Separate opinion of Judge Elaraby

1375

SEPARATE OPINION OF JUDGE ELARABY

The issue of FRY membership in the United Nations — Access to the Court
under Article 35, paragrap h 1 — Scope of reference in Article 35, paragraph 2,
to “treaties in force” — The Vienna Convention on Succession of States in
respect of Treaties — The Genocide Convention.

I. INTRODUCTORY R EMARKS

In addition to the joint declaration, which reflects my disagreement
with the grounds which led the Court to conclude that it had no jurisdic-

Separate opinion of Judge Kooijmans

1366

SEPARATE OPINION OF JUDGE KOOIJMANS

Reason for adding separate opinion to joint declaration — Issue of prima
facie jurisdiction in 1999 Orders on provisional measures — Position of Yugo-
slavia in period 1992-2000 not substantiated in Judgment — Implication for
other pending cases in which Applicant is party — Consistency with earlier case
law ignored by the Court.

Separate opinion of Judge Higgins

1359

SEPARATE OPINION OF JUDGE HIGGINS

Removal from the List other than for reasons of discontinuance — Inherent
powers of the Court — Inherent powers not limited to two existing examples —
Reasons why this case should have been removed from the List — Inappropriate
for Judgment to have pronounced on Article 35, paragraph 2, of Statute.

Declaration of Judge Koroma

1358

DECLARATION OF JUDGE KOROMA

While I concur with the Court’s findings in the operative paragraph of
the Judgment, I nevertheless consider it important to stress the following.
What the Court was asked to determine and has, in fact, ruled on
during this phase of the proceedings is the issue of jurisdiction.

Joint declaration of Vice-President Ranjeva, Judges Guillaume, Higgins, Kooijmans, Al Khasawneh, Buergenthal and Elaraby

1353

JOINT DECLARATION OF VICE-PRESIDENT RANJEVA,

JUDGES GUILLAUME, HIGGINS, KOOIJMANS,
AL-KHASAWNEH, BUERGENTHAL AND ELARABY

[English Original Text]

Various objections to the jurisdiction of the Court — Freedom of choice of
the Court — Guiding criteria: consistency; certitude; implications for the other
pending cases — Judgment of the Court inappropriately based on its lack of
jurisdiction ratione personae — Judgment incompatible with previous decisions
of the Court.

Dissenting Opinion of Judge Thierry (translation)

DISSENTING OPINION OF JUDGE THIERRY

[Translation]

To my deep regret 1 am unable to associate myself with the Court's
decision in the present caseconcerningthe ArbitralAwardof31July1989.
1hereby give the reasons for my dissent, which essentially relate to the
legalconsequences ofthe fact,explicitlyrecognizedby theCourt,thatthat
Award: "has not brought about a complete delimitation of the maritime
areas appertaining respectively to Guinea-Bissau and Senegal" (para-
graph 66of the Judgment of the Court).

Separate Opinion of Judge Shahabuddeen

SEPARATE OPINION OF JUDGE SHAHABUDDEEN

1agree with the decision reached by the Court. My thought is that, on
someaspects, itcould have beenstronger than itis.Onthe main issue asto
whetheithe Tribunal should have aniwered the secondquestionput to it
by the Arbitration Agreement, the Court sustains the Award on the
ground that, in holding that itwasnot competent to reply to that question,

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