SEPARATE OPINION OF JUDGE SIR GERALD FITZMAURICE

Although 1 entirely agree with the Judgrnent of the Court and the
reasoning and considerations on which it is based, there are in my
opinion certain factors which should additionally be brought out, or
further stressed.

President Sir Muhammad ZAFRULL KAHANmakes the following dcc-

laration :

1am in entire agreement with the Judgment of the Court. 1 consider it
needful, however, to append the following brief declaration.

The sole question before the Court in this phase of these proceedirigs
is whether, in viewof the cotnpromissory clause in the Exchaiige of Notes

95

DISSENTING OPINION OF JUDGE AD HOC MAVUNGU

[Translation]

Preliminary objections — Jurisdiction of the Court and admissibility of the

Application — Compromissory clauses — Necessary preconditions for seisin of
the Court — Existence of a dispute — Diplomatic negotiations — Recourse to
arbitration.

INTRODUCTION

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