86

SEPARATE OPINION OF JUDGE AD HOC DUGARD

Agreement with Judgment of the Court — Jus cogens has an important role
to play in litigation before the Court — Jus cogens is to be invoked as a guide
to the Court in the exercise of its judicial choice and not to overthrow a norm of
general international law accepted and recognized by the international commu-
nity of States as a whole — The argument that jus cogens confers jurisdiction

82

DECLARATION OF JUDGE ELARABY

Agreement with findings of the Court — Limitations of the international legal
system — Court precluded from the appropriate administration of justice —
Related cases based on different grounds of jurisdiction — Rwanda’s non-
recognition of the compulsory jurisdiction of the Court — Consensual nature of
the jurisdiction of the Court — Gravity of the situation in question –– Importance

of States’ acceptance of the compulsory jurisdiction of the Court.

77

SEPARATE OPINION OF JUDGE AL-KHASAWNEH

Court lacks jurisdiction — Doubts regarding element of reasoning regarding
prior negotiations — Court acknowledges protests —- At bilateral and multi-
lateral levels — Not in respect of interpretation or application of Convention on
Discrimination against Women — Multifaceted dispute — Not realistic to
expect reference to specific treaty in diplomatic negotiations — Much depends

73

DECLARATION OF JUDGE KOOIJMANS

Compromissory clause of Article 29, paragraph 1, of the Convention on the
Elimination of All Forms of Discrimination against Women — Condition of
prior diplomatic negotiations — Complaints by DRC in multilateral context as
attempts to negotiate — Explicit reference to Convention necessary? — Posi-
tion of the Court unduly restrictive.

65

JOINT SEPARATE OPINION OF JUDGES HIGGINS,
KOOIJMANS, ELARABY, OWADA AND SIMMA

55

DISSENTING OPINION OF JUDGE KOROMA

Article IX of the Genocide Convention applies not only to disputes as to the
interpretation or application of the Convention but also to disputes as to the ful-
filment of the Convention — Article IX envisions that disputes relating to the
responsibility of a State for genocide be submitted to the Court — Reservations
to a clause concerning dispute settlement are contrary to the object and purpose

D ISSENTING OPINION OF JUDGE AD HOC A RBOUR

Preliminary objection of Chile does not possess an exclusively preliminary character —
Bolivia inconsistent as to the subject-matter — If Bolivia alleged obligation of result then Court’s
jurisdiction would be precluded by Article VI of the Pact of Bogotá — Until merits argued, Court
not in a position to accurately identify subject-matter — Question of jurisdiction should have been

left to the merits.

I. NTRODUCTION

D ECLARATION OF JUDGE G AJA

1. In its Application (para. 32) and in the submissions included in its Memorial Bolivia
requested the Court to adjudge and declare that “Chile has the obligation to negotiate with Bolivia
in order to reach an agreement granting Bolivia a fully sovereign access to the Pacific Ocean”, that
this obligation has been breached and that it must be complied with. Thus, although the request put
the stress on negotiations, these are only a means for enabling Bolivia to acquire a sovereign access

SEPARATE OPINION OF JUDGE C ANÇADO T RINDADE

Table of Contents

Paragraphs

I. Prolegomena...........................................................................1-5.................................

II. Preliminary Objections and Merits: Reasoning in Search of Justice....................6-11.

III. Jurisdictional Basis and the Merits: Case-Law of the PCIJ and ICJ

D ECLARATION OF JUDGE B ENNOUNA

Options available under Article 79, paragraph 9, of the Rules — Approach to be adopted by
the Court with a view to the sound administration of justice — Exclusively preliminary character of
the objection.

I have felt it necessary, in this case, at the stage of the preliminary objection to jurisdiction
raised by Chile, to clarify the approach and role which the Court should adopt.

Under Article 79, paragraph 9, of the Rules of Court: