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[p.613]
The International Court of Justice,
Composed as above,
After deliberation,
Having regard to Article 26, paragraphs 2 and 3, Article 31 and Article 48
of the Statute of the Court, and to Articles 17, 18, 31, 35, 44, paragraphs
1 and 2, 46, paragraph 1, and 92, paragraph 1, of the Rules of Court,
Makes the following Order:
1. Whereas by a joint letter of 11 April 2002, filed in the Registry of the
Court on 3 May 2002, the Ambassadors of the Republic of Benin and of the
Republic of Niger transmitted to the Court a certified copy of a [p 614]
Special Agreement signed on 15 June 2001, and having entered into force on
11 April 2002, by which the Governments of those two States agreed to submit
to a Chamber of the Court a dispute concerning “the definitive delimitation
of the whole boundary between them”;
2. Whereas by the above-mentioned joint letter the Government of Benin
informed the Court of the appointment of H.E. Mr. Kolawolé A. Idji as Agent
and of H.E. Mr. Joseph H. Gnonlonfoun
as Co-Agent, and by the same letter the Government of Niger informed the
Court of the appointment of H.E. Ms Aïchatou Mindaoudou as Agent and of H.E.
Mr. Maty Elhadji Moussa as Co-Agent;
3. Whereas the Special Agreement provides in Article 1 for the submission of
the dispute to a Chamber to be formed pursuant to Article 26, paragraph 2,
of the Statute and for the choice of a
judge ad hoc by each Party, in accordance with Article 31 of the Statute;
4. Whereas on 2 July 2002 the Parties, having been duly consulted by the
President as to the composition of the proposed Chamber, indicated that they
desired the formation of a Chamber of
five members, of whom two would be the judges ad hoc to be chosen by them;
5. Whereas by a letter of 21 August 2002 the Deputy Agent of Benin notified
to the Court his Government’s choice of Mr. Mohamed Bennouna to sit as judge
ad hoc; and whereas the Agent of Niger, by a letter of 11 September 2002,
notified to the Court her Government’s choice of Mr. Mohammed Bedjaoui to
sit as judge ad hoc; and whereas no objection has been raised by either
Party to the choice of judge ad hoc made by the other, and no objection to
such choice has appeared to the Court itself;
6. Whereas in Article 3, paragraph 1 (a), of the Special Agreement the
Parties agree that the
written proceedings should start with the filing of a Memorial by each Party
not later than nine
months after the adoption by the Court of the Order constituting the
Chamber;
THE COURT,
Unanimously,
1. Decides to accede to the request of the Governments of the Republic of
Benin and the Republic of Niger that it should form a Special Chamber of
five judges to deal with the present case;
2. Declares that at an election held on 27 November 2002, President
Guillaume and Judges Ranjeva and Kooijmans were elected to form, together
with the above-named judges ad hoc, a Chamber to deal with this case and
that, accordingly, such a Chamber is duly constituted by the present Order,
with the following composition:
President Guillaume;
Judges Ranjeva,
Kooijmans;
Judges ad hoc Bedjaoui,
Bennouna;
[p 615]
3. Fixes 27 August 2003 as the time-limit for the filing of a Memorial by
each Party; and
Reserves the subsequent procedure for further decision.
Done in French and in English, the French text being authoritative, at the
Peace Palace, The Hague, this twenty-seventh day of November, two thousand
and two, in three copies, one of which will be placed in the archives of the
Court and the others transmitted to the Government of
the Republic of Benin and the Government of the Republic of Niger,
respectively.
(Signed) Gilbert GUILLAUME,
President.
(Signed) Philippe COUVREUR,
Registrar.
Judge ODA appends a declaration to the Order of the Court.
(Initialled) G. G.
(Initialled) Ph. C.
[p 616]
DECLARATION OF JUDGE ODA
While I voted in favour of the Order constituting a Chamber, I feel that it
is my duty, as the only judge now on the Bench who participated in the
deliberations on the constitution of all four previous Chambers in the
Court’s history, to make known my view that in order for an ad hoc Chamber
formed under Article 26 of the Statute ¾ an institution which is essentially
an arbitral tribunal ¾ to be constituted, it must be clear beyond all doubt
that the litigating parties have agreed, before the Court decides on the
constitution, not only as to the number of Chamber members but also as to
who they ought to be (see declaration of Judge Oda in the case concerning
the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras),
Constitution of Chamber, Order of 8 May 1987, I.C.J. Reports 1987, p. 13;
Oda, “Further Thoughts on the Chambers Procedure of the International Court
of Justice”, The American Journal of International Law, Vol. 82 (1988), p.
556).
(Signed) Shigeru ODA.
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