doctype: rådgivande yttrande

identifier: ICJ 81 (Advisory opinion, 1989-12-15)

caseName: Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations

decisionType: advisory opinion

title: Advisory Opinion of 15 December 1989

text: International Covenant on Civil and Political Rights

text: INTERNATIONAL COURT OF JUSTICE

text: YEAR 1989 1989

text: 15 December General List

text: 15 December 1989 No. 81

text: APPLICABILITY OF ARTICLE VI, SECTION 22, OF THE CONVENTION ON THE PRIVILEGES AND IMMUNITIES OF THE UNITED NATIONS

text: Competence of the Court to give opinion requested - Article 96, paragraph 2, of United Nations Charter - Relevance of lack of consent of State concerned - Opinion requested on applicability of multilateral convention - Dispute settlement clauseproviding for decisive advisory opinion - Reservation to clause - No reference to clause in request for opinion and no intention to invoke it - Request based exclusively on Article 96 of Charter - Jurisdiction to entertain the request not affected by reservation.

text: Propriety of giving the opinion - Whether there is any compelling reason to decline - Whether reply would have effect of circumventing principle of consent.

text: Convention on the Privileges and Zmmunities of the United Nations - Article VI, Section 22 - Meaning of "experts on missions" - Applicability of Section to al1 missions including those not requiring travel - Applicability to experts in States of which they are nationals or on territory of which they reside.

text: Status of special rapporteurs of United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities - Competence of United Nations to decide on retention ofparticular rapporteur.

text: ADVISORY OPINION

text: Present: President RUDA; Judges LACHS, ELIAS, ODA, AGO, SCHWEBEL, Sir Robert JENNINGS, BEDJAOUI, NI, EVENSEN, TARASSOV, GUILLAUME, SHAHABUDDEEN, PATHAK; R ~ ~ ~ s ~ ~ ~ ~ V A L E N C I A - O S P I N A .

text: Concerning the applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations,

text: composed as above,

text: gives the following Advisory Opinion:

text: The question upon which the advisory opinion of the Court has been requested is contained in resolution 1989/75 of the United Nations Economic and Social Council (hereinafter called "the Council"), adopted on 24 May 1989. By a letter dated 1 June 1989, addressed by the Secretary-General of the United Nations to the President of the Court, filed in the Registry on 13 June 1989, the Secretary-General formally communicated to the Court the decision by which the Council submitted to the Court for an advisory opinion the question set out in that resolution. The resolution, certified true copies of the English and French texts of which were enclosed with the letter, was in the following terms :

text: "The Economic and Social Council, Having considered resolution 1988/37 of 1 September 1988 of the Sub-

text: Commission on Prevention of Discrimination and Protection of Minorities and Commission on Human Rights resolution 1989/37 of 6 March 1989,

text: 1. Concludes that a difference has arisen between the United Nations

text: and the Government of Romania as to the applicability of the Convention on the Privileges and Immunities of the United Nations to Mr. Dumitni Mazilu as Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities;

text: Requests, on a priority basis, pursuant to Article 96, paragraph 2, of

text: the Charter of the United Nations and in accordance with General Assembly resolution 89 (1) of 11 December 1946, an advisory opinion from the International Court of Justice on the legal question of the applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations in the case of Mr. Dumitru Mazilu as Special Rapporteur of the Sub-Commission." Also enclosed with the letter were details of the voting on the resolution and on an amendment to the draft thereof whereby the words "on a priority basis" were added in paragraph 2. 2. On 14 June 1989 the Registrar gave the notice of the request for an advisory opinion prescribed by Article 66, paragraph 1, of the Statute of the Court to al1 States entitled to appear before the Court.

text: By an Order dated 14 June 1989 the President of the Court decided that the United Nations and the States which are parties to the Convention on the Privileges and Immunities of the United Nations adopted by the United Nations General Assembly on 13 February 1946 (hereinafter called "the General Convention") were likely to be able to furnish information on the question, in accordance with Article 66, paragraph 2, of the Statute of the Court. The President, having regard to that paragraph, and considering that in fixing timelimits for the proceedings, it was "necessary to bear in mind that the request for opinion was expressed to be made 'on a priority basis"', fixed 31 July 1989 as the time-limit within which the Court would be prepared to receive written statements on the question and 31 August 1989 as the time-limit for written comments on written statements. On 14 June 1989 the Registrar addressed the special and direct communication provided for in Article 66, paragraph 2, of the Statute to the United Nations and to these States.

text: Written statements were submitted, within the time-limit so fixed, by the Secretary-General of the United Nations, and by Canada, the Federal Republic of Germany, the Socialist Republic of Romania and the United States of America. Written comments were submitted, within the relevant time-limit, by the United States of America. These statements and comments were communicated by the Registrar to the States to which he had sent the special and direct communication and to the United Nations.

text: The Secretary-General transmitted to the Court, pursuant to Article 65, paragraph 2, of the Statute, a dossier of documents likely to throw light upon the question; these documents were received in the Registry in instalments from 2 August 1989 onwards. 6 . The Court decided to hold hearings, opening on 4 October 1989, at which oral statements might be submitted to the Court by any State or organization which had been considered likely to be able to furnish information on the question before the Court.

text: Pursuant to Article 106 of the Rules of Court, the Court decided to make the written statements and comments submitted to the Court accessible to the public, with effect from the opening of the oral proceedings.

text: At public sittings held on 4 and 5 October 1989, oral statements were made before the Court by Mr. Carl-August Fleischhauer, the United Nations Legal Counsel, on behalf of the Secretary-General, and by Mr. Abraham Sofaer, Legal Adviser, Department of State, on behalf of the United States of America. None of the other States which had presented written statements expressed a desire to be heard. Questions were put by Members of the Court to the representative of the Secretary-General, and answered before the close of the oral proceedings.

text: Pursuant to Articles 55 (c) and 68 of the Charter of the United Nations, the Council, by resolution 5 (1) of 16 February 1946, supplemented on 18 February 1946, created a Commission on Human Rights (hereinafter called "the Commission"). I n 1947 the Commission in its turn set u p a Sub-Commission on Prevention of Discrimination and Protection of Minorities (hereinafter called "the Sub-Commission"), and in 1949 the Sub-Commission was given the following mandate :

text: "(a) to undertake studies, particularly in the light of the Universal Declaration of Human Rights and to make recommendations to the Commission on Human Rights concerning the prevention of discrimination of any kind relating to human rights and fundamental freedoms and the protection of racial, national, religious and linguistic minorities ; and

text: (b) to perform any other functions which may be entrusted to it

text: by the Economic and Social Council or the Commission on Human Rights".

text: On 13 March 1984 the Commission, upon nomination by Romania, elected Mr. Dumitru Mazilu, a Romanian national, to serve as a member of the Sub-Commission for a three-year term, due to expire on 3 1 December 1986. Pursuant to the Commission's resolution 1985/13 calling upon the Sub-Commission to pay due attention to the role of youth in the field of human rights, the Sub-Commission at its thirty-eighth session adopted on 29 August 1985 resolution 1985/12 whereby it requested Mr. Mazilu to

text: "prepare a report on human rights and youth analysing the efforts and measures for securing the implementation and enjoyment by youth of human rights, particularly, the right to life, education and w o r k

text: and requested the Secretary-General to provide him with al1 necessary assistance for the completion of his task. This report was to be submitted under an agenda item entitled "Promotion, protection and restoration of human rights at national, regional and international levels", at the thirtyninth session of the Sub-Commission scheduled for 1986.

text: The thirty-ninth session of the Sub-Commission, at which Mr. Mazilu's report was to be presented, was not convened in 1986 but was rescheduled for 1987. The three-year mandate of its members - originally due to expire on 3 1 December 1986 - was extended by Council decision 1987/102 for an additional year. When the thirty-ninth session of the Sub-Commission opened in Geneva on 10 August 1987 no report had been received from Mr. Mazilu, nor was he present. By a letter received by the United Nations Office at Geneva on 12 August 1987, the Permanent Mission of Romania to that Office informed it that Mr. Mazilu had suffered a heart attack and was still in hospital. In its written statement to the Court, Romania stated that Mr. Mazilu had fallen seriously ill in May 1987, and that at that time he had not yet begun to draw up the report entrusted to him. According to the written statement of the Secretary- General, a telegram was received in Geneva on 18 August 1987 signed "D. Mazilu" informing the Sub-Commission of his inability, due to heart illness, to attend the current session.

text: In these circumstances, the Sub-Commission adopted decision 1987/112 on 4 September 1987, whereby it deferred consideration of item 14 of its agenda - under which the report on human rights and youth was due to be discussed - to its fortieth session scheduled for 1988. Notwithstanding the scheduled expiration on 3 1 December 1987 of Mr. Mazilu's term as a member of the Sub-Commission, the latter included reference to a report to be submitted by him, identified by name, under the agenda item "Prevention of discrimination and protection of children", on the provisional agenda of its fortieth session, and entered the report under the title "Human rights and youth" in the "List of studies and reports under preparation by members of the Sub- Commission in accordance with the existing legislative authority".

text: After the thirty-ninth session of the Sub-Commission, the Centre for Human Rights of the United Nations Secretariat in Geneva made various attempts to contact Mr. Mazilu and to provide him with assistance in the preparation of his report, including arranging a visit to Geneva. Relevant information submitted by Governments, intergovernmental organizations and non-governmental organizations was sent to him on a regular basis. Having received from Mr. Mazilu two letters postmarked 25 and 29 December 1987, whereby he stated that he had not received the previous communications of the Centre, the Under-Secretary-General for Human Rights, in a telegram dated 19 January 1988 and addressed to the Acting Director of the United Nations Information Centre in Bucharest, requested the latter's assistance in facilitating Mr. Mazilu's work on his report by serving as a channel through which a ticket to Geneva would be provided to Mr. Mazilu; the Under-Secretary-General also asked that a formal invitation be communicated to Mr. Mazilu to come to the Centre for Human Rights for consultations.

text: In its written statement submitted to the Court, Romania stated that at Mr. Mazilu's request he had, from 1 December 1987, been put on the retired list as being unfit for service, and that in 1988 a medical commission, acting in accordance with current Romanian legislation, had re-examined Mr. Mazilu's state of health and decided to extend for a further one-year period his retirement on the grounds of continued unfitness for service. In a letter addressed to the Under-Secretary-General for Human Rights, handed on 15 January 1988 to the Acting Director of the United Nations Information Centre in Bucharest, Mr. Mazilu said that he had been twice in hospital, and that he had been forced to retire, as of 1 December 1987, from his various governmental posts. He stated that despite his willingness to come to Geneva for consultations, the Romanian authorities were refusing him a travel permit. In a series of letters dated 5 April, 19 April, 8 May and 17 May 1988, Mr. Mazilu further described his personal situation; in the first of these letters he alleged that he had refused to comply with a request addressed to him on 22 February 1988 by a special commission from the Romanian Ministry of Foreign Affairs voluntarily to decline to submit his report to the Sub-Commission. He consistently complained that strong pressure had been exerted on him and on his family.

text: On 31 December 1987 the terms of al1 members of the Sub- Commission, including Mr. Mazilu, expired (see paragraph 11 above).

text: On 29 Febniary 1988 the Commission, upon nomination by their respective Governments, elected new members of the Sub-Commission, among whom was Mr. Ion Diaconu, a Romanian national. In response to a letter from the Permanent Representative of Romania to the United Nations Office at Geneva, dated 27 June 1988, referring to an offerby Mr. Diaconu to prepare a report on human rights and youth, the Under-Secretary- General for Human Rights recalled on 1 July 1988 that Mr. Mazilu had been mandated by the Sub-Commission resolution 1985/12 to prepare the report on that subject, and stated that only the Sub-Commission or a superior body was competent to change the designation; the Secretary- General had therefore to act pursuant to the instructions given by the Sub- Commission in the said resolution "to provide al1 necessary assistance to Mr. Dumitni Mazilu for the completion of this t a s k .

text: Meanwhile, by a letter dated 6 May 1988 the Under-Secretary- General for Human Rights requested the assistance of the Permanent ' Representative of Romania to the United Nations Office at Geneva in transmitting to Mr. Mazilu al1 relevant information which had been submitted by Governments, specialized agencies and non-governmental organizations, and which was necessary for the completion of his report. By a letter of 15 June 1988, the Under-Secretary-General informed the Permanent Representative of Romania that, as an exceptional measure, he had decided to authorize a staff member of the Centre for Human Rights to travel to Bucharest for the purpose of working with Mr. Mazilu on his report, but only on the understanding that Mr. Mazilu would be enabled to present his report to the Sub-Commission in Geneva and to participate in the ensuing debate.

text: Al1 the rapporteurs and special rapporteurs of the Sub-Commission were invited to attend its fortieth session (8 August to 2 September 1988) and the meetings of its working groups; however Mr. Mazilu again did not appear. Following a discussion at the 2nd meeting, held on 9 August 1988, a special invitation was cabled to Mr. Mazilu to go to Geneva to present his report, but the relevant telegrams were not delivered, and the United Nations Information Centre in Bucharest was unable to locate Mr. Mazilu. During the debate at the 9th meeting, held on 15 August 1988, on the organization of work of the session, various members expressed their views about Mr. Mazilu's situation, and the Chairman stressed the two-fold aim of the Sub-Commission, namely, to ensure that the study entnisted to Mr. Mazilu be brought to a satisfactory conclusion, and to try to ensure its presentation by Mr. Mazilu in person.

text: At its 10th meeting, held on 15 August 1988, the Sub-Commission adopted decision 1988/102, whereby it requested the Secretary-General

text: "to establish contact with the Government of Romania and to bring to the Government's attention the Sub-Commission's urgent need to establish personal contact with its Special Rapporteur Mr. Dumitru Mazilu and to convey the request that the Govemment assist in locating Mr. Mazilu and facilitate a visit to him by a member of the Sub-Commission and the secretariat to help him in the completion of his study on human rights and youth if he so wished".

text: The Under-Secretary-General for Human Rights informed the Sub- Commission at its 14th meeting, held on 17 August 1988, that in contacts between the Secretary-General's Office and the Chargé d'affaires of the Romanian Permanent Mission to the United Nations in New York, the possibility of establishing contact with Mr. Mazilu was raised.

text: The Under-Secretary-General reported that in these contacts the Chargé d'affaires had stated that any intervention by the United Nations Secretariat and any form of investigation in Bucharest would be considered interference in Romania's internal affairs; the case of Mr. Mazilu was an internal matter between a citizen and his own Government and for that reason no visit to Mr. Mazilu would be allowed.

text: At its 32nd meeting, held on 30 August 1988, the Sub-Commission considered a draft resolution contemplating that an advisory opinion on the applicability of the General Convention to the case of Mr. Mazilu be sought from the Court; it had before it an opinion by the Office of Legal Affairs of the United Nations Secretariat on that question, and a further opinion was obtained from that Office on the legal implications of the reservation made by Romania to Section 30 (the disputes-settlement provision) of the General Convention.

text: The Sub-Commission on 1 September 1988 adopted by 16 votes to 4, with 3 abstentions, resolution 1988/37. Taking into account that

text: "if Mr. Mazilu should be unable for whatever personal reasons to complete and present himself the said report to the Sub-Commission, he should be given any possible assistance by the United Nations enabling him to complete his report, with such assistance, in Romania",

text: the Sub-Commission, according to the terms of the operative part,

text: "1. Requests the Secretary-General to approach once more the

text: Govemment of Romania and invoke the applicability of the Convention on the Privileges and Immunities of the United Nations, and request the Government to CO-operate fully in the implementation of the present resolution by ensuring that Mr. Mazilu's report be completed and presented to the Sub-Commission at the

text: earliest possible date, either by himself or in the manner indicated above ; 2. Further requests the Secretary-General, in the event the Government of Romania does not concur in the applicability of the provisions of the said Convention in the present case, and thus with the terms of the present resolution, to bring the difference between the United Nations and Romania immediately to the attention of the Commission on Human Rights at its forthcoming forty-fifth session in 1989;

text: 3. Requests the Commission on Human Rights, in the latter event,

text: to urge the Economic and Social Council to request, in accordance with General Assembly resolution 89 (1) of 11 December 1946, from the International Court of Justice an advisory opinion on the applicability of the relevant provisions of the Convention on the Privileges and Immunities of the United Nations to the present case and within the scope of the present resolution."

text: Pursuant to the foregoing resolution the Secretary-General on 26 October 1988 addressed a Note Verbale to the Permanent Representative of Romania to the United Nations in New York, in which he invoked the General Convention in respect of Mr. Mazilu and requested the Romanian Government to accord Mr. Mazilu the necessary facilities in order to enable him to complete his assigned task. As no reply had been received to that Note Verbale, the Under-Secretary-General for Human Rights on 19 December 1988 wrote a letter of reminder to the Permanent Representative of Romania to the United Nations Office at Geneva, in which he asked that the Romanian Government assist in arranging for Mr. Mazilu to visit Geneva so that he could discuss with the Centre for Human Rights the assistance it might give him in preparing his report.

text: On 6 January 1989 the Permanent Representative of Romania handed to the Legal Counsel of the United Nations an Aide-Mémoire in which was set forth the Romanian Government's position concerning Mr. Mazilu. On the facts of the case, Romania stated that Mr. Mazilu, who had not prepared or produced anything on the subject entrusted to him, had in 1987 become gravely ill with a serious heart condition and had had repeatedly to go into hospital over a period of several months. In November 1987, according to that Aide-Mémoire, he had "applied personally for disability retirement because of this condition, submitting appropriate medical certificates"; "in accordance with Romanian law, he was examined by a panel of doctors which decided to place him on the retired list on grounds of ill-health for an initial period of one year"; "at the end of the first year of his disability retirement, he was examined by a similar panel of doctors which decided to extend his retirement on grounds of ill-health".

text: On the law, Romania expressed the view in that Aide-Mémoire that "the problem of the application of the General Convention does not arise in this case": the Convention "does not equate rapporteurs, whose activities are only occasional, with experts on missions for the United Nations" ; and "even if rapporteurs are given some of the status of experts, . . . they can enjoy only functional immunities and privileges, that is, privileges connected with their activities for the United Nations, during the period of their mission, and then only in the countries in which they perform the mission and in countries of transit".

text: For Romania, it was obvious that "an expert does not enjoy privileges and immunities in the country in which he has his permanent residence but only in the country in which he is on mission and during the period of his mission. Likewise, the privileges and immunities provided by the Convention begin to apply only at the moment when the expert leaves on a journey connected with the performance of his mission." Moreover, "in the country of which he is a national and in countries other than the country to which he is sent on mission, an expert enjoys privileges and immunities only in respect of actual activities spoken or written which he performs in connection with his mission". Romania stated expressly that it was opposed to a request for advisory opinion from the Court of any kind in this case. Similar contentions were also put fonvard in the written statement presented by Romania to the Court in the present proceedings.

text: At the forty-fifth session of the Commission in 1989, the Secretary- General presented a Note "pursuant to paragraph 2 of resolution 1988/37 of the Sub-Commission" (see paragraph 21 above), to which was attached

text: his Note Verbale to the Romanian Government of 26 October 1988, and the Romanian Aide-Mémoire of 6 January 1989. The Commission adopted on 6 March 1989, by 26 votes to 5, with 12 abstentions, its resolution 1989/37 recommending that the Council request an advisory opinion

text: from the Court. The Council on 24 May 1989 adopted by 24 votes to 8,

text: with 19 abstentions, its resolution 1989/75 requesting an advisory opinion of the Court, as recommended in Commission resolution 1989/37, on the legal question of the applicability of Article VI, Section 22, of the General Convention in the case of Mr. Mazilu as Special Rapporteur of the Sub- Commission.

text: The Court has also been informed by the Secretary-General of the following events which have occurred since the request for advisory opinion was made. Areport on human rights and youth prepared by Mr. Mazilu was circulated as a document of the Sub-Commission bearing the date 10 July 1989; the text of this report had been transmitted by Mr. Mazilu to the Centre for Human Rights in several instalments through various channels. At a meeting held on 8 August 1989, the Sub-Commission decided, in accordance with its practice, to invite Mr. Mazilu to participate in the meetings at which his report was to be considered : no reply was received to the invitation extended. By a Note Verbale dated 15 August 1989 from the Permanent Mission of Romania to the United Nations Office at Geneva addressed to that Office, the Permanent Mission referred to "the so-called report" by Mr. Mazilu, expressed surprise "that the medical opinions made available to the Centre for Human Rights . . . have been ignored", and continued : "The fact that the Centre's administration has agreed, in these circumstances, to sponsor the publication of some of Mr. Mazilu's ideas and judgements under the auspices of the United Nations can only harm the standing and credibility of the Organization." In the view of Romania, "Obviously since becoming ill in 1987, Mr. Dumitru Mazilu does not possess the intellectual capacity necessary for making an objective, responsible and unbiased analysis that could serve as the substance of a report consistent with the requirements of the United Nations." At its 40th meeting held on 1 September 1989, the Sub-commission adopted, by 12 votes to 4 with 2 abstentions, resolution 1989/45 entitled "The report on human rights and youth prepared by Mr. Dumitru Mazilu". The Sub-Commission noted that Mr. Mazilu's report had been prepared in difficult circumstances and that the relevant information collected by the Secretary-General appeared not to have been delivered to Mr. Mazilu. The Sub-Commission inter alia requested Mr. Mazilu to update his report and invited him to present it in person to the Sub-Commission at its next session; it also requested the Secretary-General to continue to gather and furnish to Mr. Mazilu information relating to his study, and to provide Mr. Mazilu with al1 the assistance he might need in updating his report, including consultations with the Centre for Human Rights.

text: The question laid before the Court by the Council is, in the terms of the resolution requesting the advisory opinion (resolution 1989/75, entitled "Status of Special Rapporteurs"), "the legal question of the applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations in the case of Mr. Dumitru Mazilu as Special Rapporteur of the Sub- Commission [on the Prevention of Discrimination and the Protection of Minorities]". According to the written statement submitted to the Court by the Secretary-General, "It should . . . be noted that while the Court has been asked about the applicability of Section 22 of the Convention in the case of Mr. Mazilu, it has not been asked about the consequences of that applicability, that is about what privileges and immunities Mr. Mazilu might enjoy as a result of his status and whether or not these had been violated."

text: During the oral proceedings, the representative of the Secretary-General, when replying to a question put by a Member of the Court, obsemed that : "it is suggestive of the Council's intention in adopting the resolution to note that, having referred to a 'difference', it then did not attempt to have that difference as a whole resolved by the question it addressed to the Court. Rather . . . the Council merely addressed a preliminary legal question to the Court, which appears designed to clarify at most the general status of Mr. Mazilu in respect of the Convention, without resolving the entire issue that evidently separates the United Nations and the Government."

text: The present request for advisory opinion is the first request made by the Council, pursuant to paragraph 2 of Article 96 ofthe Charter. That paragraph provides that organs of the United Nations, other than the General Assembly and the Security Council, "which may at any time be so authorized by the General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities".

text: Such authorization in respect of the Council was given by General Assembly resolution 89 (1) of 11 December 1946. The question which is the subject of the request, involving as it does the interpretation of an international convention in order to determine its applicability, is a legal question. Furthermore it is one arising within the scope of the activities of the Council. As indicated in paragraph 10 above, Mr. Mazilu's assignment was pertinent to a function and programme of the Council. The Commission is a subsidiary organ of the Council, and the Sub- Commission, of which he was appointed special rapporteur, is in turn a subsidiary organ of the Commission. Accordingly, the request before the Court fulfils the conditions of Article 96, paragraph 2, of the Charter of the United Nations.

text: The Court has next to consider the contention of Romania, on the basis of the reservation made by it to Section 30 of the General Convention, that the Court "cannot find that it has jurisdiction to give an advisory opinion" in the present case. Section 30 of the General Convention provides :

text: "Al1 differences arising out of the interpretation or application of the present convention shall be referred to the International Court of Justice, unless in any case it is agreed by the parties to have recourse to another mode of settlement. If a difference arises between the United Nations on the one hand and a Member on the other hand, a request shall be made for an advisory opinion on any legal question involved in accordance with Article 96 of the Charter and Article 65 of the Statute of the Court. The opinion given by the Court shall be accepted as decisive by the parties."

text: Romania acceded to the General Convention, and its instrument of accession was deposited with the Secretary-General on 5 July 1956. The instrument of accession contained the following reservation :

text: "The Romanian People's Republic does not consider itself bound by the terms of section 30 of the Convention which provide for the compulsory jurisdiction of the International Court in differences arising out of the interpretation or application of the Convention; with respect to the competence of the International Court in such differences, the Romanian People's Republic takes the view that, for the purpose of the submission of any dispute whatsoever to the Court for a ruling, the consent of al1 the parties to the dispute is required in every individual case. This resewation is equally applicable to the provisions contained in the said section which stipulate that the advisory opinion of the International Court is to be accepted as decisive."

text: It is claimed by Romania that, because ofthe reservation made by it to Section 30, the United Nations cannot, without Romania's consent, submit a request for advisory opinion in respect of its difference with Romania. The reservation, it is said, subordinates the competence of the Court to "deal with any dispute that may have arisen between the United Nations and Romania, including a dispute within the framework of the advisory procedure," to the consent of the parties to the dispute. Romania points out that it did not agree that an opinion should be requested of the Court in the present case and concludes that the Court is without jurisdiction. 3 1. The jurisdiction of the Court under Article 96 of the Charter and Article 65 of the Statute, to give advisory opinions on legal questions, enables United Nations entities to seek guidance from the Court in order to conduct their activities in accordance with law. These opinions are advisory, not binding. As the opinions are intended for the guidance of the United Nations, the consent of States is not a condition precedent to the competence of the Court to give them. As the Court observed in 1950,

text: "The consent of States, parties to a dispute, is the basis of the Court's jurisdiction in contentious cases. The situation is different in regard to advisory proceedings even where the Request for an Opinion relates to a legal question actually pending between States. The Court's reply is only of an advisory character: as such, it has no binding force. It follows that no State, whether a Member of the United Nations or not, can prevent the giving of an Advisory Opinion which the United Nations considers to be desirable in order to obtain enlightenment as to the course of action it should take. The Court's Opinion is given not to the States, but to the organ which is entitled to request it; the reply of the Court, itself an 'organ of the United Nations', represents its participation in the activities of the Organization, and, in principle, should not be refused."

text: (Interpretation of Peace Treaties with Bulgaria, Hungaiy and Romania,

text: First Phase, Advisory Opinion, 1. C.J. Reports 1950, p. 7 1 .)

text: This reasoning is equally valid where it is suggested that a legal question is pending, not between two States, but between the United Nations and a member State.

text: Romania however relies on its r e s e ~ a t i o n to Section 30 of the General Convention; but that Section operates on a different plane and in a different context from that of Article 96 of the Charter. When the provisions of the Section are read in their totality, it is clear that their object is to provide a dispute settlement mechanism. The first sentence of the Section provides for the case where a difference arises out of the interpretation or application of the General Convention between States parties to it, and contains two elements. The first is the treaty obligation to refer the difference to the Court, unless another mode of settlement is decided upon by the parties; the second is the object of the reference to the Court, namely to settle the difference.

text: The United Nations is itself intimately, and for the most part directly, concerned with the operation of the General Convention. Section 30 was therefore so framed as to take in also the settlement of differences between the United Nations and a State party to the General Convention. If such a difference arises, "a request shall be made for an advisory opinion on any legal question involved in accordance with Article 96 of the Charter and Article 65 of the Statute of the Court. The opinion given by the Court shall be accepted as decisive by the parties."

text: This provision pursues the same intent as expressed in the first sentence of Section 30; the particular nature of the proceeding contemplated is attributable to the status as an international organization of one of the parties to the difference.

text: In case of a request for an advisory opinion made under Section 30, the Court would of course have to consider any resemation which a party to the dispute had made to that Section. In the particular case of Romania, the Court would have to consider whether the effect of its reservation could be to act as a bar to the operation of the procedure of request for advisory opinion, or merely to deprive any opinion given of the decisive effect attributed to such opinions by Section 30. But in the present case, the resolution requesting the advisory opinion made no reference to

text: Section 30, and it is evident from the dossier that, in view of the existence

text: of the Romanian reservation, it was not the intention of the Council to invoke Section 30. The request is not made under that Section, and the Court does not therefore need to determine the effect of the Romanian reservation to that provision.

text: Romania however contends that although the Council resolution 1989/75 dated 24 May 1989 does not allude to Section 30 of the General Convention as the basis of its request for advisory opinion, the question which it raises nevertheless relates to the applicability of a substantive provision of the General Convention "to a concrete case considered to be a dispute between a State party to the Convention and the United Nations". It argues that "If it were accepted that a State party to the Convention, or the United Nations, might ask for disputes concerning the application or interpretation of the Convention to be brought before the Court on a basis other than the provisions of Section 30 of the Convention, that would disrupt the unity of the Convention, by separating the substantive provisions from those relating to dispute settlement, which would be tantamount to a modification of the content and extent of the obligations entered into by States when they consented to be bound by the Convention." However, the nature and purpose of the present proceedings are, as explained above, that of a request for advice on the applicability of a part of the General Convention, and not the bringing of a dispute before the Court for determination. Furthermore, the "content and extent of the obligations entered into by States" - and, in particular, by Romania - "when they consented to be bound by the Convention" are not modified by the request and by the present advisory opinion.

text: The Court thus finds that the reservation made by Romania to Section 30 of the General Convention does not affect the Court's jurisdiction to entertain the present request.

text: While, however, the absence of the consent of Romania to the present proceedings can have no effect on the jurisdiction of the Court, it is a matter to be considered when examining the propriety of the Court giving an opinion. It is well settled in the Court's jurisprudence that when a request is made under Article 96 of the Charter by an organ of the United Nations or a specialized agency for an advisory opinion by way of guidance or enlightenment on a question of law, the Court should entertain the request and give its opinion unless there are "compelling

text: reasons" to the contrary. In the Western Sahara case the Court adverted

text: to a possible situation in which such a "compelling reason" might be

text: present. In that case, commenting on its observations in the Interpretation of Peace Treaties case, to the effect that its competence to give an opinion does not depend on the consent of the interested States, the Court obsewed :

text: "the Court recognized that lack of consent might constitute a ground for declining to give the opinion requested if, in the circumstances of a given case, considerations of judicial propriety should oblige the Court to refuse an opinion. In short, the consent of an interested State continues to be relevant, not for the Court's competence, but for the appreciation of the propriety of giving an opinion.

text: 33. In certain circumstances, therefore, the lack of consent of an interested State may render the giving of an advisory opinion incompatible with the Court's judicial character. An instance of this would

text: be when the circumstances disclose that to give a reply would have the effect of circumventing the principle that a State is not obliged to allow its disputes to be submitted to judicial settlement without its consent. If such a situation should arise, the powers of the Court under the discretion given to it by Article 65, paragraph 1, of the Statute, would afford sufficient legal means to ensure respect for

text: the fundamental principle of consent to jurisdiction." (Western

text: Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 25, paras. 32-33.)

text: In view of the emphasis placed by Romania on its reservation to Article 30 of the General Convention and the absence of its consent to the present request for advisory opinion, the Court must consider whether in this case "to give a reply would have the effect of circumventing the principle that a State is not obliged to allow its disputes to be submitted to judicial settlement without its consent". The Court considers that in the present case to give a reply would have no such effect. Certainly the Council, in its resolution requesting the opinion, did conclude that a difference had arisen between the United Nations and the Government of

text: Romania as to the applicability of the Convention to Mr. Dumitru Mazilu.

text: But this difference, and the question put to the Court in the light of it, are not to be confused with the dispute between the United Nations

text: and Romania with respect to the application of the General Convention

text: in the case of Mr. Mazilu.

text: In the present case, the Court thus does not find any compelling reason to refuse an advisory opinion. The Court will therefore proceed now to reply to the legal question on which such an opinion has been requested.

text: In order to determine the applicability of Article VI, Section 22, of the General Convention, to special rapporteurs of the Sub-Commission, and its applicability in the case of Mr. Dumitru Mazilu, the Court must first ascertain the meaning of that text.

text: According to Article 105, paragraph 1, of the Charter of the United Nations "The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes." Furthermore, according to Article 105, paragraph 2, "Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization." Lastly, Article 105, paragraph 3, States that the General Assembly "may propose conventions to the Members of the United Nations" with a view to determining the details of the application of paragraphs 1 and 2.

text: Acting in conformity with Article 105 of the Charter, the General Assembly approved the General Convention on 13 February 1946 and proposed it for accession by each Member of the United Nations. One hundred and twenty-four States, including Romania, are parties to the Convention.

text: As contemplated by Article 105 of the Charter, the General Convention determines the privileges and immunities enjoyed by the United Nations as such (Arts. II and III), lays down the privileges and immunities of the representatives of Members of the United Nations (Art. IV), and defines those of the officials of the Organization (Art. V). It contains in addition an Article VI entitled "Experts on Missions for the United Nations", divided into two Sections. Section 22 provides as follows :

text: "Experts (other than officials coming within the scope of Article V) performing missions for the United Nations shall be accorded such privileges and immunities as are necessary for the independent exercise of their functions during the period of their missions, including the time spent on journeys in connection with their missions. In particular they shall be accorded : (a) immunity from personal arrest or detention and from seizure of their personal baggage ;

text: (b) in respect of words spoken or written and acts done by them in the course of the performance of their mission, immunity from legal process of every kind. This immunity from legal process shall continue to be accorded notwithstanding that the persons concerned are no longer employed on missions for the United Nations ; (c) inviolability for al1 papers and documents;

text: (dj for the purpose of their communications with the United

text: Nations, the right to use codes and to receive papers or correspondence by courier or in sealed bags ; (e) the same facilities in respect of currency or exchange restrictions as are accorded to representatives of foreign governments on temporary official missions ;

text: (JI the same immunities and facilities in respect of their personal baggage as are accorded to diplomatic envoys."

text: Section 23 adds :

text: "Privileges and immunities are granted to experts in the interests of the United Nations and not for the personal benefit of the individuals themselves. The Secretary-General shall have the right and the duty to waive the immunity of any expert in any case where, in his opinion, the immunity would impede the course of justice and it can be waived without prejudice to the interests of the United Nations."

text: Finally, Article VII, Section 26, of the General Convention grants certain facilities to experts when travelling on the business of the Organization.

text: The Court will examine the applicability of Section 22 rationepersonae, ratione temporis and ratione loci, that is to Say it will consider first what is meant by "experts on missions" for the purposes of Section 22, and then the meaning to be attached to the expression "period of [the] missions", before considering the position of experts in their relations with the States of which they are nationals or on the territory of which they reside.

text: The General Convention gives no definition of "experts on missions". Al1 it does is to clarify two points, one negative and the other positive. From Section 22 it is clear, first that the officials of the Organization, even if chosen in consideration of their technical expertise in a particular field, are not included in the category of experts within the meaning of that provision; and secondly that only experts performing missions for the United Nations are covered by Section 22. The Section does not, however, furnish any indication of the nature, duration or place of these missions.

text: Nor is there really any guidance in this respect to be found in the travauxpréparatoires of the General Convention. The Convention was initially drafted and submitted to the General Assembly by the Preparatory

text: Commission set up at San Francisco in June 1945 ; that initial draft did not contain anything corresponding to the present Article VI. That article was added by the Sub-Commission on Privileges and Immunities established by the Sixth Committee to examine the draft, but the contemporary official records do not make it possible to ascertain the reasons for the addition.

text: The purpose of Section 22 is nevertheless evident, namely, to enable the United Nations to entrust missions to persons who do not have the status of an official of the Organization, and to guarantee them "such privileges and immunities as are necessary for the independent exercise of their functions". The experts thus appointed or elected may or may not be remunerated, may or may not have a contract, may be given a task requiring work over a lengthy period or a short time. The essence of the matter lies not in their administrative position but in the nature of their mission.

text: In practice, according to the information supplied by the Secretary- General, the United Nations has had occasion to entrust missions increasingly varied in nature - to persons not having the status of United Nations officiais. Such persons have been entrusted with mediation, with preparing reports, preparing studies, conducting investigations or finding and establishing facts. They have participated in certain peacekeeping forces, technical assistance work, and a multitude of other activities. In addition, many committees, commissions or similar bodies whose members serve, not as representatives of States, but in a personal capacity, have been set up within the Organization; for example the International Law Commission, the Advisory Committee on Administrative and Budgetary Questions, the International Civil Service Commission, the Human Rights Committee established for the implementation of the

text: , and various other committees of the same nature, such as the Committee on the Elimination of Racial Discrimination or the Committee on the Elimination of Al1 Forms of Discrimination Against Women. In al1 these cases, the practice of the United Nations shows that the persons so appointed, and in particular the members of these committees and commissions, have been

text: regarded as experts on missions within the meaning of Section 22.

text: According to that Section, experts enjoy the privileges and immunities therein provided for "during the period of their missions, including the time spent on journeys". The question thus arises whether experts are

text: covered by Section 22 only during missions requiring travel or whether

text: they are also covered when there is no such travel or apart from such travel. To answer this question, it is necessary to determine the meaning of

text: the word "mission" in French and "mission" in English, the two languages

text: in which the General Convention was adopted. Initially, in keeping with its Latin derivation, the word referred to a task entrusted to a person only if that person was sent somewhere to perform it. It implied a journey. The same connotation is apparent in the words, of the same derivation, "emissary", "missionary" and "missive". The French word "mission", and the English word "mission", have however long since acquired a broader meaning and nowadays embrace in general the tasks entrusted to a person, whether or not those tasks involve travel.

text: The Court considers that Section 22, in its reference to experts performing missions for the United Nations, uses the word "mission" in a general sense. While some experts have necessarily to travel in order to perform their tasks, others can perform them without having to travel. In either case, the intent of Section 22 is to ensure the independence of such experts in the interests of the Organization by according them the privileges and immunities necessary for the purpose. In some cases these privileges and immunities are designed to facilitate the travel of experts and their stay abroad, for instance those concerning seizure or searching of personal baggage. In other cases, however, they are of a far more general nature, particularly with respect to communications with the United Nations or the inviolability of papers and documents. Accordingly, Section 22 is applicable to every expert on mission, whether or not he travels.

text: The question whether experts on missions can invoke these privileges and immunities against the States of which they are nationals or on the territory of which they reside has also been raised. In this connection, the Court notes that Section 15 of the General Convention provides that the terms of Article IV, Sections 11, 12 and 13, relating to the representatives of Members "are not applicable as between a representative and the authorities of the State of which he is a national or of which he is or has been the representative". Article V, concerning officials of the Organization, and Article VI, concerning experts on missions for the United Nations, do not, however, contain any comparable rule. This difference of approach can readily be explained. The privileges and immunities of Articles V and VI are conferred with a view to ensuring the independence of international officials and experts in the interests of the Organization. This independence must be respected by al1 States including the State of nationality and the State of residence. Some States parties to the General Convention (Canada, the Lao People's Democratic Republic, Nepal, Thailand, Turkey and the United States of America) have indeed entered resemations to certain provisions of Article V, or of Article VI itself (Mexico and the United States of America), as regards their nationals or persons habitually resident on their territory. The very fact that it was felt necessary to make such reservations confirms the conclusion that, in the absence of such resemations, experts on missions enjoy the privileges and immunities provided for under the Convention in their relations with the States of which they are nationals or on the territory of which they reside.

text: To sum up, the Court takes the view that Section 22 of the General

text: Convention is applicable to persons (other than United Nations officiais) to whom a mission has been entrusted by the Organization and who are therefore entitled to enjoy the privileges and immunities provided for in this Section with a view to the independent exercise of their functions. During the whole period of such missions, experts enjoy these functional privileges and immunities whether or not they travel. They may be invoked as against the State of nationality or of residence unless a reservation to Section 22 of the General Convention has been validly made by that State.

text: In the light of the foregoing, the Court will now consider the situation of special rapporteurs of the Sub-Commission. This is a question which touches on the legal position of rapporteurs in general, a category of persons whom the United Nations and the specialized agencies find it necessary to engage for the implementation of increasingly varied functions, and is thus one of importance for the whole of the United Nations system.

text: The establishment in 1946 of the Commission, and the establishment in 1947 of the Sub-Commission and the definition in 1949 of its mandate, have been described in paragraph 9 above. On 28 March 1947, the Council decided that the Sub-Commission would be composed of 12 eminent persons, designated by name, subject to the consent of their respective national Governments. Subsequently the members of the ~ u b - ~ o m m i s s i o n , at present 25 in numbet were chosen by the Human Rights Commission under similar conditions, and the Council in resolution 1983/32 of 27 May 1983, expressly "recall[ed] . . . that members of the Sub-Commission are elected by the Commission on Human Rights as experts in their individual capacity", and concluded that their alternates should therefore be elected and should serve on the same basis. The members of the Sub-Commission, since their status is neither that of a representative of a member State nor that of a United Nations official, and since they perform independently for the United Nations functions contemplated in the remit of the Sub-Commission, must be regarded as experts on missions within the meaning of Section 22.

text: In accordance with the practice followed by many United Nations bodies, the Sub-Commission has from time to time appointed rapporteurs or special rapporteurs with the task of studying specified subjects. These rapporteurs or special rapporteurs are normally selected from among members of the Sub-Commission. However, over the past ten years, special rapporteurs have, on at least three occasions, been appointed from outside the Sub-Commission. Furthermore, in numerous cases, special rapporteurs appointed from among members of the Sub-Commission have completed their reports only after their membership of the Sub- Commission had expired. In any event, rapporteurs or special rapporteurs are entrusted by the Sub-Commission with a research mission. Their functions are diverse, since they have to compile, analyse and check the

text: existing documentation on the problem to be studied, prepare a report

text: making appropriate recommendations, and present the report to the Sub- Commission. Since their status is neither that of a representative of a member State nor that of a United Nations official, and since they carry out such research independently for the United Nations, they must be regarded as experts on missions within the meaning of Section 22, even in the event that they are not, or are no longer, members of the Sub- Commission. Consequently they enjoy, in accordance with Section 22, the privileges and immunities necessary for the exercise of their functions, and in particular for the establishment of any contacts which may be useful for the preparation, the drafting and the presentation of their reports to the Sub-Commission.

text: Having thus pronounced on the applicability of Section 22 to special rapporteurs of the Sub-Commission, the Court must now give its opinion on the question of the applicability of this provision in the case of Mr. Dumitru Mazilu.

text: As has been noted earlier (paragraph 10 above), Mr. Dumitru Mazilu was elected a member of the Sub-Commission on 13 March 1984. On 29 August 1985 the Sub-Commission requested him to prepare a report on human rights and youth. The mandate of Mr. Mazilu as a member of the Sub-Commission expired on 31 December 1987. On that date, the report requested on human rights and youth had not been submitted and Mr. Mazilu was retained as special rapporteur by decisions or resolutions of the Sub-Commission adopted on 4 September 1987, 15 August 1988 and 1 September 1988 (paragraphs 12, 18 and 21 above). The Sub-Commission subsequently received a report by Mr. Mazilu, which was published on 10 July 1989; and by its resolution 1989/45 of 1 September 1989 (paragraph 26 above), the Sub-Commission once again retained Mr. Mazilu as special rapporteur, and requested him to update his report in the light of, inter alia, the information collected for him by the Secretary-General. Thus from 13 March 1984 to 29 August 1985 Mr. Mazilu had the status of member of the Sub-Commission. From 29 August 1985 to 31 December 1987, he was both a member and a rapporteur of the Sub-Commission. Finally, although since the last-mentioned date he has no longer been a member of the Sub-Commission, he has remained one of its special rapporteurs. At no time during this period, therefore, has he ceased to have the status of an expert on mission within the meaning of Section 22, or ceased to be entitled to enjoy for the exercise of his functions the privileges and immunities provided for therein.

text: Doubt was nevertheless expressed by Romania whether Mr. Mazilu was capable of performing his task as special rapporteur. Romania emphasized that he had been taken seriously ill in May 1987, and had therefore been placed on the retired list pursuant to decisions taken by the competent medical practitioners, in accordance with the applicable Romanian legislation; according to the Romanian written statement, he was at that time still unable to cany out his mandate as special rapporteur. Mr. Mazilu himself informed the United Nations that the state of his health did not prevent him from preparing the report entrusted to him or from going for this purpose to the Centre for Human Rights in Geneva. When a report by Mr. Mazilu was circulated as a document of the Sub- Commission, Romania expressed the view that it was obvious that "since becoming ill in 1987, Mr. Dumitru Mazilu does not possess the intellectual capacity necessary" for the preparation of "a report consistent with the requirements of the United Nations" (paragraph 26 above).

text: It is not for the Court to pronounce on the state of Mr. Mazilu's health, or on its consequences on the work he has done or is to do for the Sub-Commission. It is sufficient for it to note, first that it was for the United Nations to decide whether in the circumstances it wished to retain Mr. Mazilu as special rapporteur, and secondly to take note that decisions to that effect have been taken by the Sub-Commission.

text: In these circumstances Mr. Mazilu continues to have the status of special rapporteur, and as a consequence must be regarded as an expert on mission within the meaning of Section 22 of the General Convention. That Section is accordingly applicable in the case of Mr. Mazilu.

text: 6 1. For these reasons,

text: Unanimously,

text: 1s of the opinion that Article VI, Section 22, of the Convention on the

text: Privileges and Immunities of the United Nations is applicable in the case of Mr. Dumitru Mazilu as a special rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities.

text: Done in French and in English, the French text being authoritative, at the Peace Palace, The Hague, this fifteenth day of December, one thousand nine hundred and eighty-nine, in two copies, one of which will be placed in the archives of the Court and the other transmitted to the Secretary-General of the United Nations. (Signed) José Maria RUDA, President. (Signed) Eduardo VALENCIA-OSPINA, Registrar.

text: Judges ODA, EVENSEN and SHAHABUDDEEN append separate opinions to the Advisory Opinion of the Court. (Znitialled) J.M.R. (Znitialled) E.V.O.

title: Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations


court: icj

doctype: beslut

caseName: Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal)

decisionType: order

procedure: Request for the Indication of Provisional Measures

publisher: International Court of Justice

reportsCitation: I.C.J. Reports 1990, p. 64

title: Order of 2 March 1990

text: INTERNATIONAL COURT OF JUSTICE

type: rubrik

text: 1990 YEAR 1990 2 March

type: stycke

text: General List

text: No. 82 2 March 1990

text: CASE CONCERNING THE ARBITRAL AWARD OF 31 JULY 1989

text: (GUINEA-BISSAU V. SENEGAL)

text: REQUEST FOR THE INDICATION OF PROVISIONAL MEASURES

text: ORDER

text: Present: President RUDA; Vice-President MBAYE; Judges LACHS, ELIAS, ODA, AGO, SCHWEBEL, Sir Robert JENNINGS, NI, EVENSEN, TARASSOV, GUILLAUME, SHAHABUDDEEN, PATHAK; Judge ad hoc THIERRY ; Registrar VALENCIA-OSPINA.

text: The International Court of Justice, Composed as above, After deliberation,

text: Makes the following Order:

text: Having regard to Articles 41 and 48 of the Statute of the Court and to Articles 73 and 74 of the Rules of Court,

text: Whereas by an Application filed in the Registry of the Court on

text: 23 August 1989 the Republic of Guinea-Bissau instituted proceedings

text: against the Republic of Senegal in respect of a dispute concerning the

text: existence and validity of the arbitral award delivered on 3 1 July 1989 by

text: the Arbitration Tribunal for the Determination of the Maritime Boundary between the two States:

text: Whereas on 23 August 1989 a copy of the Application was transmitted to the Republic of Senegal; whereas pursuant to Article 40, paragraph 3, of the Statute and Article 42 of the Rules of Court, copies of the Application were transmitted to Members of the United Nations through the Secretary-General and to other States entitled to appear before the Court; and whereas by an Order dated 1 November 1989 the Court fixed time-limits for the written proceedings in the case;

text: Whereas on 18 January 1990 a request was filed in the Registry whereby the Government of Guinea-Bissau, relying on Article 41 of the Statute of the Court and Article 74 of the Rules of Court, and on the ground of actions stated to have been taken by the Senegalese Navy in a maritime area which Guinea-Bissau regards as an area disputed between the Parties, requested the Court to indicate the following provisional measures :

text: "In order to safeguard the rights of each of the Parties, they shall abstain in the disputed area from any act or action of any kind whatever, during the whole duration of the proceedings until the decision is given by the Court";

text: Whereas the Agent of Senegal was on 18 January 1990 notified by telex of the filing of the request for provisional measures and on 19 January 1990 the text thereof was communicated to him by post;

text: Whereas pursuant to Article 31, paragraph 2, of the Statute, the Government of Guinea-Bissau chose Mr. Hubert Thierry to sit as judge ad hoc in the case;

text: Whereas the Parties were informed by communications dated 26 January 1990 that the Court would hold public hearings opening on 12 February 1990 to afford the Parties the opportunity of presenting their observations on the request for the indication of provisional measures;

text: Whereas by letter of 7 February 1990, received in the Registry on 9 February 1990, the Agent of Senegal presented to the Court written observations of Senegal on the request for the indication of provisional measures, containing the following submission:

text: "The Government of Senegal prays the Court, pursuant to Article 41 of its Statute and Article 73 of the Rules of Court, to declare inadmissible and subsidiarily to dismiss the request for provisional measures made by the Government of Guinea-Bissau";

text: Whereas at public hearings held on 12 February 1990 oral observations on the request for provisional measures were presented by the following representatives : on behalf of the Republic of Guinea-Bissau : H.E. Mr. Fidélis Cabral de Almada, Agent, Mrs. Monique Chemillier- Gendreau, Counsel, and Mr. Miguel Galvao Teles, Counsel; on behalf of the Republic of Senegal: H.E. Mr. Doudou Thiam, Agent, and Mr. D. W. Bowett, Co-Agent;

text: Whereas during the oral proceedings questions were put to the Parties by Members of the Court, and replies in writing, with documents in support, were subsequently transmitted to the Registry;

text: Whereas the events leading to the present proceedings are as follows : on 26 April1960 an agreement by exchange of letters was concluded between France and Portugal for the purpose of defining the maritime boundary between Senegal (at that time an autonomous State within the Communauté) and the Portuguese Province of Guinea; and whereas that

text: agreement adopted as the boundary line a straight line at 240" from the

text: intersection of the extension of the land frontier and the low-water mark, represented by the Cape Roxo lighthouse;

text: Whereas after the accession to independence of Senegal and Guinea-Bissau a dispute arose between them concerning the delimitation of their maritime territories, which was the subject of negotiations between them from 1977 onward; whereas on 12 March 1985 the Parties concluded an Arbitration Agreement for submission of that dispute to an Arbitration Tribunal; whereas Article 2 of the said Agreement provided that the following questions should be put to the Tribunal : "(1) Does the agreement concluded by an exchange of letters on 26 April 1960, and which relates to the maritime boundary, have the force of law in the relations between the Republic of Guinea-Bissau and the Republic of Senegal? (2) In the event of a negative answer to the first question, what is the course of the line delimiting the maritime territories appertaining to the Republic of Guinea-Bissau and the Republic of Senegal respectively ?" and whereas Article 9 of the Agreement provided that the decision of the Tribunal "shall include the drawing of the boundary line on a map";

text: Whereas the Arbitration Tribunal constituted under the Agreement pronounced on 31 July 1989, by two votes (including that of the President of the Tribunal) to one, an award of which the operative clause was as follows : "For the reasons stated above, the Tribunal decides. . . To reply as follows to the first question formulated in Article 2 of the Arbitration Agreement: The Agreement concluded by an exchange of letters on 26 April 1960, and relating to the maritime boundary, has the force of law in the relations between the Republic of Guinea-Bissau and the Republic of Senegal with regard solely to the areas mentioned in that Agreement, namely the territorial sea, the contiguous zone and the continental shelf. The 'straight line drawn at 240" ' is a loxodromic line" ; and whereas in that award the Tribunal also stated its conclusion that "it is not called upon to reply to the second question" in the Arbitration Agree-

text: ment, and that in view of its decision it "has not thought it necessary to append a map showing the course of the boundary line";

text: Whereas the President of the Arbitration Tribunal appended a declaration to the award; and whereas in the view of Guinea-Bissau it was "clearly apparent" that the position adopted by the President in that declaration was "incompatible with the position which he has endorsed by his vote in favour of the 'award' and which had given the appearance of a majority" ; whereas Guinea-Bissau accordingly considers that "there was in fact no majority within the Tribunal";

text: Whereas Guinea-Bissau contends in its Application to the Court that "A new dispute thus came into existence, relating to the applicability of the text issued by way of award on 3 1 July 1989"; whereas that dispute was brought before the Court by the above-mentioned Application, in which Guinea-Bissau requests the Court, in respect of the decision of the Arbitration Tribunal, to adjudge and declare : "- that that so-called decision is inexistent in view of the fact that one of the two arbitrators making up the appearance of a majority in favour of the text of the 'award', has, by a declaration appended to it, expressed a view in contradiction with the one apparently adopted by the vote; - subsidiarily, that that so-called decision is null and void, as the Tribunal did not give a complete answer to the two-fold question raised by the Agreement and so did not arrive at a single delimitation line duly recorded on a map, and as it has not given the reasons for the restrictions thus improperly placed upon its jurisdiction; - that the Government of Senegal is thus not justified in seeking to require the Government of Guinea-Bissau to apply the so-called award of 3 1 July 1989";

text: Whereas Guinea-Bissau explains in its request for the indication of provisional measures that that request was prompted by

text: "acts of sovereignty by Senegal which prejudge both the judgment on the merits to be given by the Court and the maritime delimitation to be effected subsequently between the States"; whereas the acts complained of by Guinea-Bissau, and alleged to have occurred in a "disputed area", are as follows : on 9 October 1989 a fishing vessel of Japanese registry, the Hoyo Maru No. 8, holding a licence issued by the authorities of Guinea-Bissau to fish in the exclusive economic zone of Guinea-Bissau, was boarded by the Senegalese Navy in a position corresponding to geographical CO-ordinates 12" 01' North and 17" 31' West, and escorted to a Senegalese port; legal proceedings were taken, for breach of Senegalese fishing regulations, and the vessel was released on payment of 90 million CFA francs ; on 9 November 1989 a fishing vessel of

text: Chinese registry, the Yan Yu 625, holding a similar fishing licence issued

text: by Guinea-Bissau, was similarly boarded at 12" 08' North and 17" 04' West, and escorted to a Senegalese port; legal proceedings were taken, and the vessel subsequently released on payment of 50 million CFA francs ;

text: Whereas Senegal has confirmed that these incidents occurred, and States that if the area where the incidents occumed was "the maritime area that is under Senegal's jurisdiction by virtue of the agreement of 1960 (that is to Say, the territorial sea, the contiguous zone and the continental shelf)", Senegal relied on a presumption of validity of the award;

text: Whereas after the close of the oral proceedings the Agent of Guinea-Bissau, by a letter of 13 February 1990, stated that a further incident took place on 18 December 1989, when the vessel of Chinese registry Yuan Yu 1 was boarded by the Senegalese Navy at a position (12" 07' 67" North, 17" 03' 65" West) stated to be to the south of the 240" line from Cape Roxo, and therefore, in the view of Guinea-Bissau not in the disputed area, and in an area undisputedly within the jurisdiction of Guinea-Bissau;

text: Whereas according to information supplied to the Court by both Parties, on 1 January 1990 the authorities of Guinea-Bissau arrested four fishing vessels of Senegalese registry in the area regarded by Guinea-Bissau as the disputed area, at positions 12" 14' 06" North, 17" 09' 97" West; 12" 14' 69" North, 17" 10' 07" West; 12" 15' 06" North, 17" 09' 33" West; and 12" 12' 74" North, 17" 11' 71" West; whereas Guinea-Bissau alleges that the captains ofthese vessels stated to the authorities of Guinea-Bissau that the authorities of Senegal had authorized and even encouraged them to fish in the area, which was regarded by Senegal as appertaining to it;

text: Whereas the Republic of Guinea-Bissau claims to found the jurisdiction of the Court to entertain the present case upon declarations made by the Parties accepting the compulsory jurisdiction of the Court under Article 36, paragraph 2, of the Statute of the Court; and whereas such declarations were made, by the Republic of Senegal on 22 October 1985, deposited with the Secretary-General of the United Nations on 2 December 1985, and by the Republic of Guinea-Bissau on 7 August 1989, deposited the same day with the Secretary-General of the United Nations; whereas the declaration made by Guinea-Bissau is without reservations, while the declaration of Senegal is subject to reservations, but Guinea- Bissau contends that none of them is relevant to the present dispute;

text: Whereas on a request for provisional measures the Court need not, before deciding whether or not to indicate them, finally satisfy itself that it has jurisdiction on the merits of the case, yet it ought not to indicate such

text: measures unless the provisions invoked by the Applicant appear, prima facie, to afford a basis on which the jurisdiction of the Court might be founded;

text: Whereas the Court takes note of the statement made at the hearing by the Agent of Senegal that Senegal makes every reservation at this stage as to the jurisdiction of the Court with respect to the substance of the Application, and the statement of the Co-Agent of Senegal that it is not satisfied that the Court has jurisdiction to entertain the main Application, but does not wish to broach the issue of jurisdiction over the main Application at this stage; and whereas Senegal, while contending that the Court should decline to indicate provisional measures, has accordingly not based that contention on the ground of lack ofjurisdiction on the merits of the case:

text: Whereas the Court considers that the two declarations made under Article 36, paragraph 2, of the Statute appear, prima facie, to afford a basis on which the jurisdiction of the Court might be founded;

text: Whereas the decision given in the present proceedings in no way prejudges the question of the jurisdiction of the Court to deal with the merits of the case or any questions relating to the merits themselves and leaves unaffected the right of the Respondent to submit arguments against such jurisdiction or in respect of such merits;

text: Whereas Guinea-Bissau has requested the Court to exercise in the present proceedings the power conferred upon it by Article 41 of the Statute of the Court "to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party" ; whereas the purpose of exercising this power is to protect "rights which are the subject of dispute in judicial proceedings"

text: (Aegean Sea Continental SheK I.C.J. Reports 1976, p. 9, para. 25; Diplomatic and Consular Staff in Tehran, Z.C.J. Reports 1979, p. 19, para. 36); whereas such measures are provisional and indicated "pending the final decision" (Article 41, paragraph 2, of the Statute); and whereas therefore they are to be measures such that they will no longer be required as such once the dispute over those rights has been resolved by the Court's judgment on the merits of the case;

text: Whereas Guinea-Bissau recognizes in its Application that the dispute of which it has seised the Court is not the dispute over maritime delimitation brought before the Arbitration Tribunal, but a "new dispute . . . relating to the applicability of the text issued by way of award of 3 1 July 1989"; whereas however it has been argued by Guinea-Bissau that provisional measures may be requested, in the context of judicial proceedings on a subsidiary dispute, to protect rights in issue in the underlying dispute; that the only link essential for the admissibility of measures is the link between the measures contemplated and the conflict of interests

text: underlying the question or questions put to the Court, - that conflict of interests in the present case being the conflict over maritime delimitation, - and that this is so whether the Court is seised of a main dispute or of a subsidiary dispute, a fundamental dispute or a secondary dispute, on the sole condition that the decision by the Court on the questions of substance which are submitted to it be a necessary prerequisite for the settlement of the conflict of interests to which the measures relate; whereas in the present case Guinea-Bissau claims that the basic dispute concerns the conflicting claims of the Parties to control, exploration and exploitation of maritime areas, and that the purpose of the measures requested is to preserve the integrity of the maritime area concerned, and that the required relationship between the provisional measures requested by Guinea-Bissau and the case before the Court is present;

text: Whereas the Application instituting proceedings asks the Court to declare the 1989 award to be "inexistent" or, subsidiarily, "null and void", and to declare "that the Government of Senegal is thus not justified in seeking to require the Govemment of Guinea-Bissau to apply the socalled award of 31 July 1989"; whereas the Application thus asks the Court to pass upon the existence and validity of the award but does not ask the Court to pass upon the respective rights of the Parties in the maritime areas in question; whereas accordingly the alleged rights sought to be made the subject of provisional measures are not the subject of the proceedings before the Court on the merits of the case; and whereas any such measures could not be subsumed by the Court's judgment on the merits ;

text: Whereas moreover a decision of the Court that the award is inexistent or null and void would in no way entail any decision that the Applicant's claims in respect of the disputed maritime delimitation are well founded, in whole or in part; and whereas the dispute over those claims will therefore not be resolved by the Court's judgment;

text: Accordingly,

text: by fourteen votes to one,

text: Dismisses the request of the Republic of Guinea-Bissau, filed in the

text: Registry on 18 January 1990, for the indication of provisional measures.

text: IN FAVOUR : President Ruda; Vice-President Mbaye; Judges Lachs, Elias, Oda, Ago, Schwebel, Sir Robert Jennings, Ni, Evensen, Tarassov, Guillaume, Shahabuddeen, Pathak; AGAINST : Judge ad hoc Thierry.

text: Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this second day of March, one thousand nine hundred and ninety, in three copies, one of which will be placed in

text: the archives of the Court and the others transmitted to the Government of the Republic of Guinea-Bissau and the Government of the Republic of Senegal, respectively.

text: (Signed) José Maria RUDA,

text: President.

text: (Signed) Eduardo VALENCIA-OSPINA,

text: Registrar.

text: Judges E V E N ~ E N and SHAHABUDDEEN append separate opinions to the Order of the Court.

text: Judge ad OS THIERRY appends a dissenting opinion to the Order of the Court.

text: (Initialled) J.M.R. (Initialled) E.V.O.

type: avgorande