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[p.3]
The International Court of Justice,
Composed as above,
After deliberation,
Having regard to Articles 26, paragraph 2, 31 and 48 of the Statute of the
Court, and to Articles 17 and 18 of the Rules of Court,
Makes the following Order:
1. Whereas by a joint letter dated 25 November 1981, filed in the Registry
of the Court the same day, the Ambassador of Canada to the Netherlands and
the Ambassador of the United States of America to the Netherlands
transmitted to the Registrar a certified copy of a Special Agreement dated
29 March 1979, and subsequently modified, by which Canada and the United
States of America agreed to submit to a Chamber of the Court, to be
constituted pursuant to Article 26, paragraph 2, and Article 31 of the
Statute of the Court, a question as to the course of the single maritime
boundary that divides the continental shelf and fisheries zone of the two
Parties in the Gulf of Maine area; [p 4]
2. Whereas the said Special Agreement provided for its entry into force on
the date of entry into force of a Treaty between the Parties to Submit to
Binding Dispute Settlement the Delimitation of the Maritime Boundary in the
Gulf of Maine Area, signed on 29 March 1979 ; and whereas the Ambassadors of
Canada and the United States of America also enclosed with their letter to
the Registrar certified copies of the said Treaty and of the procès-verbal
of the exchange of instruments of ratification thereof, which took place at
Ottawa on 20 November 1981;
3. Whereas in the said letter, the two Ambassadors stated that Mr. Leonard
H. Legault had been appointed Agent of Canada for the purposes of the case,
and that Mr. Davis R. Robinson had been appointed Agent of the United States
for the purposes of the case;
4. Whereas the Special Agreement provides in Article I for the submission
of the dispute to "a Chamber of the International Court of Justice, composed
of five persons, to be constituted after consultation with the Parties,
pursuant to Article 26 (2) and Article 31 of the Statute of the Court and in
accordance with this Special Agreement";
5. Whereas the Parties have been duly consulted as to the composition of the
proposed Chamber of the Court in accordance with Article 26, paragraph 2, of
the Statute and Article 17, paragraph 2, of the Rules of Court;
6. Whereas in the said letter dated 25 November 1981 the two Ambassadors
notified the Court that, since the Court did not include upon the bench a
judge of Canadian nationality, the Government of Canada intended to choose a
judge ad hoc to sit in the case pursuant to Article 31, paragraph 2, of the
Statute of the Court;
7. Whereas the following letter was on 18 December 1981 transmitted to the
Agents of the two Parties by the Acting President of the Court:
"With reference to the meeting held in my office on Tuesday 15 December 1981
for the purpose of the consultation to ascertain the views of the Parties,
pursuant to Article 17, paragraph 2, of the Rules of Court, concerning the
composition of the Chamber the formation of which has been requested to hear
the case concerning the Delimitation of the Maritime Boundary in the Gulf
of Maine Area, I have to inform you that at a meeting held by the Court on
Wednesday 16 December 1981 I duly reported the ascertained views of the
Parties to the Court.
In the course of that meeting the Court proceeded to an examination of the
Special Agreement notified to the Court on 25 November 1981 by the
Governments of Canada and the United States of America, and the other
documents enclosed with the notification. Views were exchanged between the
Members of the Court and certain issues were raised by some of them
concerning problems which in their view might create difficulties,
particularly because of possible incompatibilities with the Statute and the
Rules of Court. Following the dis-[p 5]cussion, it was decided that I
should invite the Agents of both Parties to submit in writing to the Court
supplementary explanations or clarifications on the following points:
1. How in Article III of the Treaty of 29 March 1979 the reference to the
filling of vacancies on the Chamber 'in a manner acceptable to the Parties'
can be reconciled with the provisions of Article 26 of the Statute and of
Article 17, paragraph 3 (last sentence), and Article 18, paragraph 1, of the
Rules of Court.
2. Attention was drawn to the last sentence of Article I of the Treaty of 29
March 1979 and to Article VI, paragraph 1 (a), of the Special Agreement,
which refer to the notification of the name of the judge ad hoc as
determining the constitution of the Chamber and the date from which the
time-limit for the memorials to be submitted by the Parties be counted,
while a Chamber is established by the Court, and the notification of the
name of the judge ad hoc does not exhaust the requirements of Article 31 of
the Statute and Article 35 of the Rules of Court.
3. What relationship exists, in the view of the two Governments, between
Article II, paragraph 4, of the Special Agreement and Article 27 of the
Statute of the Court?
4. Is the effect of Article VII, paragraph 2, of the Special Agreement that
the decision of the Chamber (which under Article 27 of the Statute 'shall be
considered as rendered by the Court') will be subject to review by a 'third
party', so that it will be the decision of the 'third party' and not the
decision of the Court which will be regarded by the Parties as having
binding force, contrary to Articles 59 and 60 of the Statute?
It would be of assistance to the Court if your reply to the present letter
were to be available to it when it next meets around 13 January 1982 for
further consideration of the Special Agreement as well as of my report of
our meeting of 15 December."
8. Whereas on 8 January 1982 the following letter, dated 6 January 1982, was
received from the Ambassadors at The Hague of the two Parties:
"The parties to the case concerning the Delimitation of the Maritime
Boundary in the Gulf of Maine area respectfully submit the following
response to the four questions raised in your letter 67464 of December 18,
1981.
At the outset the parties wish to emphasize that they consulted informally
with the late President Sir Humphrey Waldock during the negotiation of the
Treaty of March 29, 1979 and the related Special Agreement, and incorporated
suggestions made by Sir Humphrey in order to ensure that the Treaty and
Special Agreement would be consistent in all respects with the Statute and
Rules of the Court. These consultations with the Court have continued in a
number of [p 6] meetings with you and the Registrar during the past year.
The parties consider that the Treaty and the Special Agreement are fully
consistent with the Statute and Rules of the Court, and reaffirm their
request that the proposed Chamber be constituted prior to the commencement
of the Terms of Office of those members of the Court elected in the
triennial election in 1981.
The questions and the answers thereto are as follows:
1. 'How in Article III of the Treaty of 29 March 1979 the reference to the
filling of vacancies on the Chamber "in a manner acceptable to the Parties"
can be reconciled with the provisions of Article 26 of the Statute and of
Article 17, paragraph 3 (last sentence), and Article 18, paragraph 1, of the
Rules of Court.'
Article III of the Treaty is wholly consistent with the Statute and Rules of
the Court. The parties have at all times expected that any vacancy on the
Chamber would be filled in accordance with the Statute and the Rules. The
procedures set forth in Articles 17 and 18 of the Rules provide for
ascertaining the views of the parties and for a subsequent election by the
Court in the case of a vacancy created by the absence of a member of the
Court not a national of either party. Article III of the Treaty in no way
interferes with the operation of these provisions. It simply specifies the
circumstances under which the parties may exercise their right to terminate
the Special Agreement and, pursuant to Article 88 of the Rules, to
discontinue the proceedings before the Court.
The parties note that the right of termination, as discussed above, is
provided for in the Treaty which was transmitted to the Court as background
information. Unlike the Special Agreement, the Treaty was not notified to
the Court pursuant to Article 40 of the Statute and thus does not call for
any action by the Court. In respect of the operation of Article III of the
Treaty, the parties contemplate that they would jointly request the
election of a member of the Court to fill any vacancy that might arise
among those Judges not nationals of either party and either party would have
the option of terminating the Special Agreement if the result of the
election was not in accordance with this joint request.
2. 'Attention was drawn to the last sentence of Article I of the Treaty of
29 March 1979 and to Article VI, paragraph 1 (a), of the Special Agreement,
which refer to the notification of the name of the judge ad hoc as
determining the constitution of the Chamber and the date from which the
time-limit for the memorials to be [p 7]
submitted by the parties be counted, while a Chamber is established by the
Court, and the notification of the name of the judge ad hoc does not exhaust
the requirements of Article 31 of the Statute and Article 35 of the Rules of
Court.'
The last sentence of Article I of the Treaty states that 'The Chamber...
shall be deemed to have been constituted when the Registrar of the Court has
been notified of the name or names of the judge or judges ad hoc'. The
purpose and practical effect of this language is to establish a reference
point for the calculation of the six-month period referred to in Article II
of the Treaty. This does not affect the Court's power to interpret and apply
the Statute and the Rules with respect to the establishment of the Chamber,
including Article 31 of the Statute and Article 35 of the Rules. Similarly,
Article VI, paragraph 1 (a), of the Special Agreement reflects an agreement
between the parties to request the Chamber to set a certain time-limit for
the filing of the Memorials. Such an agreement between the parties is
consistent with the Statute and the Rules and practice of the Court. The
date of notification of the name of the Judge ad hoc was selected by the
parties as a convenient formula to identify the time-limit to be requested.
This clause does not interfere with the operation of the Statute and the
Rules or, in particular, with the authority of the Court or the President to
fix time-limits for the filing of Memorials pursuant to Articles 44 and 92
of the Rules or such other provisions as may be relevant.
3. 'What relationship exists, in the view of the two Governments, between
Article II, paragraph 4, of the Special Agreement and Article 27 of the
Statute of the Court ?'
These provisions of the Statute and the Special Agreement are both
consistent and complementary. Under Article 27 of the Statute, the judgment
to be given by the Chamber 'shall be considered as rendered by the Court'.
Article II, paragraph 4, of the Special Agreement provides that the decision
of the Chamber rendered pursuant to the same Article — which according to
the Statute must be considered a judgment of the International Court of
Justice — shall be accepted as final and binding by the parties. The
relationship of the two provisions, therefore, is clear and unequivocal: the
decision of the Chamber under Article II of the Special Agreement shall be a
final and binding decision of the International Court of Justice. Although
Article II, paragraph 4, of the Special Agreement may not be necessary as a
legal matter (since the Statute already makes the decision of the Chamber
binding on the parties), this paragraph does serve to inform domestic
constituencies that may not be familiar with the Statute of the Court. [p 8]
4. 'Is the effect of Article VII, paragraph 2, of the Special Agreement
that the decision of the Chamber (which under Article 27 of the Statute
"shall be considered as rendered by the Court") will be subject to review by
a "third party", so that it will be the decision of the "third party" and
not the decision of the Court which will be regarded by the Parties as
having binding force, contrary to Articles 59 and 60 of the Statute ?'
The Special Agreement does not provide for any third party review of the
decision of the Chamber of the International Court of Justice. As provided
in Articles 27, 59 and 60 of the Statute, that decision is final and without
appeal.
Article VII of the Special Agreement concerns an entirely different matter,
namely, the possible future seaward extension of the boundary beyond the
segment drawn by the Chamber. Article II of the Special Agreement defines an
area within which the Chamber is asked to place the seaward limit of the
boundary to be drawn under that Article. Article VII envisages the
possibility of extending the boundary beyond that terminal point, either by
agreement of the parties or by recourse to third party settlement
procedures. Since the seaward extension would begin at the terminus of the
line drawn by the Chamber and would not alter that line in any way, there is
no inconsistency between Article VII of the Special Agreement and Articles
59 and 60 of the Statute."
9. Whereas the replies of the Parties to the request conveyed by the Acting
President for explanations and clarifications, which must be read together
with the Special Agreement for the purposes of this case, were considered by
the Court in further deliberation;
The Court,
by eleven votes to two,
In favour: Acting President Elias; Judges Forster, Gros, Lachs, Nagendra
Singh, Ruda, Mosler, Oda, Ago, Sette-Camara, Schwebel;
Against: Judges Morozov and El-Khani;
1. Decides to accede to the request of the Governments of Canada and the
United States of America to form a special Chamber of five judges to deal
with the present case;
2. Declares that at an election held on 15 January 1982 the following
Members of the Court were elected to the Chamber:
Judges Gros,
Ruda,
Mosler,
Ago,
Schwebel; [p 9]
3. Notes that the Acting President, in the exercise of his powers under
Article 31, paragraph 4, of the Statute of the Court, has requested Judge
Ruda to give place in due course to the judge ad hoc to be chosen by the
Government of Canada, and that Judge Ruda has indicated his readiness to do
so;
4. Declares a Chamber to deal with this case to have been duly constituted
by the present Order, with the composition indicated above.
Done in English and in French, the English text being authoritative, at the
Peace Palace, The Hague, this twentieth day of January, one thousand nine
hundred and eighty-two, in three copies, one of which will be placed in the
archives of the Court, and the others transmitted to the Government of
Canada and to the Government of the United States of America, respectively.
(Signed) T. O. Elias,
Acting President.
(Signed) Santiago Torres Bernerdez,
Registrar.
Judge Oda appends a declaration to the Order of the Court.
Judges Morozov and El-Khani append dissenting opinions to the Order of the
Court.
(Initialled) T. O. E.
(Initialled) S. T. B.
[p 10]
Declaration of judge Oda
While I voted in favour of the Order, it should in my view have been made
known that the Court, for reasons best known to itself, has approved the
composition of the Chamber entirely in accordance with the latest wishes of
the Parties as ascertained pursuant to Article 26, paragraph 2, of the
Statute and Article 17, paragraph 2, of the Rules of Court.
(Signed) Shigeru Oda.
[p 11]
Dissenting opinion of judge Morozov
In accordance with Article 26, paragraph 2, of the Statute, the Court may
create a Chamber for consideration of a particular case, and there is no
doubt that this is a discretionary right of the Court. In the course of
discussion of the matter in the Court I supported the view that, taking the
circumstances into account, it was reasonable that the whole matter be
considered by the Court as newly composed in February 1982. I did not object
to the positive decision of the Court in principle to establish the Chamber,
subject to the reservation that the election of the members of the Chamber
should be postponed until 6 February 1982. I maintain that reservation.
After rejection of my suggestion relating to the postponement of the
election, I did not participate in that election. In the course of the
general discussion I noted that, in substance, the Special Agreement between
the United States of America and Canada clearly took as point of departure
the erroneous presumption that, contrary to Article 26, paragraph 2, of the
Statute, the Parties who present a request to create a Chamber for
consideration of a particular case may not merely choose what should be the
number of the members of the Chamber, but also formally decide and propose
the names of the judges who should be elected by secret ballot, and even
present these proposals to the Court in the form of some kind of
"ultimatum". I was and remain unconvinced by the answers given to the Court
by the Ambassadors of the United States of America and Canada in their
letter to the Acting President of the Court of 6 January 1982, which
moreover only repeats and confirms the above-mentioned incorrect
presumption of the Parties that they may dictate to the Court who should be
elected.
In this situation, the sovereign right of the Court to carry out the
election independently of the wishes of the Parties, by secret ballot in
accordance with the provisions of the Statute and Rules of Court, becomes in
substance meaningless.
I have therefore voted against the Order as a whole. I continue to think
that the matter could have been successfully settled by the Court in
February 1982 in its new composition, which would not have been in
contradiction with Article II of the Treaty of 29 March 1979 between the
United States of America and Canada, since that Article provides that the
Parties are ready to wait six full calendar months for settlement of the
question (that is to say, until 19 May 1982).
(Signed) P. D. MOROZOV.
[p12]
Dissenting opinion of judge El-Khani
[Translation]
On 20 January 1982 the Court adopted an Order setting up, for the first
time, a Chamber in accordance with Article 26, paragraph 2, of the Statute.
This Chamber will be dealing with a particular case concerning the course of
the single maritime boundary in the Gulf of Maine between the areas of
continental shelf and fishing zones appertaining to Canada and the United
States of America.
On 25 November 1981 the two Parties' diplomatic representatives at The Hague
presented to the Registrar of the Court a document containing a Special
Agreement signed at Ottawa on 29 March 1979 between the Government of Canada
and the Government of the United States, a Treaty concluded between the two
countries on the same date and a Special Agreement, in the same terms as the
first, to submit the same question to a court of arbitration in the event
that the International Court of Justice did not accede to the request to
form the Chamber in question within the specified time and in the desired
manner. This document also comprised the instruments of ratification of the
Treaty and of the Special Agreements. An accompanying letter, signed by the
Ambassadors of the two countries, emphasized that this Chamber had to be
formed before the new members of the Court elected in the triennial election
entered upon their terms of office, that is to say, before 6 February 1982.
The representatives of the Parties, after having fixed the number of members
of the Chamber as five following talks with the President of the Court,
further insisted upon the Chamber having a particular composition and on the
identity of any replacements elected in case of vacancy being subject to
their approval, failing which they would withdraw the case and discontinue
the proceedings before the Court, sending the case to arbitration instead.
I find that the imposition of an unduly close time-limit for the Chamber's
formation and of a particular composition renders the Court no longer master
of its own acts, deprives it of its freedom of choice and is an obstacle to
the proper administration of justice. Furthermore it diminishes the prestige
of the Court and is harmful to its dignity as the principal judicial organ
of the United Nations. It results in its regionalization by depriving it of
its basic and essential characteristic of universality and produces the
indirect result of there being more than one judge of the same nationality
acting in the name of the Court, one in the Chamber and the other in the
Court, which does not correspond to the Statute. On these grounds I find
that this ought not to constitute a precedent, as it would be a dangerous
course to follow in the future.[p 13]
Having voted in favour of the Chamber being constituted, I would have
preferred the composition of this Chamber to have been referred to the Court
in the new composition it will have two weeks from now. That would have
enabled us to avoid the disadvantages I have mentioned above.
For these reasons I have voted against this Order.
(Signed) Abdallah El-Khani. |
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