within such sovereignties. The Westphalian con-
                 cept of sovereignty is thus gradually receding, as the individual takes
                 centre stage in the international legal system.

                    19. That evolution is in part reflected in the International Law Com-
                 mission’s work to codify the subject, and in the United Nations Conven-
                 tion on Jurisdictional Immunities of States and Their Property (adopted
                 by the United Nations General Assembly on 2 December 2004, resolu-
                 tion 59/38), but that is not to say that it is now frozen for evermore. That
                 is why it falls to the Court, when considering the cases submitted to it, to
                 revisit the concepts and norms debated before it and to indicate, if appro-
                 priate, any emerging new trends in their interpretation and in the determi-
                 nation of their scope.

                    20. While the Court does indeed recognize that the granting of juris-
                 dictional immunity to a State does not affect its international responsibil-
                 ity (Judgment, para. 100), it fails to draw any concrete conclusions from
                 that fact. Thus, it could have added that a State which flatly rejects any
                 engagement of responsibility on its part loses, by that rejection, the right
                 to claim immunity from jurisdiction.
                    21. Where immunity is claimed, it comes with an obligation : namely
                 that the State must assume its international responsibilities by appropri-
                 ate means. And I consider that, in respect of armed conflict, such means
                 include inter‑State negotiations, but on condition that such negotiations
                 are conducted on terms capable of covering the entirety of the situation
                 at issue.
                    22. This case is distinguished by certain specific features : Germany
                 admits its responsibility for the unlawful acts at issue before the Italian
                 courts ; and those acts took place, partly or entirely, on Italian territory.

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                      jurisdictional immunities of the state (sep. op. bennouna)         176

                Germany, however, claims jurisdictional immunity and has instituted
                proceedings against Italy before this Court on account of the latter’s vio-
                lations of its obligations in that regard. Finally, the individuals concerned
                have filed various claims, which have failed.
                   23. However, it is not sufficient to find that those persons have not
                been able to obtain satisfaction before either the German courts or before
                the European Court of Human Rights, and then to conclude that Ger-
                many has no obligation of reparation towards them. Such an obligation
                is the consequence of the internationally wrongful acts admitted by Ger-
                many and must be capable of being settled in an inter‑State context. It is
                thus an issue which remains outstanding between the two countries.

                   24. The requirement of exceptional circumstances in order for immu-
                nity to be lifted disposes of the argument that to allow any derogation of
                this kind is completely unrealistic, because it would open a Pandora’s box
                of individual claims for reparation by all victims of armed conflicts.

                   25. To my mind, if Germany were to close all doors to such settle-
                ment — and there is nothing to suggest that it will — then the question of
                lifting its immunity before foreign courts in respect of those same wrong-
                ful acts could legitimately be raised again. Thus, in finding that Italy has
                violated its obligation to respect Germany’s jurisdictional immunity, the
                Court did not intend in any way to obstruct the implementation of
                another fundamental norm of international law, namely the responsibility
                of States for internationally wrongful acts.

                   26. Thus, I voted in favour of the operative clause of the Judgment, on
                the basis of the nature of this case, which dates back to the Second World
                War, the efforts made by Germany since the end of that conflict, and its
                willingness to assume its responsibility in that regard, which mean that
                the exceptional circumstances to which I referred, and which allow for
                immunity to be lifted, would not appear to me to be present.
                   27. The Court cannot reject the so‑called “last resort” argument, as it
                does in paragraph 103 of the Judgment, on the pretext of the absence of
                any supporting State practice or jurisprudence. In fact, the Court, whose
                function is “to decide in accordance with international law such disputes
                as are submitted to it” (Article 38 of the Statute), must apply and inter-
                pret the norm at issue within its legal context, that is to say, taking
                account of the other rules of law which bind the Parties. Consequently, it
                is difficult to see how the law of State immunity can be applied and inter-
                preted without taking account of the impact of the law governing State
                responsibility. Especially if, before the domestic courts, it appeared, in
                limine litis, that the State responsible for the wrongful act has closed all
                doors to reparation.
                   28. It is by taking account of all those elements, and their mutually
                complementary nature, that the Court can help to ensure the unity of
                international law in the service of international justice. That primordial

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6 CIJ1031.indb 159                                                                              22/11/13 12:25

                      jurisdictional immunities of the state (sep. op. bennouna)          177

                function cannot be confined within a narrow, formalistic approach, which
                considers immunity alone, stricto sensu, without concern for the victims
                of international crimes seeking justice. It could be considered that an
                “interstitial norm”, as expressed by Vaughan Lowe (“The Politics of
                Law-making : Are the Method and Character of Norm Creation Chang-
                ing ? ”, in M. Byers, The Role of Law in International Politics : Essays in
                International Relations and International Law, Oxford University Press,
                2000, pp. 212‑221), would enable the establishment of a link between the
                law of immunities and the law of State responsibility. This could be done
                by invoking general principles of law, as the Court did in the Corfu Chan‑
                nel case, where it referred to “elementary considerations of humanity” as
                a link between human rights and international humanitarian law (Corfu
                Channel (United Kingdom v. Albania), Merits, Judgment, I.C.J. Reports
                1949, p. 22).

                   29. The Court has relied on a “mechanical” conception of the judicial
                task, according to which the national court rules on immunity as a pre-
                liminary issue, without considering “the specific circumstances of each
                case” (Judgment, para. 106). However, that is an illusion, for, in practice,
                it often happens that, in order to rule on the issue of immunity, and on
                the arguments for lifting immunity put forward by the claimant, the court
                has to examine the merits of the case. Thus, for example, when this Court
                determines that an objection to jurisdiction does not possess “an exclu-
                sively preliminary character”, it decides to rule on it only when it has
                examined the merits of the case of which it is seised.

                  30. We should, moreover, not lose sight of the fact that Italy may still
                espouse the cause of its nationals by exercising diplomatic protection on
                their behalf ; this institution represents the last resort or ultima ratio for
                the protection of internationally guaranteed human rights, as the Court
                recognized in the case concerning Ahmadou Sadio Diallo ((Republic of
                Guinea v. Democratic Republic of the Congo), Preliminary Objections,
                Judgment, I.C.J. Reports 2007 (II), p. 599, para. 39).

                   31. Lastly, I regret that the Court’s reasoning was not founded on the
                characteristics of contemporary international law, where immunity, as
                one element of a mechanism for the allocation of jurisdiction, could not
                be justified if it would ultimately pose an obstacle to the requirements of
                the justice owed to victims. Thus immunity is not a subjective right, in the
                strict sense, at the disposition of the State, but a possibility given to the
                latter not to be tried by foreign courts, according to whether the particu-
                lar circumstances of the case so permit.
                   32. The power of national courts to interpret and apply the law relat-
                ing to immunities remains complete, contrary to what is suggested by the
                Court in its Judgment (Judgment, para. 106). Where that power is exer-
                cised in limine litis, that does not preclude a national court from examin-
                ing all the facts of the case before it, when that is necessary in order to

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6 CIJ1031.indb 161                                                                               22/11/13 12:25

                      jurisdictional immunities of the state (sep. op. bennouna)          178

                determine whether or not the circumstances of the case permit the State
                to be accorded immunity.
                   33. The question remains, of course, whether a systematic State policy
                founded on the commission of international crimes, such as genocide or
                crimes against humanity, could be covered by immunity under the banner
                of sovereign acts (jure imperii). That question gives rise to another,
                namely, what authority would be in a position to distinguish between
                normal State functions and functions which should be categorized as
                international crimes, so as to exclude them from the privilege of immu-
                nity. On the other hand, if, as in this case, the criminal activity attribut-
                able to the State is well established and admitted, that State is required at
                some point to open appropriate channels to reparation, in order to avoid
                ultimately being tried by foreign courts.

                   34. This case plainly demonstrates the extent to which the immune sys-
                tem of a State is closely linked to the admission by the latter of its own
                breaches of international law. It was incumbent on the Court, in its ana
                lysis of international customary law, to note this trend, and to anticipate
                its impact on the formation of international law. The fact that few cases
                before national jurisdictions reflect this trend does not mean that it should
                be ignored by the Court.

                   35. The well‑established pre‑eminence of justice, whether criminal or
                civil, and the rule of law at the international level, also serves to discour-
                age leaders, acting in the name of their countries, from engaging in viola-
                tions of peremptory norms of law relating to the prevention and
                commission of international crimes. Care should be taken to ensure that
                such dissuasive function is not impaired by a backward‑looking approach
                to the immunity of the State and its representatives.

                                                         (Signed) Mohamed Bennouna.

                                                                                83

6 CIJ1031.indb 163                                                                               22/11/13 12:25


75

DISSENTING OPINION OF PRESIDENT KLAESTAD

Being unable to concur in essential parts of the Judgment,
I feel bound to express my divergent opinion. I shall deal with the
Preliminary Objections in the order which I consider appropriate.

I. In part (a) of its Fourth Preliminary Objection the Govern-
ment of the United States submits

“that there is no jurisdiction in this Court to hear or determine any
issues raised by the Swiss Application or Memorial concerning the
sale or disposition of the vested shares of General Aniline & Film
Corporation (including the passing of good and clear title to any
person or entity), for the reason that such sale or disposition has
been determined by the United States of America, pursuant to
paragraph (0) of the Conditions attached to this country’s acceptance
of this Court’s jurisdiction, to be a matter essentially within the
domestic jurisdiction of this country’.

This is the first time that the question of the validity of the
American Reservation (4), or a similar reservation, has been in
dispute between Parties to a case before the Court. It is the first
time the Court has had occasion to adjudicate upon it.

The question of a similar French reservation was discussed in
one Separate and two Dissenting Opinions appended to the Judg-
ment in the Norwegian Loans case. But the Court did not consider
and decide this question and was not in a position to do so, since
the question of the validity of the reservation was not in dispute
between the Parties, who had not laid it before the Court and had
not argued it.

A similar situation arose at the first stage of the present case
concerning a Swiss request for the indication of interim measures
of protection. The Co-Agent of the Swiss Government referred to
the question of the validity of the American Reservation (6), but
he did not expressly contend that it is invalid. As to this question
there did not at that time appear to exist any dispute which called
for the consideration of the Court.

But now, at the present stage of the case, this question is in
dispute between the Parties. The Government of the United States
has invoked the Reservation, the Swiss Government has challenged
its validity, and the United States Government has thereafter not
withdrawn the Objection invoking the Reservation, but on the
contrary expressly maintained it in its final Submissions presented
to the Court on November 6th of last year. It is true that the Agent
for the United States Government stated that this Preliminary

73
76 INTERHANDEL (DISS. OP. OF PRES. KLAESTAD)

Objection has become ‘‘somewhat academic”, or “‘somewhat moot”.
He explained that under Section 9 (a) of the United States Trading
with the Enemy Act, the Government of the United States is for-
bidden to sell vested property as long as a suit for its return is
pending before American courts, and he assured the Court that the
vested shares in the General Aniline and Film Corporation would
not be sold as long as the claim of Interhandel was pending before
American courts. (Oral Proceedings, November 5th, 6th and r4th.)
This does not, however, prevent the sale of these shares as soon as
this claim is finally decided by American courts. The Agent further
stated that the United States Government does not withdraw this
Preliminary Objection (¢bid., November 5th). And in his last address
to the Court he asserted that “condition () of our Declaration is
valid”, and he again re-affirmed part (a) of the Fourth Preliminary
Objection and asked the Court to adjudicate upon it (¢b¢d., Novem-
ber 14th). In such circumstances it is clear to me that the Court
must now consider the Reservation and adjudicate upon the Pre-
liminary Objection invoking it.

This Reservation provides that the United States Declaration
accepting the compulsory jurisdiction of the Court under Article 36,
paragraph 2, of the Statute shall not apply to:

“(b) disputes with regard to matters which are essentially within
the domestic jurisdiction of the United States of America as deter-
mined by the United States of America”.

Article 36, paragraph 6, of the Statute of the Court provides:

“In the event of a dispute as to whether the Court has jurisdiction,
the matter shall be settled by the decision of the Court.”

In other words: the American Reservation provides that the
matter shall be determined by the United States, while the Statute
provides that it shall be decided by the Court. This juxtaposition
of the two texts shows that the Reservation is in conflict with the
Statute, Article 36, paragraph 6.

Article 1 of the Statute provides that the Court ‘‘shall function
in accordance with the provisions of the present Statute’. The same
provision is inserted in Article 92 of the Charter of the United
Nations. The Court is therefore, both by its Statute and by the
Charter, prevented from applying that part of the clause which
reserves to the United States the determination of the matter. It
becomes impossible for the Court to act upon the words: “‘as deter-
mined by the United States of America”.

It may be asked whether the fact that the Court cannot act
upon these words which are in conflict with the Statute, also renders

74
77 INTERHANDEL (DISS. OP. OF PRES. KLAESTAD)

it impossible for the Court to give effect to the other parts of
the Declaration of Acceptance which are in accordance with the
Statute.

The view has been expressed that the Reservation is for various
reasons invalid and that this invalidity of the Reservation entails
the invalidity of the Declaration of Acceptance as a whole. The
necessary consequence of this view would be that the Government
of the United States could neither sue nor be sued in accordance
with the fundamental rule relating to the compulsory jurisdiction
of the Court; that Government could neither act as a claimant nor
become a defendant under Article 36, paragraph 2, of the Statute.
It would, in other words, find itself in the same legal situation as
States which have not submitted to the compulsory jurisdiction

of the Court. by filing Declarations of Acceptance under Article 36,
paragraph 2. Would such a consequence be in conformity with the
true intention of the competent authorities of the United States?

It has always been held by this Court as well as by the Permanent
Court of International Justice that the compulsory jurisdiction of
the Court depends on the will or intention of the Governments con-
cerned.

It appears from the debate in the United States Senate concern-
ing the acceptance of the compulsory jurisdiction of the Court,
reported in the Congressional Record for July 31st and August Ist
and 2nd, 1946, that fear was expressed lest the Court might
assume jurisdiction in matters which are essentially within the
domestic jurisdiction of the United States, particularly in matters
of immigration and the regulation of tariffs and duties and similar
matters. The navigation of the Panama Canal was also referred to.
Such were the considerations underlying the acceptance of Reser-
vation (b). It may be doubted whether the Senate was fully aware
of the possibility that this Reservation might entail the nullity of
the whole Declaration of Acceptance, leaving the United States in
the same legal situation with regard to the Court as States which have
filed no such Declarations. Would the Senate have accepted this
Reservation if it had been thought that the United States would
thereby place themselves in such a situation, taking back by means
of the Reservation what was otherwise given by the acceptance of
the Declaration? The debate in the Senate does not appear to
afford sufficient ground for such a supposition.

For my part, I am satisfied that, it was the true intention of
the competent authorities of the United States to issue a real and
effective Declaration accepting the compulsory jurisdiction of the
Court, though—it is true—with far-reaching exceptions. That
this view is not unfounded appears to be shown by the subsequent
attitude of the United States Government.

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78 INTERHANDEL (DISS. OP. OF PRES. KLAESTAD)

By various Applications filed in the Registry of the Court on
March 3rd, 1954, March 2gth, 1955, June 2nd, 1955, and August
22nd, 1958, the Government of the United States submitted claims
against Governments which had not filed any Declarations accept-
ing the compulsory jurisdiction of the Court under Article 36,
paragraph 2, of the Statute. In previous notes to these Governments
the United States Government had invited them to file such De-
clarations of Acceptance. It is difficult to believe that other Gov-
ernments would have been invited to do so if the Government of
the United States had not itself had the true intention of submitting
validly and effectively to the compulsory jurisdiction of the Court.

These considerations have led me to the conclusion that the
Court, both by its Statute and by the Charter, is prevented from
acting upon that part of the Reservation which is in conflict with
Article 36, paragraph 6, of the Statute, but that this circumstance
does not necessarily imply that it is impossible for the Court to
give effect to the other parts of the Declaration of Acceptance which
are in conformity with the Statute. Part (a) of the Fourth Prelim-
inary Objection should therefore in my view be rejected.

II. With regard to the First and Second Preliminary Objections,
I am in general agreement with the Court.

It should, however, be observed that the Court has not adjudi-
cated upon the controversial and, in the present case, disputed ques-
tion concerning the validity of Reservation (5) in the United States
Declaration of Acceptance. If that Reservation should be considered
as legally invalid, and if, as has been suggested, this invalidity
should entail the invalidity of the Declaration as a whole, the Court
would find itself without any valid American acceptance of its
jurisdiction under Article 36, paragraph 2, of the Statute. Without
the consent of the United States Government the Court would lack
power to act in the present dispute, and the question of adjudicating
upon the First and Second Preliminary Objections could not arise.
The legal situation would be similar to the situation which arises
when a claim is made against a State which has not filed any
Declaration under Article 36, paragraph 2, and which has not
otherwise submitted to the jurisdiction of the Court.

IIE. In its Third Preliminary Objection the United States Gov-
ernment challenges the jurisdiction of the Court on the ground that
Interhandel has not exhausted the local remedies available to it in
the United States courts.

The Court has held that an objection of this kind is not a plea to
the jurisdiction of the Court, but a plea to the admissibility of the
Application. Sharing this view I am further of the opinion that an
adjudication upon this Objection presupposes that the Court has
first established its jurisdiction, when that jurisdiction is challenged,

76
79 INTERHANDEL (DISS. OP. OF PRES. KLAESTAD)

as it is in the present case. This Objection is of a temporary and
relative character, dependent on the outcome of the lawsuit of
Interhandel in the United States courts. It is not, as are the absolute
objections to the jurisdiction of the Court, directed against that
jurisdiction, which in the present case is governed by Article 36,
paragraph 2, of the Statute, and the Swiss and United States
Declarations made thereunder. The true legal nature of this Prelim-
inary Objection becomes clear when it is considered that the dispute
may, under certain conditions and in a modified form, again be
submitted to the Court as soon as the remedy available to Inter-
handel in United States courts is finally exhausted.

For these reasons I consider that I shall have first to deal with
all of the Preliminary Objections to the jurisdiction. Only if I
should arrive at the conclusion that all of these Objections must
be rejected, will the question of the application of the local remedies
rule arise for me. This view is in accordance with the Order of June
27th, 1936, in the Losinger & Co. case, in which the Permanent Court
of International Justice held that an objection based on the local
remedies rule is an objection to the admissibility of the Application,
and that the Court will have to adjudicate upon that question i} ft
should assume jurisdiction.

IV. In part (8) of its Fourth Preliminary Objection, the United
States Government contends:

“that there is no jurisdiction in this Court to hear or determine
any issues raised by the Swiss Application or Memorial concerning
the seizure and retention of the vested shares of General Aniline
& Film Corporation, for the reason that such seizure and retention
are, according to international law, matters within the domestic
jurisdiction of the United States’’.

This is not, however, an accurate description of the dispute
submitted to the Court by the Swiss Application and Memorial.
That dispute relates to the alleged obligation of the United States
to restore assets of Interhandel in the United States and, alterna-
tively, to submit this dispute to arbitration or conciliation. What the
Court has to consider is whether that dispute, according to inter-
national law, relates to matters within the domestic jurisdiction of
the United States. I concur in the view of the Court that the dispute
relating to these questions involves matters of international law,
and that this Preliminary Objection should therefore be rejected.

It should, however, be observed that the Court has not adjudi-
cated upon the controversial and, in the present case, disputed
question concerning Reservation (}) and its relation to other parts
of the United States Declaration of Acceptance.

If this Reservation should be considered as legally valid, it is
difficult to see how it is possible for the Court to decide that the

77
80 INTERHANDEL (DISS. OP. OF PRES. KLAESTAD)

dispute relates to international law and not to matters within the
domestic jurisdiction of the United States, inasmuch as that ques-
tion, as a consequence of the invocation of the Reservation, is to
be determined by the United States and not by the Court, in so
far as “the sale or disposition of the vested shares of the General
Aniline & Film Corporation” is concerned.

If, on the other hand, the Reservation is to be considered as
invalid, and if this invalidity should, as has been suggested, entail
the invalidity of the Declaration of Acceptance as a whole, the
question of adjudicating upon this Preliminary Objection could not
arise. Without a valid Declaration accepting the Court’s compulsory
jurisdiction, the Court would lack jurisdiction to decide whether
the dispute is of domestic or international character.

These considerations show how necessary it would have been to
adjudicate upon part (a) of the Fourth Preliminary Objection before
adjudicating upon part (b} of that Objection.

V. Having found that all of the Preliminary Objections to the
jurisdiction of the Court must be rejected, I have now finally to deal
with the Third Preliminary Objection to the admissibility of the
Application, relating to the question of the exhaustion of the local
remedies available to Interhandel in the United States courts.

It is pointed out on behalf of the United States Government that
“the suit of Interhandel seeking a return of the stock is now being
actively litigated in the trial court of the United States”, and
“that there now exists the possibility that Interhandel may secure
a return of the stock in proceedings in the United States courts’’.
{Oral Proceedings, November 5th and 6th.)

The Swiss Government has, however, submitted that the claim
of Interhandel in the United States courts is based on the American
Trading with the Enemy Act, while the claim of the Swiss Govern-
ment submitted to this Court is based on the international Wash-
ington Accord. It is contended that the courts in the United States
must decide the claim of Interhandel on the basis of the Trading
with the Enemy Act, and that they are excluded from taking into
consideration the Washington Accord on which the claim of the
Swiss Government is based. If this contention is justified, it may
be asked whether the remedy available in the United States courts
is an effective remedy. The controversy which this question has
raised pertains, however, to the merits of the present dispute. It
cannot be decided at this preliminary stage of the proceedings
without prejudging the final solution.

The Swiss Government has further invoked the decision of
January 5th, 1948, rendered by the Swiss Authority of Review. It
contends that this decision should be assimilated to an international
arbitral award, and that the Court is, in fact, confronted with the

78
81 INTERHANDEL (DISS. OP. OF PRES. KLAESTAD)

question of the execution of such an international award having the
force of ves judicata between the Parties to the present dispute.
The Swiss Government asserts that the failure on the part of the
United States to execute this decision constitutes a direct breach
of international law causing damage directly to the Swiss State
itself. In the view of the Swiss Government the local remedies rule
is not applicable in such a case. In this connection the Swiss Gov-
ernment has referred to a number of questions which are in dispute
between the Parties, particularly with regard to the legal character
of the Swiss Authority of Review and of its decisions; with regard
to the interpretation of its decisions of January 5th, 1948; as to
the effect of that decision with regard to the disputed question
relating to the neutral or enemy character of Interhandel; as to the
direct or indirect consequence of that decision with regard to the
assets of Interhandel in the United States.

These various questions are parts of the merits of the dispute.
They do not only “touch” those merits; they go to their very roots.
These questions cannot in my opinion be determined at this pre-
liminary stage of the proceedings. Nor can it at present be decided
with a sufficient measure of certainty whether they are relevant or
irrelevant for the adjudication upon the Third Preliminary Objec-
tion. Only when the Court, after a regular procedure on the merits,
has obtained more complete information with regard to the facts
of the case and the legal views of the Parties, will the Court be in a
sufficiently safe position to determine whether this Swiss contention
is justified or not. The jurisprudence of the Permanent Court of
International Justice shows how cautiously that Court acted when,
in preliminary proceedings, it was confronted with similar questions.

The Swiss Government further contends that its claim also for
other reasons relates to an initial or direct breach of international
law, directly affecting established treaty rights of the Swiss State
under such circumstances that the United States have become
immediately responsible under international law. Reference is in
this respect particularly made to Article IV of the Washington
Accord, on which the Swiss Government bases its principal claim
for restitution. Reference is also made to the Washington Accord,
Article VI, and to the Treaty of Arbitration and Conciliation be-
tween Switzerland and the United States of 193r, on which the
Swiss Government bases its alternative claim relating to the alleged
obligation to submit the dispute to arbitration or conciliation.

The question whether this contention is justified or not, and
whether it would have the effect of dispensing the Swiss Govern-
ment from the observance of the rule relating to the exhaustion of
local remedies, can in my opinion only be adequately appraised
after a regular procedure dealing with the merits of the case.

79
82 INTERHANDEL (DISS. OP. OF PRES. KLAESTAD)

It may be added that the alternative Swiss claim relating to the
question whether the International Court of Justice is competent to
decide whether the dispute should be referred to arbitration or
conciliation, cannot in any case be determined by local courts in the
United States.

For these various reasons I consider that the Third Preliminary
Objection should be joined to the merits.

(Signed) Helge KLAESTAD.

80